VICTOR MELENDEZ, JR.
FRESH START GENERAL REMODELING AND CONTRACTING, LLC, ET AL.
November 30, 2017
from the decision of the Workers' Compensation
Commissioner for the Eighth District ordering the respondent
Michael Gramegna to pay workers' compensation benefits to
the claimant, brought to the Workers' Compensation Review
Board, which affirmed the commissioner's decision, and
the respondent Michael Gramegna appealed to this court.
L. Laudati, with whom, on the brief, was P. Jo Anne Burgh,
for the appellant (respondent Michael Gramegna).
Golas, for the appellee (claimant).
Prescott, Bright and Eveleigh, Js.
respondent, Michael Gramegnaappeals from the decision of the
Workers' Compensation 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' Compensation Act (act),
General Statutes § 31-275 et seq., and (2) the
respondent was afforded sufficient due process to hold him
personally liable. We disagree and, accordingly, affirm the
decision of the board.
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 Manchester 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.
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.
January 23, 2012, the claimant filed workers'
compensation 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
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.
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 testified 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. The record closed on
November 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 pursuing 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 determined
that the respondent was personally liable for the
claimant's medical bills and certain benefits.
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 commissioner 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).
22, 2015, the respondent appealed the commissioner'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 followed. Additional facts will be
set forth as necessary.
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 reasonable 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.
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
compensation 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
provided he is not ‘‘regularly employed''
by the owner or ...