Opinion
CASE NO. 901 CRD-1-89-8
JANUARY 17, 1991
The claimant was represented by Angelo Cicchiello, Esq.
The respondent was represented by Bernard Polnier, Esq.
The Second Injury Fund represented by the Office of the Attorney General did not appear in the proceedings below, nor did it file a brief or appear at oral argument before the Compensation Review Division.
This Petition for Review from the July 24, 1989 Finding and Award of the Commissioner at Large acting for the First District was heard June 29, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White, Jr., and James Metro.
OPINION
This appeal by the respondent employer disputes the commissioner's finding that claimant was an employee when he fell from a ladder and sustained a fractured right (master) elbow and other injuries to his right knee and back. Besides disputing the factual findings, the employer contends that the ultimate legal conclusion was not sufficiently supported by the findings made.
All other issues which were raised in respondent's Reasons of Appeal are deemed abandoned as they were not briefed. See, Muha v. United Oil Co., Inc., 180 Conn. 720 (1980); State v. Samaha, 180 Conn. 565, note 1 (1980).
The trial commissioner found, "On the issue of control, respondent, on at least one occasion, directed claimant to leave the work site in Manchester, and work instead on a job in Glastonbury." Finding, paragraph #7. In determining whether one is an employee Sec. 31-275(5) provides the definition. Our Supreme Court noted in Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 629 (1961):
"Employee" means any person who has entered into or works under any contract of service or apprenticeship with an employer, whether such contract contemplated the performance of duties within or without the state . . .
"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 in 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. Bieluczyk v. Crown Petroleum Corporation, 134 Conn. 461 (1948). The controlling consideration in the determination whether the relationship of master and servant exists . . . is: Has the employer the general authority to direct what shall be done and when and how it shall be done — the right of general control of the work? Jack Jill, Inc. v. Tone, 126 Conn. 114, 119 (1939), Cumbo v. E. B. McGurk, Inc., 124 Conn. 433, 436 (1938)."
Here apart from the mention in paragraph #7 of the Finding cited above, there are no specific findings to support the trial commissioner's ultimate conclusion. We agree that ultimate conclusion is based largely on the weight and credibility to be accorded the evidence, and the conclusion does seem to have substantial roots in the record below. However, more subordinate facts must be found and stated before that conclusion will lie. Powers v. Hotel Bond Co., 89 Conn. 143, 153 (1915).
The commissioner's decision may well have been correct, but the courts have said "`No case under this Act should be finally determined when . . . through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment.'" McQuade v. Town of Ashford, 130 Conn. 478, 482 (1944) quoting Cormican v. McMahon, 102 Conn. 234, 238 (1925). Concluding as we do, we therefore remand the instant matter for additional proceedings consistent herewith.
Commissioners A. Thomas White Jr., and James Metro concur.