Gould v. Stamford ( 2019 )

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PETER GOULD v. CITY OF STAMFORD ET AL.
(SC 20004)
Palmer, Mullins, Kahn, Vertefeuille and Ecker, Js.*
Syllabus
The plaintiff appealed from the decision of the Compensation Review Board,
claiming that the board improperly upheld the decision of the Workers’
Compensation Commissioner denying and dismissing his claim for bene-
fits under a provision (§ 31-310) of the Workers’ Compensation Act (§ 31-
275 et seq.) that allows for additional benefits in certain circumstances
when an injured employee worked for more than one employer as of
the date of the compensable injury. The plaintiff sustained an injury in
the course of his part-time employment with the defendant city. At the
time of his injury, the plaintiff was also the sole member of a limited
liability company, I Co., which provided video production services for
corporations. I Co. occasionally hired independent contractors, but the
plaintiff otherwise was solely responsible for completing I Co.’s projects.
I Co. had purchased a workers’ compensation insurance policy that
covered the period in which he had been injured while working for the
city. After his injury, the plaintiff filed a claim for workers’ compensation
based on both his earnings from the city and from I Co. Although the
city accepted the compensability of the injury, the defendant Second
Injury Fund denied the plaintiff’s claim for concurrent employment
benefits on the grounds that there was no employer-employee relation-
ship between the plaintiff and I Co., and that members of single-member
limited liability companies are presumptively excluded from the act
pursuant to a 2003 memorandum issued by the chairman of the Workers’
Compensation Commission that provided, inter alia, that members of
single-member limited liability companies are presumed to be excluded
from the act unless they elect to be covered by filing Form 75, which
serves to notify the commission that the limited liability company is
electing to accept the provisions of the act. In reviewing the Second
Injury Fund’s denial of the plaintiff’s claim, the Workers’ Compensation
Commissioner concluded that the plaintiff was not entitled to concurrent
benefits, reasoning that the plaintiff was not an employee of I Co.
because, among other things, he controlled the means and methods of
the services that he performed on behalf of I Co., lacked a fixed salary,
reported to no one, and treated I Co. as a sole proprietorship for tax
purposes. The commissioner also observed that I Co. had not elected
to accept the provisions of the act by filing Form 75 in accordance with
the dictates of the 2003 memorandum. The plaintiff thereafter appealed
to the board, which affirmed the commissioner’s decision. The board
concluded that, regardless of whether I Co. elected to accept the provi-
sions of the act by filing Form 75, and regardless of whether the commis-
sion chairman correctly determined in the 2003 memorandum that such
an election is required for single-member limited liability companies,
the plaintiff could not prevail because the commissioner properly found
that the plaintiff was not an employee of I Co. The board reasoned that,
because the plaintiff was not paid on the basis of the number of hours
he worked but, rather, compensated himself for his activities solely as
a business owner obtaining profits from his business, he commingled
his personal activities with I Co.’s activities, and, thus, I Co. did not
maintain the appropriate corporate formalities to establish an employer-
employee relationship with its principal. The board also observed that
the plaintiff did not receive a tax form for reporting wages from I Co.
but reported his income from I Co. as a self-employed individual, which,
according to the board, supported the determination that he was self-
employed. On appeal from the board’s decision, the plaintiff claimed,
inter alia, that he was an employee of I Co. for purposes of the act and,
therefore, was eligible for concurrent employment benefits. Held:
1. This court rejected the rationale that the board relied on in affirming the
commissioner’s decision, namely, that, because I Co. distributed its
profits to the plaintiff instead of paying him an hourly rate, it did not
maintain the appropriate corporate formalities, and, thus, I Co.’s status
as a limited liability company had to be disregarded: the Second Injury
Fund never claimed that I Co.’s corporate status as a limited liability
company must be disregarded, and the board cited no persuasive author-
ity for the proposition that it is improper for a single-member limited
liability company to distribute profits to the member rather than paying
him or her an hourly wage or that it was improper for the member to
report earnings from the company as self-employment earnings rather
than wages, and the governing law appeared to be to the contrary;
accordingly, I Co. was treated as a properly constituted limited liability
company for purposes of the present case.
2. There was no requirement under the act that a single-member limited
liability company must elect to accept the act’s provisions before its
member can be covered thereunder, and, therefore, the commission
chairman did not have the authority to adopt, in the 2003 memorandum, a
conclusive presumption that members of single-member limited liability
companies are not their employees; nothing in § 31-275 (10), which
defines ‘‘employer’’ for purposes of the act to include a limited liability
company, and which also provides that a person who is a sole proprietor
of a business may accept the provisions of the act by notifying the
commissioner of his intent to do so and thereby become an employer
for purposes of the act, requires single-member limited liability compa-
nies to elect to accept the provisions of the act before their members
are covered thereunder, and the legislature’s choice not to include single-
member limited liability companies in the election provision of § 31-
275 (10) indicated that it intended that single-member limited liability
companies may be employers of their members.
3. The board incorrectly concluded that the plaintiff was not an employee
of I Co. and, therefore, was not entitled to concurrent employment
benefits pursuant to § 31-310; this court clarified that the proper test
for determining whether the member of a single-member limited liability
company is an employee of the company is whether the member per-
formed services for the company and was subject to the hazards of the
company’s business, and, because there was no dispute in the present
case that the plaintiff provided services to I Co. and was subject to the
hazards of I Co.’s business, he was I Co.’s employee for purposes of
the act.
Argued April 5, 2018—officially released April 2, 2019
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Seventh District denying and
dismissing the plaintiff’s claim for certain additional
workers’ compensation benefits, brought to the Com-
pensation Review Board, which affirmed the commis-
sioner’s decision, and the plaintiff appealed. Reversed;
judgment directed.
John J. Morgan, for the appellant (plaintiff).
Kenneth H. Kennedy, Jr., assistant attorney general,
with whom, on the brief, were George Jepsen, former
attorney general, and Philip M. Schulz, assistant attor-
ney general, for the appellee (defendant Second
Injury Fund).
Opinion
PALMER, J. The issue that we must resolve in this
appeal is whether the plaintiff, Peter Gould, the sole
member of a single-member limited liability company,
Intervale Group, LLC (Intervale), qualifies as Intervale’s
employee for purposes of the Workers’ Compensation
Act (act), General Statutes § 31-275 et seq., and is there-
fore eligible for concurrent compensation benefits from
the defendant Second Injury Fund (fund) pursuant to
General Statutes § 31-310.1 The plaintiff was a part-time
employee of the named defendant, the city of Stamford
(city),2 and, according to him, was concurrently
employed by Intervale. After the plaintiff was injured
while working for the city, he filed a claim, pursuant
to the act, seeking compensation based on the earnings
that he received from both the city and Intervale. The
city accepted the compensability of the injury and paid
its indemnity obligations to the plaintiff but, pursuant
to § 31-310, transferred the concurrent compensation
obligation to the fund. The fund denied the claim for
benefits on the ground that the plaintiff was not Inter-
vale’s employee. The plaintiff sought review of this rul-
ing by the Workers’ Compensation Commission (com-
mission). After a hearing, the Workers’ Compensation
Commissioner for the Seventh District (commissioner)
determined that the plaintiff was not an employee of
Intervale for purposes of the act and, therefore, did not
qualify for compensation benefits based on his allegedly
concurrent employment. The plaintiff appealed from
the decision of the commissioner to the Compensation
Review Board (board), which affirmed that decision.
