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Lopez v. EC Tree, LLC

CASE NO. 5698 CRB-8-11-11



OCTOBER 11, 2012
















The claimant was represented by Miguel A. Rios, Esq., Law Offices of Miguel A. Rios, 669 State Street, New Haven, CT 06511, who did not attend oral argument.

The respondent-appellant EC Tree, LLC was represented by David A. Kelly, Esq., Montstream & May, LLP, Salmon Brook Corporate Park, 655 Winding Brook Drive, Glastonbury, CT 06033-6087, who did not attend oral argument.

The respondent-appellee Delos Insurance Company was represented by Paul M. Shearer, Esq., Adelson, Testan, Brundo & Jimenez, 2080 Silas Deane Hwy, Suite 304, Rocky Hill, CT 06067.

The respondent-appellee Second Injury Fund was represented by Jennifer Das, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, PO Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 13, 2011 Finding and Award, October 27, 2011 Ruling on Motion to Correct and November 2, 2011 Amended Finding and Award of the Commissioner acting for the Eighth District was heard April 27, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Clifton E. Thompson.1


JOHN A. MASTROPIETRO, CHAIRMAN. This appeal involves an appeal from a Finding and Award which found the respondent-employer, EC Tree LLC, was not insured for workers’ compensation injuries when the claimant sustained a compensable injury on May 14, 2010. The respondent-employer filed a Petition for Review and Reasons for Appeal from that decision, but has taken no further action to prosecute its appeal. Counsel for the insurance carrier has filed a Motion to Dismiss this appeal based on Practice Book § 85-1, asserting the appeal should be dismissed for want of prosecution. As the respondent-employer did not file a brief in support of their appeal and did not attend a scheduled hearing before our board, we grant the Motion to Dismiss.

The trial commissioner found that the claimant, Heriberto Lopez, was hired by the respondent to cut trees. The respondent’s principal acknowledged that the claimant was injured on May 14, 2010 at one of its jobs, but argued the claimant was an independent contractor. The trial commissioner found the claimant was paid by the hour and was supplied tools to perform his work for the respondent, and therefore found an employer-employee relationship existed. The trial commissioner further found the respondent’s insurance carrier sent a cancellation notice in January 2010 to the respondent and to the Workers’ Compensation Commission via the National Council on Compensation Insurance (“NCCI”). An investigator for the State Treasurer’s office testified that the respondent’s insurance policy was cancelled effective February 14, 2010, and not reinstated until after May 14, 2010. Based on these facts the trial commissioner awarded benefits to the claimant and determined the respondent was uninsured at the time of the injury.

The respondent-employer filed a Motion to Correct seeking three corrections. One correction was granted that did not materially change the original Finding and Award. The respondent-employer then filed a timely Petition for Review and Reasons for Appeal from the Amended Finding and Award in November 2011. In March 2012 the claimant and the appellee First Comp Insurance filed appellate briefs. Counsel for First Comp also filed a Motion to Dismiss the appeal for want of prosecution. In response, counsel for the respondent-employer-appellant advised this board in writing that they would rely on the documents already filed with the tribunal and waived attendance at oral argument.

Counsel for First Comp appeared before our panel arguing that their Motion to Dismiss should be granted. Counsel argued that the respondent-employer-appellant challenged the legal standard applied by the trial commissioner in determining that the insurance policy had been properly cancelled; and then failed to provide any legal arguments in support for this averment. We agree with the appellees and find our precedent in Bernier v. American Ref-Fuel Company of Southeast Connecticut, 4876 CRB-2-04-10 (December 23, 2005) and Rurak v. Sweet Life Inc., 4630 CRB-1-03-2 (February 6, 2004) govern this situation. When an appellant fails to delineate what their claims of legal error are, the appellees may reasonably argue that they have been prejudiced by the manner in which the appeal has been prosecuted. In addition, our precedent clearly states when an appellant fails to file a brief, we may grant a Motion to Dismiss under Practice Book § 85-1. See Angol v. In Your Neighborhood Construction, 5125 CRB-1-06-8 (March 16, 2010) and Lopez v. A. Anastasio Fence Co., 5101 CRB-4-06-6 (May 23, 2007).

In addition, we find that on the merits, the trial commissioner followed the appropriate legal standards governing cancellation of insurance coverage in his Finding and Award. Yelunin v. Royal Ride Transportation, 121 Conn. App. 144 (2010) held that § 31-348 C.G.S. required a carrier only to prove it notified the commission via NCCI when it was canceling insurance coverage, and any arguments as to adequacy of notice to the insured party were immaterial. The facts as found by the trial commissioner are consistent with the precedent in Yelunin. We also note that counsel for the appellee argued that their actions were in accordance with our precedent in Velez v. LSP Enterprises, Inc. d/b/a Domino’s Pizza, 5105 CRB-1-06-6 (September 26, 2007), and find ourselves in agreement with this conclusion.

We grant the Motion to Dismiss this appeal. The Amended Finding and Award is affirmed.

Commissioner Jodi Murray Gregg concurs in this opinion.

1 Commissioner Clifton E. Thompson heard this appeal but passed away prior to the issuance of this opinion. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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