Vanzant v. Hall

• Decision Date: 23 July 1991
• Docket Number: 14124,Nos. 14120,s. 14120
• Citation: 219 Conn. 674,594 A.2d 967
• Court: Connecticut Supreme Court
• Parties: Eddie VANZANT v. Mark HALL et al.

Page 967

594 A.2d 967

219 Conn. 674

Eddie VANZANT v. Mark HALL et al.

Nos. 14120, 14124.

Supreme Court of Connecticut.

Argued March 28, 1991.

Decided July 23, 1991.

Michael J. Belzer, Asst. Atty. Gen., with whom, on the brief, were Clarine Nardi Riddle, then Atty. Gen., and Charles A. Overend, Asst. Atty. Gen., for appellant in the first appeal (defendant Second Injury and Compensation Assur. Fund).

Brian E. Prindle, Manchester, for appellant in the second appeal (named defendant).

R. Bartley Halloran, Hartford, for appellee in both appeals (plaintiff).

Before SHEA, CALLAHAN, COVELLO, BORDEN and FRANCIS X. HENNESSY, JJ.

FRANCIS X. HENNESSY, Justice.

In these appeals from a decision of the compensation review division the determinative issue is whether the plaintiff was an employee of the defendant within the meaning of the Workers' Compensation Act (act).

The plaintiff, Eddie Vanzant, who was injured while assisting in the construction of a barn for the named defendant, Mark Hall, filed a claim for workers' compensation benefits from Hall. The compensation commissioner conducted a hearing and ordered Hall to pay the plaintiff workers' compensation benefits. Because Hall did not carry workers' compensation insurance, the commissioner ordered the state treasurer, as custodian of the defendant Second Injury and Compensation Assurance Fund (Fund), to pay the award. Hall and the Fund appealed the commissioner's decision to the compensation review division (review division), which affirmed the commissioner's finding and award and dismissed the appeal. From that decision, Hall and the Fund appealed to the Appellate Court, ¹ and we transferred the appeals to this court pursuant to Practice Book § 4023. We reverse the decision of the review division.

The commissioner found the following facts. Hall, who resides in Andover, and conducts a business known as New England Remodeling, telephoned the plaintiff on November 14, 1987, and offered him work completing the construction of a barn at Hall's residence in Andover. The plaintiff accepted Hall's offer and expected to work five or six hours on Sunday, November 15, 1987, and three to four hours a day during the week, at a rate of pay of $18 per hour. On November 15, 1987, while working on the barn under Hall's supervision and control, the plaintiff injured himself when he fell or jumped from a rafter.

The commissioner further found that the plaintiff was an employee of Hall, that the injuries sustained by the plaintiff on November 15 arose out of and in the course of that employment, and that his average weekly wage for his work with Hall was $360 (twenty hours at $18 per hour). On the basis of these findings, the commissioner concluded that the plaintiff was entitled to payment by Hall of all benefits to which he is or may become entitled under the act.

On appeal, Hall claims that the review division improperly affirmed the commissioner's finding that the plaintiff was Hall's employee for two reasons: (1) the plaintiff was a casual laborer excluded from compensation by General Statutes § 31-275(5)(B); and (2) the plaintiff failed to qualify for compensation because General Statutes § 31-275(5)(D) excludes from the definition of employee any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week. ²

The Fund raises two claims in its appeal. Its first claim, like Hall's second claim, is that § 31-275(5)(D) excludes the plaintiff from the general definition of employee and thus from coverage under the act. The Fund's second claim is that the review division improperly failed to sustain the Fund's appeal of the commissioner's denial of its motion to correct.

As a preliminary matter, we note that when a decision of a commissioner is appealed to the review division, the review division is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. Fair v. Peoples Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner has the power and duty, as the trier of fact, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). " 'The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.' Adzima v. UAC/Norden Division, [177 Conn. 107, 118, 411 A.2d 924 (1979) ]." Id. "Our scope of review of the actions of the review division is similarly limited." DeBarros v. Singleton, 21 Conn.App. 107, 110, 572 A.2d 69 (1990).

"The entire statutory scheme of the Workers' Compensation Act is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act; a claimant ... who is not an employee has no right under this statute to claim for and be awarded benefits." Castro v. Viera, supra, 207 Conn. at 433, 541 A.2d 1216. Section 31-275(5) defines "employee" as "any person who has entered into or works under any contract of service or apprenticeship with an employer...." Section 31-275(5) expressly excludes from this definition in subdivision (B) "one 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 subdivision (D) "any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week."

With this background, we first address Hall's claim that the plaintiff is a casual laborer who was excluded from coverage under the act pursuant to § 31-275(5)(B). An employee who is barred from compensation under our act pursuant to that section is one whose employment is both casual in nature and not for the purposes of the employer's trade or business. Thompson v. Twiss, 90 Conn. 444, 450, 97 A. 328 (1916). The term "casual employment" as used in the act means occasional or incidental employment, employment without regularity. Id., at 451, 97 A. 328.

Hall argues that although the commissioner found that the plaintiff had accepted Hall's offer of work completing the construction of a barn on Hall's property and expected to work five or six hours on November 15 and three or four hours a day during the week, the commissioner made no finding of any further ongoing employment relationship or that the work on the barn was a part of Hall's trade or business. Thus, Hall urges this court to return this matter to the commissioner for further proceedings to allow the commissioner to make findings as to whether the plaintiff's work was both casual and for the purposes of Hall's business.

The commissioner's finding and award should contain a recital of facts found, the conclusions reached by the commissioner upon these subordinate facts, the claims of law made by the appellant, the rulings made thereon, and the decision made. Henderson v. Mazzotta, 113 Conn 747, 752, 157 A. 67 (1931); see also Regs., Conn. State Agencies § 31-301-3. A motion to correct the commissioner's finding, as provided in § 31-301-4 ³ 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 attention of the commissioner that he may have an opportunity to supply omitted facts or restate findings in view of the claims made in the motion." Guerra v. W.J. Megin, Inc., 130 Conn. 423, 425, 34 A.2d 873 (1943), citing Atwood v. Connecticut Light & Power Co., 95 Conn. 669, 112 A. 269 (1921).

Hall claims to have filed a motion with the commissioner to correct his finding and award and moved, pursuant to Practice Book § 4051, ⁴ for rectification of the record on appeal to include that motion, a copy of which was attached to the motion for rectification. The review division, however, in denying that motion, ⁵ stated that Hall's motion to correct had never been filed with the commissioner. Furthermore, Hall has not sought review by this court, pursuant to Practice Book § 4054, of the denial of his motion for rectification. Hall's motion to correct is, therefore, not properly before this court.

Hall has not availed himself of the opportunity to have the commissioner's finding and award corrected prior to his appeal of the review division's affirmance of that award and has thereby deprived the commissioner of the opportunity to supply the findings that Hall claims have been omitted. We, therefore, decline to consider Hall's claim that the review division improperly affirmed the commissioner's finding that the plaintiff was an employee under the act given the exclusion in § 31- 275(5)(B) of casual laborers from the act's definition of employee.

Both Hall and the Fund claim that the plaintiff is excluded from the act's definition of employee pursuant to § 31-275(5)(D) and that the review division improperly affirmed the commissioner's award of benefits to the plaintiff based on the review division's ruling that the construction of a barn is not "any type of service in or about a private dwelling" as contemplated by § 31-275(5)(D). We agree.

Section 31-275(5)(D) excludes from the definition of employee "any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week." The plaintiff would, therefore, not be entitled to benefits under the act if his construction work on the barn at Hall's residence was a type of service...