Melendez v. Fresh Start General Remodeling & Contracting, LLC , 180 Conn. App. 355 ( 2018 )

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VICTOR MELENDEZ, JR. v. FRESH START
GENERAL REMODELING AND
CONTRACTING, LLC, ET AL.
(AC 39373)
Prescott, Bright and Eveleigh, Js.
Syllabus
The respondent G appealed to this court from the decision of the Workers’
Compensation Review Board affirming the decision of the Workers’
Compensation Commissioner ordering G to pay workers’ compensation
benefits to the claimant, who allegedly had sustained injuries in a motor
vehicle accident. Specifically, the motor vehicle accident occurred while
the claimant was being driven by G’s girlfriend to G’s home where, for
approximately eleven weeks, the claimant had performed certain work
for G, including, inter alia, helping G move his residence, painting, cutting
down trees, splitting and stacking wood, putting up Sheetrock, assisting
with plumbing and laying tile. On appeal, G claimed that the board erred
in concluding that the claimant was an employee of G and entitled to
bring a claim against him individually under the Workers’ Compensation
Act (act) (§ 31-275 et seq.) and that G was afforded sufficient due process
to hold him personally liable. Held:
1. G could not prevail on his claim that the board erred in affirming the
commissioner’s finding that the claimant was an employee of G under
the act, which was based on his claim that because the claimant was
not regularly employed for over twenty-six hours per week, he was
excluded from coverage pursuant to § 31-275 (9) (B) (iv), and that the
commissioner should have examined the hours worked by the claimant
over a fifty-two week applicable period; because the claimant worked
for G for approximately eleven weeks at the time of his injury, using a
fifty-two week period was not a reasonable period of time to determine
if the claimant was regularly employed by G, and, therefore, the commis-
sioner properly examined the eleven week period of employment to
determine what the usual practice was between the claimant and G,
and found that the claimant had a consistent schedule over the eleven
week period, working four to five days per week for approximately six
to ten hours per day, for an average of thirty-eight and one-half hours
per week, which supported the conclusion that the claimant, who was
regularly employed during the applicable time period for more than
twenty-six hours per week, was an employee of G entitled to benefits
under the act.
2. This court declined to consider G’s claim that the claimant was a casual
laborer who was excluded from coverage under § 31-275 (9) (B) (ii),
which provides that an employee entitled to benefits under the act shall
not be construed to include any person whose employment is of a casual
nature and who is employed otherwise than for the purposes of the
employer’s trade or business; although G claimed that the commissioner
improperly concluded that the claimant was not a casual laborer in light
of the findings that the work at G’s house had run its course and that
the working arrangement between G and the claimant was intended to
be short-term, a party seeking to challenge a finding of the commissioner
as incorrect must do so by filing a motion to correct the challenged
finding, and because G did not file a motion to correct any of the
commissioner’s findings following the operative finding and award, nor
did he show good cause for failing to file such a motion, the commis-
sioner was deprived of the opportunity to correct the findings or to
supply omitted facts to those conclusions that G claimed were incorrect
or inconsistent.
3. G could not prevail on his claim that he was deprived of due process
because he was not given reasonable notice that the claimant sought
to hold him personally liable and because he was not mailed a notice
of the pro forma formal hearing and the deadline to submit a brief and
proposed findings on the issue of personal liability; upon receipt of a
form 30C that listed G as the claimant’s employer, G was put on notice
that he, as an individual, was potentially liable to be found as the
employer of the claimant, and even if G was deprived of due process
prior to a 2013 finding and award because he was not afforded notice
of the pro forma formal hearing and an opportunity to file a brief and
proposed findings on the issue of personal liability, G was not entitled
to relief in this appeal because the 2013 finding and award was vacated
and was not the operative award in this appeal, and G suffered no due
process deprivation with regard to a 2015 finding and award that he
challenged in this appeal, as he had a full and fair opportunity to be
heard on the issue of personal liability when he was given an opportunity
to submit a brief and proposed findings to the commissioner prior to
the 2015 finding and award.
