JOSE DEJESUS v. R.P.M. ENTERPRISES, INC.
AC 44111
Appellate Court of Connecticut
May 18, 2021
Bright, C. J., and Moll and Young, Js.
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Syllabus
The defendant employer, R Co., and its owner, M, appealed to this court from the decisions of the Compensation Review Board affirming the finding of the Workers’ Compensation Commissioner that the Workers’ Compensation Commission had jurisdiction over the plaintiff‘s claim for workers’ compensation benefits and that the plaintiff employee had sustained a compensable injury. The plaintiff sustained injuries when a car he was working on at R Co.‘s junkyard fell on his shoulders and the back of his head. The plaintiff failed to file a notice of claim within one year of the date of his injury as required by statute (
- Although the board erred in affirming the 2019 decision of the commissioner on the basis of collateral estoppel, it properly applied, in the alternative, the law of the case doctrine and, thus, properly affirmed the decision of the commissioner that the plaintiff had sustained a compensable injury and was entitled to workers’ compensation benefits.
- The board properly affirmed the commissioner‘s determination that jurisdiction over the plaintiff‘s claim existed.
- The board‘s decision affirming the commissioner‘s finding that the requirements of the medical care exception in
§ 31-294c (c) had been satisfied resulted from a correct application of the law to the subordinate facts and the inferences reasonably drawn from them: testimony and evidence credited by the commissioner showed that, after the car had fallen on the plaintiff and he could not feel his legs, he was placed on a wet mattress by M, who then directed an agent of R Co. to drive the plaintiff to a hospital, where he received medical treatment; moreover, any claim by R Co. and M that they lacked notice that the plaintiff suffered an injury was belied by the record and the fact that, within one year following the incident, M provided the plaintiff with money to purchase an electric wheelchair, purchased and/or provided a wheelchair accessible ramp for the plaintiff‘s home, and paid him $500 per week subsequent to his injury. - This court declined to consider R Co. and M‘s claim that the board improperly affirmed the commissioner‘s finding that the plaintiff was an employee of R Co. and not an independent contractor because R Co. and M failed to file a motion to correct that factual finding in the commissioner‘s 2017 decision; moreover, the board‘s determination that the commissioner‘s finding of jurisdiction was proper was based on a correct application of the law to the subordinate facts found by the commissioner relating to the employment relationship of the parties, including that the plaintiff was an employee of R CO. on the date of the incident that caused his injuries and that he was subject to the direction and control of R Co. and M.
- The board‘s decision affirming the commissioner‘s finding that the requirements of the medical care exception in
- The board improperly affirmed the commissioner‘s findings that the plaintiff was an employee of M, that M was the alter ego of R Co., and that he was jointly and severally liable for the award of benefits to the plaintiff: it was undisputed that the plaintiff never filed a notice of claim alleging that M was his employer, and the commissioner acted beyond the scope of the Workers’ Compensation Act (
§ 31-275 et seq. ) by bringing M into the action in his personal capacity and deciding the issue of whether M, as the principal of the employer of the injured employee, should be held personally accountable for the plaintiff‘s injuries, as the commissioner was without jurisdiction to pierce the corporate veil of R Co.; moreover, there is a remedy pursuant to statute (§ 31-355 (c) ) for the Second Injury Fund to recover amounts paid by the fund, and, in such a civil action, the fund could seek to pierce the corporate veil of R Co.
Argued February 9—officially released May 18, 2021
Procedural History
Appeal from the decision of the Workers’ Compensation Commissioner for the Second District finding that the Workers’ Compensation Commission had jurisdiction over the plaintiff‘s claim for workers’ compensation benefits, brought to the Compensation Review Board, which affirmed the commissioner‘s decision; thereafter, the commissioner found that the plaintiff had sustained a compensable injury and awarded, inter alia, certain disability benefits; subsequently, the commissioner denied the motion to correct filed by the defendant and Robert Marion; thereafter, the defendant and Robert Marion appealed to the Compensation Review Board, which affirmed the commissioner‘s decision, and the defendant and Robert Marion appealed to this court. Affirmed in part; reversed in part; decision directed.
Lori M. Comforti, for the appellee (plaintiff).
Patrick G. Finley, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellee (Second Injury Fund).
Opinion
YOUNG, J. This appeal is brought by the defendant employer, R.P.M. Enterprises, Inc. (R.P.M.), and its owner, Robert Marion (Marion), from the decisions of the Compensation Review Board (board) affirming the finding of the Workers’ Compensation Commissioner (commissioner) that the Workers’ Compensation Commission (commission) had jurisdiction over this matter, and affirming, in part, the findings and award of the commissioner that the plaintiff, Jose DeJesus, had sustained a compensable injury for which he was entitled to temporary total disability benefits and payment for medical bills.1 Because R.P.M. did not carry workers’ compensation insurance, the defendant Second Injury Fund (fund) was cited in as a party to the action pursuant to
The following facts, as found by the commissioner, and procedural history are relevant to this appeal. Because the issue of lack of jurisdiction was raised by R.P.M. at the beginning of the proceedings,4 the commissioner agreed to bifurcate that issue and to decide the jurisdictional issue first, after which an additional hearing would be held to decide the remaining issues. Formal hearings regarding the issue of jurisdiction were held on April 12, September 27 and November 22, 2016. In a decision dated June 16, 2017 (2017 decision), the commissioner found that the plaintiff was born in Puerto Rico and came to the mainland when he was three or four years old. He was hired by Russell Adams, the office manager for R.P.M., which operates a junkyard, to work Monday through Saturday. For one year prior to the date of his injury, he earned $100 for a full day of work, and $50 for his work on Saturdays, and he had received a $600 Christmas bonus for many years. His work duties included taking parts off cars, changing oil, fixing the loader, changing tires and picking up cars. The plaintiff also performed work at properties owned by Marion such as cutting grass or shoveling snow. The tools he used to perform his work for R.P.M. were owned by R.P.M., and his work activities at R.P.M. were directed by Adams, Marion, or Marion‘s son, Robert Marion II (Bobby).5 If the plaintiff did not do something the right way, Adams would direct him how to do it
correctly.
