VICTOR MELENDEZ, JR. v. FRESH START GENERAL REMODELING AND CONTRACTING, LLC, ET AL.
(AC 39373)
Appellate Court of Connecticut
Argued November 30, 2017—officially released March 20, 2018
Prescott, Bright and Eveleigh, Js.
******************************************************************
The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.
The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.
******************************************************************
Syllabus
The respondent G appealed to this court from the decision of the Workers’ Compensation Review Board affirming the decision of the Workers’ Compensation Commissioner ordering G to pay workers’ compensation benefits to the claimant, who allegedly had sustained injuries in a motor vehicle accident. Specifically, the motor vehicle accident occurred while the claimant was being driven by G‘s girlfriend to G‘s home where, for approximately eleven weeks, the claimant had performed certain work for G, including, inter alia, helping G move his residence, painting, cutting down trees, splitting and stacking wood, putting up Sheetrock, assisting with plumbing and laying tile. On appeal, G claimed that the board erred in concluding that the claimant was an employee of G and entitled to bring a claim against him individually under the Workers’ Compensation Act (act) (§ 31-275 et seq.) and that G was afforded sufficient due process to hold him personally liable. Held:
- G could not prevail on his claim that the board erred in affirming the commissioner‘s finding that the claimant was an employee of G under the act, which was based on his claim that because the claimant was not regularly employed for over twenty-six hours per week, he was excluded from coverage pursuant to § 31-275 (9) (B) (iv), and that the commissioner should have examined the hours worked by the claimant over a fifty-two week applicable period; because the claimant worked for G for approximately eleven weeks at the time of his injury, using a fifty-two week period was not a reasonable period of time to determine if the claimant was regularly employed by G, and, therefore, the commissioner properly examined the eleven week period of employment to determine what the usual practice was between the claimant and G, and found that the claimant had a consistent schedule over the eleven week period, working four to five days per week for approximately six to ten hours per day, for an average of thirty-eight and one-half hours per week, which supported the conclusion that the claimant, who was regularly employed during the applicable time period for more than twenty-six hours per week, was an employee of G entitled to benefits under the act.
- This court declined to consider G‘s claim that the claimant was a casual laborer who was excluded from coverage under § 31-275 (9) (B) (ii), which provides that an employee entitled to benefits under the act shall not be construed to include any person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer‘s trade or business; although G claimed that the commissioner improperly concluded that the claimant was not a casual laborer in light of the findings that the work at G‘s house had run its course and that the working arrangement between G and the claimant was intended to be short-term, a party seeking to challenge a finding of the commissioner as incorrect must do so by filing a motion to correct the challenged finding, and because G did not file a motion to correct any of the commissioner‘s findings following the operative finding and award, nor did he show good cause for failing to file such a motion, the commissioner was deprived of the opportunity to correct the findings or to supply omitted facts to those conclusions that G claimed were incorrect or inconsistent.
- G could not prevail on his claim that he was deprived of due process because he was not given reasonable notice that the claimant sought to hold him personally liable and because he was not mailed a notice of the pro forma formal hearing and the deadline to submit a brief and proposed findings on the issue of personal liability, upon receipt of a form 30C that listed G as the claimant‘s employer, G was put on notice that he, as an individual, was potentially liable to be found as the employer of the claimant, and even if G was deprived of due process prior to a 2013 finding and award because he was not afforded notice of the pro forma formal hearing and an opportunity to file a brief and proposed findings on the issue of personal liability, G was not entitled to relief in this appeal because the 2013 finding and award was vacated and was not the operative award in this appeal, and G suffered no due process deprivation with regard to a 2015 finding and award that he challenged in this appeal, as he had a full and fair opportunity to be heard on the issue of personal liability when he was given an opportunity to submit a brief and proposed findings to the commissioner prior to the 2015 finding and award.
Argued November 30, 2017—officially released March 20, 2018
Procedural History
Appeal from the decision of the Workers’ Compensation Commissioner for the Eighth District ordering the respondent Michael Gramegna to pay workers’ compensation benefits to the claimant, brought to the Workers’ Compensation Review Board, which affirmed the commissioner‘s decision, and the respondent Michael Gramegna appealed to this court. Affirmed.
