Smith v. Yurkovsky

830 A.2d 743, 265 Conn. 816, 2003 Conn. LEXIS 350
CourtSupreme Court of Connecticut
DecidedSeptember 23, 2003
DocketSC 16740
StatusPublished
Cited by19 cases

This text of 830 A.2d 743 (Smith v. Yurkovsky) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Yurkovsky, 830 A.2d 743, 265 Conn. 816, 2003 Conn. LEXIS 350 (Colo. 2003).

Opinions

Opinion

VERTEFEUILLE, J.

The sole issue in this appeal is whether the workers’ compensation review board (board) properly interpreted General Statutes § 31-275 (9) (B) (iv)1 as requiring a domestic worker to work an average of more than twenty-six hours per week for the twenty-six week period preceding the date of his or her injury in order to be considered an “employee” within the meaning of that statute, thereby entitling the worker to recover benefits under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. The plaintiff, Eileen Smith, claims that she had worked more than twenty-six hours per week for ten out of the sixteen weeks prior to sustaining an injury while working for the defendants, Anthea Yurkovsky and her son, Christopher Yurkovsky, and that she was, therefore, “regularly employed” more than twenty-six hours per week as required by § 31-275 (9) (B) (iv). We conclude that, in order to be regularly employed pursuant to § 31-275 (9) [818]*818(B) (iv), apersonmustworkmorethantwenty-sixhours per week during the majority of the fifty-two weeks preceding the date of his or her injury. We therefore affirm the decision of the board vacating the decision of the workers’ compensation commissioner for the third district (commissioner) that had found that the plaintiff was an employee of the defendants pursuant to § 31-275 (9) (B) (iv) at the time of her injury.

The following undisputed facts and procedural history are relevant to our resolution of this appeal. The plaintiff was employed by the defendants beginning July 1, 1995, as a part-time home health aide2 to care for Anthea Yurkovsky,3 who suffered from Alzheimer’s disease, was unable to care for herself and required round-the-clock supervision. The plaintiffs tasks during her employment included feeding Anthea Yurkovsky, assisting her to exercise, and helping her to bed. Initially, the plaintiff worked between four to nine hours per week, however, her hours gradually increased over time. The plaintiffs hours increased substantially during the tax preparation season, namely, from January until mid-April of each year, due to the fact that Christopher Yurkovsky was employed as a manager at a tax return preparation service. He, therefore, required more assistance from the plaintiff in caring for his mother during the tax preparation season.

On April 16, 1998, the plaintiff allegedly sustained an injury to her lower back during the course of her employment with the defendants. She subsequently filed a workers’ compensation claim against the defendants. They denied liability, and contended that the plaintiff was not regularly employed more than twenty-six hours per week as required by § 31-275 (9) (B) (iv), [819]*819and therefore was not subject to coverage under the act.4

After a hearing, the commissioner found that the plaintiff had worked an average of 29.38 hours per week for nine of the sixteen weeks during the 1998 tax preparation season. The commissioner then concluded that the plaintiff was regularly employed by the defendants within the meaning of § 31-275 (9) (B) (iv).

The defendants appealed from the commissioner’s decision to the board, which vacated the commissioner’s ruling. The majority of the board concluded that, in order to determine whether the plaintiff was regularly employed pursuant to § 31-275 (9) (B) (iv), the commissioner should have determined the average number of hours that the plaintiff had worked during the twenty-six weeks preceding the date of injury.5 The board therefore remanded the matter to the commissioner in order to determine the plaintiffs status as an employee based on the average number of hours per week that she had worked during the twenty-six weeks prior to the date of injury. The plaintiff thereafter appealed from the decision of the board to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

I

Before we address the merits of the plaintiffs claim, we must determine whether the board’s decision, which vacated the commissioner’s decision and remanded the case to the commissioner for further proceedings, constitutes an appealable final decision pursuant to General Statutes § 31-301b. “Although neither of the parties raised the question of whether the judgment of the [820]*820[board] . . . was a final judgment, we decide the question sua sponte because it invokes this court’s subject matter jurisdiction over the plaintiffs appeal.” Cheryl Terry Enterprises, Ltd. v. Hartford, 262 Conn. 240, 245 n.10, 811 A.2d 1272 (2002). We conclude that the decision of the board is appealable.

“Section 31-301b provides that [a]ny party aggrieved by the decision of the [board] upon any question or questions of law arising in the proceedings may appeal the decision of the [board] to the Appellate Court. We have stated, however, that appellate review of disputed claims of law and fact ordinarily must await the rendering of a final judgment by the . . . [board], . . . The test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” (Citation omitted; internal quotation marks omitted.) Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 293, 695 A.2d 1051 (1997); accord Szudora v. Fairfield, 214 Conn. 552, 556, 573 A.2d 1 (1990).

In the present case, the board remanded the decision to the commissioner directing her to calculate the plaintiffs average weekly working hours during the twenty-six week period preceding the date of her injury. The commissioner therefore must undertake a basic mathematical computation. The proceedings on remand therefore would be ministerial and would not require the exercise of independent judgment or discretion. See Szudora v. Fairfield, supra, 214 Conn. 557 (decision of then compensation review division was appealable final judgment because remand order required only ministerial, noncontroversiai compilation of salary informa[821]*821tion). Accordingly, we conclude that the board’s decision is an appealable final decision.

II

The plaintiff claims that the board improperly concluded that the commissioner should have averaged her weekly work hours during the twenty-six week period prior to the date of injury to determine whether the plaintiff was regularly employed pursuant to § 31-275 (9) (B) (iv). We conclude that, in order to determine whether the plaintiff was “regularly employed . . . over twenty-six hours per week”; General Statutes § 31-275 (9) (B) (iv); the commissioner should have determined whether the plaintiff had worked more than twenty-six hours per week during the majority of the fifty-two weeks prior to her injury.

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Cite This Page — Counsel Stack

Bluebook (online)
830 A.2d 743, 265 Conn. 816, 2003 Conn. LEXIS 350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-yurkovsky-conn-2003.