The plaintiff testified before the commissioner that, on December 9, 2013, he was directed by Adams and Bobby “to work taking off parts and have cars ready,” and when that task was completed, he was directed by Bobby to remove the converter
Marion testified before the commissioner that he had no knowledge that the plaintiff was injured at R.P.M. on December 9, 2013, that he was not at the job location that day, and that he was “pretty sure” that the business was closed on that day. Marion testified further that he was the owner of R.P.M. from 1984 until at least November 22, 2016, that the plaintiff was an independent contractor and not an employee of R.P.M., that R.P.M. had one bank account, and that he was the only person authorized to sign checks from that account. Marion did acknowledge that, following the accident that caused the plaintiff‘s injuries, he paid the plaintiff $500 per week, purchased an electric wheelchair for the plaintiff, and built a wheelchair ramp at the plaintiff‘s home to accommodate the plaintiff‘s wheelchair.
In addressing the question of jurisdiction, the commissioner found that the plaintiff did not file a written notice of claim within one year of the date of injury as required by
On the basis of the testimony and exhibits, the commissioner found the testimony of the plaintiff mostly
credible, despite some discrepancies. In contrast, the commissioner found the testimony of Marion neither credible nor persuasive. Specifically, the commissioner found that R.P.M. and Marion, through their agent, Adams, provided transportation to bring the plaintiff to the hospital on the day of the incident and, thus, that the plaintiff had satisfied the medical care exception to the one year notice requirement set forth in
Following the commissioner‘s determination regarding jurisdiction over the matter, R.P.M. filed a petition for review with the board, which, on November 8, 2018,
In addressing a claim raised by Marion that “he was deprived of due process because the trial commissioner ordered relief against him although he was not originally named as a party in the case,” the board, relying on Mosman v. Sikorsky Aircraft Corp., No. 4180, CRB 4-00-1 (March 1, 2001), recognized that “a party may be apprised that a given claim is at issue by other means, such as the statements of the parties at trial, the evidence they have introduced, or the papers they have filed.” (Internal quotation marks omitted.) The board further stated: “In the present case, we note that Marion ... was in attendance at the initial session of the formal hearing on April 12, 2016, and his company had retained legal counsel for this hearing. At that formal hearing, counsel for the [f]und specially moved to add Marion ... to the case in his individual, personal capacity. . . . Counsel for R.P.M. offered no objection.”
“We further note that at the September 27, 2016 session of the formal hearing, the trial commissioner indi-
cated on the record that hearing notices had been sent to Marion ... in his personal capacity, the [f]und had served Marion ... with a subpoena, counsel for R.P.M. had withdrawn from the case, and Marion ... (or someone else on his behalf) had sent a text message to the [c]ommission acknowledging the scheduling of the hearing but stating that medical issues would preclude his attendance. . . . Marion ... attended and extensively testified at the November 22, 2016 hearing, at which the inquiry largely focused on the manner in which Marion ... managed the finances of R.P.M. Under the totality of the circumstances, we are persuaded that Marion ... had ample reason to believe he was potentially facing personal liability. . . . As a result, we do not find that the trial commissioner‘s decision to attribute personal liability to Marion ... constituted a due process violation.” (Citations omitted; internal quotation marks omitted.)
The board then turned to the primary issue of jurisdiction and found that the evidence in the record supported the commissioner‘s conclusion that the medical care exception in
With respect to the finding by the commissioner that the plaintiff had established the existence of an employer-employee relationship, R.P.M. and Marion claimed that
Finally, the board addressed the issue of whether the record contained sufficient evidence to support the decision of the commissioner to pierce the corporate veil and to find Marion responsible in his individual capacity. The board explained that, although it would have been beneficial for the commissioner to have made
specific findings concerning the issue of piercing the corporate veil, the absence of such findings was “harmless error, particularly as there was no motion to correct.” Given the testimony on the record showing that Marion would pay the plaintiff in cash and, after the plaintiff‘s injury, issued checks drawn on R.P.M. to the plaintiff‘s wife, that the plaintiff worked on property owned by Marion, as well as the home of Marion‘s mother, and that Marion was the owner of R.P.M., which did not have a separate bank account, paid the plaintiff for the work performed on his personal residence and used the funds of R.P.M. to pay for his personal expenses, the board concluded that “the commissioner reasonably inferred that R.P.M. and Marion ... were essentially alter egos and, as such, Marion ... could not rely upon the protection of the corporate veil as a defense against liability.”
