DeJesus v. R.P.M. Enterprises, Inc. ( 2021 )

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JOSE DEJESUS v. R.P.M. ENTERPRISES, INC.
(AC 44111)
Bright, C. J., and Moll and Young, Js.
Syllabus
The defendant employer, R Co., and its owner, M, appealed to this court
from the decisions of the Compensation Review Board affirming the
finding of the Workers’ Compensation Commissioner that the Workers’
Compensation Commission had jurisdiction over the plaintiff’s claim
for workers’ compensation benefits and that the plaintiff employee had
sustained a compensable injury. The plaintiff sustained injuries when
a car he was working on at R Co.’s junkyard fell on his shoulders and
the back of his head. The plaintiff failed to file a notice of claim within
one year of the date of his injury as required by statute (§ 31-294c), and
R Co. and M argued that the commission lacked jurisdiction over the
plaintiff’s claim. The commissioner bifurcated the issues, deciding the
jurisdictional question first before holding a hearing on the issue of
compensability. After the first hearing, the commissioner found that
the medical care exception in § 31-294c (c) applied. The commissioner
further found that an employer-employee relationship existed between
R Co. and/or M. Thus, the commissioner found that the commission had
jurisdiction over the matter. R Co. and M filed a petition for review with
the board, which affirmed the commissioner’s finding of jurisdiction
in a decision issued in 2017. In 2019, a hearing was held before the
commissioner to address the issue of compensability. No additional
evidence or testimony was presented and the parties agreed that record
from the prior hearing would be incorporated by reference and constitute
the record for purposes of the new hearing. The commissioner concluded
that the plaintiff’s injury was compensable and that R Co. and M, as
alter egos, were jointly and severally liable. The board affirmed the
decision of the commissioner in part, and R Co. and M appealed both
decisions of the board to this court. Held:
1. Although the board erred in affirming the 2019 decision of the commis-
sioner on the basis of collateral estoppel, it properly applied, in the
alternative, the law of the case doctrine and, thus, properly affirmed
the decision of the commissioner that the plaintiff had sustained a
compensable injury and was entitled to workers’ compensation benefits.
2. The board properly affirmed the commissioner’s determination that juris-
diction over the plaintiff’s claim existed.
a. The board’s decision affirming the commissioner’s finding that the
requirements of the medical care exception in § 31-294c (c) had been
satisfied resulted from a correct application of the law to the subordinate
facts and the inferences reasonably drawn from them: testimony and
evidence credited by the commissioner showed that, after the car had
fallen on the plaintiff and he could not feel his legs, he was placed on
a wet mattress by M, who then directed an agent of R Co. to drive the
plaintiff to a hospital, where he received medical treatment; moreover,
any claim by R Co. and M that they lacked notice that the plaintiff
suffered an injury was belied by the record and the fact that, within
one year following the incident, M provided the plaintiff with money to
purchase an electric wheelchair, purchased and/or provided a wheel-
chair accessible ramp for the plaintiff’s home, and paid him $500 per
week subsequent to his injury.
b. This court declined to consider R Co. and M’s claim that the board
improperly affirmed the commissioner’s finding that the plaintiff was
an employee of R Co. and not an independent contractor because R
Co. and M failed to file a motion to correct that factual finding in the
commissioner’s 2017 decision; moreover, the board’s determination that
the commissioner’s finding of jurisdiction was proper was based on a
correct application of the law to the subordinate facts found by the
commissioner relating to the employment relationship of the parties,
including that the plaintiff was an employee of R CO. on the date of
the incident that caused his injuries and that he was subject to the
direction and control of R Co. and M.
3. The board improperly affirmed the commissioner’s findings that the plain-
tiff was an employee of M, that M was the alter ego of R Co., and that
he was jointly and severally liable for the award of benefits to the
plaintiff: it was undisputed that the plaintiff never filed a notice of claim
alleging that M was his employer, and the commissioner acted beyond
the scope of the Workers’ Compensation Act (§ 31-275 et seq.) by bring-
ing M into the action in his personal capacity and deciding the issue of
whether M, as the principal of the employer of the injured employee,
should be held personally accountable for the plaintiff’s injuries, as the
commissioner was without jurisdiction to pierce the corporate veil of
R Co.; moreover, there is a remedy pursuant to statute (§ 31-355 (c))
for the Second Injury Fund to recover amounts paid by the fund, and,
in such a civil action, the fund could seek to pierce the corporate veil
of R Co.
Argued February 9—officially released May 18, 2021
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Second District finding that
the Workers’ Compensation Commission had jurisdic-
tion over the plaintiff’s claim for workers’ compensation
benefits, brought to the Compensation Review Board,
which affirmed the commissioner’s decision; thereafter,
the commissioner found that the plaintiff had sustained
a compensable injury and awarded, inter alia, certain
disability benefits; subsequently, the commissioner
denied the motion to correct filed by the defendant and
Robert Marion; thereafter, the defendant and Robert
Marion appealed to the Compensation Review Board,
which affirmed the commissioner’s decision, and the
defendant and Robert Marion appealed to this court.
Affirmed in part; reversed in part; decision directed.
Robert M. Fitzgerald, for the appellants (defendant
and Robert Marion).
Lori M. Comforti, for the appellee (plaintiff).
Patrick G. Finley, assistant attorney general, with
whom, on the brief, was William Tong, attorney gen-
eral, for the appellee (Second Injury Fund).
Opinion
YOUNG, J. This appeal is brought by the defendant
employer, R.P.M. Enterprises, Inc. (R.P.M.), and its
owner, Robert Marion (Marion), from the decisions of
the Compensation Review Board (board) affirming the
finding of the Workers’ Compensation Commissioner
(commissioner) that the Workers’ Compensation Com-
mission (commission) had jurisdiction over this matter,
and affirming, in part, the findings and award of the
commissioner that the plaintiff, Jose DeJesus, had sus-
tained a compensable injury for which he was entitled
to temporary total disability benefits and payment for
medical bills.1 Because R.P.M. did not carry workers’
compensation insurance, the defendant Second Injury
Fund (fund) was cited in as a party to the action pursu-
ant to General Statutes § 31-355.2 On appeal, R.P.M. and
Marion claim that the board erred in affirming (1) the
commissioner’s rulings that the plaintiff’s claim for ben-
efits was not time barred pursuant to General Statutes
§ 31-294c3 and that the plaintiff was an employee of
R.P.M. and/or Marion, (2) the award of compensation
by the commissioner against Marion at the request of
the fund when no claim was brought against Marion,
and (3) the decision of the commissioner that he had
jurisdiction to make a finding that R.P.M. and Marion
were the same entity for the purposes of piercing the
corporate veil. We reverse, in part, the decisions of
the board.
The following facts, as found by the commissioner,
and procedural history are relevant to this appeal.
Because the issue of lack of jurisdiction was raised by
R.P.M. at the beginning of the proceedings,4 the commis-
sioner agreed to bifurcate that issue and to decide the
jurisdictional issue first, after which an additional hear-
ing would be held to decide the remaining issues. For-
mal hearings regarding the issue of jurisdiction were
held on April 12, September 27 and November 22, 2016.
In a decision dated June 16, 2017 (2017 decision), the
commissioner found that the plaintiff was born in
Puerto Rico and came to the mainland when he was
three or four years old. He was hired by Russell Adams,
the office manager for R.P.M., which operates a junk-
yard, to work Monday through Saturday. For one year
prior to the date of his injury, he earned $100 for a full
day of work, and $50 for his work on Saturdays, and
he had received a $600 Christmas bonus for many years.
His work duties included taking parts off cars, changing
oil, fixing the loader, changing tires and picking up cars.
The plaintiff also performed work at properties owned
by Marion such as cutting grass or shoveling snow. The
tools he used to perform his work for R.P.M. were
owned by R.P.M., and his work activities at R.P.M. were
directed by Adams, Marion, or Marion’s son, Robert
Marion II (Bobby).5 If the plaintiff did not do something
the right way, Adams would direct him how to do it
correctly.
The plaintiff testified before the commissioner that,
on December 9, 2013, he was directed by Adams and
Bobby ‘‘to work taking off parts and have cars ready,’’
and when that task was completed, he was directed by
Bobby to remove the converter on a car that was
propped up on its side by a pipe. When the plaintiff
was kneeling on the ground facing the car, trying to
cut off the bottom bolts, the car fell on his shoulders
and the back of his head. He testified that he felt the
car ‘‘crushing him down and . . . felt something in his
back cracking and breaking . . . .’’ After Adams and
Bobby lifted the car off of the plaintiff, he fell on his
back and could not feel his legs. The plaintiff further
testified that, at that time, Marion ‘‘came around the
corner and asked what happened,’’ and the plaintiff told
him that the car fell on him. Marion then told Adams
to get a piece of wood so that he could lay the plaintiff
on it, but, when one could not be located, the plaintiff
was placed on a wet mattress. Thereafter, at Marion’s
direction, Adams drove the plaintiff to a hospital in his
van, with Bobby following behind them. Neither Adams
nor Bobby went into the hospital with the plaintiff.
Marion testified before the commissioner that he had
no knowledge that the plaintiff was injured at R.P.M.
on December 9, 2013, that he was not at the job location
that day, and that he was ‘‘pretty sure’’ that the business
was closed on that day. Marion testified further that
he was the owner of R.P.M. from 1984 until at least
November 22, 2016, that the plaintiff was an indepen-
dent contractor and not an employee of R.P.M., that
R.P.M. had one bank account, and that he was the only
person authorized to sign checks from that account.
Marion did acknowledge that, following the accident
that caused the plaintiff’s injuries, he paid the plaintiff
$500 per week, purchased an electric wheelchair for
the plaintiff, and built a wheelchair ramp at the plain-
tiff’s home to accommodate the plaintiff’s wheelchair.
In addressing the question of jurisdiction, the com-
missioner found that the plaintiff did not file a written
notice of claim within one year of the date of injury as
required by § 31-294c, nor did he request a hearing
within that time period. Instead, the plaintiff filed a
Form 30C notice of claim on May 4, 2015, and an
amended notice on September 10, 2015. As a result,
R.P.M. claimed that the commission lacked jurisdiction
over the plaintiff’s claim for workers’ compensation
benefits. The plaintiff countered that an exception to
the one year notice requirement applied because, inter
alia, R.P.M. and Marion had knowledge of the injury on
the date of its occurrence and directed Adams, their
agent, to transport the plaintiff to the hospital for medi-
cal treatment.
On the basis of the testimony and exhibits, the com-
missioner found the testimony of the plaintiff mostly
credible, despite some discrepancies. In contrast, the
commissioner found the testimony of Marion neither
credible nor persuasive. Specifically, the commissioner
found that R.P.M. and Marion, through their agent,
Adams, provided transportation to bring the plaintiff to
the hospital on the day of the incident and, thus, that
the plaintiff had satisfied the medical care exception
to the one year notice requirement set forth in § 31-
294c (c), thereby tolling the statute. Furthermore, the
commissioner found that the plaintiff was an employee
of R.P.M. and/or Marion, and not an independent con-
tractor, because the plaintiff was ‘‘subject to specific
control and direction’’ of R.P.M. and/or Marion. Accord-
ingly, because the medical care exception to the one
year notice requirement was satisfied, and because an
employer-employee relationship existed between the
plaintiff and R.P.M. and/or Marion, the commissioner
found that the commission had jurisdiction over the
matter.
