Reid v. Speer ( 2021 )

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JEREMY M. REID v. SHERI A. SPEER ET AL.
(AC 36663)
Alexander, Clark and Palmer, Js.
Syllabus
The defendant employer appealed to this court from the decision of the
Compensation Review Board, which affirmed the decision of the Work-
ers’ Compensation Commissioner finding that the plaintiff was employed
by the defendant within the meaning of the Workers’ Compensation Act
(act) (§ 31-275 et seq.) and granting the plaintiff’s motion to preclude
the defendant from contesting the compensability of his injury pursuant
to statute (§ 31-294c (b)). The defendant received the plaintiff’s notice
of claim for compensation but failed to file a form 43 within twenty-
eight days contesting liability for the plaintiff’s injury. On appeal, the
defendant claimed, inter alia, that filing a form 43 would have violated
the applicable statute (§ 31-290c), as she had knowledge that the plain-
tiff’s claim for compensation was fraudulent. Held that the defendant
could not prevail on her challenges to the fact-finding and credibility
determinations made by the commissioner: evidence in the record sup-
ported the commissioner’s express findings that the alleged injury suf-
fered by the plaintiff, if proven, would constitute a compensable injury
under the act and that, at the time of the alleged injury, the plaintiff
was an employee of the defendant; moreover, the defendant could not
prevail on her claim that her filing of a form 43 would have constituted
criminal conduct, as she provided no legal support for the claim, and
the purpose of filing the form, to contest the defendant’s liability for
the plaintiff’s injury, would not fall within the language of § 31-290c that
criminalizes conduct by a claimant for benefits under the act.
Submitted on briefs November 10, 2021—officially
released December 28, 2021
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Second District finding that
the plaintiff was an employee of the named defendant
subject to coverage under the Workers’ Compensation
Act and granting the plaintiff’s motion to preclude the
defendants from contesting liability as to his claim for
certain workers’ compensation benefits, brought to the
Compensation Review Board, which affirmed the com-
missioner’s decision, and the named defendant
appealed to this court. Affirmed.
Sheri A. Speer, self-represented, filed a brief as the
appellant (named defendant).
Lance G. Proctor, filed a brief for the appellee (plain-
tiff).
Opinion
PER CURIAM. The self-represented defendant Sheri
A. Speer appeals from the decision of the Compensation
Review Board (board) affirming the finding and award
of preclusion rendered by the Workers’ Compensation
Commissioner for the Second District (commissioner),
in favor of the plaintiff, Jeremy M. Reid.1 On appeal,
the defendant challenges several of the commissioner’s
findings and also claims that filing a form 43 to contest
liability for the plaintiff’s injury would have constituted
a criminal act punishable pursuant to General Statutes
§ 31-290c, due to her alleged knowledge that his claim
was fraudulent. We affirm the decision of the board.2
The following facts and procedural history are rele-
vant to this appeal. The plaintiff filed a form 30C on
May 5, 2010, alleging that he had sustained a compensa-
ble injury to his right shoulder while employed by the
defendant.3 This injury allegedly had occurred on
December 31, 2009, when he had been shoveling snow
at one of the defendant’s properties. The defendant
did not respond to the plaintiff’s filing in any manner,
including the filing of a form 43 within twenty-eight
days.4 On August 20, 2010, the plaintiff filed a motion
to preclude the defendant from contesting liability.5
After informal and formal hearings, the commissioner
determined that, although the plaintiff initially had been
an independent contractor, the relationship between
the plaintiff and the defendant had evolved into one of
an employee-employer. The plaintiff’s alleged injury,
therefore, fell within scope of the Workers’ Compensa-
tion Act (act), General Statutes § 31-275 et seq. The
commissioner also granted the plaintiff’s motion to pre-
clude. As a result, the defendant was precluded from
contesting liability6 for the plaintiff’s claimed injury to
his right shoulder and from contesting the extent of
any resulting disability. The commissioner further
ordered the plaintiff to provide a list of benefits claimed
and noted that, if the parties were unable to reach an
agreement as to the benefits owed to the plaintiff, a
formal hearing would ensue. At that hearing, the plain-
tiff would be required to prove his claims as to compen-
sability, the extent of his disability and entitlement to
benefits;7 however, as a result of the granting of the
motion to preclude, the defendant would be ‘‘barred
from offering exculpatory evidence into the record,
from examining witnesses, from commenting on evi-
dence offered by the [plaintiff] or making argument.’’8
This appeal, initially filed in 2014, followed.9
We begin by setting forth the relevant legal principles.