On March 13, 2019, a formal hearing was held before the commissioner7 to address the issue of compensability, at which no additional evidence or testimony was presented or entered into the record. Moreover, the parties had agreed that the record of the prior proceedings before the commissioner would be incorporated by reference and constitute the record for purposes of the new hearing concerning compensability. In a decision dated April 23, 2019 (2019 decision), the commissioner found, on the basis of the evidence in the record, that R.P.M. and Marion “were alter egos” and that the plaintiff was their employee on December 9, 2013, when he sustained a catastrophic injury to his spinal cord while performing work at his place of employment. Accordingly, the commissioner concluded that the plaintiff‘s injury, which rendered him permanently and totally disabled, was compensable and that R.P.M and Marion, as alter egos, were jointly and severally liable for the plaintiff‘s reasonable and necessary medical expenses. R.P.M. and Marion were ordered to pay the plaintiff temporary total disability benefits, to continue to pay for all reasonable and medically necessary medical treatment provided by an authorized treating physician, to reimburse the plaintiff for certain expenses he had incurred, and to pay a civil penalty of $50,000 to the fund for their failure to carry workers’ compensation insurance.
Thereafter, R.P.M. and Marion filed a motion to correct, which the commissioner denied, and R.P.M. and Marion filed a petition for review with the board. In a decision dated April 29, 2020 (DeJesus II), the board affirmed the decision of the commissioner
estoppel, from challenging issues that were heard and decided in the 2017 decision of the commissioner and by the board in DeJesus I. In making that determination the board explained that, although a party aggrieved by a decision of the board has the right to file an appeal, if no appeal is taken, “the decision of the ... [b]oard is final within twenty days. Any issues heard and decided in DeJesus I, for which [R.P.M. and Marion] believed appellate review was appropriate, should have been appealed and presented to our Appellate Court. Therefore, [R.P.M. and Marion] are collaterally estopped from review of any issues previously heard and decided in DeJesus I.” The board also found that the record supported the finding that the plaintiff sustained a compensable injury. R.P.M. and Marion have appealed to this court challenging the board‘s decisions in DeJesus I and DeJesus II. Additional facts and procedural history will be set forth as necessary.
We first set forth our standard of review applicable to workers’ compensation appeals. “The commissioner has the power and duty, as the trier of fact, to determine the facts . . . and [n]either the . . . board nor this court has the power to retry the facts. . . . The conclusions drawn by [the commissioner] from the facts found [also] must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Woodbury-Correa v. Reflexite Corp., 190 Conn. App. 623, 627, 212 A.3d 252 (2019). “The board sits as an appellate tribunal reviewing the decision of the commissioner. . . . The review [board‘s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. . . . On appeal, the board must determine whether there is any evidence in the record to support the commissioner‘s [decision]. . . . Our scope of review of [the] actions of the [board] is [similarly] limited. . . . [However] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Dombrowski v. New Haven, 194 Conn. App. 739, 748, 222 A.3d 533 (2019), cert. denied, 335 Conn. 908, 227 A.3d 1039 (2020).
“[Moreover, it] is well established that [a]lthough not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and the board. . . . Cases that present pure questions of law, however, invoke a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We have determined, therefore, that the traditional deference accorded to an agency‘s interpretation of a statutory term is unwarranted when the
construction of a statute ... has not previously been subjected to judicial scrutiny [or to] ... a governmental agency‘s time-tested interpretation . . . . Furthermore, [i]t is well established that, in resolving issues of statutory construction under the [Workers’ Compensation Act (act),
I
Before we address the issues raised by R.P.M. and Marion on appeal, we must first address the issue raised by the plaintiff that R.P.M. and Marion are precluded, under the doctrine of collateral estoppel, from raising issues on appeal that previously were heard and decided in DeJesus I, including issues concerning the commissioner‘s finding that the plaintiff was an employee of R.P.M. and/or Marion, and his determination that the medical care exception in
The following additional facts are necessary to this claim. At the beginning of the formal hearing held on April 12, 2016, R.P.M. raised an issue regarding the commissioner‘s jurisdiction over the matter. Thereafter, the parties agreed to bifurcate the proceedings and to have the commissioner decide the issue of jurisdiction first. After the commissioner issued his 2017 decision finding jurisdiction, R.P.M. and Marion8 appealed to the board, which affirmed the commissioner‘s 2017 decision in DeJesus I. A formal hearing was then held on March 13, 2019, before the commissioner for a determination of the remaining issues, including whether the plaintiff sustained a compensable injury and, if so, the amount of compensation and benefits to which the plaintiff was entitled. The commissioner issued a find-
ing and award on April 23, 2019, from which R.P.M. and Marion appealed to the board, which affirmed the commissioner‘s decision in DeJesus II. In DeJesus II, the board agreed with the plaintiff that R.P.M. and Marion were precluded by the doctrine of collateral estoppel from seeking review of issues that were determined in the 2017 decision of the commissioner and affirmed by the board in DeJesus I.