Argued November 30, 2017—officially released March 20, 2018
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Eighth District ordering the
respondent Michael Gramegna to pay workers’ compen-
sation benefits to the claimant, brought to the Workers’
Compensation Review Board, which affirmed the com-
missioner’s decision, and the respondent Michael Gra-
megna appealed to this court. Affirmed.
John L. Laudati, with whom, on the brief, was P. Jo
Anne Burgh, for the appellant (respondent Michael
Gramegna).
Jon D. Golas, for the appellee (claimant).
Opinion
EVELEIGH, J. The respondent, Michael Gramegna1
appeals from the decision of the Workers’ Compensa-
tion Review Board (board), affirming the decision of the
Workers’ Compensation Commissioner for the Eighth
District (commissioner) ordering the respondent to pay
workers’ compensation benefits to the claimant, Victor
Melendez, Jr. The respondent claims that the board
erred in concluding that (1) the claimant was an
employee of the respondent and entitled to bring a
claim against him individually under the Workers’ Com-
pensation Act (act), General Statutes § 31-275 et seq.,
and (2) the respondent was afforded sufficient due pro-
cess to hold him personally liable. We disagree and,
accordingly, affirm the decision of the board.
The following facts, as found by the commissioner,
and procedural history are relevant to our resolution
of this appeal. The claimant met the respondent in the
fall of 2011. The claimant worked as a self-employed
window washer, as well as a laborer, performing tasks
such as roofing, siding and landscaping. At that time,
the claimant and his girlfriend were expecting a child
and the claimant was looking for additional work. The
respondent owned several rental properties in the Man-
chester area and worked as a remodeling contractor.
The respondent was the principal and sole member of
two domestic limited liability companies, Fresh Start
General Remodeling & Contracting, LLC (Fresh Start),
and Fresh Start Realty, LLC, both of which list their
business address at 122 Oakland Street in Manchester.
Around the end of October, 2011, the respondent
hired the claimant to assist him in moving from his
house in Manchester to a new house in Bolton. The
claimant helped the respondent pack up items in the
Manchester house and helped get the Bolton house
ready for the move by cleaning up, painting and making
the bathrooms functional. The respondent paid the
claimant $8 an hour in cash for his labor because he
did not have his own tools and required transportation
to and from work each day. For a period of less than
two weeks, the claimant assisted the respondent at a
Fresh Start remodeling job in Avon. The Avon job was
completed by November 17, 2011, and, thereafter, the
claimant went back to helping the respondent with the
residential move. The respondent and his girlfriend
moved into the Bolton house at the end of November,
but he continued to employ the claimant to help make
the house livable. The claimant performed tasks such
as cutting down trees, splitting and stacking firewood,
painting, putting up Sheetrock, and assisting with
plumbing and laying tile. For a period of approximately
eleven weeks, the claimant generally worked four to
five days a week for the respondent and earned an
average of $300 a week.
On January 23, 2012, the claimant filed workers’ com-
pensation claims, pursuant to the act, which stemmed
from injuries that he had sustained in a car accident
that occurred on January 13, 2012, while he was being
driven by the respondent’s girlfriend to the respondent’s
Bolton home where he worked. In accordance with
General Statutes § 31-294c (a), the claimant filed three
form 30Cs2 in order to commence the present action:
the first directed to the respondent; the second directed
to Fresh Start General Remodeling & Contracting, LLC;
and the third directed to Fresh Start Realty, LLC.
On September 14, 2012, a formal hearing was held
before the commissioner on the issue of compensability
of the injuries sustained by the claimant as a result of
the motor vehicle accident. Both the claimant and the
respondent appeared at the contested hearing and testi-
fied as to the nature of the employment relationship,
specifically, whether there was an employer-employee
relationship between the claimant and Fresh Start on
the date of the accident.3 The record closed on Novem-
ber 26, 2012, with the claimant having submitted a brief.