‘‘The purpose of the [act] is to compensate the worker
for injuries arising out of and in the course of employ-
ment, without regard to fault, by imposing a form of
strict liability on the employer . . . . The [act] compro-
mise[s] an employee’s right to a [common-law] tort
action for work related injuries in return for relatively
quick and certain compensation. . . . The act indisput-
ably is a remedial statute that should be construed
generously to accomplish its purpose. . . . The
humanitarian and remedial purposes of the act counsel
against an overly narrow construction that unduly limits
eligibility for workers’ compensation. . . . Further,
our Supreme Court has recognized that the state of
Connecticut has an interest in compensating injured
employees to the fullest extent possible . . . .
‘‘The principles that govern our standard of review
in workers’ compensation appeals are well established.
. . . The board sits as an appellate tribunal reviewing
the decision of the commissioner. . . . [T]he review
[board’s] hearing 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 commis-
sioner . . . . [T]he commissioner is the sole arbiter
of the weight of the evidence and the credibility of
witnesses . . . . Where the subordinate facts allow for
diverse inferences, the commissioner’s selection of the
inference to be drawn must stand unless it is based
on an incorrect application of the law to the subordi-
nate facts or from an inference illegally or unreason-
ably 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 fac-
tual finding, [we are] bound by that finding if there is
evidence in the record to support it.’’ (Citations omitted;
emphasis added; internal quotation marks omitted.)
Jones v. Connecticut Children’s Medical Center Fac-
ulty Practice Plan, 131 Conn. App. 415, 422–24, 28 A.3d
347 (2011); see also Leonetti v. MacDermid, Inc., 310
Conn. 195, 205–206, 76 A.3d 168 (2013).
On appeal, the defendant first challenges certain fac-
tual findings made by the commissioner.10 Specifically,
she contends that the commissioner erred in finding
that (1) the plaintiff was injured in the course of his
employment and was unable to work, (2) an employer-
employee relationship existed, and (3) a sufficient quan-
tity of snow existed that required the plaintiff to engage
in the act of shoveling.
We carefully have reviewed the record before us and
conclude that the defendant cannot prevail on her chal-
lenges to the fact-finding11 and credibility determina-
tions12 made by the commissioner. The commissioner
expressly found that the alleged injury suffered by the
plaintiff while shoveling snow at the defendant’s prop-
erty, if proven, would constitute a compensable injury
under the act, assuming that he was an employee of
the defendant.13 The commissioner further found that,
at the time of this alleged injury, the plaintiff was an
employee of the defendant.14 See, e.g., DeJesus v. R.P.M.
Enterprises, Inc., 204 Conn. App. 665, 694–97, 255 A.3d
885 (2021); Rodriguez v. E.D. Construction, Inc., 126
Conn. App. 717, 727–28, 12 A.3d 603, cert. denied, 301
Conn. 904, 17 A.3d 1046 (2011). Evidence exists in the
record to support these findings. Cognizant of our lim-
ited role, we conclude that the defendant’s challenges to
the facts found by the commissioner are without merit.
Next, the defendant claims that, under these facts,
she could not file a form 43 to contest liability and,
therefore, the court improperly granted the plaintiff’s
motion to preclude. Specifically, she contends that the
filing of a form 43, when she allegedly knew the plain-
tiff’s claim to be fraudulent, would have constituted a
criminal act punishable pursuant to § 31-290c.15 Specifi-
cally, she contends that, had she filed a form 43, she
would have ‘‘intentionally aided, abetted and facilitated
fraudulently obtained payments [for the plaintiff].’’ We
are not persuaded by this novel interpretation of
§ 31-290c.16
In her brief to this court, the defendant offers no
support for her argument that the mere act of filing a
form 43 would have constituted criminal conduct. Our
Supreme Court has explained that § 31-290c ‘‘crimi-
nalizes the behavior of a person who makes a claim or
obtains an award based in whole or part on a material
misrepresentation or intentional nondisclosure of mate-
rial fact, and it also confers the right to bring a cause
of action for statutory theft pursuant to General Statutes
§ 52-564.’’ Leonetti v. MacDermid, Inc., supra, 310
Conn. 217–18; see also Dowling v. Slotnik, 244 Conn.