“Whether the [board] properly applied the doctrine of collateral estoppel is a question of law for which our review is plenary. . . . The fundamental principles underlying the doctrine are well established. Collateral estoppel, or issue preclusion,
The crux of the plaintiff‘s claim, with which the board agreed, is that when R.P.M. and Marion failed to appeal to this court following the decision in DeJesus I, that decision of the board became final, and, thus, R.P.M. and Marion were collaterally estopped from raising any issues previously heard and decided in DeJesus I. In support of that claim, the plaintiff relies on
In their reply brief, R.P.M. and Marion claim that, under the procedural posture of this case, they are not precluded by collateral estoppel from raising claims
related to issues that were decided in DeJesus I. They claim that, because the commissioner‘s 2017 decision did not include any findings regarding whether the plaintiff‘s injury arose out of or in the course of employment, or what benefits, if any, were due, neither R.P.M. nor Marion was found responsible to pay workers’ compensation benefits to the plaintiff at the time DeJesus I was decided; accordingly, they had no reason to appeal to this court at that time. In light of the permissive language in
The commissioner‘s 2019 decision indicates that “[n]o additional evidence or testimony was entered into the record on March 13, 2019. The parties agreed that the record in the prior proceedings before [the] [c]ommissioner . . . would be the record for purposes of the findings made herein and would be incorporated by reference.” At oral argument before this court, the parties were asked whether the record shows that R.P.M. and Marion could introduce additional evidence at the March 13 hearing concerning the lack of an employer-employee relationship and the applicability of the medical care exception. The plaintiff‘s counsel responded that there was an opportunity for anyone to present additional evidence but no one actually did present additional evidence, and that
We conclude that collateral estoppel does not apply to this case. Collateral estoppel, or issue preclusion, applies to prevent the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties. See Rinaldi v. Enfield, supra, 82 Conn. App. 516. The proceedings in the present case, however, were all part of the same action. The commissioner simply bifurcated the proceedings and decided the issue of jurisdiction first, with the issue of compensability to be decided at a subsequent hearing, at which the parties could present additional evidence.
The board reasoned in DeJesus II that
determine if the plaintiff‘s injury was compensable, the proceedings were ongoing at the time the board heard the appeal of the jurisdictional issue in DeJesus I. “[B]ecause the existence of a final judgment is a jurisdictional prerequisite to an appeal“; (internal quotation marks omitted) Levarge v. General Dynamics Corp., 282 Conn. 386, 390, 920 A.2d 996 (2007); an appeal to this court at that time would have been subject to dismissal. See id., 390–91; see also Dechio v. Raymark Industries, Inc., 299 Conn. 376, 399-400, 10 A.3d 20 (2010) (explaining that there is a final judgment requirement “with respect to appeals from the board to the Appellate Court pursuant to ...
Furthermore, neither the parties nor the commissioner, at the March 13, 2019 hearing, took the position that R.P.M. and Marion were collaterally estopped from presenting additional evidence on the jurisdictional issues. To the contrary, the commissioner specifically asked them if they wanted to present additional evidence and they declined to do so. If R.P.M. and Marion had presented additional evidence at the March 13, 2019 hearing, the commissioner would have had to make new findings that could have been challenged on an appeal to the board, which further supports our conclusion that there was no requirement for R.P.M. and Marion to have filed an appeal to this court from the decision of the board in DeJesus I. See Pokorny v. Getta‘s Garage, 219 Conn. 439, 446-48, 447 n.8, 594 A.2d 446 (1991) (rejecting claim that, because issues of compensability and amount of plaintiff‘s medical bills were not appealed to board, decision of commissioner was final as to those issues, and concluding that, because language of commissioner‘s decision gave parties right to petition for additional hearings on issue of defendants’ obligation to pay for plaintiff‘s medical bills, defendants were not limited to appealing decision concerning payment of medical bills within statutory time limitation of
Because the plaintiff bases his collateral estoppel claim on his assertion that R.P.M. and Marion should
have appealed to this court following the decision in DeJesus I, which we have rejected, the claim fails. Accordingly, the board‘s determination that R.P.M. and Marion were collaterally estopped from raising issues during the appeal in DeJesus II related to issues that were heard and decided in DeJesus I resulted from an incorrect application of the law to the facts of the case.
Nevertheless, in DeJesus II the board also stated: “Assuming for the sake of argument that the doctrine of issue preclusion is not appropriate . . . we believe that the doctrine of the law of the case applies to the findings and conclusions set out in the 2017 finding and relied on in the [2019] findings and conclusions at issue here.” The board found the doctrine of the law of the case particularly relevant to the 2017 finding of the commissioner that the plaintiff was an employee of R.P.M. on December 9, 2013, when he was injured while performing mechanical work on a car at R.P.M.‘s place of business. Accordingly, the board concluded that the evidentiary record before the commissioner in 2017, which was the same as the one before the commissioner in 2019, contained evidence supporting the conclusion that the plaintiff sustained a compensable injury that arose out of and in the course of his employment with R.P.M.
“The application of the law of the case doctrine involves a question of law, over which our review is plenary. . . . The law of the case doctrine expresses the practice of judges generally to refuse to reopen what [already] has been decided . . . . [When] a matter has previously been ruled [on] interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance. . . . A judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge. . . . Nevertheless, if . . . [a judge] becomes convinced that the view of the law previously applied by his coordinate predecessor was clearly erroneous and would work a manifest injustice if followed, he may apply his own judgment.” (Citations omitted; internal quotation marks omitted.) Total Recycling Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013); see also Bowman v. Jack‘s Auto Sales, 54 Conn. App. 289, 290–91, 734 A.2d 1036 (1999) (affirming decision of board applying law of case doctrine to award of benefits by commissioner).
We conclude that the law of the case doctrine, rather than collateral estoppel, is applicable to this case. Although the board erred in applying collateral estoppel in its decision, the board, nevertheless, properly applied the law of the case doctrine, in the alternative, and affirmed the 2019 decision of the commissioner that
the plaintiff had sustained a compensable injury for which he was entitled to workers’ compensation benefits. We find no error in that decision of the board.