This appeal followed.3 We conclude that the plaintiff
qualifies as Intervale’s employee for purposes of the act
and, therefore, is eligible for concurrent employment
benefits pursuant to § 31-310. Accordingly, we reverse
the decision of the board.
The record reveals the following procedural history
and facts that were found by the commissioner or that
are undisputed. In 2000, the plaintiff formed Intervale,
a limited liability company of which he is the sole mem-
ber. Intervale provided various video production ser-
vices to corporations. Intervale occasionally hired
independent contractors, but the plaintiff was other-
wise solely responsible for completing the company’s
projects, which included field production work. He
reported to no one other than Intervale’s clients.
Intervale did not pay the plaintiff a fixed salary.
Rather, when Intervale received a payment from a cus-
tomer, the plaintiff would deposit the payment in Inter-
vale’s bank account and then withdraw funds as needed.
In 2012 and 2013, the plaintiff reported his income from
Intervale for federal tax purposes on schedule C of
Internal Revenue Service Form 1040, which is the form
used to report ‘‘Profit or Loss From Business (Sole
Proprietorship).’’
In 2012, a shopping mall in Massachusetts hired Inter-
vale to shoot a video at the mall. As a condition of
the engagement, the mall required Intervale to obtain
workers’ compensation insurance. The premium for the
policy that Intervale purchased was based on an esti-
mated annual employee remuneration of $12,750, which
was the figure that the insurance company recom-
mended for small businesses with an undetermined pay-
roll. The plaintiff’s gross earnings from Intervale were
$43,600 in 2012 and $97,496 in 2013. Thereafter, Inter-
vale purchased a workers’ compensation insurance pol-
icy for the period from April 4, 2013, to April 4, 2014.
In 2013, in addition to his work in connection with
Intervale, the plaintiff worked part-time for the city as
a park police officer. On July 28, 2013, the plaintiff
injured his back and legs during the course of his
employment with the city. Thereafter, he filed a claim
for compensation under the act based on both his earn-
ings from the city and his earnings from Intervale. The
city paid its indemnity obligation to the plaintiff and
transferred the claim for compensation to the fund pur-
suant to § 31-310 based on the plaintiff’s allegedly con-
current employment with Intervale. The fund denied
the plaintiff’s claim for concurrent employment benefits
on the grounds that (1) there was no employer-
employee relationship between the plaintiff and Inter-
vale, and (2) members of single-member limited liability
companies are presumptively excluded from the act
pursuant to a memorandum issued by the chairman
of the commission in 2003. See John A. Mastropietro,
Chairman, Workers’ Compensation Commission, State
of Connecticut, Memorandum No. 2003-02, ‘‘WCC Lim-
ited Liability Companies & Revised Forms Memoran-
dum—April 17, 2003’’ (2003 memorandum), available
at https://wcc.state.ct.us/memos/2003/2003-02.htm (last
visited March 26, 2019). The 2003 memorandum pro-
vides in relevant part: ‘‘After carefully considering this
matter, we have determined that members of [limited
liability companies (LLCs)] that contain only one mem-
ber (single-member LLCs) should be presumed to be
excluded from the [a]ct unless they have elected to be
covered, [whereas] members of multiple-member LLCs
should be presumed to be covered under the [a]ct unless
they have elected to be excluded. In order to clarify
this policy, we have amended our Form 6B and . . .
Form 754 accordingly, and direct all members of LLCs
to use such forms in the future.’’ (Emphasis in original.)
The 2003 memorandum thus analogized single-member
limited liability companies to sole proprietors, who are
excluded from the provisions of the act pursuant to
General Statutes § 31-275 (10)5 unless they elect to
accept its provisions, and analogized members of multi-
ple-member limited liability companies to the partners
of a partnership, who, under the same statute, are
deemed to have accepted the provisions of the act with
respect to themselves unless they elect to be excluded.
The plaintiff thereafter sought the commission’s
review of the fund’s denial of his claim for concurrent
employment benefits. In his proposed finding and
award, the plaintiff contended that there was ‘‘no seri-
ous dispute that [he was] an employee of [Intervale]’’
and that the rule promulgated by the 2003 memo-
randum, namely, that the member of a single-member
limited liability company is presumed not to be an
employee of the company, is inconsistent with the defi-
nition of ‘‘employer’’ set forth in § 31-275 (10), which
includes limited liability companies. In its proposed
finding and dismissal, the fund contended that, because
the plaintiff was the sole member of Intervale, he was
a sole proprietor. Accordingly, the fund argued, under
both the provision of § 31-275 (10) requiring sole propri-
etorships to elect to accept the provisions of the act
and the 2003 memorandum, the plaintiff was required
to elect coverage by filing a Form 75 before he would
be entitled to compensation based on his work for Inter-
vale. The fund also summarily stated that ‘‘[t]here is no
employer-employee relationship between the [plaintiff]
and [Intervale].’’
After conducting an evidentiary hearing, the commis-
sioner concluded that the plaintiff was not an employee
of Intervale because he controlled ‘‘the means and meth-
od[s] of the services [that] he performed on behalf of
[Intervale],’’ he lacked a fixed salary, he reported to no
one, he treated Intervale as a sole proprietorship for
tax purposes, and it was ‘‘questionable . . . whether
the [plaintiff] intended to cover himself as an employee
when [Intervale] procured [workers’ compensation cov-
erage] . . . .’’ The commissioner also observed that
Intervale had not elected to accept the provisions of
the act pursuant to § 31-275 (10) by filing a Form 75 with
the commission, as required by the 2003 memorandum.
The commissioner concluded, however, that, irrespec-
tive of whether Intervale had filed Form 75, he was not
Intervale’s employee and, therefore, was not entitled to
concurrent employment benefits pursuant to § 31-310.
The plaintiff then appealed from the commissioner’s
decision to the board. In his brief to the board, the
plaintiff asserted that, because the definition of
‘‘employer’’ set forth in § 31-275 (10) expressly includes
limited liability companies, the commission chairman
had no authority to require single-member limited liabil-
ity companies to elect to accept the provisions of the
act pursuant to § 31-275 (10) before the single member
would be covered, as the chairman had done in the
2003 memorandum. The fund maintained in its brief to
the board that the commissioner had correctly deter-
mined that, because the plaintiff controlled the means
and methods of the services that he performed for Inter-
vale, had no fixed salary but, rather, withdrew money
from Intervale’s bank account as needed, and reported
his earnings from Intervale as earnings from self-
employment, the plaintiff was not Intervale’s employee.