The respondent, however, did not submit a brief. On
March 26, 2013, the commissioner issued a finding and
award determining that both the respondent and Fresh
Start were liable for the claimant’s medical bills and
certain benefits (2013 finding and award). On October
29, 2013, Fresh Start filed a motion to open the 2013
finding and award on the grounds that notice to it was
sent to the incorrect address, and that the respondent
was incorrectly named as a respondent. The respondent
subsequently filed a brief in support of the motion to
open, which claimed that, as a result of this clerical
error, he did not understand that the claimant was pur-
suing the respondent in his personal capacity, he was
never afforded the opportunity to fully respond to the
claimant’s claim and evidence, and he was not notified
of the date to submit a brief and proposed findings. On
March 18, 2015, the same commissioner, then acting
for the eighth district, granted the motion to open, and
vacated the 2013 finding and award, which had deter-
mined that the respondent was personally liable for the
claimant’s medical bills and certain benefits.
On April 30, 2015, the respondent submitted proposed
findings and a brief on the merits of the personal liability
claim. The claimant elected to stand on his prior filings.
On that same date, the commissioner deemed the
record of the formal hearing closed and the matter
submitted to the commissioner for a decision. The com-
missioner issued a finding and award on June 2, 2015,
determining that the respondent was personally liable
as the employer for the claimant’s medical bills and
payment of benefits under the act (2015 finding and
award).
On June 22, 2015, the respondent appealed the com-
missioner’s 2015 finding and award to the board. On
June 10, 2016, the board affirmed the 2015 finding and
award entered by the commissioner. This appeal fol-
lowed. Additional facts will be set forth as necessary.
On appeal to this court, the respondent asserts that
the claimant failed to prove that he was an employee
of the respondent and subject to coverage under the
act, and that the respondent was not afforded reason-
able due process regarding any notice that he was
potentially liable as an individual. In response, the
claimant argues that the commissioner correctly found
that the claimant was an employee within the meaning
of the act, and that the respondent was afforded due
process sufficient to hold him personally liable as the
employer. We agree with the claimant and, accordingly,
affirm the judgment of the board.
I
The respondent first claims that the board erred in
affirming the commissioner’s finding that the claimant
was the respondent’s ‘‘employee’’ under the act for two
reasons: (1) the claimant did not qualify for compensa-
tion under the act because § 31-275 (9) (B) (iv) excludes
from the definition of employee any person engaged in
any type of service in or about a private dwelling pro-
vided he is not ‘‘regularly employed’’ by the owner or
occupier over twenty-six hours per week; and (2) the
claimant was a casual laborer excluded from compensa-
tion by § 31-275 (9) (B) (ii).
As a threshold matter, we note that ‘‘[t]he principles
that govern our standard of review in workers’ compen-
sation appeals are well established. . . . The board sits
as an appellate tribunal reviewing the decision of the
commissioner. . . . [T]he review . . . of an appeal
from the commissioner is not a de novo hearing of the
facts. . . . [T]he power and duty of determining the
facts rests on the commissioner . . . . [T]he commis-
sioner is the sole arbiter of the weight of the evidence
and the credibility of witnesses . . . . Where the sub-
ordinate facts allow for diverse inferences, the commis-
sioner’s selection of the inference to be drawn must
stand unless it is based on an incorrect application of
the law to the subordinate facts or from an inference
illegally or unreasonably drawn from them. . . .
‘‘This court’s review of decisions of the board is simi-
larly limited. . . . The conclusions drawn by [the com-
missioner] from the facts found must stand unless they
result from an incorrect application of the law to the
subordinate facts or from an inference illegally or unrea-
sonably drawn from them. . . . [W]e must interpret
[the commissioner’s finding] with the goal of sustaining
that conclusion in light of all of the other supporting
evidence. . . . Once the commissioner makes a factual
finding, [we are] bound by that finding if there is evi-
dence in the record to support it.’’ (Internal quotation
marks omitted.) Passalugo v. Guida-Seibert Dairy Co.,
149 Conn. App. 478, 482–83, 91 A.3d 475 (2014). ‘‘[More-
over, it] is well established that [a]lthough not disposi-
tive, we accord great weight to the construction given
to the workers’ compensation statutes by the commis-
sioner and review board.’’ (Internal quotation marks
omitted.) Sullins v. United Parcel Service, Inc., 315
Conn. 543, 550, 108 A.3d 1110 (2015).