Jon D. Golas, for the appellee (claimant).
Opinion
EVELEIGH, J. The respondent, Michael Gramegna1, appeals from the decision of the Workers’ Compensation Review Board (board), affirming the decision of the Workers’ Compensation Commissioner for the Eighth District (commissioner) ordering the respondent to pay workers’ compensation benefits to the claimant, Victor Melendez, Jr. The respondent claims that the board erred in concluding that (1) the claimant was an employee of the respondent and entitled to bring a claim against him individually under the Workers’ Compensation Act (act),
The following facts, as found by the commissioner, and procedural history are relevant to our resolution of this appeal. The claimant met the respondent in the fall of 2011. The claimant worked as a self-employed window washer, as well as a laborer, performing tasks such as roofing, siding and landscaping. At that time, the claimant and his girlfriend were expecting a child and the claimant was looking for additional work. The respondent owned several rental properties in the Manchester area and worked as a remodeling contractor. The respondent was the principal and sole member of two domestic limited liability companies, Fresh Start General Remodeling & Contracting, LLC (Fresh Start), and Fresh Start Realty, LLC, both of which list their business address at 122 Oakland Street in Manchester.
Around the end of October, 2011, the respondent hired the claimant to assist him in moving from his house in Manchester to a new house in Bolton. The claimant helped the respondent pack up items in the Manchester house and helped get the Bolton house ready for the move by cleaning up, painting and making the bathrooms functional. The respondent paid the claimant $8 an hour in cash for his labor
On January 23, 2012, the claimant filed workers’ compensation claims, pursuant to the act, which stemmed from injuries that he had sustained in a car accident that occurred on January 13, 2012, while he was being driven by the respondent‘s girlfriend to the respondent‘s Bolton home where he worked. In accordance with
On September 14, 2012, a formal hearing was held before the commissioner on the issue of compensability of the injuries sustained by the claimant as a result of the motor vehicle accident. Both the claimant and the respondent appeared at the contested hearing and testified as to the nature of the employment relationship, specifically, whether there was an employer-employee relationship between the claimant and Fresh Start on the date of the accident.3 The record closed on November 26, 2012, with the claimant having submitted a brief. The respondent, however, did not submit a brief. On March 26, 2013, the commissioner issued a finding and award determining that both the respondent and Fresh Start were liable for the claimant‘s medical bills and certain benefits (2013 finding and award). On October 29, 2013, Fresh Start filed a motion to open the 2013 finding and award on the grounds that notice to it was sent to the incorrect address, and that the respondent was incorrectly named as a respondent. The respondent subsequently filed a brief in support of the motion to open, which claimed that, as a result of this clerical error, he did not understand that the claimant was pursuing the respondent in his personal capacity, he was never afforded the opportunity to fully respond to the claimant‘s claim and evidence,
On April 30, 2015, the respondent submitted proposed findings and a brief on the merits of the personal liability claim. The claimant elected to stand on his prior filings. On that same date, the commissioner deemed the record of the formal hearing closed and the matter submitted to the commissioner for a decision. The commissioner issued a finding and award on June 2, 2015, determining that the respondent was personally liable as the employer for the claimant‘s medical bills and payment of benefits under the act (2015 finding and award).
On June 22, 2015, the respondent appealed the commissioner‘s 2015 finding and award to the board. On June 10, 2016, the board affirmed the 2015 finding and award entered by the commissioner. This appeal followed. Additional facts will be set forth as necessary.
On appeal to this court, the respondent asserts that the claimant failed to prove that he was an employee of the respondent and subject to coverage under the act, and that the respondent was not afforded reasonable due process regarding any notice that he was potentially liable as an individual. In response, the claimant argues that the commissioner correctly found that the claimant was an employee within the meaning of the act, and that the respondent was afforded due process sufficient to hold him personally liable as the employer. We agree with the claimant and, accordingly, affirm the judgment of the board.
I
The respondent first claims that the board erred in affirming the commissioner‘s finding that the claimant was the respondent‘s “employee” under the act for two reasons: (1) the claimant did not qualify for compensation under the act because § 31-275 (9) (B) (iv) excludes from the definition of employee any person engaged in any type of service in or about a private dwelling provided he is not “regularly employed” by the owner or occupier over twenty-six hours per week; and (2) the claimant was a casual laborer excluded from compensation by § 31-275 (9) (B) (ii).