The fund also claimed that the commissioner correctly
had determined that, because the plaintiff’s gross earn-
ings from Intervale were far in excess of the $12,750
reflected in the workers’ compensation insurance pol-
icy that the plaintiff had purchased, it was doubtful that
he intended to be covered by the policy. Finally, the
fund argued that, contrary to the plaintiff’s contention,
the 2003 memorandum did not require single-member
limited liability companies to elect to accept the provi-
sions of the act before their members would be covered
but, instead, merely created a rebuttable presumption
that such members are not covered.
The board concluded that, regardless of whether
Intervale elected to accept the provisions of the act by
filing Form 75, as provided by the 2003 memorandum,
and regardless of whether the commission chairman
correctly determined that such an election is required,
the plaintiff could not prevail because the commissioner
had found as a factual matter that he was not Intervale’s
employee, and this factual finding was supported by
the evidence. Specifically, the board concluded that,
because the plaintiff was not paid on the basis of the
number of hours he worked for Intervale but ‘‘compen-
sated himself for his activities . . . solely as a business
owner obtaining profits from the firm,’’ the plaintiff had
commingled his personal activities with the company’s
activities. Thus, the board concluded, ‘‘Intervale was
the alter ego of the [plaintiff] and did not maintain
the appropriate corporate formalities to establish an
employer-employee relationship with its principal.’’ In
addition, the board explained that the fact that the plain-
tiff did not receive a W-2 federal income tax form from
Intervale, which is the Internal Revenue Service form
for reporting wages but, instead, reported his income
from Intervale as a self-employed individual, supported
the determination that he was self-employed. On the
basis of these considerations, the board affirmed the
commissioner’s decision.
The plaintiff then filed this appeal. The plaintiff
claims that, because the underlying facts are undis-
puted, the board should have applied plenary review to
the commissioner’s decision that he was not Intervale’s
employee instead of deferring to the commissioner’s
factual finding on that issue. The plaintiff also contends
that, under the plain language of § 31-275 (9) (A) (i),6
which defines ‘‘employee’’ for purposes of the act, he
was Intervale’s employee and, therefore, was eligible
for concurrent employment benefits pursuant to § 31-
310. Accordingly, the plaintiff contends, the commis-
sion chairman had no authority to alter the statutory
provisions of the act by promulgating the rule set forth
in the 2003 memorandum, which was premised on the
assumption that the members of single-member limited
liability companies are not employees of those com-
panies.
The fund responds that, under the act, there is no
meaningful distinction between a sole proprietor and
a member of a single-member limited liability company,
and, therefore, the presumption created by the 2003
memorandum that such members are not employees—
which presumption the fund contends is rebuttable—
is consistent with the provision of § 31-275 (10) requir-
ing sole proprietors to elect to accept the provisions
of the act before they are covered. The fund further
maintains that the commissioner’s finding that the plain-
tiff was not Intervale’s employee pursuant to the tradi-
tional ‘‘right to control’’ test is supported by the record.
See, e.g., Doe v. Yale University, 252 Conn. 641, 680–81,
748 A.2d 834 (2000) (‘‘[t]he right to control test deter-
mines the [relationship between a worker and a putative
employer] by asking whether the putative employer has
the right to control the means and methods used by the
worker in the performance of his or her job’’ [internal
quotation marks omitted]).
Before addressing the merits of these claims, we
pause to clarify what is and what is not at issue in this
appeal. As we indicated, in its brief to the board, the
fund argued that, for a variety of reasons, the plain-
tiff was not an employee of Intervale. The fund did
not make the very different claim that Intervale has
effectively been converted into a sole proprietorship
because the plaintiff failed to observe the rules govern-
ing limited liability companies.7 Nevertheless, the
board’s affirmance of the commissioner’s decision was
based on its determination that, because Intervale dis-
tributed its profits to the plaintiff instead of paying him
an hourly rate, it ‘‘did not maintain the appropriate
corporate formalities.’’ Accordingly, the board con-
cluded, Intervale was the plaintiff’s ‘‘alter ego,’’ and,
therefore, its status as a limited liability company must
be disregarded. The board cited no persuasive author-
ity, however, for the proposition that it is somehow
improper for a single-member limited liability company
to distribute profits to the member rather than paying
the member wages or, relatedly, that it is improper for
the member to report earnings from the company as
self-employment earnings rather than wages.8 Indeed,
the governing law appears to be to the contrary. See,
e.g., General Statutes (Rev. to 2013) § 34-152 (‘‘[t]he
profits and losses of a limited liability company shall
be allocated among the members, and among classes
of members, in the manner agreed to in the operating
agreement’’); General Statutes (Rev. to 2013) § 34-158
(‘‘distributions of cash or other assets of a limited liabil-
ity company shall be allocated among the members
. . . in the manner provided in the operating agree-
ment’’); see also Riether v. United States, 919 F. Supp.
2d 1140, 1159 (D.N.M. 2012) (when business entity with
single owner does not elect corporate style taxation
pursuant to 26 C.F.R. § 301.7701-3 [a], earnings of owner
are subject to taxation as self-employment earnings);
26 C.F.R. § 301.7701-3 (a) (2013) (business entity that
is not classified as corporation and that has single
owner can elect either to be classified as association
or to be disregarded as entity separate from its owner
for federal tax purposes); General Statutes (Rev. to
2013) § 34-113 (for purposes of state tax law, limited
liability company is treated in accordance with classifi-
cation for federal tax purposes). Because the fund has
never made any claim that Intervale’s corporate status
as a limited liability company must be disregarded due
to the method by which the plaintiff was paid, and
because the board’s conclusion to that effect is not
supported by any authority, we cannot accept the
board’s rationale for affirming the decision of the com-
missioner. For present purposes, therefore, we treat
Intervale as a properly constituted limited liability com-
pany that operated as such.
Thus, the first issue that we must address is whether
a single-member limited liability company must elect
to accept the provisions of the act before the member
is covered, as the commission chairman determined in
the 2003 memorandum, or, instead, the member may be
covered automatically as an employee of the company.9
Second, if we agree with the plaintiff that the member
of a single-member limited liability company may be
the company’s employee, we also must determine
whether the plaintiff was an employee of Intervale for
purposes of the act. We conclude that a single-member
limited liability company is not required to elect to
accept the provisions of the act in order for its member
to be covered; rather, the member may be covered
automatically as an employee. We further conclude that
an employer-employee relationship existed between
Intervale and the plaintiff because the plaintiff provided
services to Intervale and was subject to the hazards of
Intervale’s business.
‘‘As a threshold matter, we set forth the standard of
review applicable to workers’ compensation appeals.
The principles that govern our standard of review in
workers’ compensation appeals are well established.