R.P.M. and Marion claim that the board improperly affirmed the 2017 decision of the commissioner finding that the commission had jurisdiction over the plaintiff‘s claim for workers’ compensation benefits. Specifically, R.P.M. and Marion challenge the commissioner‘s (1) determination that the plaintiff‘s claim for benefits was not time barred under
We first note that our review of the claims of R.P.M. and Marion is limited by the procedural posture of this case. Because R.P.M. and Marion did not file a motion to correct10 the factual findings that formed the basis for the commissioner‘s determination of jurisdiction in the commissioner‘s 2017 decision,11 they cannot now challenge those factual findings. See Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 19, 832 A.2d 679 (2003), cert. denied, 267 Conn. 904, 838 A.2d 210 (2003); see also
A
R.P.M. and Marion challenge the commissioner‘s determination that the
there was no finding or proof that they furnished medical care with the knowledge that it was exposing them to liability under the act, and that the commissioner‘s finding that Adams provided transportation to the plaintiff to the hospital on the date of the incident was not sufficient to satisfy the medical care exception. We disagree.
We first set forth our standard of review and the general principles that guide our analysis of this claim. Because this claim challenges the commissioner‘s application of the law governing the medical care exception and not the underlying facts found by the commissioner in support of that determination, we must determine whether the board‘s conclusion that the commissioner properly applied the law “result[ed] from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Id.
Subject matter jurisdiction “is the power . . . to hear and determine cases of the general class to which the proceedings in question belong. . . . A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. . . . This concept, however, is not limited to courts. Administrative agencies [such as the commission] . . . are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power . . . . [A] determination regarding [an agency‘s] subject matter jurisdiction is a question of law . . . .” (Citations omitted; internal quotation marks omitted.) Marroquin v. F. Monarca Masonry, 121 Conn. App. 400, 406-407, 994 A.2d 727 (2010). “The existence of an employer-employee relationship . . . and the proper initiation of a claim in the first instance under
Section
of a claim is not a bar to proceedings if there has been “a timely hearing or a written request for a hearing or an assignment for a hearing . . . the timely submission of a voluntary agreement . . . or . . . the furnishing of appropriate medical care by the employer to the employee for the respective work-related injury.” (Citations omitted; internal quotation marks omitted.) Izikson v. Protein Science Corp., 156 Conn. App. 700, 708, 115 A.3d 55 (2015); see also
The present case involves the medical care exception to the one year notice of claim requirement set forth in
In Gesmundo v. Bush, supra, 133 Conn. 611-13, our Supreme Court addressed the applicability of the medical care exception. In that case, an employee of the defendant employer sustained an injury and reported it to the defendant‘s superintendent. Id., 612. The superintendent then sent the employee to a doctor, who provided medical care to injured employees of the defendant. Id. The commissioner found that “the superintendent had authority to take that action,” and that “[t]he act of the superintendent was in effect the act of the employer.” Id. Our Supreme Court determined that the doctor‘s examination and “giving of instructions to the plaintiff constituted ‘medical treatment’ as those words are used in the statute. To ‘furnish’ means to ‘provide’ or ‘supply.’ Webster‘s New International Dictionary (2d Ed.). That the plaintiff saw fit to pay the doctor does not alter the situation; it is the fact that the defendant, through its superintendent, made provision for medical treatment that makes unnecessary the formal notice. The commissioner could properly hold that the defendant furnished such treatment within the meaning of the exception in the statute.” Id., 612-13.
Likewise, in Pernacchio v. New Haven, supra, 63 Conn. App. 572–73, the plaintiff firefighter filed a claim against his employer, the city of New Haven, for heart and hypertension benefits following an incident in which he experienced dizziness, light-headedness, and nausea at the firehouse. In connection with that incident, a paramedic assigned to an emergency medical response unit that was stationed at the firehouse responded to the plaintiff‘s request for assistance. Id., 572. The paramedic tested the plaintiff‘s blood pressure and obtained a high reading, called for an emergency unit to transport the plaintiff to the hospital, and remained in contact with medical staff at the hospital while the plaintiff
On appeal to this court in Pernacchio, the defendant argued that “the plaintiff‘s transportation to the hospital by the defendant‘s ambulance service, which was staffed by the defendant‘s emergency medical technicians, who monitored the plaintiff‘s blood pressure and also remained in contact with the hospital until the ambulance arrived there, [did] not constitute providing ‘a competent physician or surgeon to attend the injured employee’ or furnishing ‘any medical and surgical aid or hospital and nursing service ... as the physician or surgeon deems reasonable or necessary’ as required by [General Statutes] § 31-294d.” Id., 577. This court agreed with “the commissioner and the board that the defendant had notice of the blood pressure incident because the plaintiff was transported to the hospital in an ambulance staffed with the defendant‘s fire department paramedics, who monitored his condition on the way to the hospital, and through [an] investigative report of the defendant‘s workers’ compensation division.” Id. We further explained that whether “the ride in the ambulance while attended by paramedics qualifies as a medical service, the commissioner also found that the plaintiff underwent a series of tests at the hospital for which the hospital submitted a bill ... [which was] an obligation of the defendant. It can hardly be disputed that the tests performed by the hospital were medical services.” Id. Accordingly, we concluded that the medical care exception in
In the present case, the commissioner found, in his 2017 decision, that R.P.M. and Marion, through their agent, Adams, provided the plaintiff with transportation to the hospital immediately following the incident. On the appeal to the board in DeJesus I, the board determined that the commissioner‘s finding that the requirements for the medical care exception had been met was supported by the evidence in the record, which included the plaintiff‘s detailed testimony regarding the
events that had transpired on the date of the incident, as well as medical records from the hospital indicating that the plaintiff had been driven to the hospital by a friend because he could not move. With respect to the claim of R.P.M. and Marion that “merely transporting the plaintiff to the hospital” was insufficient to establish that the requirements of the medical care exception have been satisfied, and that “they lacked actual knowledge of the nature of the injury,” the board stated: “The evidence credited by the trial commissioner is utterly inconsistent with th[at] position.” We find no error in the board‘s conclusion.