As a threshold matter, we note that “[t]he principles that govern our standard of review in workers’ compensation appeals are well established. . . . The board sits as an appellate tribunal reviewing the decision of the commissioner. . . . [T]he review . . . of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner . . . . [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses . . . . Where the subordinate facts allow for diverse inferences, the commissioner‘s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .
“This court‘s review of decisions of the board is similarly limited. . . . The conclusions drawn by [the commissioner] from the facts found 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. . . . [W]e must interpret [the commissioner‘s finding] with the goal of sustaining that conclusion in light of all
“The entire statutory scheme of the [act] is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act; a claimant . . . who is not an employee has no right under this statute to claim for and be awarded benefits.” (Internal quotation marks omitted.) Vanzant v. Hall, 219 Conn. 674, 678, 594 A.2d 967 (1991). Section 31-275 (9) (A) defines “employee” as “any person who . . . (i) [h]as entered into or works under any contract of service or apprenticeship with an employer . . . .”
A
With this background, we first address the respondent‘s claim that the claimant was not regularly employed for over twenty-six hours per week and, thus, was excluded from coverage under the act pursuant to
In Smith, our Supreme Court interpreted the phrase “regularly employed” in
The present case, however, is distinguishable from Smith because of the difference in the length of employment between the claimant in Smith and the claimant in the present case. The claimant in Smith had worked for the respondents
The commissioner found that the claimant had a consistent schedule over the eleven week period, worked an average of thirty-eight and one half hours per week, and that his average weekly wage was $310. The commissioner also found that the claimant worked four to five days each week for approximately six to ten hours per day. These facts support the commissioner‘s conclusion that the claimant was an employee of the respondent entitled to benefits under the act. Although the commissioner found that “most of the claimant‘s work was performed for purposes not associated with [the respondent‘s] trade or business,” he was regularly employed during that time for more than twenty-six hours per week. We already have concluded that the commissioner‘s decision did not result from an incorrect application of the law to the subordinate facts, and we now conclude that the decisions did not result from an inference illegally or unreasonably drawn from them.4 Therefore, the commissioner‘s conclusions on this issue must stand.
B
We next address the respondent‘s claim that the claimant was a casual laborer who was excluded from coverage under the act pursuant to
The respondent specifically challenges as incorrect the commissioner‘s conclusion that the claimant was not a casual laborer in light of the findings that the work at the
A party seeking to challenge a finding of the commissioner as incorrect or incomplete must first do so by filing a motion to correct the challenged findings. “A motion to correct the commissioner‘s finding, as provided in § 31-301-46 of the Regulations of Connecticut State Agencies, is the proper vehicle to be used when an appellant claims that the commissioner‘s finding is incorrect or incomplete. We have long held that this motion is not merely a technical requirement and that the failure to file this motion justifies dismissal of an appeal, for if an appellant claims that the finding is incorrect, the matter should first be called to the attention of the commissioner that he may have an opportunity to supply omitted facts or restate findings in view of the claims made in the motion.” (Footnote altered; internal quotation marks omitted.) Vanzant v. Hall, supra, 219 Conn. 679; see also Guerrera v. W. J. Megin, Inc., 130 Conn. 423, 425, 34 A.2d 873 (1943) (failure to file motion to correct finding of commissioner would, in itself, justify dismissal of appeal).
The respondent did not file a motion to correct any of the commissioner‘s findings following the 2015 finding and award, nor has he shown good cause for failing to file such a motion. The respondent has not availed himself of the opportunity to have the commissioner‘s finding and award corrected prior to his appeal of the board‘s affirmance of that award. He has thereby deprived the commissioner of the opportunity to cor- rect the findings or supply omitted facts to those conclusions that the respondent claims are incorrect or inconsistent. See Vanzant v. Hall, supra, 219 Conn. 681. We, therefore, decline to consider the respondent‘s claim that the board improperly affirmed the commissioner‘s finding that the claimant was an employee under the act based on the exclusion in
II
The respondent also claims that he was deprived of due process because he was not given reasonable notice that the claimant sought to hold him personally liable and was not mailed a notice of the
We now set forth the applicable standard of review and legal principles. “The right to fundamental fairness in administrative proceedings encompasses a variety of procedural protections. . . . The scope of the right to fundamental fairness in administrative proceedings, like the scope of the constitutional right to due process that it resembles, is a question of law over which our review is plenary.” (Internal quotation marks omitted.) Recycling, Inc. v. Commissioner of Energy & Environmental Protection, 179 Conn. App. 127, 149, 178 A.3d 1083 (2018), citing FairwindCT, Inc. v. Connecticut Siting Council, 313 Conn. 669, 711, 99 A.3d 1038 (2014).