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. . . . [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 unwar-
ranted when the construction of a statute . . . has not
previously been subjected to judicial scrutiny [or to]
. . . a governmental agency’s time-tested interpreta-
tion . . . .’’ (Citation omitted; internal quotation marks
omitted.) Sullins v. United Parcel Service, Inc., 315
Conn. 543, 550, 108 A.3d 1110 (2015). ‘‘In addition to
being time-tested, an agency’s interpretation must also
be reasonable.’’ Stec v. Raymark Industries, Inc., 299
Conn. 346, 356, 10 A.3d 1 (2010).
‘‘Furthermore, [i]t is well established that, in resolv-
ing issues of statutory construction under the act, we
are mindful that the act indisputably is a remedial stat-
ute that should be construed generously to accomplish
its purpose. . . . The humanitarian and remedial pur-
poses of the act counsel against an overly narrow con-
struction that unduly limits eligibility for workers’
compensation. . . . Accordingly, [i]n construing work-
ers’ compensation law, we must resolve statutory ambi-
guities or lacunae in a manner that will further the
remedial purpose of the act. . . . [T]he purposes of
the act itself are best served by allowing the remedial
legislation a reasonable sphere of operation considering
those purposes.’’ (Internal quotation marks omitted.)
Sullins v. United Parcel Service, Inc., supra, 315
Conn. 550–51.
I
We first consider the plaintiff’s contention that there
is no requirement under the act that a single-member
limited liability company elect to accept the provisions
of the act before its member can be covered. We begin
our analysis of this claim with the language of the appli-
cable statutory provisions. Section 31-275 (9) (A)
defines ‘‘employee’’ in relevant part as any person who
‘‘(i) [h]as entered into or works under any contract of
service or apprenticeship with an employer, whether
the contract contemplated the performance of duties
within or without the state,’’ or ‘‘(ii) [i]s a sole proprietor
or business partner who accepts the provisions of [the
act] in accordance with subdivision (10) of this section
. . . .’’ Section 31-275 (10) defines an ‘‘employer’’ as
‘‘any person, corporation, limited liability company,
firm, partnership, voluntary association, joint stock
association, the state and any public corporation within
the state using the services of one or more employees
for pay, or the legal representative of any such employer
. . . .’’ Section 31-275 (10) also provides in relevant
part that ‘‘[a] person who is the sole proprietor of a
business may accept the provisions of [the act] by noti-
fying the commissioner, in writing, of his intent to do
so. If such person accepts the provisions of [the act]
he shall be considered to be an employer and shall
insure his full liability in accordance with subdivision
(2) of subsection (b) of section 31-284. Such person
may withdraw his acceptance by giving notice of his
withdrawal, in writing, to the commissioner. Any person
who is a partner in a business shall be deemed to have
accepted the provisions of [the act] and shall insure
his full liability in accordance with subdivision (2) of
subsection (b) of section 31-284, unless the partnership
elects to be excluded from the provisions of [the act]
by notice, in writing and by signed agreement of each
partner, to the commissioner.’’
The plaintiff contends that, because the first sentence
of § 31-275 (10) includes limited liability companies in
the definition of ‘‘employer,’’ and because the election
provision of subdivision (10) applies exclusively to sole
proprietors, the legislature clearly did not intend that
the election provision would apply to single-member
limited liability companies. Consequently, he contends,
the commission chairman lacked the authority to pro-
mulgate the rule set forth in the 2003 memorandum
requiring single-member limited liability companies to
elect coverage for their members. The plaintiff further
maintains that, because there is no presumption that
single-member limited liability companies are not the
employers of their members, to qualify as Intervale’s
employee for purposes of the act, he was required to
satisfy only the statutory definition of ‘‘employee’’ set
forth in § 31-275 (9) (A) (i).
The fund does not seriously dispute the plaintiff’s
claim that the election provision of § 31-275 (10) does
not, by its terms, apply to single-member limited liability
companies. Nor does the fund claim that, if we agree
with it that single-member limited liability companies
are not employers of their members, the commission
chairman had the authority to promulgate the rule set
forth in the 2003 memorandum requiring single-member
limited liability companies to elect to accept the provi-
sions of the act in order to obtain coverage for their
members in the absence of any statutory basis for that
rule. The fund does contend, however, that the pre-
sumption that underlies the rule contained in the 2003
memorandum—that single-member limited liability
companies are not the employers of their members—
is correct, because single-member limited liability com-
panies are not meaningfully distinguishable from sole
proprietorships in this regard.10
We agree with the plaintiff that nothing in § 31-275
(10) requires single-member limited liability companies
to elect to accept the provisions of the act before their
members are covered, and, therefore, the commission
chairman had no authority to adopt that rule. Indeed,
as we indicated, the fund does not seriously contend
otherwise. For the reasons that follow, we further con-
clude that the legislature’s choice not to include single-
member limited liability companies in the election pro-
vision of § 31-275 (10) indicates that the legislature
intended that single-member limited liability companies
may be employers of their members.
First, it is reasonable to conclude that the legislature
adopted the provision of § 31-275 (10) allowing sole
proprietors to elect to adopt the provisions of the act
because it otherwise might appear that, in the absence
of such a provision, a sole proprietorship would not be
considered the employer of the sole proprietor under
§ 31-275 (10), even though that provision defines
‘‘employer’’ to include ‘‘any person . . . .’’ In turn, it is
reasonable to believe that the legislature maintained
this view because a sole proprietor and a sole proprie-
torship are, for all intents and purposes, one and the
same entity, and it would be anomalous to conclude
that an individual can work under a contract of service
with himself. See National Fire Ins. Co. of Hartford v.
Beaulieu Co., LLC, 140 Conn. App. 571, 584, 59 A.3d
393 (2013) (although ‘‘sole proprietor’’ is not defined
for purposes of act, ‘‘Black’s Law Dictionary [9th Ed.
2009] defines ‘sole proprietorship’ as ‘[a] business in
which one person . . . operates in his or her personal
capacity’ or ‘[o]wnership of such a business.’ ’’ [empha-
sis added]); 6 L. Larson & T. Robinson, Larson’s Work-
ers’ Compensation Law (2018) § 76.05 [2], p. 76-13
(‘‘[t]he compensation act cannot be supposed to have
contemplated [the] combination of employer and
employee status in one person’’).11 Thus, the election
provision set forth in § 31-275 (10) allowing sole propri-
etors to elect to accept the provisions of the act effec-
tively creates an exception to the rule that only
employees are covered by the act, consistent with the
policy in favor of broad eligibility for coverage to
accomplish the act’s humanitarian purpose.12 See, e.g.,
Lopa v. Brinker International, Inc., 296 Conn. 426, 432,
994 A.2d 1265 (2010) (act was intended ‘‘to be as wide
as possible in its scope,’’ with ‘‘no employment left out
that can practicably be included’’ [internal quotation
marks omitted]); see also Sullins v. United Parcel Ser-
vice, Inc., supra, 315 Conn. 550 (‘‘ ‘[t]he humanitarian
and remedial purposes of the act counsel against an
overly narrow construction that unduly limits eligibility
for workers’ compensation’ ’’).