Following the commissioner’s determination regard-
ing jurisdiction over the matter, R.P.M. filed a petition
for review with the board, which, on November 8, 2018,
issued a decision (DeJesus I) affirming the commission-
er’s finding of jurisdiction and determining that it was
‘‘supported by sufficient facts and properly applie[d]
the pertinent law.’’ After reviewing the findings of the
commissioner, the board noted that neither R.P.M. nor
Marion filed a motion to correct those findings,6 which
‘‘constrained . . . [the board’s] ability to challenge fac-
tual findings.’’ The board first addressed and rejected
the claim that the commissioner improperly bifurcated
the proceeding and decided the jurisdictional claim
first. Next, it found no error in the commissioner’s deci-
sion to allow the fund to appear and litigate issues at
the formal hearing, rather than in a collection action,
as alleged by R.P.M. and Marion.
In addressing a claim raised by Marion that ‘‘he was
deprived of due process because the trial commissioner
ordered relief against him although he was not originally
named as a party in the case,’’ the board, relying on
Mosman v. Sikorsky Aircraft Corp., No. 4180, CRB 4-
00-1 (March 1, 2001), recognized that ‘‘a party may be
apprised that a given claim is at issue by other means,
such as the statements of the parties at trial, the evi-
dence they have introduced, or the papers they have
filed.’’ (Internal quotation marks omitted.) The board
further stated: ‘‘In the present case, we note that Marion
. . . was in attendance at the initial session of the for-
mal hearing on April 12, 2016, and his company had
retained legal counsel for this hearing. At that formal
hearing, counsel for the [f]und specially moved to add
Marion . . . to the case in his individual, personal
capacity. . . . Counsel for R.P.M. offered no objection.
‘‘We further note that at the September 27, 2016 ses-
sion of the formal hearing, the trial commissioner indi-
cated on the record that hearing notices had been sent
to Marion . . . in his personal capacity, the [f]und had
served Marion . . . with a subpoena, counsel for
R.P.M. had withdrawn from the case, and Marion . . .
(or someone else on his behalf) had sent a text message
to the [c]ommission acknowledging the scheduling of
the hearing but stating that medical issues would pre-
clude his attendance. . . . Marion . . . attended and
extensively testified at the November 22, 2016 hearing,
at which the inquiry largely focused on the manner in
which Marion . . . managed the finances of R.P.M.
Under the totality of the circumstances, we are per-
suaded that Marion . . . had ample reason to believe
he was potentially facing personal liability. . . . As a
result, we do not find that the trial commissioner’s
decision to attribute personal liability to Marion . . .
constituted a due process violation.’’ (Citations omitted;
internal quotation marks omitted.)
The board then turned to the primary issue of jurisdic-
tion and found that the evidence in the record supported
the commissioner’s conclusion that the medical care
exception in § 31-294c (c) was satisfied. Specifically,
the board found that the evidence in the record deter-
mined to be reliable by the commissioner supported
the finding that R.P.M. and Marion, through their agent,
Adams, provided transportation to the plaintiff to the
hospital on the date of the incident. Although R.P.M.
and Marion claimed that ‘‘merely transporting an
employee to a hospital is an inadequate basis for estab-
lishing that the medical care exception has been satis-
fied,’’ and that they ‘‘lacked actual knowledge of the
nature of the injury,’’ the board determined that ‘‘[t]he
evidence credited by the trial commissioner is utterly
inconsistent with th[at] position.’’
With respect to the finding by the commissioner that
the plaintiff had established the existence of an
employer-employee relationship, R.P.M. and Marion
claimed that the commissioner ‘‘should have enforced
. . . independent contractor agreements’’ that they had
executed with the plaintiff. The board explained that
the determination of employment status is a factual
issue that is entitled to ‘‘a significant level of deference
on review.’’ (Internal quotation marks omitted.) The
board concluded that the plaintiff’s testimony that
R.P.M. and Marion controlled his activities ‘‘provided
a sufficient basis for the trial commissioner to conclude
that an employer-employee relationship existed, not-
withstanding the provisions of the independent contrac-
tor agreements.’’
Finally, the board addressed the issue of whether
the record contained sufficient evidence to support the
decision of the commissioner to pierce the corporate
veil and to find Marion responsible in his individual
capacity. The board explained that, although it would
have been beneficial for the commissioner to have made
specific findings concerning the issue of piercing the
corporate veil, the absence of such findings was ‘‘harm-
less error, particularly as there was no motion to cor-
rect.’’ Given the testimony on the record showing that
Marion would pay the plaintiff in cash and, after the
plaintiff’s injury, issued checks drawn on R.P.M. to the
plaintiff’s wife, that the plaintiff worked on property
owned by Marion, as well as the home of Marion’s
mother, and that Marion was the owner of R.P.M., which
did not have a separate bank account, paid the plaintiff
for the work performed on his personal residence and
used the funds of R.P.M. to pay for his personal
expenses, the board concluded that ‘‘the commissioner
reasonably inferred that R.P.M. and Marion . . . were
essentially alter egos and, as such, Marion . . . could
not rely upon the protection of the corporate veil as a
defense against liability.’’
On March 13, 2019, a formal hearing was held before
the commissioner7 to address the issue of compensabil-
ity, at which no additional evidence or testimony was
presented or entered into the record. Moreover, the
parties had agreed that the record of the prior proceed-
ings before the commissioner would be incorporated
by reference and constitute the record for purposes
of the new hearing concerning compensability. In a
decision dated April 23, 2019 (2019 decision), the com-
missioner found, on the basis of the evidence in the
record, that R.P.M. and Marion ‘‘were alter egos’’ and
that the plaintiff was their employee on December 9,
2013, when the plaintiff sustained a catastrophic injury
to his spinal cord while performing work at his place of
employment. Accordingly, the commissioner concluded
that the plaintiff’s injury, which rendered him perma-
nently and totally disabled, was compensable and that
R.P.M and Marion, as alter egos, were jointly and sever-
ally liable for the plaintiff’s reasonable and necessary
medical expenses. R.P.M. and Marion were ordered to
pay the plaintiff temporary total disability benefits, to
continue to pay for all reasonable and medically neces-
sary medical treatment provided by an authorized treat-
ing physician, to reimburse the plaintiff for certain
expenses he had incurred, and to pay a civil penalty of
$50,000 to the fund for their failure to carry workers’
compensation insurance.
Thereafter, R.P.M. and Marion filed a motion to cor-
rect, which the commissioner denied, and R.P.M. and
Marion filed a petition for review with the board. In a
decision dated April 29, 2020 (DeJesus II), the board
affirmed the decision of the commissioner except with
respect to the fine imposed and remanded the matter
for a hearing regarding the amount of the fine. The
board first noted that many of the issues raised on
appeal by R.P.M. and Marion were merely rearticula-
tions of issues heard and decided in DeJesus I. The
board, thus, agreed with the plaintiff’s claim that R.P.M.
and Marion were barred, under the doctrine of collateral
estoppel, from challenging issues that were heard and
decided in the 2017 decision of the commissioner and
by the board in DeJesus I. In making that determination
the board explained that, although a party aggrieved
by a decision of the board has the right to file an appeal,
if no appeal is taken, ‘‘the decision of the . . . [b]oard
is final within twenty days. Any issues heard and
decided in DeJesus I, for which [R.P.M. and Marion]
believed appellate review was appropriate, should have
been appealed and presented to our Appellate Court.
Therefore, [R.P.M. and Marion] are collaterally
estopped from review of any issues previously heard
and decided in DeJesus I.’’ The board also found that
the record supported the finding that the plaintiff sus-
tained a compensable injury. R.P.M. and Marion have
appealed to this court challenging the board’s decisions
in DeJesus I and DeJesus II. Additional facts and proce-
dural history will be set forth as necessary.
We first set forth our standard of review applicable
to workers’ compensation appeals. ‘‘The commissioner
has the power and duty, as the trier of fact, to determine
the facts . . . and [n]either the . . . board nor this
court has the power to retry the facts. . . . The conclu-
sions drawn by [the commissioner] from the facts found
[also] must stand unless they result from an incorrect
application of the law to the subordinate facts or from
an inference illegally or unreasonably drawn from
them.’’ (Internal quotation marks omitted.) Woodbury-
Correa v. Reflexite Corp., 190 Conn. App. 623, 627, 212
A.3d 252 (2019). ‘‘The board sits as an appellate tribunal
reviewing the decision of the commissioner. . . . The
review [board’s] hearing of an appeal from the commis-
sioner is not a de novo hearing of the facts. . . . [I]t
is [obligated] to hear the appeal on the record and not
retry the facts. . . . On appeal, the board must deter-
mine whether there is any evidence in the record to
support the commissioner’s [decision]. . . . Our scope
of review of [the] actions of the [board] is [similarly]
. . . limited. . . . [However] [t]he decision of the
[board] must be correct in law, and it must not include
facts found without evidence or fail to include material
facts which are admitted or undisputed.’’ (Internal quo-
tation marks omitted.) Dombrowski v. New Haven, 194
Conn. App. 739, 748, 222 A.3d 533 (2019), cert. denied,
335 Conn. 908, 227 A.3d 1039 (2020).
‘‘[Moreover, it] is well established that [a]lthough not
dispositive, we accord great weight to the construction
given to the workers’ compensation statutes by the
commissioner and the board. . . . Cases that present
pure questions of law, however, invoke a broader stan-
dard 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 dis-
cretion. . . . We have determined, therefore, that the
traditional deference accorded to an agency’s interpre-
tation of a statutory term is unwarranted when the
construction of a statute . . . has not previously been
subjected to judicial scrutiny [or to] . . . a governmen-
tal agency’s time-tested interpretation . . . . Further-
more, [i]t is well established that, in resolving issues
of statutory construction under the [Workers’ Compen-
sation Act (act), General Statutes § 31-275 et seq.], 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’ com-
pensation. . . . Accordingly, [i]n construing workers’
compensation law, we must resolve statutory ambigu-
ities or lacunae in a manner that will further the reme-
dial purpose of the act. . . . [T]he purposes of the act
itself are best served by allowing the remedial legisla-
tion a reasonable sphere of operation considering those
purposes.’’ (Internal quotation marks omitted.) Wood-
bury-Correa v. Reflexite Corp., supra, 190 Conn. App.
627–28; see also Gould v. Stamford, 331 Conn. 289,
303–304, 203 A.3d 525 (2019).
