5444 CRB-5-09-3 (2010). Chance v. Leno's Lawn Service, LLC.

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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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