5692 CRB-7-11-11 (2012). ROBERTO S. DUARTE CLAIMANT-APPELLEE v. FRANSTEL OF CT CORP.

• Court: Connecticut

Connecticut Workers Compensation 2012. 5692 CRB-7-11-11 (2012). ROBERTO S. DUARTE CLAIMANT-APPELLEE v. FRANSTEL OF CT CORP CASE NO. 5692 CRB-7-11-11COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONNOVEMBER 13, 2012ROBERTO S. DUARTE CLAIMANT-APPELLEE v. FRANSTEL OF CT CORP. EMPLOYER NO RECORD OF INSURANCE RESPONDENT-APPELLANT and SECOND INJURY FUND RESPONDENT-APPELLEE APPEARANCES: The claimant was represented by Brendan T. Canty, Esq., The Law Office of B.T. Canty, Esq., P.C., 193 East Avenue, Norwalk, CT 06855. Respondent Franstel of CT Corp., was represented by Randi Haraj-Sai, Esq., Williams Moran LLC, P.O. Box 550, Fairfield, CT 06824. Respondent Second Injury Fund did not appear at oral argument. At proceedings below, the Second Injury Fund was represented by Assistant Attorney General Catherine Rawson, Esq., Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06106. This Petition for Review from the October 24, 2011 Finding and Award of the Commissioner acting for the Seventh District was heard on April 27, 2012 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Daniel E. Dilzer and Clifton E. Thompson.(fn1) OPINIONJOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer (hereinafter "respondent") in this matter, Franstel of CT Corp., has petitioned for review from the October 24, 2011 Finding and Award of the Commissioner acting for the Seventh District. We find no error and accordingly affirm the decision of the trial commissioner.(fn2) The trial commissioner, having determined that all of the parties were subject to the provisions of the Connecticut Workers' Compensation Act, Chapter 568 of the Connecticut General Statutes, made the following factual findings which are pertinent to our review. At the formal hearing of October 26, 2010, the claimant offered the following testimony. On January 12, 2010, Jesus Alvarado, an employee of the respondent Franstel of CT Corp., asked the claimant to work with him on a job removing branches.(fn3) Frank Serpe, the owner of Franstel of CT Corp., had made the request by way of a phone call to Alvarado that morning.(fn4) The claimant and Alvarado first went to Serpe's home because they did not have any gas in the truck, then to Serpe's garage to pick up the equipment needed for the job, and then to the job site. Serpe accompanied the claimant and Alvarado to get the gas but the claimant did not speak with Serpe. The claimant did not know the name of the gas station but said it was located on Hope Street. When he and Alvarado reached the job site, the claimant set up a ladder and began cutting branches from a tree. At some point during the removal of the first two branches, the owner of the home came out and told the claimant he was doing a good job. However, while the claimant was attempting to cut down a third branch, another branch fell and hit the claimant's ladder, causing him to fall forty feet. Unable to walk, the claimant dragged himself to the truck, where Alvarado called Serpe to tell him the claimant was injured. Although Serpe told Alvarado to go to the hospital, Alvarado took the claimant to Serpe's home to show him that he had really been injured. However, Serpe was not at home so the claimant and Alvarado went to the hospital. The claimant only worked one day and did not know his rate of pay. The claimant testified at his deposition on August 4, 2010 that Serpe had told Alvarado to tell the doctor the claimant had slipped on the ice and Serpe told the claimant "he was going to help [him] with the medicines." Respondent's Exhibit 1, p. 24. At a deposition held on October 12, 2010, Jesus Alvarado testified as follows. On January 11, 2010, Serpe called Alvarado and asked him to bring another person to work with him on a job scheduled for the following day because the individual with whom Alvarado usually worked was going with Serpe's wife to clean houses. On January 12, 2010, before Alvarado and the claimant went to the work site, they stopped at Serpe's home so Alvarado could "show him" the claimant. Joint Exhibit 1, p. 18. Serpe, Alvarado and the claimant then went to get gas for the truck. Alvarado did not know the name of the gas station. After returning from getting the gas, Alvarado went into Serpe's garage and picked up a ladder and a chain saw before leaving for the work