Opinion
CASE NO. 372 CRD-7-85
APRIL 7, 1988
The claimant was represented by Francis J. Collins, Esq., and C. Anthony Vournazos, Esq., both of Cutsampas, Collins, Hannafin, Garamella, Jaber Tuozzolo, P.C.
The respondents-appellants were represented at trial level by Neil Marcus, Esq., and Robin Kahn, Esq., and on appeal by Michael L. Shapiro, Esq.
The respondents-appellees were represented by Lucas Strunk, Esq., and Jason Dodge, Esq., both of Pomeranz, Drayton Stabnick.
This Petition for Review from the December 17, 1984 Finding and Award of the Commissioner for the Seventh District was heard October 31, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Rhoda Loeb.
FINDING AND AWARD
The Seventh District Finding and Award of December 17, 1984 is hereby affirmed and adopted as the Finding and Award of this Division.
OPINION
Claimant's principal duties in the home of Dr. Joel E. Brook, M.D. and Dr. Marjorie A. Brook, M.D. were to care for the Brooks' infant child and to do some light housekeeping. On July 1, 1983, while in the course of her employment, Claimant fell down a flight of stairs and severely fractured her left ankle. The Seventh District Commissioner's December 17, 1984 Finding and Award concluded Claimant was the employee of Joel E. Brook and Marjorie A. Brook individually and not, the employee of the professional corporation , Joel E. Brook, M.D., P.C. The individual respondents have appealed contending Claimant was an employee of the professional corporation.
Respondents failed to file a Motion to Correct within two weeks of the Commissioner's decision, so no challenge may be made against the factual findings below, Ross v. Renzulli, 9 Conn. App. 87 (1986). Administrative Regulations Sec. 31-301-4 controls such matters and requires an appellant seeking such review to file a Motion to Correct within that period. Absent such a Motion to Correct, the findings of the Commissioner must stand, Mack v. Blake Drug Co., 152 Conn. 523 (1965).
Our consideration is therefore limited. Based on the subordinate facts found was the conclusion below wrong as a matter of law? In Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961), the Connecticut Supreme Court, defined an employee as follows:
"One is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained." (citation omitted).
The traditional rule of law in determining whether an employment relationship exists between parties is to ascertain what control one party may assert over another, Kaliszewski v. Weathermaster Alsco Corp., supra; Gadacy v. Busk, 431 CRD-4-85 (decided February 26, 1987). In the instant matter, it was found that the contract of hire was between the individual respondents and the claimant for their personal and private benefit. The fact that Claimant was paid by check out of the professional corporation's funds did not make the claimant an employee of the corporation as a matter of law. Payment of wages is only a factor which may be considered in determining whether an employment relationship exists, Corbin v. American Mills, 27 Conn. 274 (1858); 53 Am. Jr. 2d Master and Servant, Sec. 2 (1970). Further, the determination whether an employment relationship exists is a question of fact and is to be decided by the trial Commissioner, Francis v. Franklin Cafeteria, Inc., 123 Conn. 320 (1937). On questions fact our review is limited to determining whether the conclusions drawn were the result of "an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them", Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979) (citation omitted). Since we find no such incorrect application or unreasonable inference, there is no reversible error.
We, therefore, affirm the December 17, 1984 Finding and Award of the Seventh District Commissioner.
Commissioners A. Paul Berte and Rhoda Loeb concur.