In contrast to sole proprietorships, however, business
entities organized as limited liability companies are
entirely distinct from their members. See, e.g., Wasko
v. Farley, 108 Conn. App. 156, 170, 947 A.2d 978 (‘‘[a]
limited liability company is a distinct legal entity whose
existence is separate from its members’’), cert. denied,
289 Conn. 922, 958 A.2d 155 (2008). Thus, it is reasonable
to conclude that the legislature chose not to include
single-member limited liability companies in the elec-
tion provision of § 31-275 (10) because it contemplated
that the member of a single-member limited liability
company can work under a contract of service with
the company—because the company is a distinct
entity—and, therefore, the member can be the com-
pany’s employee, as defined in § 31-275 (9) (A) (i). See
82 Am. Jur. 2d 167, Workers’ Compensation § 143 (2013)
(‘‘[a]n ownership interest or officer position in a corpo-
rate enterprise generally does not prevent an injured
worker from being an ‘employee’ within the meaning
of workers’ compensation acts’’); Restatement, Employ-
ment Law, § 1.03, comment (a), p. 33 (2015) (‘‘[s]ome
laws treat controlling owners as employees in order to
further specific statutory goals, such as facilitating the
collection and calculation of taxes or encouraging own-
ers to make employee benefits broadly available to their
workforce’’).13 Indeed, if the legislature had believed
that the members of single-member limited liability
companies cannot be employees of the companies, we
can perceive no reason why it would have excluded
such members from the opt-in provision of the act,
thereby making such members categorically ineligi-
ble for coverage. The act as written reveals no such
intention to exclude any type of worker. Indeed, the
act was intended to ‘‘be as wide as possible in its scope,’’
with ‘‘no employment left out that can practicably be
included.’’ (Internal quotation marks omitted.) Lopa v.
Brinker International, Inc., supra, 296 Conn. 432. We
note in this regard that, if a member of a single-member
limited liability company cannot be an employee of the
company, such members would appear to be the only
workers who are categorically ineligible for coverage.14
See General Statutes § 31-275 (9) (A) (i) (‘‘employee’’
includes any person who ‘‘[h]as entered into or works
under any contract of service or apprenticeship with an
employer’’); General Statutes § 31-275 (10) (‘‘employer’’
includes ‘‘any person, corporation, limited liability com-
pany, firm, partnership, voluntary association, joint
stock association, the state and any public corporation
within the state using the services of one or more
employees for pay, or the legal representative of any
such employer,’’ and ‘‘all contracts of employment . . .
shall be conclusively presumed to [provide] . . . [A]
[t]hat the employer may accept and become bound by
the provisions of [the act]’’); see also General Statutes
§ 31-275 (9) (B) (v) (employees of corporation who are
corporate officers are covered by act unless they elect
to be excluded);15 General Statutes § 31-275 (10) (sole
proprietors may opt to be covered by act);16 General
Statutes § 31-275 (10) (partners are covered by act
unless they elect to be excluded). Because we are aware
of nothing in the language, history or purpose of the
act to indicate that the legislature had any such intent,
we conclude that the legislature contemplated that the
member of a single-member limited company may be
an employee of the company.17
In reaching this conclusion, we are mindful that a
limited liability company is a hybrid entity ‘‘that adopts
and combines features of both partnership and corpo-
rate forms.’’ (Internal quotation marks omitted.) 418
Meadow Street Associates, LLC v. Clean Air Partners,
LLC, 304 Conn. 820, 834 n.13, 43 A.3d 607 (2012). ‘‘From
the partnership form, the [limited liability company]
borrows characteristics of informality of organization
and operation, internal governance by contract, direct
participation by members in the company, and no taxa-
tion at the entity level. . . . From the corporate form,
the [limited liability company] borrows the characteris-
tic of protection of members from . . . liability’’ simi-
lar to the protection enjoyed by corporate shareholders.
(Internal quotation marks omitted.) Id. Thus, for pur-
poses of the act, the legislature could have concluded
that single-member limited liability companies should
be treated in the same manner as sole proprietorships
and multiple-member limited liability companies in the
same manner as partnerships, as the commission chair-
man indicated in the 2003 memorandum. Indeed, the
legislature’s choice not to treat limited liability compa-
nies in this manner may have potentially negative ramifi-
cations for single-member limited liability companies
and their members. Specifically, the decision to treat
single-member limited liability companies as distinct
entities from their members for purposes of the act
means that a single-member limited liability company
will be statutorily required to obtain coverage for its
member even if the member would prefer not to be
covered. It is not the function of this court or the com-
mission, however, to ‘‘substitute its judgment of what
would constitute a wiser provision for the clearly
expressed intent of the legislature.’’ (Internal quota-
tion marks omitted.) Echavarria v. National Grange
Mutual Ins. Co., 275 Conn. 408, 416–17, 880 A.2d 882
(2005). We therefore conclude that the commission
chairman did not have the authority to adopt a conclu-
sive presumption that the members of single-member
limited liability companies are not their employees, as
he did in the 2003 memorandum.
II
We next consider the plaintiff’s claim that the board
incorrectly determined that the plaintiff was not Inter-
vale’s employee. We agree.
As we explained, the sole basis for the board’s conclu-
sion that the plaintiff was not Intervale’s employee was
its determination that Intervale must be treated as a
sole proprietorship as the result of its purported failure
to observe the corporate formalities governing limited
liability companies when it distributed profits to the
plaintiff instead of paying him an hourly salary. We have
already rejected this conclusion because the fund made
no such claim and the board cited no authority to sup-
port it. The board did not address the commissioner’s
finding that the plaintiff was not Intervale’s employee
in view of the fact that the plaintiff controlled the means
and methods of his own work, which is the fund’s posi-
tion on appeal. Nevertheless, because we are in as good
a position as the board to review the commissioner’s
factual finding concerning this issue, and because nei-
ther party objects to our review of the issue, which has
been fully briefed, we may address it. Furthermore,
because the underlying facts are not in dispute, we
agree with the plaintiff that our review of the commis-
sioner’s determination that the plaintiff was not Inter-
vale’s employee is de novo. See, e.g., State v. Donald,
325 Conn. 346, 354, 157 A.3d 1134 (2017) (‘‘[w]hen the
facts underlying a claim on appeal are not in dispute
. . . that claim is subject to de novo review’’ [internal
quotation marks omitted]).
As we previously indicated, the fund claims that the
commissioner correctly determined that the plaintiff
is not Intervale’s employee because the plaintiff, not
Intervale, had ‘‘the right to control the means and meth-
ods used by the [plaintiff] in the performance of his’’
services. (Internal quotation marks omitted.) Doe v.
Yale University, supra, 252 Conn. 680. We recognize
that the right to control test is the traditional test for
determining the existence of an employer-employee
relationship. The test generally has been used, however,
to distinguish between an independent contractor and
an employee, which is not the issue presented in this
case. See id., 681 (‘‘The test of the relationship is the
right to control. It is not the fact of actual interference
with the control, but the right to interfere, that makes
the difference between an independent contractor and a
servant or agent.’’ [Internal quotation marks omitted.]).