I
Before we address the issues raised by R.P.M. and
Marion on appeal, we must first address the issue raised
by the plaintiff that R.P.M. and Marion are precluded,
under the doctrine of collateral estoppel, from raising
issues on appeal that previously were heard and decided
in DeJesus I, including issues concerning the commis-
sioner’s finding that the plaintiff was an employee of
R.P.M. and/or Marion, and his determination that the
medical care exception in § 31-294c (c) applied and
excused the plaintiff’s failure to file a timely notice of
claim within one year from the date of his injury. The
plaintiff raised his collateral estoppel claim before the
board in DeJesus II, which agreed with the plaintiff and
determined that R.P.M. and Marion were ‘‘collaterally
estopped from review of any issues previously heard
and decided in DeJesus I.’’ We disagree and conclude
that collateral estoppel is not applicable under the cir-
cumstances of this case.
The following additional facts are necessary to this
claim. At the beginning of the formal hearing held on
April 12, 2016, R.P.M. raised an issue regarding the
commissioner’s jurisdiction over the matter. Thereafter,
the parties agreed to bifurcate the proceedings and to
have the commissioner decide the issue of jurisdiction
first. After the commissioner issued his 2017 decision
finding jurisdiction, R.P.M. and Marion8 appealed to the
board, which affirmed the commissioner’s 2017 deci-
sion in DeJesus I. A formal hearing was then held on
March 13, 2019, before the commissioner for a determi-
nation of the remaining issues, including whether the
plaintiff sustained a compensable injury and, if so, the
amount of compensation and benefits to which the
plaintiff was entitled. The commissioner issued a find-
ing and award on April 23, 2019, from which R.P.M.
and Marion appealed to the board, which affirmed the
commissioner’s decision in DeJesus II. In DeJesus II,
the board agreed with the plaintiff that R.P.M. and Mar-
ion were precluded by the doctrine of collateral estop-
pel from seeking review of issues that were determined
in the 2017 decision of the commissioner and affirmed
by the board in DeJesus I.
‘‘Whether the [board] properly applied the doctrine
of collateral estoppel is a question of law for which
our review is plenary. . . . The fundamental principles
underlying the doctrine are well established. Collateral
estoppel, or issue preclusion, is that aspect of res judi-
cata which prohibits the relitigation of an issue when
that issue was actually litigated and necessarily deter-
mined in a prior action between the same parties upon
a different claim.’’ (Emphasis added; internal quotation
marks omitted.) Rinaldi v. Enfield, 82 Conn. App. 505,
516, 844 A.2d 949 (2004). ‘‘An issue is actually litigated
if it is properly raised in the pleadings or otherwise,
submitted for determination, and in fact determined.
. . . An issue is necessarily determined if, in the
absence of a determination of the issue, the judgment
could not have been validly rendered.’’ (Citation omit-
ted; emphasis omitted; internal quotation marks omit-
ted.) Lafayette v. General Dynamics Corp., 255 Conn.
762, 773, 770 A.2d 1 (2001). ‘‘[A] valid and final adjudica-
tive determination by an administrative tribunal has the
same effects under the [rule] of . . . [collateral estop-
pel], subject to the same exceptions and qualifications,
as a judgment of a court.’’ (Internal quotation marks
omitted.) Sellers v. Sellers Garage, Inc., 110 Conn. App.
110, 115, 954 A.2d 235 (2008).
The crux of the plaintiff’s claim, with which the board
agreed, is that when R.P.M. and Marion failed to appeal
to this court following the decision in DeJesus I, that
decision of the board became final, and, thus, R.P.M.
and Marion were collaterally estopped from raising any
issues previously heard and decided in DeJesus I. In
support of that claim, the plaintiff relies on General
Statutes § 31-301a, which provides in relevant part:
‘‘[A]ny decision of the . . . [b]oard, in the absence of
an appeal therefrom, shall become final after a period
of twenty days has expired from the issuance of notice
of the rendition of the judgment or decision.’’ He also
relies on General Statutes § 31-301b, which provides in
relevant part: ‘‘Any party aggrieved by the decision of
the . . . [b]oard upon any question or questions of law
arising in the proceedings may appeal the decision of
the . . . [board] to the Appellate Court, whether or
not the decision is a final decision . . . .’’ (Emphasis
added.)
In their reply brief, R.P.M. and Marion claim that,
under the procedural posture of this case, they are not
precluded by collateral estoppel from raising claims
related to issues that were decided in DeJesus I. They
claim that, because the commissioner’s 2017 decision
did not include any findings regarding whether the
plaintiff’s injury arose out of or in the course of employ-
ment, or what benefits, if any, were due, neither R.P.M.
nor Marion was found responsible to pay workers’ com-
pensation benefits to the plaintiff at the time DeJesus
I was decided; accordingly, they had no reason to appeal
to this court at that time. In light of the permissive
language in § 31-301b stating that a party ‘‘may’’ appeal
the decision of the board, and the absence in that statute
of mandatory language requiring that an appeal must
be filed, they claim that they had the choice to see the
case through to its conclusion and then to file an appeal
to resolve all of the issues in the case.
The commissioner’s 2019 decision indicates that
‘‘[n]o additional evidence or testimony was entered into
the record on March 13, 2019. The parties agreed that
the record in the prior proceedings before [the] [c]om-
missioner . . . would be the record for purposes of
the findings made herein and would be incorporated
by reference.’’ At oral argument before this court, the
parties were asked whether the record shows that
R.P.M. and Marion could introduce additional evidence
at the March 13 hearing concerning the lack of an
employer-employee relationship and the applicability
of the medical care exception. The plaintiff’s counsel
responded that there was an opportunity for anyone to
present additional evidence but no one actually did
present additional evidence, and that R.P.M. and Marion
thus could have presented evidence but did not do so.
We conclude that collateral estoppel does not apply
to this case. Collateral estoppel, or issue preclusion,
applies to prevent the relitigation of an issue when that
issue was actually litigated and necessarily determined
in a prior action between the same parties. See Rinaldi
v. Enfield, supra, 82 Conn. App. 516. The proceedings
in the present case, however, were all part of the same
action. The commissioner simply bifurcated the pro-
ceedings and decided the issue of jurisdiction first, with
the issue of compensability to be decided at a subse-
quent hearing, at which the parties could present addi-
tional evidence.
The board reasoned in DeJesus II that § 31-301b,
when read together with § 31-301a, indicates that ‘‘an
aggrieved party has the right to file an appeal but, if an
appeal is not taken, the decision of the . . . [b]oard
is final within twenty days.’’ As a matter of statutory
interpretation, however, it would lead to an absurd,
unworkable result to apply that statute in such a manner
under the circumstances here, where the proceedings
had been bifurcated. Because the commissioner, in
2017, first made a finding regarding jurisdiction over
the matter and, following a separate hearing at which
the parties could present additional evidence, would
determine if the plaintiff’s injury was compensable, the
proceedings were ongoing at the time the board heard
the appeal of the jurisdictional issue in DeJesus I.
‘‘[B]ecause the existence of a final judgment is a juris-
dictional prerequisite to an appeal’’; (internal quotation
marks omitted) Levarge v. General Dynamics Corp.,
282 Conn. 386, 390, 920 A.2d 996 (2007); an appeal
to this court at that time would have been subject to
dismissal. See id., 390–91; see also Dechio v. Raymark
Industries, Inc., 299 Conn. 376, 399–400, 10 A.3d 20(2010) (explaining that there is a final judgment require-
ment ‘‘with respect to appeals from the board to the
Appellate Court pursuant to . . . § 31-301b, notwith-
standing the lack of a final judgment requirement in
the text of that statute’’). Therefore, under the circum-
stances here, the failure of R.P.M. and Marion to appeal
to this court from the decision in DeJesus I did not
render that decision final as to the issues raised therein.
Furthermore, neither the parties nor the commis-
sioner, at the March 13, 2019 hearing, took the position
that R.P.M. and Marion were collaterally estopped from
presenting additional evidence on the jurisdictional
issues. To the contrary, the commissioner specifically
asked them if they wanted to present additional evi-
dence and they declined to do so. If R.P.M. and Marion
had presented additional evidence at the March 13, 2019
hearing, the commissioner would have had to make
new findings that could have been challenged on an
appeal to the board, which further supports our conclu-
sion that there was no requirement for R.P.M. and Mar-
ion to have filed an appeal to this court from the deci-
sion of the board in DeJesus I. See Pokorny v. Getta’s
Garage, 219 Conn. 439, 446–48, 447 n.8, 594 A.2d 446(1991) (rejecting claim that, because issues of compen-
sability and amount of plaintiff’s medical bills were not
appealed to board, decision of commissioner was final
as to those issues, and concluding that, because lan-
guage of commissioner’s decision gave parties right to
petition for additional hearings on issue of defendants’
obligation to pay for plaintiff’s medical bills, defendants
were not limited to appealing decision concerning pay-
ment of medical bills within statutory time limitation
of General Statutes § 31-300, which provides that deci-
sions of commissioner not appealed within twenty days
‘‘shall be final’’); see generally Levarge v. General
Dynamics Corp., supra, 282 Conn. 390 (when further
proceedings before commissioner are necessary follow-
ing remand from board, ‘‘if such further proceedings
are merely ministerial, the decision is an appealable
final judgment, but if further proceedings will require
the exercise of independent judgment or discretion and
the taking of additional evidence, the appeal is prema-
ture and must be dismissed’’ (internal quotation marks
omitted)).
Because the plaintiff bases his collateral estoppel
claim on his assertion that R.P.M. and Marion should
have appealed to this court following the decision in
DeJesus I, which we have rejected, the claim fails.
Accordingly, the board’s determination that R.P.M. and
Marion were collaterally estopped from raising issues
during the appeal in DeJesus II related to issues that
were heard and decided in DeJesus I resulted from an
incorrect application of the law to the facts of the case.
Nevertheless, in DeJesus II the board also stated:
‘‘Assuming for the sake of argument that the doctrine
of issue preclusion is not appropriate . . . we believe
that the doctrine of the law of the case applies to the
findings and conclusions set out in the 2017 finding and
relied on in the [2019] findings and conclusions at issue
here.’’ The board found the doctrine of the law of the
case particularly relevant to the 2017 finding of the
commissioner that the plaintiff was an employee of
R.P.M. on December 9, 2013, when he was injured while
performing mechanical work on a car at R.P.M.’s place
of business. Accordingly, the board concluded that the
evidentiary record before the commissioner in 2017,
which was the same as the one before the commissioner
in 2019, contained evidence supporting the conclusion
that the plaintiff sustained a compensable injury that
arose out of and in the course of his employment
with R.P.M.