This court has stated: “In the event that a representative or agent of the employer, authorized to send the employee to a physician, does so, that constitutes furnishing medical treatment for purposes of the exception. . . . It is clear that the [employer was] not ignorant of the injury, and [did] not claim to be prejudiced in any way. Even if the employer did not pay for the medical treatment furnished by a physician selected by him, he has ‘furnished’ such treatment within the meaning of the statute if he has sent the claimant for medical treatment, thereby authorizing it.” (Citation omitted.) Infante v. Mansfield Construction Co., 47 Conn. App. 530, 535-36, 706 A.2d 984 (1998). In the present case, the testimony and evidence credited by the commissioner show that, after the car fell on the plaintiff and he could not feel his legs, the plaintiff was placed on a wet mattress by Marion, who then directed Adams to drive the plaintiff to a hospital, where he received medical treatment.
B
R.P.M. and Marion next claim that the board improperly affirmed the commissioner‘s finding that the plaintiff was an employee, and not an independent contractor, of R.P.M. To the extent that R.P.M. and Marion are challenging the commissioner‘s factual finding that the plaintiff was an employee of R.P.M., we decline to consider this claim as a result of the failure of R.P.M. and Marion to file a motion to correct that factual finding
in the commissioner‘s 2017 decision. See Melendez v. Fresh Start General Remodeling & Contracting, LLC, supra, 180 Conn. App. 368 (declining to consider claim that board improperly affirmed finding of commissioner that claimant was employee where party challenging finding did not file motion to correct).
Moreover, to the extent that R.P.M. and Marion are challenging the commissioner‘s determination that jurisdiction exists, we conclude that the board‘s determination that the commissioner‘s finding of jurisdiction was proper was based on a correct application of the law to the subordinate facts found by the commissioner relating to the employment relationship of the parties.
“A jurisdictional prerequisite to the applicability of the act is the existence of an employer-employee relationship.” Bugryn v. State, 97 Conn. App. 324, 328, 904 A.2d 269, cert. denied, 280 Conn. 929, 909 A.2d 523 (2006). “The determination of the status of an individual as an independent contractor or an employee is often difficult . . . and, in the absence of controlling circumstances, is a question of fact.” (Internal quotation marks omitted.) Rodriguez v. E.D. Construction, Inc., 126 Conn. App. 717, 727, 12 A.3d 603, cert. denied, 301 Conn. 904, 17 A.3d 1046 (2011). “Our courts have long recognized that independent contractors are not within the coverage of the . . . [a]ct. . . . The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work. . . . It is the totality of the evidence that determines whether a worker is an employee under the act, not subordinate factual findings that, if viewed in isolation, might have supported a different determination. . . . For purposes of workers’ compensation, an independent contractor is defined as one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his
In the present case, the commissioner found, on the
basis of the totality of the evidence, that the plaintiff
was an employee of R.P.M. on the date of the incident
that caused his injuries and that he was subject to the
specific control and direction of R.P.M. and Marion, its
owner.14 On appeal in DeJesus I, the board first noted
that employment status involves a factual issue that “is
subject to a
The board concluded in DeJesus I that the plaintiff‘s testimony, which the commissioner deemed more cred- ible, provided a sufficient basis to support the commis- sioner‘s finding of an employer-employee relationship between the plaintiff and R.P.M., which formed the basis of the commissioner‘s finding of jurisdiction. We conclude that the board properly affirmed the commis- sioner‘s decision regarding jurisdiction over this mat- ter.
III
Marion next maintains that the commissioner had (1) no jurisdiction to find him liable to pay compensation under the act because the plaintiff “never made a claim for compensation against [Marion]” and (2) “no author- ity to apply . . . the equitable doctrine of ‘piercing the corporate veil’ to make him liable for payment of com- pensation.” Therefore, Marion claims that the board improperly affirmed the award of compensation by the commissioner against him at the request of the fund when no claim was brought against him, and when the commissioner had no jurisdiction to make a finding that R.P.M. and Marion were the same entity for the purposes of piercing the corporate veil. Because these issues are related, we address them together.
In support of his claim that the commissioner lacked jurisdiction to enter an order requiring him, personally, to pay workers’ compensation benefits to the plaintiff, Marion points to the fact that no notice of claim naming him as an employer had ever been filed. He further argues that the commissioner lacked “subject matter jurisdiction to make a finding that Marion was an alter ego [of R.P.M.] so as to allow him [to] ‘pierce the corpo- rate veil’ and make an award against a nonparty.”15
The following additional facts are necessary for a resolution of the claim. The amended Form 30C notice of claim filed by the plaintiff on September 10, 2015, listed only R.P.M. as the plaintiff‘s employer. On April 12, 2016, the first day of the formal hearing before the commissioner, the attorney for the fund stated to the commissioner that she wanted to “add” Marion “as a respondent, individual, personal capacity.” In response, the commissioner asked Marion if he was the owner of R.P.M., to which Marion replied, “Yes.” Thereafter, the commissioner stated: “Okay, and I‘m adding you, personally, to the notice . . . .” No objection was raised to that statement of the commissioner. It is undis- puted that the plaintiff never filed a notice of claim alleging that Marion was his employer.
