5444 CRB-5-09-3 (2010). Chance v. Leno's Lawn Service, LLC.
Court | Connecticut |
Connecticut Workers Compensation
2010.
5444 CRB-5-09-3 (2010).
Chance v. Leno's Lawn Service, LLC
CASE NO. 5444
CRB-5-09-3COMPENSATION REVIEW
BOARD
WORKERS' COMPENSATION COMMISSIONAPRIL 23, 2010ASHLEY CHANCE CLAIMANT-APPELLANT v. LENO'S LAWN
SERVICE, LLC EMPLOYER and SAFECO INSURANCE CO. INSURER RESPONDENTS-APPELLEES
APPEARANCES: The
claimant was represented by Leon M. Rosenblatt, Esq., Law Offices of Leon M.
Rosenblatt, 10 North Main Street, Suite 214, West Hartford, CT 06107.
Respondent Leno's Lawn Service, LLC, was represented by James D. Moran, Esq.,
Maher Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824. Respondent
Safeco Insurance Company was represented by Joseph J. Passaretti, Jr., Esq.,
Montstream and May, L.L.P., 655 Winding Brook Drive, P.O. Box 1087,
Glastonbury, CT 06033. This Petition for Review from the March 2, 2009 Finding
and Dismissal of the Commissioner acting for the Fifth District was heard on
September 25, 2009 before a Compensation Review Board panel consisting of the
Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and
Christine L. Engel. OPINIONJOHN A. MASTROPIETRO, CHAIRMAN. The
claimant has petitioned for review from the March 2, 2009 Finding and Dismissal
of the Commissioner acting for the Fifth District. We find no error and
accordingly affirm the decision of the Commissioner.(fn1)
The trial commissioner made the following factual findings which
are pertinent to our review. The claimant was born on April 23, 1986. In April
2000, when the claimant was thirteen years old, she began working for the
respondent employer, initially performing landscaping and snow removal and
eventually switching to office tasks.(fn2) Shortly after beginning her
employment with the respondent employer, the claimant entered into a sexual
relationship with the owner of the lawn service, Gregory Bernoi. On July 3,
2001, the claimant's mother discovered the claimant was having sexual relations
with Bernoi and called the police, who arrested Bernoi. The claimant testified
that after Bernoi was arrested, their relationship became public knowledge,
which caused the claimant a great deal of emotional difficulty. The claimant
entered counseling and ultimately chose to leave her high school for a charter
school, which she attended until two months before her graduation. The claimant
subsequently completed the requirements for a high school diploma at night
school.
On September 7, 2001, the claimant's mother filed an application
for victim compensation with the Office of Victim Services seeking payment for
the claimant's counseling treatment. This application was approved in February
2002. On February 1, 2002, Bernoi entered a plea of nolo
contendere to the charge of sexual assault in the second degree,
§ 53a-71(a)(1) C.G.S. The matter was continued for sentencing and one of
the conditions of probation was restitution for the claimant's out-of-pocket
counseling payments. On April 19, 2002, Bernoi received a sentence of ten years
suspended after two years in prison. The judge also ordered restitution for the
out-of-pocket medical expenses generated by the claimant's counseling and
mental health treatment. The disposition of the case, which did not proceed to
trial, was the result of extensive negotiations among Bernoi's criminal defense
attorney, the State of Connecticut, and the claimant's parents. At the
sentencing hearing, statements written by the claimant and her mother were read
aloud to the court.
At the formal hearing held on May 19, 2008, the claimant
testified that neither Bernoi nor any other individual associated with Leno's
Lawn Service provided her with psychiatric care between July 2001 and July
2002. The claimant also testified that in the two conversations she had with
Bernoi between July 2001 and July 2002, she did not inform him that she would
be filing a workers' compensation claim. In fact, the claimant indicated "that
it was not until 2006 that she came to the realization that Mr. Bernoi had done
something wrong which merited her 'doing something about it.'" Findings, ¶
19. See also May 19, 2008 Transcript, pp. 29-30. Similarly,
the claimant's mother, who was the claimant's legal guardian during the period
between July 2001 and 2002, also testified that despite the other steps she
took on her daughter's behalf,(fn3) "it did not occur to her to file a workers'
compensation claim . . .."(fn4) Findings, ¶ 23. See also
May 19, 2008 Transcript, p. 54. Bernoi, who was the owner of Leno's Lawn
Service between 2000 and April 2002, testified that he did not become aware
that the claimant was pursuing a workers' compensation claim until November
2006 and reiterated that for the period between July 3, 2001 and July 3, 2002,
"neither he nor anyone authorized to act on behalf of Leno's Lawn Service paid
for or provided any of the medical treatment . . . obtained by the claimant."
Findings, ¶ 25. See also May 19, 2008 Transcript, p. 69.
Bernoi indicated that the courtordered restitution payments to the claimant
commenced in November 2006 and were made to a third party.
Based upon the foregoing, the trial commissioner determined
although "the claimant's mother had both the legal standing and the
intellectual capacity to have filed a workers' compensation claim on the
claimant's behalf," she did not do so. Findings, ¶ C. The trier also
concluded that no notice which "substantially complied" with the requirements
of § 31-294c(a) C.G.S. was provided to the respondent-employer or the
Workers' Compensation Commission until August 2006.(fn5) Findings, ¶ D.
Noting that none of the tolling provisions enumerated in § 31-294c(c) were
satisfied, the trial commissioner found the Workers' Compensation Commission
lacked jurisdiction and dismissed the claim.(fn6)
The claimant filed a Motion for Articulation and Motion to
Correct, both of which were denied, and this appeal followed. The claimant
asserts three claims of error: the trial commissioner...
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