‘‘The application of the law of the case doctrine
involves a question of law, over which our review is
plenary. . . . The law of the case doctrine expresses
the practice of judges generally to refuse to reopen what
[already] has been decided . . . . [When] a matter has
previously been ruled [on] interlocutorily, the court in
a subsequent proceeding in the case may treat that
decision as the law of the case, if it is of the opinion
that the issue was correctly decided, in the absence of
some new or overriding circumstance. . . . A judge
should hesitate to change his own rulings in a case and
should be even more reluctant to overrule those of
another judge. . . . Nevertheless, if . . . [a judge]
becomes convinced that the view of the law previously
applied by his coordinate predecessor was clearly erro-
neous and would work a manifest injustice if followed,
he may apply his own judgment.’’ (Citations omitted;
internal quotation marks omitted.) Total Recycling Ser-
vices of Connecticut, Inc. v. Connecticut Oil Recycling
Services, LLC, 308 Conn. 312, 322, 63 A.3d 896 (2013);
see also Bowman v. Jack’s Auto Sales, 54 Conn. App.
289, 290–91, 734 A.2d 1036 (1999) (affirming decision
of board applying law of case doctrine to award of
benefits by commissioner).
We conclude that the law of the case doctrine, rather
than collateral estoppel, is applicable to this case.
Although the board erred in applying collateral estoppel
in its decision, the board, nevertheless, properly applied
the law of the case doctrine, in the alternative, and
affirmed the 2019 decision of the commissioner that
the plaintiff had sustained a compensable injury for
which he was entitled to workers’ compensation bene-
fits. We find no error in that decision of the board.
II
R.P.M. and Marion claim that the board improperly
affirmed the 2017 decision of the commissioner finding
that the commission had jurisdiction over the plaintiff’s
claim for workers’ compensation benefits. Specifically,
R.P.M. and Marion challenge the commissioner’s (1)
determination that the plaintiff’s claim for benefits was
not time barred under § 31-294c and that the plaintiff
satisfied the medical care exception set forth in § 31-
294c (c), which excused the plaintiff’s failure to file a
timely written notice of claim, and (2) finding the plain-
tiff was an employee, and not an independent contrac-
tor, of R.P.M.9 We conclude that the board properly
affirmed the commissioner’s determination that juris-
diction over the plaintiff’s claim existed and address
each of these claims in turn.
We first note that our review of the claims of R.P.M.
and Marion is limited by the procedural posture of this
case. Because R.P.M. and Marion did not file a motion
to correct10 the factual findings that formed the basis
for the commissioner’s determination of jurisdiction in
the commissioner’s 2017 decision,11 they cannot now
challenge those factual findings. See Sellers v. Sellers
Garage, Inc., 80 Conn. App. 15, 19, 832 A.2d 679, cert.
denied, 267 Conn. 904, 838 A.2d 210 (2003); see also
Regs., Conn. State Agencies § 31-301-4. ‘‘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.’’ Melendez v. Fresh
Start General Remodeling & Contracting, LLC, 180
Conn. App. 355, 367, 183 A.3d 670 (2018). When a party
fails to do so, however, the board must ‘‘accept the
validity of the facts found by the trial commissioner
and its review [is] limited to how the trial commissioner
applied the law.’’ Conroy v. Stamford, 161 Conn. App.
691, 702, 129 A.3d 137 (2015), cert. denied, 320 Conn.
917, 131 A.3d 1154 (2016). Therefore, our review on
appeal is limited to a determination of ‘‘whether the
board’s conclusions on the basis of those facts
result[ed] from an incorrect application of the law to
the subordinate facts or from an inference illegally or
unreasonably drawn from them. . . . In other words,
[t]hese conclusions must stand unless they could not
reasonably or logically be reached on the subordinate
facts.’’ (Internal quotation marks omitted.) Samaoya v.
Gallagher, 102 Conn. App. 670, 675, 926 A.2d 1052(2007).
A
R.P.M. and Marion challenge the commissioner’s
determination that the plaintiff’s claims were not time
barred under § 31-294c. Specifically, they claim that
there was no finding or proof that they furnished medi-
cal care with the knowledge that it was exposing them
to liability under the act, and that the commissioner’s
finding that Adams provided transportation to the plain-
tiff to the hospital on the date of the incident was not
sufficient to satisfy the medical care exception. We
disagree.
We first set forth our standard of review and the
general principles that guide our analysis of this claim.
Because this claim challenges the commissioner’s appli-
cation of the law governing the medical care exception
and not the underlying facts found by the commissioner
in support of that determination, we must determine
whether the board’s conclusion that the commissioner
properly applied the law ‘‘result[ed] from an incorrect
application of the law to the subordinate facts or from
an inference illegally or unreasonably drawn from
them.’’ (Internal quotation marks omitted.) Id.
Subject matter jurisdiction ‘‘is the power . . . to
hear and determine cases of the general class to which
the proceedings in question belong. . . . A court has
subject matter jurisdiction if it has the authority to
adjudicate a particular type of legal controversy. . . .
This concept, however, is not limited to courts. Admin-
istrative agencies [such as the commission] . . . are
tribunals of limited jurisdiction and their jurisdiction is
dependent entirely upon the validity of the statutes
vesting them with power . . . . [A] determination
regarding [an agency’s] subject matter jurisdiction is a
question of law . . . .’’ (Citations omitted; internal quo-
tation marks omitted.) Marroquin v. F. Monarca
Masonry, 121 Conn. App. 400, 406–407, 994 A.2d 727(2010). ‘‘The existence of an employer-employee rela-
tionship . . . and the proper initiation of a claim in the
first instance under § 31-294c . . . are jurisdictional
facts.’’ (Citations omitted.) Callender v. Reflexite Corp.,
137 Conn. App. 324, 335, 49 A.3d 211, cert. granted on
other grounds, 307 Conn. 915, 54 A.3d 179 (2012) (appeal
withdrawn September 25, 2013).
Section 31-294c (a) provides in relevant part that
‘‘[n]o proceedings for compensation under the provi-
sions of this chapter shall be maintained unless a writ-
ten notice of claim for compensation is given within
one year from the date of the accident . . . .’’ ‘‘[T]he
written notice intended is one which will reasonably
inform the employer that the employee is claiming or
proposes to claim compensation under the . . . [a]ct.’’
(Internal quotation marks omitted.) Pernacchio v. New
Haven, 63 Conn. App. 570, 575, 776 A.2d 1190 (2001).
‘‘Written notice of the injury within one year is neces-
sary to give the commissioner jurisdiction to hear the
claim unless the case falls within one of the exceptions’’
set forth in subsection (c) of § 31-294c. Gesmundo v.
Bush, 133 Conn. 607, 611, 53 A.2d 392 (1947). Under
those exceptions, the failure to provide a timely notice
of a claim is not a bar to proceedings if there has been
‘‘a timely hearing or a written request for a hearing or
an assignment for a hearing . . . the timely submission
of a voluntary agreement . . . or . . . the furnishing
of appropriate medical care by the employer to the
employee for the respective work-related injury.’’ (Cita-
tions omitted; internal quotation marks omitted.) Izik-
son v. Protein Science Corp., 156 Conn. App. 700, 708,
115 A.3d 55 (2015); see also General Statutes § 31-
294c (c).
The present case involves the medical care exception
to the one year notice of claim requirement set forth
in § 31-294c (c), which provides in relevant part that
no defect in a notice of claim shall be a bar to the
maintenance of proceedings ‘‘if within the applicable
period an employee has been furnished, for the injury
with respect which compensation is claimed, with medi-
cal or surgical care . . . .’’ ‘‘The exception [in § 31-294c
(c) to the notice requirement] is, no doubt, based upon
the fact that if the employer furnishes medical treatment
he must know that an injury has been suffered which
at least may be the basis of such a claim.’’12 Gesmundo
v. Bush, supra, 133 Conn. 612; see also Pernacchio v.
New Haven, supra, 63 Conn. App. 576–77. ‘‘Any interpre-
tation of the scope of § 31-294c (c), accordingly, must
be consistent with the principle that the employer’s
provision of medical care demonstrates that it was on
notice that the claimant had suffered a compensable
injury.’’ Carter v. Clinton, 304 Conn. 571, 580, 41 A.3d
296 (2012). The burden is on the claimant to demon-
strate that the medical care exception applies. See
id., 579.
In Gesmundo v. Bush, supra, 133 Conn. 611–13, our
Supreme Court addressed the applicability of the medi-
cal care exception. In that case, an employee of the
defendant employer sustained an injury and reported
it to the defendant’s superintendent. Id., 612. The super-
intendent then sent the employee to a doctor, who pro-
vided medical care to injured employees of the defen-
dant. Id. The commissioner found that ‘‘the
superintendent had authority to take that action,’’ and
that ‘‘[t]he act of the superintendent was in effect the
act of the employer.’’ Id. Our Supreme Court determined
that the doctor’s examination and ‘‘giving of instruc-
tions to the plaintiff constituted ‘medical treatment’ as
those words are used in the statute. To ‘furnish’ means
to ‘provide’ or ‘supply.’ Webster’s New International
Dictionary (2d Ed.). That the plaintiff saw fit to pay the
doctor does not alter the situation; it is the fact that
the defendant, through its superintendent, made provi-
sion for medical treatment that makes unnecessary the
formal notice. The commissioner could properly hold
that the defendant furnished such treatment within the
meaning of the exception in the statute.’’ Gesmundo v.
Bush, supra, 612–13.
Likewise, in Pernacchio v. New Haven, supra, 63
Conn. App. 572–73, the plaintiff firefighter filed a claim
against his employer, the city of New Haven, for heart
and hypertension benefits following an incident in
which he experienced dizziness, light-headedness, and
nausea at the firehouse. In connection with that inci-
dent, a paramedic assigned to an emergency medical
response unit that was stationed at the firehouse
responded to the plaintiff’s request for assistance. Id.,
572. The paramedic tested the plaintiff’s blood pressure
and obtained a high reading, called for an emergency
unit to transport the plaintiff to the hospital, and
remained in contact with medical staff at the hospital
while the plaintiff was being transported there, where
the plaintiff underwent testing. Id.
On appeal to this court in Pernacchio, the defendant
argued that ‘‘the plaintiff’s transportation to the hospital
by the defendant’s ambulance service, which was
staffed by the defendant’s emergency medical techni-
cians, who monitored the plaintiff’s blood pressure and
also remained in contact with the hospital until the
ambulance arrived there, [did] not constitute providing
‘a competent physician or surgeon to attend the injured
employee’ or furnishing ‘any medical and surgical aid
or hospital and nursing service . . . as the physician
or surgeon deems reasonable or necessary’ as required
by [General Statutes] § 31-294d.’’ Id., 577. This court
agreed with ‘‘the commissioner and the board that the
defendant had notice of the blood pressure incident
because the plaintiff was transported to the hospital in
an ambulance staffed with the defendant’s fire depart-
ment paramedics, who monitored his condition on the
way to the hospital, and through [an] investigative
report of the defendant’s workers’ compensation divi-
sion.’’ Id. We further explained that whether ‘‘the ride
in the ambulance while attended by paramedics quali-
fies as a medical service, the commissioner also found
that the plaintiff underwent a series of tests at the
hospital for which the hospital submitted a bill . . .