Rather, the issue for us to decide is whether the sole
member of a limited liability company who has the right
to control the company and who also performs services
for the company can be the company’s employee. If
the right to control test applied in this situation, then,
contrary to the apparent legislative intent, the member
of a single-member limited liability company could
never be found to be the company’s employee, because
a single-member limited liability company can only
exercise control over the member through the member.
The Missouri Court of Appeals addressed a similar
problem in Lynn v. Lloyd A. Lynn, Inc., 493 S.W.2d
363 (Mo. App. 1973). In that case, the widow of the sole
owner and manager of a corporation who had been
killed while performing services for the corporation
claimed that the decedent was an employee of the cor-
poration and, as a consequence, that she was eligible
for death benefits under the workers’ compensation
laws of Missouri. See id., 363–64. The Missouri Indus-
trial Commission and the state circuit court concluded
that the decedent was not the corporation’s employee
because he did not satisfy the traditional controllable
services test for employment under Missouri law. See
id. On appeal, the Missouri Court of Appeals observed
that ‘‘[t]he policy behind the controllable services test,
developed to distinguish between an employee and an
independent contractor, was that an independent con-
tractor is only temporarily and peripherally connected
with the master’s or employer’s business.’’ Id., 365. The
court concluded that ‘‘the controllable services test was
inappropriate as applied to executive officers. Such offi-
cers, by virtue of their managerial abilities, often accom-
panied by substantial stock ownership, are naturally
apt to be under less control in the performance of their
duties than the typical employee. But, unlike the inde-
pendent contractor, the executive officer is intimately
and permanently involved in the operation of the busi-
ness. Accordingly, the criteria by which independent
contractor status is determined [are] not adequate to
meet the needs of the unique problems created by exec-
utive officers of corporations.’’ Id.
The court in Lynn concluded that, under Missouri’s
workers’ compensation law, which defined ‘‘employee’’
to include ‘‘every person in the service of any employer
. . . under any contract of hire, express or implied,
oral or written, or under any appointment or election,
including executive officers of corporations’’; Mo. Rev.
Stat. § 287.020 (1) (1969); the word ‘‘employee’’ included
‘‘executive officers . . . irrespective of whether . . .
these officers rendered controllable services or exer-
cised control over the services of others. If by reason
of their employment they were subjected to the hazards
of the occupation or industry, then under the liberal
extension of [Missouri’s workers’ compensation law]
and the directive of the [l]egislature contained in [the
statutory definition of ‘‘employee’’], they should be con-
sidered employees within the terms of [that law].’’ Lynn
v. Lloyd A. Lynn, Inc., supra, 493 S.W.2d 366; see also
Gottlieb v. Arrow Door Co., 364 Mich. 450, 454, 110
N.W.2d 767 (1961) (individual who was sole incorpora-
tor and stockholder of corporation and who had exclu-
sive control over corporation was employee of corpo-
ration for purposes of state workers’ compensation
laws when individual provided services to corporation
and was subject to hazards of corporation’s business);
McFarland v. Bollinger, 792 S.W.2d 903, 906–907 (Mo.
App. 1990) (clarifying that, to qualify as employee for
workers’ compensation purposes under Lynn, it is
essential that corporate officer provide services to cor-
poration); cf. McFarland v. Bollinger, supra, 907 (‘‘[the]
court does not believe that the legislature intended that
executive officers of corporations were to be counted
as employees if they do nothing but lend their name to
the position and perform no service for the corpo-
ration’’).
The court in Lynn further concluded that, ‘‘[t]o hold
that the decedent was not an employee at the time of
his death because of the office he held and his stock
ownership in the corporation is to disregard the sepa-
rate and distinct legal identities of [the] decedent and
[the corporation]. Since [the] defendants have failed
to show that the separate identities were used as a
subterfuge to defeat public convenience, for the perpe-
tration of a fraud, or as a means to justify a wrong, [the
court has] no reason to pierce the corporate veil in
these proceedings.’’ Lynn v. Lloyd A. Lynn, Inc., supra,
493 S.W.2d 366–67. Accordingly, the court concluded
that the decedent was an employee of the corporation.
Id., 367.
We find the reasoning of the court in Lynn persuasive
and equally applicable to the members of single-mem-
ber limited liability companies. In particular, we agree
that the right to control test is not an appropriate test for
determining whether the member of a single-member
limited liability company is an employee of the com-
pany. Rather, the test is whether the member performed
services for the company and was subject to the hazards
of the company’s business. Cf. General Statutes § 31-
275 (9) (A) (i) (defining ‘‘employee’’ as any person who
‘‘[h]as entered into or works under any contract of
service . . . with an employer’’).
Because there is no dispute in the present case that
the plaintiff provided services to Intervale and was sub-
ject to the hazards of Intervale’s business, it is clear
that the plaintiff was Intervale’s employee for purposes
of the act.18 Thus, the board improperly upheld the
decision of the commissioner that the plaintiff was not
Intervale’s employee and that he therefore was not enti-
tled to concurrent employment benefits pursuant to
§ 31-310 in connection with his employment by Inter-
vale.
The decision of the board is reversed and the case
is remanded to the board with direction to reverse the
decision of the commissioner dismissing the plaintiff’s
claim for concurrent employment benefits and to
remand the case to the commissioner with direction to
grant the plaintiff’s claim.
In this opinion the other justices concurred.
* This case originally was argued before a panel of this court consisting
of Justices Palmer, Mullins, Kahn, Espinosa and Vertefeuille. Thereafter,
Justice Espinosa retired from this court and did not participate in the consid-
eration of the case. Justice Ecker was added to the panel and has read the
briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision.
The listing of justices reflects their seniority status on this court as of
date of oral argument.
1
General Statutes § 31-310 (a) provides in relevant part: ‘‘Where the injured
employee has worked for more than one employer as of the date of the
injury and the average weekly wage received from the employer in whose
employ the injured employee was injured, as determined under the provi-
sions of this section, [is] insufficient to obtain the maximum weekly compen-
sation rate from the employer under section 31-309, prevailing as of the
date of the injury, the injured employee’s average weekly wages shall be
calculated upon the basis of wages earned from all such employers in the
period of concurrent employment not in excess of fifty-two weeks prior to
the date of the injury, but the employer in whose employ the injury occurred
shall be liable for all medical and hospital costs and a portion of the compen-
sation rate equal to seventy-five per cent of the average weekly wage paid
by the employer to the injured employee, after such earnings have been
reduced by any deduction for federal or state taxes, or both, and for the
federal Insurance Contribution Act made from such employees’ total wages
received from such employer during the period of calculation of such average
weekly wage, but not less than an amount equal to the minimum compensa-
tion rate prevailing as of the date of the injury. The remaining portion of
the applicable compensation rate shall be paid from the Second Injury Fund
upon submission to the Treasurer by the employer or the employer’s insurer
of such vouchers and information as the Treasurer may require. . . .’’
