DeJesus v. R.P.M. Enters., Inc.

• Decision Date: 18 May 2021
• Docket Number: AC 44111
• Citation: 204 Conn.App. 665,255 A.3d 885
• Parties: Jose DEJESUS v. R.P.M. ENTERPRISES, INC.
• Court: Connecticut Court of Appeals

204 Conn.App. 665

255 A.3d 885

Jose DEJESUS

v.R.P.M. ENTERPRISES, INC.

AC 44111

Appellate Court of Connecticut.

Argued February 9, 2021

Officially released May 18, 2021

Robert M. Fitzgerald, Willimantic, for the appellants (defendant and Robert Marion).

Lori M. Comforti, Norwich, for the appellee (plaintiff).

Patrick G. Finley, assistant attorney general, with whom, on the brief, was William Tong, attorney general, for the appellee (Second Injury Fund).

Bright, C.J., and Moll and Young, Js.

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 Commission (commission) had jurisdiction over this matter, and affirming, in part, the findings and award of the commissioner that the plaintiff, Jose DeJesus, had sustained 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 pursuant 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 benefits 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 commissioner agreed to bifurcate that issue and to decide the jurisdictional issue first, after which an additional hearing would be held to decide the remaining issues. Formal 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 junkyard, 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 independent 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 plaintiff's home to accommodate the plaintiff's wheelchair.

In addressing the question of jurisdiction, the commissioner 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 medical treatment.

On the basis of the testimony and exhibits, the commissioner 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 contractor, because the plaintiff was "subject to specific control and direction" of R.P.M. and/or Marion. Accordingly, 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 regarding 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 commissioner'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 factual 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 decision 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 evidence 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 formal 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 session of the formal hearing, the trial commissioner indicated 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 preclude 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 persuaded 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 ......