site. Alvarado did not know the address of the work site, and identified it only as being "around Westover." Id., at 14. Alvarado and the claimant arrived at the job site between 9:00 a.m. and 10:00 a.m. and Alvarado did not remember the homeowner being there. Alvarado and the claimant were planning to cut down three branches but at 1:00 p.m., after cutting the second branch, the claimant fell approximately thirty feet. Alvarado tried to pick up the claimant but he could not stand up; when he and the claimant got back into the truck, Alvarado called Serpe to tell him the claimant had been injured and Serpe told him to take the claimant to the hospital. Serpe also said to tell the hospital personnel that the claimant had fallen on the sidewalk, not that he had fallen out of a tree. Instead, Alvarado took the claimant to Serpe's home "to show him how beat up he was" id., at 22, because "maybe he wouldn't believe that he had fell." Id., at 23. However, Serpe was not at home, and Alvarado and the claimant proceeded to the hospital. Frank Serpe also testified in this matter, offering the following. Franstel of CT Corp., is a general landscaping and snow removal company. Serpe, the owner of the business, owns two ladders, one a twelve-foot step ladder and the other an eighteen-foot extension ladder which, when fully extended, cannot reach forty feet. He identified the instant work site as 19 West Hill Road in Stamford, Connecticut and indicated that he subcontracts all of his tree work for this property to Catolino's Tree Service because his company's tree-cutting services are restricted to trimming low-lying branches of twelve feet or less and cleaning up any branches that may have fallen during storms. He identified Alvarado as an employee who was allowed to park the truck at his residence and use it for side jobs. Alvarado was also responsible for picking workers up in the morning and dropping them off after work. Serpe did not speak with Alvarado on January 11, 2010, and Alvarado did not have the authority to subcontract employees on Serpe's behalf. Alvarado was scheduled to work from 9:00 a.m. to 12:00 a.m. on January 12, 2010, cleaning out Serpe's garage; however, Alvarado did not stop by Serpe's house on that date and they did not go together to get gas. The closest place to get gas is a "Mini Mart" on Cove Road and Serpe usually gets his gas there.(fn5) Serpe denied receiving a phone call about the claimant falling from a tree and telling Alvarado to take the claimant to the hospital and lie about the nature of the claimant's injury. Serpe's cell phone records for the month of January, which were submitted into evidence, indicated that on January 12, 2010, Serpe received incoming calls from the claimant's cell phone at 10:02 a.m., 11:54 a.m., 12:22 p.m., 2:19 p.m., 3:29 p.m. and 10:04 p.m. However, Serpe testified that one of the phone calls from Alvarado on the morning of January 12, 2010, concerned putting something in the garage and the call at 12:22 p.m. was to alert Serpe that Alvarado had finished the job. Serpe also testified that the claimant was drunk when he called him at 10:04 p.m. and didn't realize he had called Serpe. Serpe estimated that it would take forty-five minutes to get from the work site at 19 West Hill Road in Stamford to Serpe's home and then to the Stamford Hospital. Michael Cantanzarita of Cat Investigative Services, LLC, reported that the travel time from the work site to Serpe's residence to Stamford Hospital takes twenty-seven minutes. The Stamford Hospital medical records indicate that the claimant arrived at the hospital at 12:53 p.m. and the claimant was injured by slipping on ice; the emergency room physician, Ravi Thakur, M.D., reported that the claimant fractured his back. However, on March 17, 2010, William C. DeAngelo, R.R.T., D.C., a chiropractor, reported that the claimant's injury was "directly related to a severe compressive force to the lumbar spine which correlates from falling from a significant height. It is not probable that this [type] of injury can happen from a slip injury." Claimant's Exhibit C. On September 20, 2010, Sandra Aviles, a Special Investigator for the State of Connecticut, Office of the Treasurer, filed a report indicating that Franstel of CT Corp., did not have workers' compensation insurance on January 12, 2010. Having reviewed the foregoing, the trial commissioner arrived at the following...