‘‘The entire statutory scheme of the [act] is directed
toward those who are in the employer-employee rela-
tionship as those terms are defined in the act and dis-
cussed in our cases. That relationship is threshold to
the rights and benefits under the act; a claimant . . .
who is not an employee has no right under this statute to
claim for and be awarded benefits.’’ (Internal quotation
marks omitted.) Vanzant v. Hall, 219 Conn. 674, 678,
594 A.2d 967 (1991). Section 31-275 (9) (A) defines
‘‘employee’’ as ‘‘any person who . . . (i) [h]as entered
into or works under any contract of service or appren-
ticeship with an employer . . . .’’ Section 31-275 (9) (B)
expressly excludes from this definition in subparagraph
(ii) ‘‘[o]ne whose employment is of a casual nature and
who is employed otherwise than for the purposes of
the employer’s trade or business,’’ and in subparagraph
(iv) ‘‘[a]ny person engaged in any type of service in or
about a private dwelling provided he is not regularly
employed by the owner or occupier over twenty-six
hours per week.’’
A
With this background, we first address the respon-
dent’s claim that the claimant was not regularly
employed for over twenty-six hours per week and, thus,
was excluded from coverage under the act pursuant to
§ 31-275 (9) (B) (iv). The respondent argues that the
commissioner should have examined the hours worked
by the claimant over a fifty-two week applicable period
as set forth in Smith v. Yurkovsky, 265 Conn. 816, 830
A.2d 743 (2003).
In Smith, our Supreme Court interpreted the phrase
‘‘regularly employed’’ in § 31-275 (9) (B) (iv), and
rejected the use of averaging the hours per week
worked by the claimant as a means to determine regular
employment. Id., 821. ‘‘Instead of employing averaging,
the commissioner should examine the number of hours
actually worked by the [claimant]. We conclude that
regular employment is to be determined by the employ-
er’s usual practice in using an employee for a majority
of the applicable time period. We look to the practice
during the majority of the applicable period because
we have construed regular employment to be that which
is done most of the time. When it is said that an employer
regularly employs an employee, it is meant that he
usually does so, or that he does so most of the time,
so that such employment becomes the rule and not the
exception.’’ (Emphasis in original; internal quotation
marks omitted.) Id., 826–27. The court also held that
fifty-two weeks, or one full year, was the time period
that was reasonable for determining whether the claim-
ant in that case was ‘‘regularly employed’’ under the
act. Id., 821.
The present case, however, is distinguishable from
Smith because of the difference in the length of employ-
ment between the claimant in Smith and the claimant
in the present case. The claimant in Smith had worked
for the respondents as a part-time home health aide
from July 1, 1995, through April 16, 1998; initially, the
claimant worked between four to nine hours per week,
but her hours increased substantially during tax prepa-
ration season each year. Id., 818. The court utilized a
fifty-two week period in order to ‘‘moderate the effect
of seasonal and temporary impacts on employment sta-
tus.’’ Id., 827. By contrast, the claimant in the present
case had only worked for the respondent for approxi-
mately eleven weeks at the time of his injury. The hold-
ing in Smith requires the commissioner to determine
what the ‘‘usual practice’’ was or what was done ‘‘most
of the time.’’ Id. The fifty-two week period used in Smith
is not a reasonable time period to determine if the
claimant in the present case was regularly employed by
the respondent. The commissioner, therefore, properly
examined the eleven week period of employment to
determine what the usual practice was between the
respondent and the claimant.
The commissioner found that the claimant had a con-
sistent schedule over the eleven week period, worked
an average of thirty-eight and one-half hours per week,
and that his average weekly wage was $310. The com-
missioner also found that the claimant worked four to
five days each week for approximately six to ten hours
per day. These facts support the commissioner’s conclu-
sion that the claimant was an employee of the respon-
dent entitled to benefits under the act. Although the
commissioner found that ‘‘most of the claimant’s work
was performed for purposes not associated with [the
respondent’s] trade or business,’’ he was regularly
employed during that time for more than twenty-six
hours per week. We already have concluded that the
commissioner’s decision did not result from an incor-
rect application of the law to the subordinate facts, and
we now conclude that the decisions did not result from
an inference illegally or unreasonably drawn from
them.4 Therefore, the commissioner’s conclusions on
this issue must stand.