[which was] an obligation of the defendant. It can hardly
be disputed that the tests performed by the hospital
were medical services.’’ Id. Accordingly, we concluded
that the medical care exception in § 31-294c (c) applied
‘‘because the defendant, immediately after the accident,
furnished the plaintiff with medical and hospital care
. . . .’’ Id., 577–78.
In the present case, the commissioner found, in his
2017 decision, that R.P.M. and Marion, through their
agent, Adams, provided the plaintiff with transportation
to the hospital immediately following the incident. On
the appeal to the board in DeJesus I, the board deter-
mined that the commissioner’s finding that the require-
ments for the medical care exception had been met
was supported by the evidence in the record, which
included the plaintiff’s detailed testimony regarding the
events that had transpired on the date of the incident,
as well as medical records from the hospital indicating
that the plaintiff had been driven to the hospital by a
friend because he could not move. With respect to the
claim of R.P.M. and Marion that ‘‘merely transporting
the plaintiff to the hospital’’ was insufficient to establish
that the requirements of the medical care exception
have been satisfied, and that ‘‘they lacked actual knowl-
edge of the nature of the injury,’’ the board stated: ‘‘The
evidence credited by the trial commissioner is utterly
inconsistent with th[at] position.’’ We find no error in
the board’s conclusion.
This court has stated: ‘‘In the event that a representa-
tive or agent of the employer, authorized to send the
employee to a physician, does so, that constitutes fur-
nishing medical treatment for purposes of the excep-
tion. . . . It is clear that the [employer was] not igno-
rant of the injury, and [did] not claim to be prejudiced
in any way. Even if the employer did not pay for the
medical treatment furnished by a physician selected
by him, he has ‘furnished’ such treatment within the
meaning of the statute if he has sent the claimant for
medical treatment, thereby authorizing it.’’ (Citation
omitted.) Infante v. Mansfield Construction Co., 47
Conn. App. 530, 535–36, 706 A.2d 984 (1998). In the
present case, the testimony and evidence credited by
the commissioner show that, after the car fell on the
plaintiff and he could not feel his legs, the plaintiff was
placed on a wet mattress by Marion, who then directed
Adams to drive the plaintiff to a hospital, where he
received medical treatment. Under these circum-
stances, R.P.M. and Marion can hardly claim a lack of
notice that the plaintiff suffered a compensable injury,
and any claim to the contrary is belied by the record and
the facts that, within one year following the incident,
Marion provided the plaintiff with money to purchase
an electric wheelchair, purchased and/or provided a
wheelchair accessible ramp for the plaintiff’s home, and
paid him $500 per week subsequent to his injury.13 The
board’s decision affirming the commissioner’s finding
that the requirements of the medical care exception
have been satisfied resulted from a correct application
of the law to the subordinate facts and the inferences
reasonably drawn from them. See Mankus v. Mankus,
107 Conn. App. 585, 592, 946 A.2d 259, cert. denied, 288
Conn. 904, 953 A.2d 649 (2008).
B
R.P.M. and Marion next claim that the board improp-
erly affirmed the commissioner’s finding that the plain-
tiff was an employee, and not an independent contrac-
tor, of R.P.M. To the extent that R.P.M. and Marion are
challenging the commissioner’s factual finding that the
plaintiff was an employee of R.P.M., we decline to con-
sider this claim as a result of the failure of R.P.M. and
Marion to file a motion to correct that factual finding
in the commissioner’s 2017 decision. See Melendez v.
Fresh Start General Remodeling & Contracting, LLC,
supra, 180 Conn. App. 368 (declining to consider claim
that board improperly affirmed finding of commissioner
that claimant was employee where party challenging
finding did not file motion to correct).
Moreover, to the extent that R.P.M. and Marion are
challenging the commissioner’s determination that
jurisdiction exists, we conclude that the board’s deter-
mination that the commissioner’s finding of jurisdiction
was proper was based on a correct application of the
law to the subordinate facts found by the commissioner
relating to the employment relationship of the parties.
‘‘A jurisdictional prerequisite to the applicability of
the act is the existence of an employer-employee rela-
tionship.’’ Bugryn v. State, 97 Conn. App. 324, 328, 904
A.2d 269, cert. denied, 280 Conn. 929, 909 A.2d 523(2006). ‘‘The determination of the status of an individual
as an independent contractor or an employee is often
difficult . . . and, in the absence of controlling circum-
stances, is a question of fact.’’ (Internal quotation marks
omitted.) Rodriguez v. E.D. Construction, Inc., 126
Conn. App. 717, 727, 12 A.3d 603, cert. denied, 301
Conn. 904, 17 A.3d 1046 (2011). ‘‘Our courts have long
recognized that independent contractors are not within
the coverage of the . . . [a]ct. . . . The fundamental
distinction between an employee and an independent
contractor depends upon the existence or nonexistence
of the right to control the means and methods of work.
. . . It is the totality of the evidence that determines
whether a worker is an employee under the act, not
subordinate factual findings that, if viewed in isolation,
might have supported a different determination. . . .
For purposes of workers’ compensation, an indepen-
dent contractor is defined as one who, exercising an
independent employment, contracts to do a piece of
work according to his own methods and without being
subject to the control of his employer, except as to the
result of his work.’’ (Citations omitted; internal quota-
tion marks omitted.) Id., 728. In other words, ‘‘[o]ne is
an employee of another when he renders a service for
the other and when what he agrees to do, or is directed
to do, is subject to the will of the other in the mode
and manner in which the service is to be done and in
the means to be employed in its accomplishment as
well as in the result to be attained. . . . The controlling
consideration in the determination of whether the rela-
tionship of master and servant exists or that of indepen-
dent contractor exists is: Has the employer the general
authority to direct what shall be done and when and
how it shall be done—the right of general control of the
work?’’ (Emphasis omitted; internal quotation marks
omitted.) Compassionate Care, Inc. v. Travelers
Indemnity Co., 147 Conn. App. 380, 391, 83 A.3d 647(2013).
Our Supreme Court has stated that ‘‘[i]t 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 his agent.’’
(Internal quotation marks omitted.) Tianti v. William
Raveis Real Estate, Inc., 231 Conn. 690, 697, 651 A.2d
1286 (1995). Moreover, ‘‘the fact that a worker did not
have any significant investment in the materials or tools
necessary to perform the job and that the necessary
equipment or materials were furnished by the employer
are factors that weigh in favor of a determination that
[an employer-employee] relationship [exists] . . . and
not that of an independent contractor.’’ Nationwide
Mutual Ins. Co. v. Allen, 83 Conn. App. 526, 536, 850
A.2d 1047, cert. denied, 271 Conn. 907, 859 A.2d 562(2004).
In the present case, the commissioner found, on the
basis of the totality of the evidence, that the plaintiff
was an employee of R.P.M. on the date of the incident
that caused his injuries and that he was subject to the
specific control and direction of R.P.M. and Marion, its
owner.14 On appeal in DeJesus I, the board first noted
that employment status involves a factual issue that ‘‘is
subject to a significant level of review,’’ and stated that
it had to ‘‘determine whether the testimony of the [plain-
tiff], deemed credible by the trial commissioner, pro-
vided a sufficient basis for the trier’s conclusion that
[R.P.M. and Marion] exercised a right of general control
over the [plaintiff’s] work activities.’’ (Internal quota-
tion marks omitted.) The board then summarized the
testimony before the commissioner in support of his
finding: ‘‘The [plaintiff] testified that he was paid cash
by [R.P.M. and Marion] and could not leave the premises
unless someone gave him a ride. . . . He was not given
a Form 1099 at year’s end . . . and, on the day of his
injury, he was under Adams’ direction regarding which
tasks to perform. . . . Adams and [Bobby] had set up
the car on which the [plaintiff] was working on the date
of the injury. . . . The [plaintiff] testified that he did
not earn wages working for other employers during the
period in which he worked for R.P.M. . . . On cross-
examination, the [plaintiff] clarified that he had not
worked as a mechanic elsewhere but had earned money
performing housework for an uncle. He also partici-
pated in unpaid volunteer activities at events at Gillette
Stadium. . . . He further testified that he worked a set
schedule . . . and he would occasionally travel with
Marion . . . or Adams to pick up cars or work at their
homes. He indicated that he was paid cash daily by
either Marion . . . or Adams . . . and he did not use
his own tools when stripping cars at R.P.M.’’ (Citations
omitted.) Moreover, the plaintiff also testified before
the commissioner that Marion, Adams, and Bobby all
directed him with regard to his work duties and the
control over those duties, and that Adams would correct
him and direct him how to do something if he did not
do it correctly.
The board concluded in DeJesus I that the plaintiff’s
testimony, which the commissioner deemed more cred-
ible, provided a sufficient basis to support the commis-
sioner’s finding of an employer-employee relationship
between the plaintiff and R.P.M., which formed the
basis of the commissioner’s finding of jurisdiction. We
conclude that the board properly affirmed the commis-
sioner’s decision regarding jurisdiction over this mat-
ter.
III
Marion next maintains that the commissioner had (1)
no jurisdiction to find him liable to pay compensation
under the act because the plaintiff ‘‘never made a claim
for compensation against [Marion]’’ and (2) ‘‘no author-
ity to apply . . . the equitable doctrine of ‘piercing the
corporate veil’ to make him liable for payment of com-
pensation.’’ Therefore, Marion claims that the board
improperly affirmed the award of compensation by the
commissioner against him at the request of the fund
when no claim was brought against him, and when the
commissioner had no jurisdiction to make a finding
that R.P.M. and Marion were the same entity for the
purposes of piercing the corporate veil. Because these
issues are related, we address them together.
In support of his claim that the commissioner lacked
jurisdiction to enter an order requiring him, personally,
to pay workers’ compensation benefits to the plaintiff,
Marion points to the fact that no notice of claim naming
him as an employer had ever been filed. He further
argues that the commissioner lacked ‘‘subject matter
jurisdiction to make a finding that Marion was an alter
ego [of R.P.M.] so as to allow him [to] ‘pierce the corpo-
rate veil’ and make an award against a nonparty.’’15
The fund counters that because Marion was added
at the onset of the first formal hearing, when he was
present and could have objected but failed to do so, he
had adequate notice of the issues to be addressed and
was not denied due process. The fund also claims that
the commissioner had jurisdiction to pierce the corpo-
rate veil of R.P.M. and hold Marion personally liable.
In support of this assertion, the fund does not cite to
any appellate authority in this state governing this issue
and, instead, relies on administrative decisions of the
board in prior cases. Moreover, at oral argument before
this court, the attorney for the fund, after acknowledg-
ing that there is no specific statute that permits a com-
missioner, as the trier of fact, to pierce the corporate
veil, argued that this court should consider General
Statutes §§ 31-278 and 31-298 as support for the fund’s
claim, even though the fund did not brief the applicabil-
ity of those statutes.
