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Minuit v. P.D.F. Construction Company et al.

CASE NO. 1551 CRB-3-92-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 7, 1994

MARC MINUIT

CLAIMANT-APPELLEE

v.

P.D.F. CONSTRUCTION COMPANY

EMPLOYER

and

AETNA LIFE & CASUALTY CO.

INSURER

RESPONDENTS-APPELLEES

and

CHRISTOPHER M. SEVERINO a/k/a SHORELINE MASONRY

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Brian T. Fischer, Esq., 259 Elm St., P. O. Box 413, West Haven, CT 06516, who appeared at oral argument but did not file a brief.

The respondent-employer P.D.F. Construction Company and its insurer were represented by Margaret Corrigan, Esq., and Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondent Christopher Severino a/k/a Shoreline Masonry was represented by Barry J. Sinoway, Esq., 142 Temple St., New Haven, CT 06510.

The Second Injury Fund was represented by Robin Wilson, Esq., and Michael Belzer, Esq., Assistant Attorneys General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

The consolidated Petitions for Review from the November 3, 1992 Finding and Award and the December 14, 1992 Supplemental Finding and Award of the Commissioner for the Third District was heard September 10, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund and the uninsured respondent Christopher Severino a/k/a Shoreline Masonry have petitioned for review from the Third District Commissioner’s November 3, 1992 Finding and Award and his December 14, 1992 Supplemental Finding and Award. The appellants challenge the commissioner’s conclusion that the claimant was a lent employee under General Statutes § 31-292.1 Although we agree that the commissioner improperly concluded that the claimant was a lent employee, we do not agree with the appellants’ underlying assertion that the claimant was not an employee of Shoreline Masonry. For the reasons discussed herein, this matter must be remanded to the commissioner for further proceedings.

Among the facts found by the commissioner were that the appellee, P.D.F. Construction Co. (PDF), was performing construction work at the Clinton post office for the Department of Transportation (DOT). A DOT-certified company had been hired by PDF to perform masonry work at the site. When that company backed out, PDF contacted Shoreline Masonry, whose owner, Chris Severino, agreed to complete the work for PDF. Because Shoreline Masonry was not certified by the DOT to do masonry work, Severino and Paul Ferreira, PDF’s president, agreed that the masons would be considered employees of PDF, who was DOT-certified. Severino then called the claimant, a former partner in Shoreline Masonry, and hired him for the job. Severino told the claimant that he would be working for PDF and, as negotiated by Severino, would receive the prevailing wage rate. The claimant never discussed his employment contract with representatives of PDF. The claimant subsequently injured his back in the course of his duties at the job site on July 9, 1991, one day after he began working there.

The scope of our review on appeal is well-settled. “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts . . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). Along with his finding that Severino both hired and negotiated the wages of the claimant, the commissioner also found that Severino drove the claimant to the job site, supervised his work there, supplied both the bricks and the equipment used at the site (for which he was paid by PDF), and disbursed paychecks to the claimant and the other masons at the site. No PDF employees were present at the job site. PDF issued the paychecks to Severino for disbursement, issued a W-2 form to the claimant, and agreed to issue a check to pay for group health benefits for the claimant, who was not included in PDF’s group health plan. From these findings, the commissioner concluded that the claimant’s services had been lent to PDF by Severino within the meaning of § 31-292. We hold that the facts found do not support the legal conclusion that the statute applies to this case.

In order for § 31-292 to apply, an employer must temporarily lend the services of one of its employees to another party. Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 644 (1936). Thus, it is a prerequisite that an employer-employee relationship exist. “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.” Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624, 629 (1961). Although PDF issued the claimant’s paycheck and supplied the claimant with a W-2 form, Severino’s involvement in the hiring and wage determination of the claimant and his authority to direct and supervise the claimant’s work activity, as found by the commissioner, constitute sufficient evidence to support the commissioner’s implicit finding that the claimant was employed by Shoreline Masonry at the time of his injury. See Chute v. Mobil Shipping and Transportation Co., 10 Conn. Workers’ Comp. Rev. Op. 183, 1321 CRD-7-91-10 (1992), affirmed, 32 Conn. App. 16 (1993).

In Daly v. Amalgamated Transit Union, 8 Conn. Workers’ Comp. Rev. Op. 144, 855 CRD-1-89-4 (1990), this Board held that an employee had been “lent” pursuant to §31-292 after referring to BLACK’S LAW DICTIONARY 811 (5th ed. 1979), which defines “lend” as:

To give or put out for hire or compensation. To part with a thing of value to another for a time fixed or indefinite, yet to have some time in ending, to be used or enjoyed by that other; the thing itself or the equivalent of it to be given back at the time fixed, or when lawfully asked for, with or without compensation for the use as may be agreed upon.

A crucial element of this definition, of course, is that the lender part with the thing of value lent. In this case, the claimant was to be considered an employee of PDF for the Clinton job because Shoreline Masonry had not been certified by the DOT. The commissioner found, however, that the owner of Shoreline Masonry continued to exercise control over the claimant’s work activities, and that PDF merely issued his paycheck. Moreover, the claimant was hired by Shoreline Masonry to assist it in the completion of a job that the owner of Shoreline Masonry had agreed to perform for PDF. The claimant was thus performing a service that was of value to Shoreline Masonry as well as PDF when he was injured. Under these circumstances, the findings of the commissioner do not support the conclusion that the claimant’s services were “lent” to PDF within the meaning of § 31-292.

Although the commissioner did not specifically conclude that an employer-employee relationship existed, he did make sufficient factual findings to support the existence of such a relationship between the respondent and the claimant. It appears possible to this Board that PDF may be responsible for the claimant’s compensation payments under § 31-291, which makes a principal employer potentially liable for the injuries of a subcontractor’s employee. Additional findings likely will be necessary. We therefore vacate the trial commissioner’s November 3, 1992 Finding and Award and his December 14, 1992 Supplemental Finding and Award, and remand this matter to him for further proceedings consistent with this opinion.

Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos concur.

1 General Statutes § 31-292 provides: “When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another.” BACK TO TEXT

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