B
We next address the respondent’s claim that the
claimant was a casual laborer who was excluded from
coverage under the act pursuant to § 31-275 (9) (B)
(ii). In challenging the board’s decision, the respondent
argues that the commissioner’s finding that the claimant
was not a casual laborer is not supported by the evi-
dence. An employee is barred from compensation under
the act if the employment is both casual in nature and
not for the purposes of the employer’s trade or business.
Vanzant v. Hall, supra, 219 Conn. 678; see also Thomp-
son v. Twiss, 90 Conn. 444, 452, 97 A. 328 (1916). Under
the act, casual employment means ‘‘the occasional or
incidental employment, the employment which comes
without regularity.’’ Thompson v. Twiss, supra, 451.
‘‘Ordinarily . . . where one is employed to do a partic-
ular part of a service recurring somewhat regularly with
the fair expectation of continuing for a reasonable time,
the employment is not casual.’’ (Internal quotation
marks omitted.) Pallanck v. Donovan, 105 Conn. 591,
594, 136 A. 471 (1927).
The respondent specifically challenges as incorrect
the commissioner’s conclusion that the claimant was
not a casual laborer in light of the findings that the
work at the respondent’s house ‘‘had pretty much run
its course’’ and that the arrangement between the
respondent and the claimant ‘‘was intended to be short-
term.’’ The respondent argues that there are no findings
as to the parties’ expectations as to how long the work-
ing relationship would have continued if the accident
had not occurred to support the conclusion that the
claimant was not a casual laborer.5 Thus, the respondent
urges this court to remand the matter to the commis-
sioner with direction to decide the issues in the respon-
dent’s favor. We disagree.
A party seeking to challenge a finding of the commis-
sioner as incorrect or incomplete must first do so by
filing a motion to correct the challenged findings. ‘‘A
motion to correct the commissioner’s finding, as pro-
vided in § 31-301-46 of the Regulations of Connecticut
State Agencies, is the proper vehicle to be used when
an appellant claims that the commissioner’s finding is
incorrect or incomplete. We have long held that this
motion is not merely a technical requirement and that
the failure to file this motion justifies dismissal of an
appeal, for if an appellant claims that the finding is
incorrect, the matter should first be called to the atten-
tion of the commissioner that he may have an opportu-
nity to supply omitted facts or restate findings in view
of the claims made in the motion.’’ (Footnote altered;
internal quotation marks omitted.) Vanzant v. Hall,
supra, 219 Conn. 679; see also Guerrera v. W. J. Megin,
Inc., 130 Conn. 423, 425, 34 A.2d 873 (1943) (failure to
file motion to correct finding of commissioner would,
in itself, justify dismissal of appeal).
The respondent did not file a motion to correct any
of the commissioner’s findings following the 2015 find-
ing and award, nor has he shown good cause for failing
to file such a motion. The respondent has not availed
himself of the opportunity to have the commissioner’s
finding and award corrected prior to his appeal of the
board’s affirmance of that award. He has thereby
deprived the commissioner of the opportunity to cor-
rect the findings or supply omitted facts to those conclu-
sions that the respondent claims are incorrect or
inconsistent. See Vanzant v. Hall, supra, 219 Conn.
681. We, therefore, decline to consider the respondent’s
claim that the board improperly affirmed the commis-
sioner’s finding that the claimant was an employee
under the act based on the exclusion in § 31-275 (9)
(B) (ii) of casual laborers from the act’s definition of
employee.
II
The respondent also claims that he was deprived of
due process because he was not given reasonable notice
that the claimant sought to hold him personally liable
and was not mailed a notice of the pro forma formal
hearing7 and the deadline to submit a brief and proposed
findings on the issue of personal liability. In response,
the claimant argues that the respondent was afforded
due process because the claimant filed a form 30C that
identified the respondent individually as the claimant’s
employer, and the respondent was afforded additional
due process because the commissioner granted his
motion to open and vacated the 2013 finding and award
to allow him to file a brief and proposed findings. We
agree with the claimant.
