Opinion
CASE NO. 1246 CRD-3-91-6
MAY 15, 1992
The claimant was represented by Albert Moquet, Esq., Barberio, Staley Moquet.
The respondent was represented by Roger Frechette, Esq.
The Second Injury Fund was represented by Robin L. Wilson, Esq., Assistant Attorney General.
This Petition for Review from the June 11, 1991 Finding on Motion to Preclude of the Commissioner for the Third District was heard December 13, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Frank Verrilli and A. Thomas White, Jr.
OPINION
Respondents' appeal attacks the preclusion of defenses and the irrebuttable presumption of liability granted by the Third District. Their contention is that the notice of claim did not sufficiently comply with the strictest Sec. 31-294 technical requirements necessary before preclusion under Sec. 31-297(b) may be invoked.
Claimant's notice filed March 2, 1989 alleged a wrist injury during the course of her employment with Robin Michaels Beauty Center. The entity, Robin Michaels Beauty Center is not incorporated. Robyn Michaels Cosmetics, Inc. is a Connecticut corporation and Mary Jane Pulchiani is the president of the company. Robin Michaels Beauty Center filed a contest to the claim on April 7, 1989. The trial commissioner found that the disclaimer of liability was not timely filed within the twenty day period then permitted by Sec. 31-297(b).
He also found that claimant was paid with Robyn Michaels Beauty Center checks signed by Mary Jane Pulchiani. The appellants contend that claimant was an employee of Robyn Michael Cosmetics, Inc. and thus the Motion to Preclude should not lie as it does not correctly state the claimant's employer. The only issue on appeal is whether Robyn Michaels Beauty Center is an entity against whom liability may attach for the purpose of granting claimant's Motion to Preclude.
As also found by the commissioner, signs at the place of business at 111 Elm Street in West Haven identified the enterprise as Robyn Michaels Beauty Center. A similar nomenclature appeared on the parking lot directory at that location. Ads placed in a local news circular for Robyn Michaels Beauty Center listed the claimant as an employee. Further, Robyn Michaels Beauty Center had a listing in the New Haven phone directory under that name.
Although not a fact in evidence, respondents' brief asserts that no trade name certificate was ever filed in any town clerk's office. [Brief of the respondents at 1-2. See also, TR, June 3, 1991 at 40]. A trade name certificate was required by statute, Sec. 35-1. Further Sec. 35-1 provides, "Failure to comply with the provisions of this section shall be deemed to be an unfair or deceptive trade practice under subsection (a) of section 42-110b." It would seem inequitable to allow the respondents to avoid liability under those circumstances by claiming that Robyn Michaels Beauty Center is a non-entity and that therefore the notice of claim was improper. See e.g., Fuller v. Central Paving Co., 5 Conn. Workers' Comp. Rev. Op. 92, 655 CRD-1-87 (1988).
Certainly there was evidence from which the trier could reasonably conclude that Robyn Michaels Beauty Center was the claimant's employer. Similarly there was evidence permitting the conclusion that Robyn Michaels Cosmetics, Inc., was doing business as Robyn Michaels Beauty Center despite the fact that no trade name certificate had been filed. See TR, June 3, 1991 at 35-40. Further no Motion to Correct was filed by the respondent and thus the facts as found by the trial commissioner must stand. Mack v. Blake Drug, 152 Conn. 523 (1965).
We affirm the commissioner's June 11, 1991 decision and dismiss the appeal.
Commissioners Frank Verrilli and A. Thomas White, Jr. concur.