2
The city and the fund are both defendants in the present case. The city,
however, has not participated in the litigation regarding this issue at any
stage of the proceedings in the case, including on appeal to this court.
3
The plaintiff appealed to the Appellate Court from the decision of the
board, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
4
‘‘Form 75’’ is a preprinted form created by the commission that may be
used by a sole proprietorship or, after the issuance of the 2003 memorandum,
a single-member limited liability company, to notify the commission that
the entity is electing to accept the provisions of the act pursuant to General
Statutes § 31-275 (10). See footnote 5 of this opinion. The form is entitled
‘‘Coverage Election by Sole Proprietor or Single-Member LLC.’’
5
General Statutes § 31-275 (10) provides in relevant part: ‘‘ ‘Employer’
means any person, corporation, limited liability company, firm, partnership,
voluntary association, joint stock associate, the state and any public corpora-
tion within the state using the services of one or more employees for pay,
or the legal representative of any such employer . . . . A person who is
the sole proprietor of a business may accept the provisions of [the act] by
notifying the commissioner, in writing, of his intent to do so. If such person
accepts the provisions of [the act] he shall be considered to be an employer
and shall insure his full liability in accordance with subdivision (2) of subsec-
tion (b) of section 31-284. Such person may withdraw his acceptance by
giving notice of his withdrawal, in writing, to the commissioner. Any person
who is a partner in a business shall be deemed to have accepted the provi-
sions of [the act] and shall insure his full liability in accordance with subdivi-
sion (2) of subsection (b) of section 31-284, unless the partnership elects
to be excluded from the provisions of [the act] by notice, in writing and by
signed agreement of each partner, to the commissioner.’’
6
General Statutes § 31-275 (9) (A) provides in relevant part: ‘‘ ‘Employee’
means any person who:
‘‘(i) Has entered into or works under any contract of service or apprentice-
ship with an employer, whether the contract contemplated the performance
of duties within or without the state . . . .’’
7
The fund also appears to make no such claim on appeal. The fund does
assert that the fact that the plaintiff reported his earnings from Intervale in
the same manner as a sole proprietorship for federal tax purposes, which,
as the fund acknowledges, he was entitled to do under federal law; see
McNamee v. Dept. of the Treasury, 488 F.3d 100, 109 (2d Cir. 2007) (‘‘[t]he
. . . regulations allow the single-owner limited liability company to choose
whether to be treated as an association—i.e., a corporation—or to be disre-
garded as a separate entity’’ [internal quotation marks omitted]); supports
the board’s determination that the plaintiff was not Intervale’s employee.
The fund, however, does not appear to claim—at least not expressly—that
electing this method of reporting earnings for federal tax purposes somehow
prevents Intervale from claiming the status of a limited liability company
for any state law purpose. To the extent that the fund implicitly makes this
claim, we reject it. As the court in McNamee recognized, ‘‘state laws of
incorporation control various aspects of business relations; they may affect,
but do not necessarily control, federal tax provisions. . . . As a result . . .
single-member [limited liability companies] are entitled to whatever
advantages state law may extend, but state law cannot abrogate [their
owners’] federal tax liability.’’ (Citation omitted; emphasis added; internal
quotation marks omitted.) Id., 111; cf. In re Bourbeau Custom Homes, Inc.,
205 Vt. 42, 52, 171 A.3d 40 (2017) (rejecting suggestion that interpretation
of Vermont’s unemployment compensation laws should be driven by choice
by member of single-member limited liability company to pay federal taxes
as sole proprietorship because ‘‘[n]othing in the [Vermont] unemployment
compensation statute, or the [Vermont] statute creating the [limited liability
company] structure, suggests that the [Vermont] [l]egislature intended fed-
eral tax law to control how the [unemployment compensation] statute [is
to be] applied’’). In other words, the fact that a single-member limited liability
company elects to have the company disregarded as a separate entity for
federal tax purposes does not mean that that limited liability company can
no longer claim that status for any state law purpose.
8
The board cited four of its decisions, namely, Diaz v. Capital Improve-
ments & Management, LLC, No. 5616, CRB 1-11-1 (January 12, 2012), Caus
v. Hug, No. 5392, CRB 4-08-11 (January 22, 2010), Bonner v. Liberty Home
Care Agency, No. 4945, CRB 6-05-5 (May 12, 2006), and Dupree v. Masters,
No. 1791, CRB 7-93-7 (April 25, 1995). In Diaz, the principal of a limited
liability company apparently paid an employee with personal checks, and
the employee, in turn, paid himself and three other employees, including
the claimant, in cash. In addition, the principal’s ‘‘personal expenses and
bills were paid from the [limited liability company’s] checking account
. . . .’’ Diaz v. Capital Improvements & Management, LLC, supra. The
board concluded that, because the principal had ‘‘commingled firm assets for
personal use and failed to maintain corporate formalities,’’ he was personally
liable for the benefits owed to the claimant. Id. In Caus, the employer, Paul
Hug, operated a number of businesses, one of which was apparently a sole
proprietorship and others of which were limited liability companies, and
failed to establish which of the businesses had employed the claimant. See
Caus v. Hug, supra. The board concluded that the commissioner reasonably
could have concluded that Hug had ‘‘commingled the activities of his various
businesses and that each firm acted as an alter ego of . . . Hug personally.’’
Id. In Dupree, the respondent did not withhold social security or federal
income tax from the claimant’s wages; rather, the claimant paid his own
income taxes and social security taxes at self-employment rates. See Dupree
v. Masters, supra. The board concluded that these facts supported the com-
missioner’s finding that the claimant was not the respondent’s employee.
Id. Bonner v. Liberty Home Care Agency, supra, involved the same factual
situation as Dupree. Thus, none of these cases directly supports the proposi-
tion that, if a single-member limited liability company distributes profits to
the member or if the member reports earnings from the company in the
same manner as a sole proprietorship, the company must be treated as the
member’s alter ego.
9
We recognize that neither the commissioner nor the board addressed
this issue because each of them determined that, even if Intervale was not
required to elect to accept the provisions of the act in order for the plaintiff
to be covered, the plaintiff did not meet the definition of ‘‘employee’’ for
purposes of the act. Because the question of whether Intervale was required
to elect to accept the provisions of the act before the plaintiff could be
covered is inextricably intertwined with the question of whether the plaintiff
was Intervale’s employee, however, and, because the question presents a
pure question of law and has been fully briefed by both parties, we are free
to address it.