We now set forth the applicable standard of review
and legal principles. ‘‘The right to fundamental fairness
in administrative proceedings encompasses a variety
of procedural protections. . . . The scope of the right
to fundamental fairness in administrative proceedings,
like the scope of the constitutional right to due process
that it resembles, is a question of law over which our
review is plenary.’’ (Internal quotation marks omitted.)
Recycling, Inc. v. Commissioner of Energy & Environ-
mental Protection, 179 Conn. App. 127, 149, A.3d
(2018), citing FairwindCT, Inc. v. Connecticut Sit-
ing Council, 313 Conn. 669, 711, 99 A.3d 1038 (2014).
‘‘Workers’ compensation hearings must be conducted
in a fundamentally fair manner so as not to violate the
rules of due process. . . . A fundamental principle of
due process is that each party has the right to receive
notice of a hearing, and the opportunity to be heard at a
meaningful time and in a meaningful manner.’’ (Internal
quotation marks omitted.) Bidoae v. Hartford Golf
Club, 91 Conn. App. 470, 477, 881 A.2d 418, cert. denied,
276 Conn. 921, 888 A.2d 87 (2005), cert. denied, 547
U.S. 1112, 126 S. Ct. 1916, 164 L. Ed. 2d 665 (2006).
‘‘Due process of law requires not only that there be due
notice of the hearing but that at the hearing the parties
involved have a right to produce relevant evidence, and
an opportunity to know the facts on which the agency
is asked to act, to cross-examine witnesses and to offer
rebuttal evidence.’’ (Internal quotation marks omitted.)
Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733,
740, 774 A.2d 1009 (2001). ‘‘An integral premise of due
process is that a matter cannot be properly adjudicated
unless the parties have been given a reasonable oppor-
tunity to be heard on the issues involved . . . .’’ (Inter-
nal quotation marks omitted.) Id., 741.
The following additional facts are relevant to our
disposition of this issue on appeal. In commencing the
workers’ compensation action, the claimant mailed
three form 30Cs, one each to the respondent, Fresh
Start, and Fresh Start Realty, LLC, all addressed to 122
Oakland Street in Manchester. The respondent resided
at 65 Shoddy Mill Road in Bolton. Nevertheless, there
is no dispute that the respondent received all three
forms. Upon receipt of the form 30C that listed ‘‘Michael
Gramegna’’ as the employer, the respondent was put
on notice that he, as an individual, was one of three
respondents potentially liable to be found as the
employer of the claimant. The respondent appeared and
represented Fresh Start at the first formal hearing on
September 14, 2012. At that hearing, the commissioner
heard testimony from the claimant, the respondent, and
several witnesses.
When the pro forma formal hearing for submission
of briefs and proposed findings was scheduled for
November 26, 2012, however, notice of the hearing was
only sent to Fresh Start’s business address, 122 Oakland
Street in Manchester, rather than the respondent’s resi-
dential address, 65 Shoddy Mill Road in Bolton. It is
undisputed, and was a matter of public record, that the
respondent had moved to Bolton with his family prior
to the date of the claimant’s injury, as the claimant
helped the respondent move as part of his employment.
The notice of the pro forma formal hearing lists ‘‘Mr.
Michael Gramegna’’ as ‘‘Not Notified’’ under ‘‘Other(s),’’
and he is not listed as a respondent. On March 26, 2013,
the commissioner issued the 2013 finding and award,
which inconsistently referred to Michael Gramegna as
‘‘the respondent,’’ or, alternatively, ‘‘the respondent’s
principal.’’ The respondent received the 2013 finding
and award at his Bolton address on April 8, 2013, and
argues that this is the first time he understood that he
could be held personally liable for the claimant’s
injuries.
Even if we assume, without deciding, that the respon-
dent was deprived of due process prior to the 2013
finding and award because he was not afforded notice
of the pro forma formal hearing and an opportunity to
file a brief and proposed findings on the issue of per-
sonal liability, we conclude that the respondent is not
entitled to relief in this appeal.8 The 2013 finding and
award is not the operative award in this appeal, and,
in fact, that decision was vacated. The respondent suf-
fered no due process deprivation with regard to the
2015 finding and award that he now challenges. The
respondent had a full and fair opportunity to be heard
on the issue of personal liability when he was given an
opportunity to submit a brief and proposed findings to
the commissioner prior to the 2015 finding and award.