“Workers’ compensation hearings must be conducted in a fundamentally fair manner so as not to violate the rules of due process. . . . A fundamental principle of due process is that each party has the right to receive notice of a hearing, and the opportunity to be heard at a meaningful time and in a meaningful manner.” (Internal quotation marks omitted.) Bidoae v. Hartford Golf Club, 91 Conn. App. 470, 477, 881 A.2d 418, cert. denied, 276 Conn. 921, 888 A.2d 87 (2005), cert. denied, 547 U.S. 1112, 126 S. Ct. 1916, 164 L. Ed. 2d 665 (2006). “Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” (Internal quotation marks omitted.) Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 740, 774 A.2d 1009 (2001). “An integral premise of due process is that a matter cannot be properly adjudicated unless the parties have been given a reasonable opportunity to be heard on the issues involved . . . .” (Internal quotation marks omitted.) Id., 741.
The following additional facts are relevant to our disposition of this issue on appeal. In commencing the workers’ compensation action, the claimant mailed three form 30Cs, one each to the respondent, Fresh Start, and Fresh Start Realty, LLC, all addressed to 122 Oakland Street in Manchester. The respondent resided at 65 Shoddy Mill Road in Bolton. Nevertheless, there is no dispute that the respondent received all three forms. Upon receipt of the form 30C that listed “Michael Gramegna” as the employer, the respondent was put on notice that he, as an individual, was one of three respondents potentially liable to be found as the employer of the claimant. The respondent appeared and represented Fresh Start at the first formal hearing on September 14, 2012. At that hearing, the commissioner heard testimony from the claimant, the respondent, and several witnesses.
When the pro forma formal hearing for submission of briefs and proposed findings
Even if we assume, without deciding, that the respondent was deprived of due process prior to the 2013 finding and award because he was not afforded notice of the pro forma formal hearing and an opportunity to file a brief and proposed findings on the issue of personal liability, we conclude that the respondent is not entitled to relief in this appeal.8 The 2013 finding and award is not the operative award in this appeal, and, in fact, that decision was vacated. The respondent suffered no due process deprivation with regard to the 2015 finding and award that he now challenges. The respondent had a full and fair opportunity to be heard on the issue of personal liability when he was given an opportunity to submit a brief and proposed findings to the commissioner prior to the 2015 finding and award. The respondent submitted proposed findings and a brief to the commissioner on April 30, 2015. The respondent was also on notice from the 2013 finding and award that the claimant sought to hold him personally liable for the claimant‘s injuries.
On the basis of the forgoing, we conclude that the board properly concluded that the claimant was an employee subject to coverage under the act, and that the procedures used by the commissioner prior to the 2015 finding and award afforded the respondent sufficient due process to be held personally liable.
The decision of the Workers’ Compensation Review Board is affirmed.
In this opinion the other judges concurred.
Notes
“[The Claimant‘s Counsel]: [H]ow did you become employed by Fresh Start General Remodeling & Contracting?
“[The Claimant]: Mike, Michael Gramegna.
“[The Claimant‘s Counsel]: And starting in October of 2011, did you start going to work for Fresh Start . . . General Remodeling & Contracting?
“[The Claimant]: Yes . . . .
“[The Claimant‘s Counsel]: How much was Mr. Gramegna or Fresh Start . . . going to pay you?
“[The Claimant]: $8 an hour.
“[The Claimant‘s Counsel]: And did they . . . actually pay you that amount of money?
“[The Claimant]: Yeah, he was paying me $8 an hour.”