In the list of issues to be determined in the commis- sioner‘s 2017 decision, there is no reference to any issue related to whether the plaintiff was an employee of Marion or whether Marion should be held liable in his individual capacity. A review of the transcripts of the three days of hearings held in 2016 reveals questions and testimony related to how Marion ran R.P.M. and his level of control over, and relationship with, the plaintiff, which could be construed to relate to the issue of whether an employer-employee relationship existed between the plaintiff and R.P.M. In fact, the first time we find reference in the record to piercing the corporate veil of R.P.M. is when the fund filed its trial brief on February 24, 2017, after the conclusion of the formal hearings, claiming that the commissioner should pierce the corporate veil of R.P.M. and “Marion should be held liable to [the plaintiff] for any benefits he is awarded.”
In the 2017 decision, the commissioner found that
the plaintiff was an employee of R.P.M. “and/or” Marion.
On the appeal to the board in DeJesus I, the board
stated: “The final issue for our consideration, having
affirmed the trial commissioner‘s determination that the
commission has jurisdiction over the present matter,
is whether the evidentiary record provided a sufficient
basis for the trial commissioner to ‘pierce the corporate
veil’ and find Marion . . . responsible in an individual
capacity. Marion . . . argues that the subordinate facts
do not support the commissioner‘s finding of liability
against him in his individual capacity. Although we con-
cede that specific findings by the trial commissioner
with regard to piercing the corporate veil would have
been beneficial, we deem their absence harmless error,
particularly as there was no motion to correct.” After
reviewing the legal standard and evidence in the record,
the board concluded that “the commissioner reasonably
inferred
We begin by setting forth the relevant standard of review. “Administrative agencies . . . are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power. . . .” (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 103 Conn. App. 571, 577, 930 A.2d 739, cert. denied, 284 Conn. 930, 934 A.2d 245 (2007). “[A] determi- nation regarding [an agency‘s] subject matter jurisdic- tion is a question of law . . . .” (Internal quotation marks omitted.) Id., 576. Although our scope of review of the actions of the board in a workers’ compensation appeal is limited, this court invokes a broader standard of review when a question of law is involved. See Izikson v. Protein Science Corp., supra, 156 Conn. App. 707. We, therefore, afford plenary review to this claim. See id.
This court has observed previously that “the workers’
compensation commission, like any administrative
body, must act strictly within its statutory authority
. . . . It cannot modify, abridge, or otherwise change
the statutory provisions under which it acquires author-
ity unless the statutes expressly grant it that power.
. . . [I]t is settled law that the commissioner‘s jurisdic-
tion is confined by the [act] and limited by its provisions.
. . . The commissioner exercises jurisdiction only
under the precise circumstances and in the manner
particularly prescribed by the enabling legislation. . . .
The parties cannot confer jurisdiction upon the commis-
sioner by agreement, waiver or conduct. . . . The [act]
is not triggered by a claimant until he brings himself
within its statutory ambit. . . . Although the [act]
should be broadly construed to accomplish its humani-
tarian purpose . . . its remedial purpose cannot tran-
scend its statutorily defined jurisdictional boundaries.”
(Internal quotation marks omitted.) Nationwide Mutual Ins. Co. v. Allen, supra, 83 Conn. App. 532; see
also Kuehl v. Koskoff, 182 Conn. App. 505, 524, 190 A.3d 82, cert. denied, 330 Conn. 919, 194 A.3d 289 (2018).
Our Supreme Court has stated that a “commissioner‘s
jurisdiction is limited to adjudicating claims aris-
ing under the act, that is, claims by an injured employee
seeking compensation from his [or her] employer for
injuries arising out of and in the course of employment.”
(Emphasis added.) Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 762, 730 A.2d 630 (1999). If jurisdic-
tion exists for the commissioner to find Marion liable,
personally, as an employer and alter ego of R.P.M.,
“such authority must be found within the act.” Byrd v. Bechtel/Fusco, 90 Conn. App. 641, 645, 878 A.2d 1162, cert. denied, 276 Conn. 919, 888 A.2d 87 (2005).
It is unclear from the record as to what the commis-
sioner was referring when he stated at the April 12,
2016 formal hearing that he was adding Marion, “per-
sonally, to the notice . . . .” Nevertheless, even if we
assume, without deciding, that the commissioner
intended to and did bring Marion into the case in his
personal capacity, we are not aware of, nor have the
parties alerted us to, any authority16 that
Likewise, the board‘s determination that the commis- sioner properly pierced the corporate veil of R.P.M. and held Marion jointly and severally liable also founders for the same reason. Because this issue has not yet been addressed by the appellate courts of this state, we briefly discuss the general principles that support our determination.
Under the doctrine of piercing the corporate veil,
“[c]ourts will . . . disregard the fiction of a separate
legal entity to pierce the shield of immunity afforded
by the corporate structure in a situation in
Two tests have been recognized for disregarding a corporate structure of a defendant: the instrumentality rule and the identity rule. See Cohen v. Meyers, 175 Conn. App. 519, 541, 167 A.3d 1157, cert. denied, 327 Conn. 973, 174 A.3d 194 (2017). Under the instrumental- ity rule, proof of three elements is required: “(1) Con- trol, not mere majority or complete stock control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transac- tion had at the time no separate mind, will or existence of its own; (2) that such control must have been used by the defendant to commit fraud or wrong, to perpetu- ate the violation of a statutory or other positive legal duty, or a dishonest or unjust act in contravention of [the] plaintiff‘s legal rights; and (3) that the aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.” (Internal quotation marks omitted.) Id. Pursuant to the identity rule, “[i]f [the] plaintiff can show that there was such a unity of interest and ownership that the independence of the corporations had in effect ceased or had never begun, an adherence to the fiction of separate identity would serve only to defeat justice and equity by permitting the economic entity to escape liability arising out of an operation conducted by one corporation for the benefit of the whole enterprise.” (Internal quotation marks omitted.) Naples v. Keystone Building & Development Corp., 295 Conn. 214, 232, 990 A.2d 326 (2010). More- over, “the fact that a sole stockholder of a corporation is in exclusive control of the company‘s finances and business practices, standing alone, is an insufficient basis in itself to pierce the corporate veil. While control is a factor, [o]f paramount concern is how the control was used, not that it existed.” (Internal quotation marks omitted.) Cohen v. Meyers, supra, 541–42.