The following additional facts are necessary for a
resolution of the claim. The amended Form 30C notice
of claim filed by the plaintiff on September 10, 2015,
listed only R.P.M. as the plaintiff’s employer. On April
12, 2016, the first day of the formal hearing before the
commissioner, the attorney for the fund stated to the
commissioner that she wanted to ‘‘add’’ Marion ‘‘as a
respondent, individual, personal capacity.’’ In response,
the commissioner asked Marion if he was the owner
of R.P.M., to which Marion replied, ‘‘Yes.’’ Thereafter,
the commissioner stated: ‘‘Okay, and I’m adding you,
personally, to the notice . . . .’’ No objection was
raised to that statement of the commissioner. It is undis-
puted that the plaintiff never filed a notice of claim
alleging that Marion was his employer
In the list of issues to be determined in the commis-
sioner’s 2017 decision, there is no reference to any issue
related to whether the plaintiff was an employee of
Marion or whether Marion should be held liable in his
individual capacity. A review of the transcripts of the
three days of hearings held in 2016 reveals questions
and testimony related to how Marion ran R.P.M. and
his level of control over, and relationship with, the
plaintiff, which could be construed to relate to the issue
of whether an employer-employee relationship existed
between the plaintiff and R.P.M. In fact, the first time
we find reference in the record to piercing the corporate
veil of R.P.M. is when the fund filed its trial brief on
February 24, 2017, after the conclusion of the formal
hearings, claiming that the commissioner should pierce
the corporate veil of R.P.M. and ‘‘Marion should be held
liable to [the plaintiff] for any benefits he is awarded.’’
In the 2017 decision, the commissioner found that
the plaintiff was an employee of R.P.M. ‘‘and/or’’ Marion.
On the appeal to the board in DeJesus I, the board
stated: ‘‘The final issue for our consideration, having
affirmed the trial commissioner’s determination that the
commission has jurisdiction over the present matter,
is whether the evidentiary record provided a sufficient
basis for the trial commissioner to ‘pierce the corporate
veil’ and find Marion . . . responsible in an individual
capacity. Marion . . . argues that the subordinate facts
do not support the commissioner’s finding of liability
against him in his individual capacity. Although we con-
cede that specific findings by the trial commissioner
with regard to piercing the corporate veil would have
been beneficial, we deem their absence harmless error,
particularly as there was no motion to correct.’’ After
reviewing the legal standard and evidence in the record,
the board concluded that ‘‘the commissioner reasonably
inferred that R.P.M. and Marion . . . were essentially
alter egos and, as such, Marion . . . could not rely
upon the protection of the corporate veil as a defense
against liability.’’ In the commissioner’s 2019 decision,
the commissioner found, on the basis of the record
from the prior proceedings, that R.P.M. and Marion
‘‘were alter egos’’ and, as such, they were ‘‘jointly and
severally liable as to the orders contained [therein].’’
In DeJesus II, the board did not address this issue in
a substantive manner because it found that R.P.M. and
Marion were collaterally estopped from raising issues
related to the prior proceedings.
We begin by setting forth the relevant standard of
review. ‘‘Administrative agencies . . . are tribunals of
limited jurisdiction and their jurisdiction is dependent
entirely upon the validity of the statutes vesting them
with power . . . .’’ (Internal quotation marks omitted.)
Dept. of Public Safety v. Freedom of Information Com-
mission, 103 Conn. App. 571, 577, 930 A.2d 739, cert.
denied, 284 Conn. 930, 934 A.2d 245 (2007). ‘‘[A] determi-
nation regarding [an agency’s] subject matter jurisdic-
tion is a question of law . . . .’’ (Internal quotation
marks omitted.) Id., 576. Although our scope of review
of the actions of the board in a workers’ compensation
appeal is limited, this court invokes a broader standard
of review when a question of law is involved. See Izik-
son v. Protein Science Corp., supra, 156 Conn. App.
707. We, therefore, afford plenary review to this claim.
See id.This court has observed previously that ‘‘the workers’
compensation commission, like any administrative
body, must act strictly within its statutory authority
. . . . It cannot modify, abridge, or otherwise change
the statutory provisions under which it acquires author-
ity unless the statutes expressly grant it that power.
. . . [I]t is settled law that the commissioner’s jurisdic-
tion is confined by the [act] and limited by its provisions.
. . . The commissioner exercises jurisdiction only
under the precise circumstances and in the manner
particularly prescribed by the enabling legislation. . . .
The parties cannot confer jurisdiction upon the commis-
sioner by agreement, waiver or conduct. . . . The [act]
is not triggered by a claimant until he brings himself
within its statutory ambit. . . . Although the [act]
should be broadly construed to accomplish its humani-
tarian purpose . . . its remedial purpose cannot tran-
scend its statutorily defined jurisdictional boundaries.’’
(Internal quotation marks omitted.) Nationwide
Mutual Ins. Co. v. Allen, supra, 83 Conn. App. 532; see
also Kuehl v. Koskoff, 182 Conn. App. 505, 524, 190 A.3d
82, cert. denied, 330 Conn. 919, 194 A.3d 289 (2018).
Our Supreme Court has stated that a ‘‘commissioner’s
. . . jurisdiction is limited to adjudicating claims aris-
ing under the act, that is, claims by an injured employee
seeking compensation from his [or her] employer for
injuries arising out of and in the course of employment.’’
(Emphasis added.) Stickney v. Sunlight Construction,
Inc., 248 Conn. 754, 762, 730 A.2d 630 (1999). If jurisdic-
tion exists for the commissioner to find Marion liable,
personally, as an employer and alter ego of R.P.M.,
‘‘such authority must be found within the act.’’ Byrd v.
Bechtel/Fusco, 90 Conn. App. 641, 645, 878 A.2d 1162,
cert. denied, 276 Conn. 919, 888 A.2d 87 (2005).
It is unclear from the record as to what the commis-
sioner was referring when he stated at the April 12,
2016 formal hearing that he was adding Marion, ‘‘per-
sonally, to the notice . . . .’’ Nevertheless, even if we
assume, without deciding, that the commissioner
intended to and did bring Marion into the case in his
personal capacity, we are not aware of, nor have the
parties alerted us to, any authority16 that allows the
commissioner to cite into the matter an individual who
was not named, or to designate a person or entity as
an employer when the employee has not identified that
person or entity as his or her employer.17 The board’s
analysis of this issue centered on whether Marion’s due
process rights had been violated, not the issue at hand,
namely, whether the commissioner’s actions were
authorized under the act. Additionally, although Marion
did not file a motion to correct the commissioner’s
finding that the plaintiff was an employee of Marion,
that is not fatal to his challenge to that finding on appeal
under the circumstances here, where the commissioner
lacked jurisdiction to make that finding in the first
place. As we have stated previously, ‘‘[u]nless the [a]ct
gives the [c]ommissioner the right to take jurisdiction
over a claim, it cannot be conferred upon [the commis-
sioner] by the parties either by agreement, waiver or
conduct.’’ (Internal quotation marks omitted.) Gamez-
Reyes v. Biagi, 136 Conn. App. 258, 269, 44 A.3d 197,
cert. denied, 306 Conn. 905, 52 A.3d 731 (2012). The
commissioner acted beyond the scope of the act in
bringing Marion into the action in his personal capacity
and deciding the issue of whether Marion, as the princi-
pal of the employer of the injured employee, should be
held accountable, personally, for the plaintiff’s injuries.
Thus, the board’s decision affirming the commissioner’s
finding as to Marion resulted from an incorrect applica-
tion of the law and was improper.
Likewise, the board’s determination that the commis-
sioner properly pierced the corporate veil of R.P.M. and
held Marion jointly and severally liable also founders
for the same reason. Because this issue has not yet
been addressed by the appellate courts of this state,
we briefly discuss the general principles that support
our determination.
Under the doctrine of piercing the corporate veil,
‘‘[c]ourts will . . . disregard the fiction of a separate
legal entity to pierce the shield of immunity afforded
by the corporate structure in a situation in which the
corporate entity has been so controlled and dominated
that justice requires liability to be imposed on the real
actor. . . . We have affirmed judgments disregarding
the corporate entity and imposing individual stock-
holder liability when a corporation is a mere instrumen-
tality or agent of another corporation or individual own-
ing all or most of its stock.’’ (Internal quotation marks
omitted.) Atelier Constantin Popescu, LLC v. JC Corp.,
134 Conn. App. 731, 759, 49 A.3d 1003 (2012). ‘‘The
concept of piercing the corporate veil is equitable in
nature. . . . No hard and fast rule, however, as to the
conditions under which the entity may be disregarded
can be stated as they vary according to the circum-
stances of each case. . . . Ordinarily the corporate veil
is pierced only under exceptional circumstances, for
example, where the corporation is a mere shell, serving
no legitimate purpose, and used primarily as an interme-
diary to perpetuate fraud or promote injustice. . . .
The improper use of the corporate form is the key to
the inquiry, as [i]t is true that courts will disregard legal
fictions, including that of a separate corporate entity,
when they are used for fraudulent or illegal purposes.
Unless something of the kind is proven, however, to
do so is to act in opposition to the public policy of
the state as expressed in legislation concerning the
formation and regulation of corporations.’’ (Internal
quotation marks omitted.) Id., 759–60.
Two tests have been recognized for disregarding a
corporate structure of a defendant: the instrumentality
rule and the identity rule. See Cohen v. Meyers, 175
Conn. App. 519, 541, 167 A.3d 1157, cert. denied, 327
Conn. 973, 174 A.3d 194 (2017). Under the instrumental-
ity rule, proof of three elements is required: ‘‘(1) Con-
trol, not mere majority or complete stock control, but
complete domination, not only of finances but of policy
and business practice in respect to the transaction
attacked so that the corporate entity as to this transac-
tion had at the time no separate mind, will or existence
of its own; (2) that such control must have been used
by the defendant to commit fraud or wrong, to perpetu-
ate the violation of a statutory or other positive legal
duty, or a dishonest or unjust act in contravention of
[the] plaintiff’s legal rights; and (3) that the aforesaid
control and breach of duty must proximately cause the
injury or unjust loss complained of.’’ (Internal quotation
marks omitted.) Id. Pursuant to the identity rule, ‘‘[i]f
[the] plaintiff can show that there was such a unity of
interest and ownership that the independence of the
corporations had in effect ceased or had never begun,
an adherence to the fiction of separate identity would
serve only to defeat justice and equity by permitting
the economic entity to escape liability arising out of an
operation conducted by one corporation for the benefit
of the whole enterprise.’’ (Internal quotation marks
omitted.) Naples v. Keystone Building & Development
Corp., 295 Conn. 214, 232, 990 A.2d 326 (2010). More-
over, ‘‘the fact that a sole stockholder of a corporation
is in exclusive control of the company’s finances and
business practices, standing alone, is an insufficient
basis in itself to pierce the corporate veil. While control
is a factor, [o]f paramount concern is how the control
was used, not that it existed.’’ (Internal quotation marks
omitted.) Cohen v. Meyers, supra, 541–42.