The respondent submitted proposed findings and a brief
to the commissioner on April 30, 2015. The respondent
was also on notice from the 2013 finding and award
that the claimant sought to hold him personally liable
for the claimant’s injuries.
On the basis of the forgoing, we conclude that the
board properly concluded that the claimant was an
employee subject to coverage under the act, and that
the procedures used by the commissioner prior to the
2015 finding and award afforded the respondent suffi-
cient due process to be held personally liable.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other judges concurred.
1
Fresh Start General Remodeling & Contracting, LLC, and the Second
Injury Fund are also named as respondents in this appeal. For the purposes
of this opinion, any reference to the respondent is to Michael Gramegna
only. No finding and award was entered with respect to Fresh Start Realty,
LLC. Any references to ‘‘Fresh Start’’ in this opinion are to Fresh Start General
Remodeling & Contracting, LLC, which is not participating in this appeal.
Because neither the respondent nor Fresh Start possessed workers’ com-
pensation insurance coverage, the Second Injury Fund was added as an
interested party to the matter. See General Statutes § 31-355 (h). The Second
Injury Fund is not participating in this appeal.
2
‘‘The workers’ compensation commission created the form 30C for use
in complying with § 31-294c (a).’’ Mehan v. Stamford, 127 Conn. App. 619,
626, 15 A.3d 1122, cert. denied, 301 Conn. 911, 19 A.3d 180 (2011).
3
For example, the following exchange occurred between the claimant
and his attorney during direct examination:
‘‘[The Claimant’s Counsel]: [H]ow did you become employed by Fresh
Start General Remodeling & Contracting?
‘‘[The Claimant]: Mike, Michael Gramegna. . . .
‘‘[The Claimant’s Counsel]: And starting in October of 2011, did you start
going to work for Fresh Start . . . General Remodeling & Contracting?
‘‘[The Claimant]: Yes. . . .
‘‘[The Claimant’s Counsel]: How much was Mr. Gramegna or Fresh Start
. . . going to pay you?
‘‘[The Claimant]: $8 an hour.
‘‘[The Claimant’s Counsel]: And did they . . . actually pay you that
amount of money?
‘‘[The Claimant]: Yeah, he was paying me $8 an hour.’’
4
See, e.g., Gamez-Reyes v. Biagi, 136 Conn. App. 258, 276–77, 44 A.3d
197, cert. denied, 306 Conn. 905, 52 A.3d 731 (2012) (commissioner’s conclu-
sions must stand where burden of proof for affirmative defense correctly
placed on respondent, and facts supported conclusion that respondent had
not met either prong of intoxication affirmative defense).
5
The board also noted the incomplete record on this issue, stating: ‘‘We
concede that the record is devoid of testimony which would illuminate the
parties’ expectations regarding how long the employment relationship might
have continued had it not been terminated by the motor vehicle accident
of January 13, 2012.’’ Nevertheless, the board concluded that the commission-
er’s finding that the claimant was not a casual laborer was adequately
supported by the record.
6
Section 31-301-4 of the Regulations of Connecticut State Agencies pro-
vides in relevant part: ‘‘If the appellant desires to have the finding of the
commissioner corrected he must, within two weeks after such finding has
been filed, unless the time is extended for cause by the commissioner, file
with the commissioner his motion for the correction of the finding and with
it such portions of the evidence as he deems relevant and material to the
corrections asked for . . . .’’
7
A pro forma hearing is one where a hearing is noticed for the submission
of briefs and proposed findings of fact, but no party need appear. See, e.g.,
Merenski v. Greenwich Hospital Assn., Inc., No. 5076, CRB 7-06-4 (June
18, 2007).
8
The commissioner reached the same conclusion in his March 18, 2015
written memorandum of decision, stating: ‘‘On the existing record, there
are sufficient grounds to conclude that [the respondent] did not receive
notice of the pro forma formal hearing for submission of briefs and/or
proposed findings.’’ The commissioner then granted the motion to open and
vacated the 2013 finding and award as to the respondent’s personal liability
to the claimant.