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Smith v. George Boland d/b/a George Boland Painting Co. et al.

CASE NO. 1502 CRB-7-92-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 28, 1994

JOHN SMITH

CLAIMANT-APPELLANT

v.

GEORGE BOLAND d/b/a GEORGE BOLAND PAINTING CO.

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SANDVICK ASSOCIATES, INC.

ALLEGED PRINCIPAL EMPLOYER

and

U.S.F.& G.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by James F. Mullen, Esq., Law Office of Dominick F. Burke, 1432 Post Road, Fairfield, CT 06430 who appeared at oral argument but did not file a brief.

The respondent George Boland was represented by Christopher C. Vaugh, Esq., Law Office of Joseph F. McKeon, Jr., P.C., 1200 Post Road East, Westport, CT 06880. The respondents Sandvick Associates and its insurer were represented by Michael J. McAuliffe, Esq., Robert W. Murphy, Esq. and James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The Second Injury Fund was represented by Ernie R. Walker, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who neither filed a brief nor appeared at oral argument.

This Petition for Review from theAugust 25, 1992 Finding and Award of the Commissioner for the Seventh District was heard August 13, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John A. Arcudi and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The respondent-employer George Boland d/b/a George Boland Painting Company (Boland) has petitioned for review of the Seventh District Commissioner’s August 25, 1992 Finding and Award. On appeal, Boland challenges the commissioner’s finding that respondent Sandvick Associates, Inc. (Sandvick) was not, at the time of the claimant’s injury, a principal employer with regard to the claimant under General Statutes Sec. 31-291.1 We affirm the trial commissioner.

The trial commissioner found the following facts. Certain Greenwich homeowners entered into a contract, dated June 14, 1991, with Sandvick, as general contractor, for the renovation of a portion of their home and for the construction of an addition thereto. The contract required certain painting but did not include the painting of the exterior of the existing residence or the chimneys on the existing residence. Sandvick, as general contractor, then entered into subcontractual agreements with Boland for the interior and exterior painting required under the contract.

Near the completion of the construction and renovation work, the homeowners decided that they wanted the exterior and chimneys of the existing house painted. They requested a price quotation from Sandvick. Sandvick then sought a price quotation from Boland, who was already doing other painting work on the premises as a subcontractor under the contract between Sandvick and the homeowners.

Boland gave Sandvick a price of $20,225 for painting the chimneys and exterior of the house. Sandvick then submitted a written proposal to the homeowners to do the additional painting work for $20,225 plus 10% for overhead and plus 10% for profit, a total price of $24,472.25.

The homeowners, however, decided to deal directly with Boland for the additional painting work, thereby saving the overhead and profit costs added on to the proposal by Sandvick. Thereafter, all payments for the additional painting were made by the homeowners directly to Boland. Sandvick received no portion of the money paid by the homeowners for the additional painting, while all payments under the initial contract for the addition and alteration, including Boland’s painting work under that contract, were made by the homeowners to Sandvick which in turn made payment to Boland under the subcontractual agreement.

The claimant’s injury occurred on December 10, 1991 when, while constructing a system of planks and ladders on the roof of the subject residence in order to paint the chimneys, the claimant fell from the roof. The trial commissioner found that the claimant sustained a compensable injury on December 10, 1991, while in the employ of Boland, who did not have workers’ compensation insurance on that date. The commissioner further found that Sandvick “was not, at the time of claimant’s injury herein, a principal employer as to the claimant under the provisions of [General Statutes Sec. 31-291] since it had not procured the work being then done by Boland (the painting of chimneys) and in the course of which the claimant was injured.” Finding and Award, paragraph 16B. This appeal by Boland followed.

On appeal, Boland contends that the trial commissioner should have found Sandvick liable to the claimant under the principal employer doctrine set forth in Sec. 31-291. Boland argues that the commissioner’s critical finding in Paragraph 16B of the Finding and Award (quoted above) is without legal or factual support. We disagree.

Whether Sandvick was a principal employer against whom liability should be assessed under Sec. 31-291 is a factual question. Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 72 (1986). As such, the ultimate conclusion must rest on the factual findings of the commissioner. We cannot substitute our findings for his when those findings depend on the weight and credibility to be accorded the evidence. Wheat v. Red Star Express Lines, 156 Conn. 245 (1968). Here weight and credibility were critical to the determinations made. Pina v. Leitkowski Construction Co., 9 Conn. Workers’ Comp. Rev. Op. 38, 40, 907 CRD-2-89-8 (1991). Additionally, as Boland failed to file a motion to correct the factual findings of the trial commissioner, we are bound by those findings. Mack v. Blake Drugs Co., 152 Conn. 523 (1965); Belanger v. Bechtel Construction Co., 8 Conn. Workers’ Comp. Rev. Op. 72, 768 CRD-8-88-9 (1990). As an appellate tribunal, our task is limited to determining whether the trial commissioner’s conclusion is supported by evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Belanger v. Bechtel Construction Co., supra.

The evidence presented to the trial commissioner plainly supports his finding that the homeowners spurned Sandvick’s offer to serve as general contractor with regard to the additional painting work and chose instead to deal directly with Boland for this work done outside the terms of the original contract. Under these circumstances, the trial commissioner properly found that, with respect to the work the claimant was doing when he was injured, Sandvick had not procured work to be done for it by Boland. As no relationship of general contractor and subcontractor existed between Sandvick and Boland with regard to the chimney work being performed by the claimant at the time of his injury, the commissioner correctly declined to impose liability against the putative principal employer under Sec. 31-291.

We, therefore, affirm the trial commissioner and deny the appeal.

Additionally, pursuant to Sec. 31-301c(b), we order respondent Boland to pay interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.

Commissioners John A. Arcudi and Donald H. Doyle, Jr. concur.

1 General Statutes Sec. 31-291 provides in pertinent part: “When any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be liable to pay all compensation under this chapter to the same extent as if the work were done without the intervention of such contractor or subcontractor.” BACK TO TEXT

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