10
The fund also contends that the presumption underlying the 2003 memo-
randum is rebuttable. Nothing in the 2003 memorandum suggests, however,
that, when a single-member limited liability company does not elect to
accept the provisions of the act, the member nevertheless may be covered
if the member presents evidence that he or she was an employee of the
company. To the contrary, the 2003 memorandum provides that ‘‘members
of [limited liability companies (LLCs)] that contain only one member (single-
member LLCs) should be presumed to be excluded from the [a]ct unless
they have elected to be covered’’; (emphasis in original); and Form 75, which
implements the 2003 memorandum, expressly provides that ‘‘[t]he [s]ole
[p]roprietor or [s]ingle-[m]ember [limited liability company] is NOT covered
by the [act], unless coverage is elected through the use of this form.’’ (Empha-
sis added.) Moreover, if the 2003 memorandum merely created a presump-
tion that may be rebutted by evidence that the member satisfied the definition
of ‘‘employee’’ set forth in § 31-275 (9) (A) (i), the 2003 memorandum effec-
tively would be superfluous, inasmuch as the burden of proof is always on
a claimant to prove that he or she was an employee. See, e.g., Gamez-Reyes
v. Biagi, 136 Conn. App. 258, 270, 44 A.3d 197 (‘‘[i]t is well established that
the claimant has the burden of proving that he is an employee of the employer
from whom he seeks compensation’’), cert. denied, 306 Conn. 905, 52 A.3d
731 (2012). Finally, it is unclear what evidence, in the fund’s view, would
be sufficient to rebut the presumption created by the 2003 memorandum. The
fund contends that, because the plaintiff necessarily controlled Intervale,
Intervale had no right to control him and, therefore, that he cannot be
Intervale’s employee. That invariably will be the case, however, with single-
member limited liability companies. It is therefore apparent that the 2003
memorandum sets forth a conclusive presumption that single-member lim-
ited liability companies are not employers of their members, and that that
presumption cannot be rebutted by additional evidence. See Donahue v.
Veridiem, Inc., 291 Conn. 537, 548, 970 A.2d 630 (2009) (‘‘[g]enerally, a
conclusive or irrebuttable presumption is [a] presumption that cannot be
overcome by any additional evidence or argument’’ [emphasis in original;
internal quotation marks omitted]). In other words, the 2003 memorandum
sets forth a substantive rule of law. See id. (‘‘[a] conclusive or irrebuttable
presumption is . . . a substantive rule of law’’ [internal quotation marks
omitted]).
11
This statement in Larson’s treatise is made in the context of a discussion
of the employee status of partners. See 6 L. Larson & T. Robinson, supra,
§ 76.05 [2], p. 76-13. The authors assert that, for purposes of workers’ com-
pensation law, a partnership generally ‘‘is not . . . an entity separate from
its members,’’ and, therefore, the members are not employees of the partner-
ship. (Footnote omitted.) Id. As we noted, however, under the act, partners
are deemed to be covered unless the partnership elects to opt out. See
General Statutes § 31-275 (10).
12
In other words, the election provision of § 31-275 (10) does not create
a presumption that sole proprietors are not covered by the act. If sole
proprietors would have been eligible for coverage in the absence of the
election provision, the legislature presumably would have provided that
they could opt out of coverage if it wished to provide them with that choice.
Rather, the election provision appears to reflect the fact that, as a matter
of substantive law, sole proprietors are not employees of their sole proprie-
torships and, therefore, would be ineligible for coverage in the absence of
a provision allowing them to opt in.
The plaintiff contends, to the contrary, that the board held in Verrinder
v. Matthew’s Tru Colors Painting & Restoration, No. 4936, CRB 4-05-4
(December 6, 2006), that an individual can be his own employer and
employee. In that case, however, the board merely recognized that, when
a sole proprietor has elected to accept the provisions of the act pursuant
to § 31-275 (10), the sole proprietorship is treated as the sole proprietor’s
employer and, pursuant to § 31-275 (9) (A) (ii), the sole proprietor is treated
as an employee under the act. See id. (‘‘[T]he situation [in which] a self-
employed individual in the compensation system is acting as both employee
and employer is unlikely to result in an adversarial investigation of the
claim. However, [in § 31-275 (9) (A) (ii) and (10)] the General Assembly
specifically permitted sole proprietors to be defined as ‘employers’ and to
have the concurrent status of both ‘employers’ and ‘employees’ . . . .’’ [Cita-
tions omitted.]). The case did not hold that, even in the absence of these
statutory provisions, one individual could be treated as both an employer
and an employee with respect to himself.
13
As the fund observes, there is authority for the proposition that a person
who works for a business entity that he or she owns or controls is not the
entity’s employee. See Restatement, supra, § 1.03, comment (a) p. 32 (‘‘[a]n
individual who renders services to an enterprise that the individual controls
through ownership is not as a general matter treated as an employee of
that enterprise for purposes of the laws providing protections or benefits
to or imposing obligations on employees’’); id., comment (b), p. 33 (‘‘[O]wn-
ers of a [limited liability] company that have entrepreneurial control over
their own remuneration and activities on the company’s behalf are not
employees of the company,’’ and, ‘‘[i]n partnerships, too, each partner [who]
exercises control approximating that of a sole proprietor over his or her
remuneration and activities within the partnership is a controlling owner
excluded from employee status’’). These provisions, however, are not spe-
cific to workers’ compensation law. The fact that owners of a business
entity are not its employees for some purposes, such as determining the
owner’s tax liability, does not necessarily mean that they are not employees
for purposes of the act. We note, for example, that, whereas the Restatement
of Employment Law provides that partners do not have employment status,
§ 31-275 (10) reflects a conclusive presumption that partners are employees
of the partnership unless the partnership elects to be excluded from the
provisions of the act.
14
We recognize that, when the commission chairman drafted the 2003
memorandum, he attempted to mitigate this policy concern by providing
that single-member limited liability companies could elect to accept the
provisions of the act if the member wanted to be covered. As the fund
essentially concedes on appeal, however, if such members were not employ-
ees under the act, and the legislature chose not to allow them to elect to
accept the provisions of the act, neither the commission chairman nor this
court would have the authority to mitigate that arguably harsh result by
effectively changing the plain terms of the act.
15
As we discuss more fully hereinafter, a corporate officer who provides
no services to the corporation, and is not subject to the hazards of the
corporation’s business, is not the corporation’s employee.
16
Presumably, this provision would allow any independent contractor to
elect to accept the provisions of the act. Cf. Pulsifer v. Pueblo Professional
Contractors, Inc., 161 P.3d 656, 660 n.5 (Colo. 2007) (‘‘[t]he term ‘independent
contractor’ describes the relationship with those for whom work is done,
whereas ‘sole proprietor’ describes the organization of the business with
whom the contract is made’’).
17
We address the test for determining whether the member of a single-
member limited liability company is the company’s employee in part II of
this opinion.
18
To the extent that the fund claims that the plaintiff was not Intervale’s
employee for purposes of the act because the commissioner found that it
was ‘‘questionable as to whether the [plaintiff] intended to cover himself
as an employee when [Intervale] procured [the workers’ compensation insur-
ance policy],’’ we disagree. Even if we were to assume that the plaintiff did
not intend to obtain coverage for himself, the plaintiff’s subjective beliefs
regarding his employee status at the time he obtained the policy have no
direct bearing on the question of whether he was covered by the act as a
matter of law.