Melendez v. Fresh Start Gen. Remodeling & Contracting, LLC

180 Conn.App. 355

183 A.3d 670

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

John L. Laudati, with whom, on the brief, was P. Jo Anne Burgh, for the appellant (respondent Michael Gramegna).

Jon D. Golas, for the appellee (claimant).

Prescott, Bright and Eveleigh, Js.

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), General Statutes § 31–275 et seq., and (2) the respondent was afforded sufficient due process to hold him personally liable. We disagree and, accordingly, affirm the decision of the board.

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 because he did not have his own tools and required transportation to and from work each day. For a period of less than two weeks, the claimant assisted the respondent at a Fresh Start remodeling job in Avon. The Avon job was completed by November 17, 2011, and, thereafter, the claimant went back to helping the respondent with the residential move. The respondent and his girlfriend moved into the Bolton house at the end of November, but he continued to employ the claimant to help make the house livable. The claimant performed tasks such as cutting down trees, splitting and stacking firewood, painting, putting up Sheetrock, and assisting with plumbing and laying tile. For a period of approximately eleven weeks, the claimant generally worked four to five days a week for the respondent and earned an average of $300 a week.

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 General Statutes § 31–294c (a), the claimant filed three form 30Cs² in order to commence the present action: the first directed to the respondent; the second directed to Fresh Start General Remodeling & Contracting, LLC; and the third directed to Fresh Start Realty, LLC.

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, and he was not notified of the date to submit a brief and proposed findings. On March 18, 2015, the same commissioner, then acting for the eighth district, granted the motion to open, and vacated the 2013 finding and award, which had determined that the respondent was personally liable for the claimant's medical bills and certain benefits.

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 of the other supporting evidence.... Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it." (Internal quotation marks omitted.)

Passalugo v. Guida–Seibert Dairy Co. , 149 Conn. App. 478, 482–83, 91 A.3d 475 (2014). "[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 review board." (Internal quotation marks omitted.) Sullins v. United Parcel Service, Inc. , 315 Conn. 543, 550, 108 A.3d 1110 (2015).

"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 ...." Section 31–275 (9) (B) expressly excludes from this definition in subparagraph (ii) "[o]ne whose employment is of a casual nature and who is employed otherwise than...