CASE NO. 396 CRD-3-85Workers’ Compensation Commission
MARCH 29, 1988
The claimant was represented by Gerald Furrell, Esq.
The respondent-insurer was represented by Edward D. O’Brien, Jr., Esq.
The respondent-employer was represented by William J. Meuser, Esq., who did not appear at oral argument not not did he file a brief.
This Petition for Review from the March 15, 1985 Finding and Award of the Commissioner for the Third District was heard October 31, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Michael S. Sherman.
FINDING AND AWARD
The Third District Finding and Award of March 15, 1985 is hereby affirmed and adopted as the Finding and Award of this Division.
OPINION
JOHN ARCUDI, Chairman.
At issue here is the identity of the employer. Was it the Robert Henry Company or Kratzer’s alter ego Sports Enterprises, Inc.? Claimant played soccer for a professional soccer team called the “Connecticut Yankees” He injured his right foot June 14, 1977 while playing soccer at a professional team game in Providence, Rhode Island.
The Commissioner below in her March 15, 1985 decision found “Connecticut Yankees” was owned by a corporation, Sports Enterprises, Inc. However, she also found that paychecks to the claimant were drawn on the Robert Henry Company and Claimant’s W-2 form, wage and tax statement for 1977 were also issued by the Robert Henry Company. Robert Kratzer was president and sole stockholder of Sports Enterprises, Inc., a defunct corporation. The trial Commissioner concluded that Claimant was an employee of the Robert Henry Company, and it was therefore liable under the Workers’ Compensation Act.
Respondent, Transamerica Insurance Company, insurer of the Robert Henry Company, appeals. We do not find any reversible error. Respondent-insurer argues a statement made at the November 22, 1983 Formal Hearing inculpated Sports Enterprises, Inc. and exculpated Robert Henry Company. At that hearing, the counsel for Sports Enterprises, Inc. conceded the compensability of the injury[1] .
The carrier argues that the statement quoted in the footnote is conclusive on the issue of Sports Enterprises’ liability. We think not. Besides the statement of counsel, there was also evidence before the trial Commissioner as to the corporate entity which actually paid the employee. That certainly constituted sufficient indicia of employment to support the
Commissioner’s ruling. We, therefore, affirm the March 15, 1985 Finding and Award.
Commissioners Robin Waller and Michael S. Sherman concur.
MEUSER: Yes. As to compensability we’re willing to concede at this time as to extent of injury. Anything we do with percentage of disability and temporary total payment such further testimony and cross-examination will be done at a further hearing on the medical testimony and extent of injury.
COMMISSIONER: It is my understanding that you are admitting and conceding the responsibility of the respondent company doing business as Robert Henry Company and Sports Enterprises as a separate company?
MR. MEUSER: In as far as I can. I can’t prejudice Mr. O’Brien in any way — I can’t say anything for Mr. O’Brien.
COMMISSIONER: I know but I want to get your statement as to what you are saying.
MR. MEUSER: As far as Robert Kratzer as an individual is concerned. as far as, his relationship with Robert Henry Company which is a corporation he is president and sole stockholder; as far as Sports Enterprises is concerned which is defunct but he was president and major stockholder of it —
COMMISSIONER: You are —
MR. MEUSER: — Conceding compensability to the injury.