781, 815, 712 A.2d 396, cert. denied sub nom. Slotnik
v. Considine, 525 U.S. 1017, 119 S. Ct. 542, 142 L. Ed.
2d 451 (1998). Likewise, it applies to an employer that
prevents or attempts to prevent the receipt of benefits
or reduces or attempts to reduce the amount of benefits
based on a material misrepresentation or intentional
nondisclosure of a material fact. See, e.g., Desmond v.
Yale-New Haven Hospital, Inc., 138 Conn. App. 93, 100,
50 A.3d 910 (plaintiff claimed that defendants pre-
vented, or attempted to prevent, receipt of benefits or
reduced or attempted to reduce amount of benefits by
casting workers’ compensation claims in false light by
making certain misrepresentations), cert. denied, 307
Conn. 942, 58 A.3d 258 (2012).
In addition to the absence of any legal support for
the defendant’s claim, we are unable to discern any
logical basis for her position that filing a form 43 would
have subjected her to potential criminal liability or pros-
ecution. The purpose of filing this document is to con-
test an employer’s liability for an employee’s injury. It
would not, therefore, fall within the language of § 31-
290c that criminalizes conduct by a claimant for work-
ers’ compensation benefits. Furthermore, her con-
tention is premised on her own assertion that the plain-
tiff used a material misrepresentation or an intentional
nondisclosure of a material fact to obtain such benefits
improperly. Thus, she would not fall within the ambit
of the prohibition in § 31-290c against an employer’s
prevention, or attempt to prevent, the receipt of bene-
fits, or reduction therefrom on the basis of the employ-
er’s material misrepresentation or intentional nondis-
closure of a material fact. For these same reasons, the
filing of a form 43 in this case would not have consti-
tuted a violation of § 31-290c (b). In sum, the defen-
dant’s contention that her filing of a form 43 in this
case would constitute criminal activity is without merit.
The decision of the Compensation Review Board is
affirmed.
1
General Statutes § 31-301b provides that ‘‘[a]ny party aggrieved by the
decision of the Compensation Review Board upon any question or questions
of law arising in the proceedings may appeal the decision of the Compensa-
tion Review Board to the Appellate Court, whether or not the decision is
a final decision within the meaning of section 4-183 or a final judgment
within the meaning of section 52-263.’’ Our appellate courts expressly have
recognized that the final judgment requirement does not apply to appeals
taken from the board. See Dechio v. Raymark Industries, Inc., 299 Conn.
376, 399–400, 10 A.3d 20 (2010); Hadden v. Capital Region Education Coun-
cil, 164 Conn. App. 41, 46 n.7, 137 A.3d 775 (2016).
2
The plaintiff named Sheri A. Speer and Speer Enterprises, LLC, as his
employer when he commenced this claim for workers’ compensation bene-
fits. During the proceedings before the commissioner and the board, the
name of the employer was changed to ‘‘Sheri A. Speer d/b/a Speer Enter-
prises, LLC.’’ The commissioner found that Sheri A. Speer was an employer
for purposes of the Workers’ Compensation Act, and that ‘‘[a]ll of [the
plaintiff’s] duties for [the defendant] and/or Speer Enterprises were per-
formed within the state of Connecticut.’’ All references herein to the defen-
dant are to Sheri A. Speer.
Additionally, the commissioner found that the defendant did not carry
workers’ compensation insurance either individually or in the name of any
of her businesses. The Second Injury Fund (fund) was cited in as a party
pursuant to General Statutes § 31-355. See, e.g., DeJesus v. R.P.M. Enter-
prises, Inc., 204 Conn. App. 665, 668, 255 A.3d 885 (2021). The fund has not
participated in this appeal.
3
‘‘A form 30C is the form prescribed by the workers’ compensation com-
mission of Connecticut for use in filing a notice of [a workers’ compensation]
claim . . . .’’ (Internal quotation marks omitted.) Wiblyi v. McDonald’s
Corp., 168 Conn. App. 92, 94 n.3, 144 A.3d 530 (2016).