No appellate court of this state has yet determined
whether the commissioner has jurisdiction under the
act to determine if the corporate veil of an employer
obligated to pay workers’ compensation benefits should
be pierced. In its brief, the fund cites to administrative
decisions of the board that have addressed this issue
and determined that a trial commissioner appropriately
could pierce the corporate
At oral argument before this court, the attorney for
the fund acknowledged that there is no specific statute
that expressly provides that the trier of fact can pierce
the corporate veil but requested this court to consider
“[A] claim must be raised and briefed adequately in a party‘s principal brief, and . . . the failure to do so constitutes the abandonment of the claim.” State v. Elson, 311 Conn. 726, 766, 91 A.3d 862 (2014). “We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. . . . The parties may not merely cite a legal principle without analyzing the rela- tionship between the facts of the case and the law cited.” (Internal quotation marks omitted.) Scalora v. Scalora, 189 Conn. App. 703, 735-36, 209 A.3d 1 (2019).
Similarly,
The fund claims in its brief that “[w]hen a business is found to be an employer of a claimant and the issue of piercing the corporate veil of said business has been raised, the commissioner must decide that issue in order to resolve the issue of [an] employer/employee relationship.” We disagree. The determination of whether an employer-employee relationship exists is a jurisdictional prerequisite to making an award under the act, whereas the issue of piercing the corporate veil concerns whether the corporate structure of the defendant employer should be disregarded and applies to situations “in which the corporate entity has been so controlled and dominated that justice requires liabil- ity to be imposed on the real actor.” (Internal quotation marks omitted.) Atelier Constantin Popescu, LLC v. JC Corp., supra, 134 Conn. App. 759. That issue is funda- mentally different from establishing the existence of an employer-employee relationship in the first instance.
Our determination is supported by the language of
the statutory framework governing the fund.
“(b) When an award of compensation has been made under the provisions of this chapter against an employer who failed, neglected, refused or is unable to pay any type of benefit coming due as a consequence of such award or any adjustment in compensation required by this chapter, and whose insurer failed, neglected, refused or is unable to pay the compensation, such compensation shall be paid from the . . . [f]und. The commissioner, on a finding of failure or inability to pay compensation, shall give notice to the Treasurer of the award, directing the Treasurer to make payment from the fund. . . .
“(c) The employer and the insurer, if any, shall be liable to the state for any payments made out of the fund in accordance with this section or which the Trea- surer has by award become obligated to make from the fund, together with cost of [attorney‘s] fees as fixed by the court. If reimbursement is not made, or a plan for payment to the fund has not been agreed to by the Treasurer and employer, not later than ninety days after any payment from the fund, the Attorney General shall bring a civil action, in the superior court for the judicial district where the award was made, to recover all amounts paid by the fund pursuant to the award, plus double damages together with reasonable attorney‘s fees and costs as taxed by the court. . . .”
This court previously has explained: “Although the
fund became a part of our workers’ compensation statu-
tory scheme during World War II, essentially for the
purpose of enticing employers to hire returning disabled
war veterans, the legislature has, in the intervening
years, altered the fund‘s statutory parameters. At pres-
ent, the fund‘s essential purpose is to provide compen-
sation for an injured [plaintiff] when the employer fails
to pay. . . . For the fund to fulfill this purpose, a sup-
plemental order must issue from a commissioner direct-
ing the fund to make payment to a plaintiff. Under
our workers’ compensation statutory framework, the
prerequisites to an order [issuing from a commissioner]
to the fund to make payment [to a plaintiff] are that:
(1) the substantive and procedural requirements of the
. . . act have been met; (2) an award against the
employer has been entered; and (3) the employer and
its insurer have failed to pay. . . . Only when these
prerequisites—a finding and award properly entered
against an employer and an employer‘s or insurer‘s fail-
ure to pay—have been satisfied, may a commissioner
issue a supplemental order directing the fund to com-
pensate a plaintiff in accordance with . . .
Pursuant to the plain language of
Accordingly, we conclude that the board properly
affirmed the commissioner‘s determination regarding
jurisdiction over the plaintiff‘s claim seeking worker‘s
compensation benefits for the injuries he sustained
while working for R.P.M., as well as the commissioner‘s
findings, made in connection therewith, that the plain-
tiff was an employee of R.P.M. and that the medical
care exception in
The decisions of the Compensation Review Board are reversed only as to the determinations that Marion could be held liable in his personal capacity and that the commissioner properly pierced the corporate veil of R.P.M., and the case is remanded to the board with direction to remand the case to the commissioner with direction to vacate the finding and award as to Marion; the decisions are affirmed in all other respects.
In this opinion the other judges concurred.