No appellate court of this state has yet determined
whether the commissioner has jurisdiction under the
act to determine if the corporate veil of an employer
obligated to pay workers’ compensation benefits should
be pierced. In its brief, the fund cites to administrative
decisions of the board that have addressed this issue
and determined that a trial commissioner appropriately
could pierce the corporate veil of an employer. See
Barbieri v. Comfort & Care of Wallingford, Inc., No.
5794, CRB 8-12-10 (September 26, 2013); Diaz v. Capital
Improvement & Management, LLC, No. 5616, CRB 1-
11-1 (January 12, 2012); Caus v. Hug, No. 5392, CRB 4-
08-11 (January 22, 2010). These decisions, however, do
not appear to be time-tested. Appellate courts generally
afford deference to an agency’s time-tested interpreta-
tion of a statute, for example, ‘‘but only when the agency
has consistently followed its construction over a long
period of time . . . .’’ (Internal quotation marks omit-
ted.) Marone v. Waterbury, 244 Conn. 1, 9, 707 A.2d
725 (1998). An agency’s interpretation is time-tested
when it is applied on a consistent basis, to multiple
decisions, over an extended period of time. See Board
of Selectmen v. Freedom of Information Commission,
294 Conn. 438, 448, 984 A.2d 748 (2010); see also Con-
necticut Assn. of Not-for-Profit Providers for the Aging
v. Dept. of Social Services, 244 Conn. 378, 390 n.18, 709
A.2d 1116 (1998) (four years did not constitute time-
tested agency interpretation). Moreover, ‘‘[w]hen a state
agency’s determination of a question of law has not
previously been subject to judicial scrutiny . . . the
agency is not entitled to special deference.’’ (Internal
quotation marks omitted.) Marone v. Waterbury, supra,
10. Therefore, we do not defer to the board’s determina-
tion of this issue and exercise plenary review. See
Dechio v. Raymark Industries, Inc., supra, 299 Conn.
389.
At oral argument before this court, the attorney for
the fund acknowledged that there is no specific statute
that expressly provides that the trier of fact can pierce
the corporate veil but requested this court to consider
§§ 31-278 and 31-298. Specifically, the fund’s counsel
argued that the wide discretion granted to the commis-
sioner under those statutes permitted the actions of the
commissioner in the present case, but he also conceded
that the applicability of those statutes was not briefed
in the fund’s appellate brief. Marion counters that § 31-
355 of the act provides a specific mechanism by which
the fund can recover moneys paid for benefits in a case
where no insurance is involved. He also claims that, if
the commissioner is allowed to decide the piercing the
corporate veil claim, he would lose his right to a jury
trial. See Sellner v. Beechwood Construction Co., 176
Conn. 432, 433, 437, 407 A.2d 1026 (1979) (jury returned
verdict piercing corporate veil of defendant construc-
tion company); see also American Protein Corp. v. AB
Volvo, 844 F.2d 56, 59 (2d Cir.) (rejecting claim that
court should have decided piercing of corporate veil
claim and holding that issue of piercing corporate veil
‘‘is generally submitted to the jury’’), cert. denied, 488
U.S. 852, 109 S. Ct. 136, 102 L. Ed. 2d 109 (1988). We
agree with Marion.
‘‘[A] claim must be raised and briefed adequately in
a party’s principal brief, and . . . the failure to do so
constitutes the abandonment of the claim.’’ State v.
Elson, 311 Conn. 726, 766, 91 A.3d 862 (2014). ‘‘We
repeatedly have stated that [w]e are not required to
review issues that have been improperly presented to
this court through an inadequate brief. . . . Analysis,
rather than mere abstract assertion, is required in order
to avoid abandoning an issue by failure to brief the
issue properly. . . . [F]or this court judiciously and
efficiently to consider claims of error raised on appeal
. . . the parties must clearly and fully set forth their
arguments in their briefs. . . . The parties may not
merely cite a legal principle without analyzing the rela-
tionship between the facts of the case and the law
cited.’’ (Internal quotation marks omitted.) Scalora v.
Scalora, 189 Conn. App. 703, 735–36, 209 A.3d 1 (2019).
Nevertheless, even if we consider the statutes on
which the fund relies, they do not provide a basis for
authorizing the commissioner to pierce the corporate
veil of R.P.M. Section 31-278, which sets forth the pow-
ers and duties of the commissioner, provides in relevant
part: ‘‘Each commissioner shall, for the purposes of this
chapter, have power to summon and examine under
oath such witnesses, and may direct the production of,
and examine or cause to be produced or examined,
such books, records, vouchers, memoranda, docu-
ments, letters, contracts or other papers in relation to
any matter at issue as he may find proper, and shall
have the same powers in reference thereto as are vested
in magistrates taking depositions and shall have the
power to order depositions pursuant to section 52-148.
He shall have power to certify to official acts and shall
have all powers necessary to enable him to perform
the duties imposed upon him by the provisions of this
chapter. . . .’’ Our Supreme Court interpreted that stat-
ute in Stickney v. Sunlight Construction, Inc., supra,
248 Conn. 762, stating that § 31-278 is ‘‘[t]he primary
statutory provision establishing the subject matter juris-
diction of the commission,’’ and that ‘‘[a] plain reading
of [the] language [in § 31-278] suggests that the commis-
sioner’s subject matter jurisdiction is limited to adjudi-
cating claims arising under the act, that is, claims by
an injured employee seeking compensation from his
employer for injuries arising out of and in the course
of employment.’’ Thus, ‘‘for a commissioner to have
jurisdiction over a claim, that claim must fit within the
existing jurisdictional provisions of [the act].’’ (Internal
quotation marks omitted.) Del Toro v. Stamford, 270
Conn. 532, 545–46, 853 A.2d 95 (2004). Our review of
the language of § 31-278 demonstrates that the statute
does not confer jurisdiction on the commissioner to
pierce the corporate veil of a defendant employer.
Similarly, § 31-298 does not provide support for the
fund’s claim. That statute, titled ‘‘Conduct of hearings,’’
provides in relevant part: ‘‘In all cases and hearings
under the provisions of this chapter, the commissioner
shall proceed, so far as possible, in accordance with
the rules of equity. He shall not be bound by the ordinary
common law or statutory rules of evidence or proce-
dure, but shall make inquiry, through oral testimony,
deposition testimony or written and printed records,
in a manner that is best calculated to ascertain the
substantial rights of the parties and carry out the provi-
sions and intent of this chapter. . . .’’ Although § 31-
298 ‘‘grants broad authority to a commissioner to carry
out the provisions of the . . . [a]ct’’; Bailey v. State,
65 Conn. App. 592, 604, 783 A.2d 491 (2001); this court
has determined that the statute ‘‘does not engraft equita-
ble doctrines . . . onto all aspects of the act.’’ Wiblyi
v. McDonald’s Corp., 168 Conn. App. 92, 108, 144 A.3d
530 (2016). Moreover, ‘‘[o]ur Supreme Court has inter-
preted § 31-298 ‘to cover only the manner in which
hearings are conducted.’ ’’ Id.
The fund claims in its brief that ‘‘[w]hen a business
is found to be an employer of a claimant and the issue
of piercing the corporate veil of said business has been
raised, the commissioner must decide that issue in
order to resolve the issue of [an] employer/employee
relationship.’’ We disagree. The determination of
whether an employer-employee relationship exists is a
jurisdictional prerequisite to making an award under
the act, whereas the issue of piercing the corporate
veil concerns whether the corporate structure of the
defendant employer should be disregarded and applies
to situations ‘‘in which the corporate entity has been
so controlled and dominated that justice requires liabil-
ity to be imposed on the real actor.’’ (Internal quotation
marks omitted.) Atelier Constantin Popescu, LLC v. JC
Corp., supra, 134 Conn. App. 759. That issue is funda-
mentally different from establishing the existence of an
employer-employee relationship in the first instance.
Our determination is supported by the language of
the statutory framework governing the fund. Section
31-355 governs hearings, awards and payments from
the fund as a result of an employer’s failure to comply
with an award, and provides for a civil action against
the employer by the fund to seek reimbursement. Spe-
cifically, § 31-355 provides in relevant part: ‘‘(a) The
commissioner shall give notice to the Treasurer of all
hearing of matters that may involve payment from the
. . . [f]und, and may make an award directing the Trea-
surer to make payment from the fund.
‘‘(b) When an award of compensation has been made
under the provisions of this chapter against an employer
who failed, neglected, refused or is unable to pay any
type of benefit coming due as a consequence of such
award or any adjustment in compensation required by
this chapter, and whose insurer failed, neglected,
refused or is unable to pay the compensation, such
compensation shall be paid from the . . . [f]und. The
commissioner, on a finding of failure or inability to pay
compensation, shall give notice to the Treasurer of the
award, directing the Treasurer to make payment from
the fund. . . .
‘‘(c) The employer and the insurer, if any, shall be
liable to the state for any payments made out of the
fund in accordance with this section or which the Trea-
surer has by award become obligated to make from the
fund, together with cost of [attorney’s] fees as fixed by
the court. If reimbursement is not made, or a plan for
payment to the fund has not been agreed to by the
Treasurer and employer, not later than ninety days after
any payment from the fund, the Attorney General shall
bring a civil action, in the superior court for the judicial
district where the award was made, to recover all
amounts paid by the fund pursuant to the award, plus
double damages together with reasonable attorney’s
fees and costs as taxed by the court. . . .’’
This court previously has explained: ‘‘Although the
fund became a part of our workers’ compensation statu-
tory scheme during World War II, essentially for the
purpose of enticing employers to hire returning disabled
war veterans, the legislature has, in the intervening
years, altered the fund’s statutory parameters. At pres-
ent, the fund’s essential purpose is to provide compen-
sation for an injured [plaintiff] when the employer fails
to pay. . . . For the fund to fulfill this purpose, a sup-
plemental order must issue from a commissioner direct-
ing the fund to make payment to a plaintiff. Under
our workers’ compensation statutory framework, the
prerequisites to an order [issuing from a commissioner]
to the fund to make payment [to a plaintiff] are that:
(1) the substantive and procedural requirements of the
. . . act have been met; (2) an award against the
employer has been entered; and (3) the employer and
its insurer have failed to pay. . . . Only when these
prerequisites—a finding and award properly entered
against an employer and an employer’s or insurer’s fail-
ure to pay—have been satisfied, may a commissioner
issue a supplemental order directing the fund to com-
pensate a plaintiff in accordance with . . . § 31-355.’’
(Citations omitted; footnotes omitted; internal quota-
tion marks omitted.) Dechio v. Raymark Industries,
Inc., 114 Conn. App. 58, 60, 968 A.2d 450 (2009), aff’d,
299 Conn. 376, 10 A.3d 20 (2010).
Pursuant to the plain language of § 31-355 (c), not
later than ninety days after any payment from the fund,
a civil action may be brought by the fund in the Superior
Court to recover all amounts paid by the fund pursuant
to the award. If the fund brings such an action in connec-
tion with the present case, it can raise a claim that the
corporate structure of R.P.M. is a fiction, such that its
corporate veil should be pierced and liability for the
workers’ compensation benefits paid to the plaintiff
should rest with Marion, as the alter ego of R.P.M.