4
‘‘A form 43 is a disclaimer that notifies a claimant who seeks workers’
compensation benefits that the employer intends to contest liability to pay
compensation. If an employer fails timely to file a form 43, a claimant may
file a motion to preclude the employer from contesting the compensability
of his claim. . . . The form 43 generally must be filed within twenty-eight
days of receiving written notice of the claim. See General Statutes § 31-
294c . . . .’’ (Citation omitted; internal quotation marks omitted.) Wiblyi
v. McDonald’s Corp., 168 Conn. App. 77, 79 n.2, 144 A.3d 1075 (2016).
5
We have described a motion to preclude in this context as ‘‘a statutorily
created waiver mechanism that, following an employer’s failure to comply
with the requirement of [General Statutes] § 31-294c (b), bars that employer
from contesting the compensability of its employee’s claimed injury or the
extent of the employee’s resulting disability.’’ (Internal quotation marks
omitted.) Dominguez v. New York Sports Club, 198 Conn. App. 854, 865,
234 A.3d 1017 (2020).
6
See, e.g., Dominguez v. New York Sports Club, 198 Conn. App. 854, 864,
234 A.3d 1017 (2020) (employer who fails to contest liability and commence
payment for alleged injury on or before twenty-eighth day shall be conclu-
conclusive presumption cannot be overcome by any additional evidence or
argument); Woodbury-Correa v. Reflexite Corp., 190 Conn. App. 623, 628–29,
212 A.3d 252 (2019) (if commissioner determines that employee’s notice of
claim is adequate on its face and that employer failed to comply with [General
Statutes] § 31-294c, then motion to preclude must be granted).
7
See, e.g., Donahue v. Veridiem, Inc., 291 Conn. 537, 545–47, 970 A.2d
630 (2009).
8
But see Del Toro v. Stamford, 270 Conn. 532, 543, 853 A.2d 95 (2004)
(conclusive presumption does not prevent employer from contesting liability
when issue of lack of subject matter jurisdiction has been presented squarely
to commissioner).
9
Resolution of this appeal was delayed pursuant to a bankruptcy stay,
which was lifted on October 7, 2020.
10
The defendant filed a motion to correct the factual findings of the
commissioner pursuant to § 31-301-4 of the Regulations of Connecticut State
Agencies, and, therefore, is not prohibited from challenging those findings
before the board or this court. See, e.g., DeJesus v. R.P.M. Enterprises,
Inc., 204 Conn. App. 665, 686, 255 A.3d 885 (2021); Melendez v. Fresh Start
General Remodeling & Contracting, LLC, 180 Conn. App. 355, 367–68, 183
A.3d 670 (2018).
11
We emphasize that the power and duty for determining the facts and
the conclusions drawn therefrom rests with the commissioner in a workers’
compensation case. See Orzech v. Giacco Oil Co., 208 Conn. App. 275, 281,
A.3d (2021); see also Marandino v. Prometheus Pharmacy, 294
Conn. 564, 572, 986 A.2d 1023 (2010); Six v. Thomas O’Connor & Co., 235
Conn. 790, 798, 669 A.2d 1214 (1996).
12
‘‘It is within the discretion of the commissioner alone to determine the
credibility of witnesses and the weighing of the evidence. It is . . . immate-
rial that the facts permit the drawing of diverse inferences. The [commis-
sioner] alone is charged with the duty of initially selecting the inference
which seems most reasonable, and [the commissioner’s choice], if otherwise
sustainable, may not be disturbed by a reviewing court.’’ (Internal quotation
marks omitted.) Ayna v. Graebel/CT Movers, Inc., 133 Conn. App. 65, 71,
33 A.3d 832, cert. denied, 304 Conn. 905, 38 A.3d 1201 (2012); see also
McFarland v. Dept. of Developmental Services, 115 Conn. App. 306, 322,
971 A.2d 853, cert. denied, 293 Conn. 919, 979 A.2d 490 (2009).
13
‘‘[I]t is well settled that, because the purpose of the act is to compensate
employees for injuries without fault by imposing a form of strict liability
on employers, to recover for an injury under the act a plaintiff must prove
that the injury is causally connected to the employment. To establish a
causal connection, a plaintiff must demonstrate that the claimed injury
(1) arose out of the employment, and (2) in the course of the employment.
