Opinion
CASE NO. 693 CRD-5-88-2
SEPTEMBER 14, 1989
The claimant was represented by Edward T. Dodd, Jr., Esq.
The respondent-employer was represented by Hilliary H. Horrocks, Esq.
The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.
This Petition for Review from the April 9, 1987 Memorandum and February 5, 1988 Finding and Dismissal of the Commissioner At Large acting for the Fifth District was heard April 28, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.
OPINION
Claimant's appeal attacks the April 9, 1987 denial of the Motion to Preclude and the February 5, 1988 Finding and Dismissal of the claim. The commissioner's dismissal was based on the finding that claimant's employment was casual and not for the purpose of the respondent's trade or business.
The two issues raised merge into one, as the commissioner's ruling held that there was no employment relationship to support jurisdiction over the res, Castro v. Viera, 207 Conn. 420 (1988). A Motion to Preclude cannot lie unless jurisdictional facts are established.
Consequently, the crucial question is whether claimant's employment was of a casual nature as found by the commissioner. Such matters are controlled by Sec. 31-275(5) and its definition of the term "employee." Sec. 31-275(5) states the term employee "shall not be construed to include. . . one whose employment is of a casual nature, and who is employed otherwise than for the purpose of the employer's trade or business." In his Finding and Dismissal the trial commissioner ruled "claimant's employment by the respondent was occasional and incidental; it was not on a regular basis and was not part of a continuing regular service. Respondent's regular trade was as a firefighter." Paragraphs #17 and #18 of the February 5, 1988 Finding and Dismissal.
At the time of his injury, July 22, 1986, claimant was on vacation from his regular full-time job with Century Brass. The injury occurred while he was sheetrocking an old firehouse which the respondent hoped to convert into a firehouse museum. The renovation of the firehouse was a hobby of the respondent and was subsidized by the respondent's construction business profits. That construction business primarily involved water and sewer hook-ups and completed about twelve jobs a year.
Thompson v. Twiss, 90 Conn. 444 (1916); Pallanck v. Donovan, 105 Conn. 591 (1927), Decarli v. Manchester Public Warehouse, 107 Conn. 359 (1928), G. Fox Co., Inc. v. Danaher, 9 Conn. Sup. 429 (1941), Sepega v. Handy Harmon, 12 Conn. Sup. 203 (1943) are early decisions interpreting the "casual employee" and "the purpose of the employer's trade or business" language. Here, the commissioner found both that the claimant's employment was occasional or incidental and that the firehouse restoration was not for the purpose of the employer's trade or business. That determination is a factual conclusion which we will not disturb unless found without evidence, contrary to law or based on impermissible or unreasonable factual inferences. See Besade v. Interstate Security Services, 212 Conn. 441, 448-49 (1989) citing Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988). We do not so find.
We, therefore, affirm the trial Commissioner and dismiss the appeal.
Commissioners Frank Verrilli and A. Thomas White, Jr. concur.