In such an action, Marion would also be afforded the
possibility of a jury trial. See General Statutes § 52-218
(‘‘[u]pon the application of either party, the court may
order any issue or issues of fact in any action demanding
equitable relief to be tried by a jury of six’’). Section
31-355 (c), thus, provides a means by which the fund
can address its claim in a separate action.
Accordingly, we conclude that the board properly
affirmed the commissioner’s determination regarding
jurisdiction over the plaintiff’s claim seeking worker’s
compensation benefits for the injuries he sustained
while working for R.P.M., as well as the commissioner’s
findings, made in connection therewith, that the plain-
tiff was an employee of R.P.M. and that the medical
care exception in § 31-294c (c) was satisfied. The board,
however, improperly affirmed the commissioner’s find-
ings that the plaintiff was an employee of Marion, that
Marion was the alter ego of R.P.M., and that he was
jointly and severally liable for the award of benefits to
the plaintiff, as the commissioner did not have jurisdic-
tion under the act to make an award against Marion or
to pierce the corporate veil of R.P.M. and hold Mar-
ion liable.
The decisions of the Compensation Review Board
are reversed only as to the determinations that Marion
could be held liable in his personal capacity and that
the commissioner properly pierced the corporate veil
of R.P.M., and the case is remanded to the board with
direction to remand the case to the commissioner with
direction to vacate the finding and award as to Marion;
the decisions are affirmed in all other respects.
In this opinion the other judges concurred.
1
The commissioner also imposed a civil penalty pursuant to General
Statutes § 31-288 (c) for the employer’s failure to carry workers’ compensa-
tion insurance. The board remanded the matter to the commissioner with
respect to the fine imposed.
2
General Statutes § 31-355 (b) provides in relevant part: ‘‘When an award
of compensation has been made under the provisions of this chapter against
an employer who failed, neglected, refused or is unable to pay any type of
benefit coming due as a consequence of such award or any adjustment in
compensation required by this chapter, and whose insurer failed, neglected,
refused or is unable to pay the compensation, such compensation shall be
paid from the Second Injury Fund. The commissioner, on a finding of failure
or inability to pay compensation, shall give notice to the Treasurer of the
award, directing the Treasurer to make payment from the fund. . . .’’
3
Subsequent to the plaintiff’s injury and the commencement of these
proceedings, § 31-294c was amended by No. 16-112, § 1, of the 2016 Public
Acts, and by No. 17-141, § 1, of the 2017 Public Acts. Because those amend-
ments added provisions that are not relevant to the claims on appeal, we
refer to the current revision of the statute.
4
Specifically, R.P.M. claimed that, because the plaintiff did not file a
notice of claim within one year from the date of his injury and no exceptions
to that one year notice requirement applied, the commission lacked jurisdic-
tion over the plaintiff’s claim for workers’ compensation benefits. R.P.M. also
asserted that the plaintiff was an independent contractor, not an employee,
of R.P.M., depriving the commission of jurisdiction.
5
Although, in the decisions of the commissioner and the board, Marion’s
son is referred to as Robert Marion, Jr., at the formal hearing before the
commissioner on November 22, 2016, Marion stated to the plaintiff’s counsel
that his son’s correct name is Robert Marion II. Throughout that hearing,
in his testimony Marion referred to his son as Bobby. For clarity, we refer
to Marion’s son in this opinion as Bobby.
6
See footnote 8 and part II of this opinion.
7
We note that the 2017 decision was made by Commissioner Ernie R.
Walker, who, thereafter, retired from the commission. Therefore, the 2019
hearing was held before Commissioner Peter C. Mlynarczyk.
8
Although R.P.M. and Marion did not file a motion to correct the commis-
sioner’s factual findings at that time, which limited the scope of review
applied by the board to any challenges related to those findings; see Conroy
v. Stamford, 161 Conn. App. 691, 701–702, 129 A.3d 137 (2015), cert. denied,
320 Conn. 917, 131 A.3d 1154 (2016); that issue is separate from the issue
of whether, as alleged by the plaintiff in connection with his collateral
estoppel claim, R.P.M. and Marion were required to file an appeal to this
court from the board’s decision in DeJesus I. We address the failure of
R.P.M. and Marion to file a motion to correct in part II of this opinion.
9
The commissioner also found that the plaintiff was an employee of
Marion. We address the finding as it relates to Marion in part III of this opin-
ion.
10
Although R.P.M. was represented by counsel at the first formal hearing
held on April 12, 2016, that counsel withdrew from the case, and R.P.M.
and Marion proceeded as self-represented parties throughout the remainder
of the proceedings. We acknowledge that ‘‘[i]t is the established policy of
the Connecticut courts to be solicitous of [self-represented] litigants and
when it does not interfere with the rights of other parties to construe the
rules of practice liberally in favor of the [self-represented] party. . . .
Although we allow [self-represented] litigants some latitude, the right of
self-representation provides no attendant license not to comply with relevant
rules of procedural and substantive law.’’ (Internal quotation marks omitted.)
Sellers v. Sellers Garage, Inc., 80 Conn. App. 15, 19 n.2, 832 A.2d 679, cert.
denied, 267 Conn. 904, 838 A.2d 210 (2003).
11
The record does show that R.P.M. and Marion filed a motion to correct
the factual findings in the commissioner’s 2019 decision, which the commis-
sioner denied. In DeJesus II, the board concluded that the commissioner
did not err in denying the motion to correct.
12
In their appellate brief, R.P.M. and Marion cite Gesmundo for the propo-
sition that an employer ‘‘must know that an injury has been suffered,’’ and
claim that because the commissioner made no such express finding, there
was no finding on the record that they ‘‘furnished medical care within the
meaning of the statute.’’ An examination of Gesmundo, however, reveals
that R.P.M. and Marion have taken that statement out of context. Our review
of the full statement of the court in Gesmundo—that the exception is based
on the fact that ‘‘if the employer furnishes medical treatment he must know
that an injury has been suffered which at least may be the basis of such a
claim’’—demonstrates that the court was explaining an inference that can
be drawn from an employer’s conduct in furnishing medical treatment.
Gesmundo v. Bush, supra, 133 Conn. 612. There is no support in Gesmundo
for the claim of R.P.M. and Marion that the commissioner had to make an
express finding that they furnished medical care knowing that it might
subject them to liability under the act.
13
We also note that the commissioner did not find credible Marion’s
testimony that he was not present at the time of the plaintiff’s injury. We
cannot disturb that finding. See Schiano v. Bliss Exterminating Co., 57
Conn. App. 406, 415, 750 A.2d 1098 (2000) (commissioner’s ‘‘authority to
find the facts entitles the commissioner to determine the weight of the
evidence presented and the credibility of the testimony offered’’).
14
R.P.M. and Marion take issue with the fact that the commissioner found
that the plaintiff was ‘‘subject to specific direction and control’’ of R.P.M.
and Marion, and did not use the specific words ‘‘right to control.’’ In essence,
they claim that the commissioner did not apply the law correctly. This claim
has no merit. Our Supreme Court has held that ‘‘[t]he fundamental distinction
between an employee and an independent contractor depends upon the
existence or nonexistence of the right to control the means and method of
work.’’ (Emphasis in original; internal quotation marks omitted.) Hunte v.
Blumenthal, 238 Conn. 146, 154, 680 A.2d 1231 (1996). Although courts have
referred to this as the right to control test, R.P.M. and Marion have not cited
any authority, nor have we found any, that required the commissioner to
use the specific words ‘‘right to control.’’ Moreover, this court has determined
previously that ‘‘[i]t is the totality of the evidence that determines whether
a worker is an employee’’; Rodriguez v. E.D. Construction, Inc., supra, 126
Conn. App. 728; and that the controlling consideration in determining the
existence of an employer-employee relationship is whether ‘‘the employer
[has] the general authority to direct what shall be done and when and how it
shall be done . . . .’’ (Emphasis omitted; internal quotation marks omitted.)
Compassionate Care, Inc. v. Travelers Indemnity Co., supra, 147 Conn.
App. 391. If an employee is subject to the direction and control of his
employer, it necessarily follows that the employer has the right to control
the actions of the employee while at work. The commissioner’s finding that
the plaintiff was ‘‘subject to specific direction and control’’ of R.P.M. and
Marion, as well as his subordinate findings concerning the nature of the
employment relationship between the plaintiff and R.P.M. and Marion, were
sufficient for the commissioner to make a determination that the plaintiff
was an employee.
15
In connection with this claim, Marion alleges that there is nothing in
the act that permits the fund to decide the identity of a claimant’s employer.
In light of our determination that the commissioner had no jurisdiction
under the act to bring Marion into the case in his personal capacity or to
pierce the corporate veil of R.P.M. to hold Marion personally liable for the
payment of benefits to the plaintiff, we need not address this claim.
16
Pursuant to the act, the claimant has the burden of proving certain
jurisdictional facts. Gamez-Reyes v. Biagi, 136 Conn. App. 258, 270, 44 A.3d
197, cert. denied, 306 Conn. 905, 52 A.3d 731 (2012). First, the claimant must
properly initiate a claim under § 31-294c by filing a written notice of claim,
which may be given to the employer or any commissioner. See id.; see also
General Statutes § 31-294c. The standard Form 30C notice of claim form,
like the one filed by the plaintiff in the present case, requires information
regarding the injured worker, the nature of the injury, and the name and
address of the employer from whom the injured worker is seeking benefits.
The claimant also ‘‘has the burden of proving that he is an employee of the
employer from whom he seeks compensation.’’ (Emphasis added.) Gamez-
Reyes v. Biagi, supra, 270. Once those jurisdictional facts are established,
and if the claimant and his employer fail to reach an agreement concerning
compensation under the act, a formal hearing will be held before a commis-
sioner, in which the commissioner will make findings regarding whether
there was a work-related injury that arose out of and in the course of the
claimant’s work for the employer. See id.; see also General Statutes § 31-297.
17
We recognize that Marion, as the principal and owner of R.P.M., was
involved in the proceedings and had notice that the plaintiff was seeking
workers’ compensation benefits from R.P.M. However, the fact that a princi-
pal is on notice that a party is seeking workers’ compensation benefits from
the principal’s business does not necessarily mean that the principal is aware
that he or she may be held personally liable for an award of benefits made
to an employee of that business. That is especially true where, as here, the
principal acted as a self-represented party throughout most of the proceed-
ings, a review of the transcripts of the three days of formal hearings did
not reveal any clear statement of a party or the commissioner that the
commissioner was being asked to decide whether Marion, in addition to
R.P.M., was the plaintiff’s employer, and the commissioner did not list
Marion’s personal liability as an issue in his 2017 decision.