. . . Proof that [an] injury arose out of the employment relates to the time,
place and circumstances of the injury. . . . Proof that [an] injury occurred
in the course of the employment means that the injury must occur (a) within
the period of the employment; (b) at a place the employee may reasonably
be; and (c) while the employee is reasonably fulfilling the duties of the
employment or doing something incidental to it.’’ (Emphasis added; internal
quotation marks omitted.) Sapko v. State, 305 Conn. 360, 371–72, 44 A.3d
827 (2012); see also Jones v. Connecticut Children’s Medical Center Faculty
Practice Plan, supra, 131 Conn. App. 423.
14
Our Supreme Court has ‘‘stated 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 methods
of work. . . . The test of the relationship is the right to control. It is not
the fact of actual interference with the control, but the right to interfere,
that makes the difference between an independent contractor and a servant
or agent. . . . An employer-employee relationship does not depend upon
the actual exercise of the right to control. The right to control is sufficient.
. . . The decisive test is who has the right to direct what shall be done and
when and how it shall be done? Who has the right of general control? . . .
Under this test, we have stated that [a]n independent contractor is 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 or her employer, except as to the result of his work.’’ (Citation omitted;
internal quotation marks omitted.) Standard Oil of Connecticut, Inc. v.
Administrator, Unemployment Compensation Act, 320 Conn. 611, 623, 134
A.3d 581 (2016).
In the present case, the board noted that the commissioner concluded,
after a ‘‘thorough review of the facts and law’’ that the plaintiff was not
an independent contractor at the time of his claimed injury and that this
conclusion was reasonable. Specifically, the board found that the defendant’s
decision to install time clocks and to establish policies as to the time,
place, and manner that work was to be performed at her properties ‘‘clearly
demonstrate[d] that she asserted the right to control the [plaintiff’s] work,
and he was no longer acting in an autonomous manner.’’
15
General Statutes § 31-290c provides: ‘‘(a) Any person or his representa-
tive who makes or attempts to make any claim for benefits, receives or
attempts to receive benefits, prevents or attempts to prevent the receipt of
benefits or reduces or attempts to reduce the amount of benefits under this
chapter based in whole or in part upon (1) the intentional misrepresentation
of any material fact including, but not limited to, the existence, time, date,
place, location, circumstances or symptoms of the claimed injury or illness
or (2) the intentional nondisclosure of any material fact affecting such claim
or the collection of such benefits, shall be guilty of a class C felony if the
amount of benefits claimed or received, including but not limited to, the
value of medical services, is less than two thousand dollars, or shall be
guilty of a class B felony if the amount of such benefits exceeds two thousand
dollars. Such person shall also be liable for treble damages in a civil proceed-
ing under section 52-564.
‘‘(b) Any person, including an employer, who intentionally aids, abets,
assists, promotes or facilitates the making of, or the attempt to make, any
claim for benefits or the receipt or attempted receipt of benefits under this
chapter by another person in violation of subsection (a) of this section shall
be liable for the same criminal and civil penalties as the person making or
attempting to make the claim or receiving or attempting to receive the bene-
fits.’’
16
‘‘[It] is well established that [a]lthough not dispositive, we accord great
weight to the construction given to the workers’ compensation statutes by
the commissioner and [the] board. . . . Cases that present pure questions
of law, however, invoke a broader standard of review than is ordinarily
involved in deciding whether, in light of the evidence, the agency has acted
unreasonably, arbitrarily, illegally or in abuse of its discretion. . . . We
have determined, therefore, that the traditional deference accorded to an
agency’s interpretation of a statutory term is unwarranted when the con-
struction of a statute . . . has not previously been subjected to judicial
scrutiny [or to] . . . a governmental agency’s time-tested interpretation
. . . .’’ (Internal quotation marks omitted.) Brocuglio v. Thompsonville Fire
District #2, 190 Conn. App. 718, 734, 212 A.3d 751 (2019); see also Barker
v. All Roofs by Dominic, 336 Conn. 592, 598–99, 248 A.3d 650 (2020); see
generally Del Toro v. Stamford, 270 Conn. 532, 539, 853 A.2d 95 (2004) (when
workers’ compensation appeal involves issue of statutory construction that
had not yet been subjected to judicial scrutiny, appellate courts employ
plenary review).