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Phelan v. Soda Construction Co. et al.

CASE NO. 1583 CRB-3-92-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 20, 1994

WILLIAM SCOTT PHELAN

CLAIMANT-APPELLEE

v.

SODA CONSTRUCTION CO.

EMPLOYER

and

PEERLESS INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

BENSON CONSTRUCTION CO.

EMPLOYER-APPELLANT

NO RECORD OF INSURANCE

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Christine M. Gonillo, Esq., Hurwitz & Sagarin, P.C., 147 N. Broad St., P. O. Box 112, Milford, CT 06460-0112.

The respondent Benson Construction Co. was represented by James Baldwin, Esq., Cotter, Cotter & Sohon, P. O. Box 5660, Bayview Station, Bridgeport, CT 06610.

The respondents Soda Construction Co. and Peerless Insurance Co. were represented by David A. Kelly, Esq., Montstream & May, P. O. Box 1087, Glastonbury, CT 06033.

This Petition for Review from the December 1, 1992 Finding and Award of the Commissioner for the Third District was heard January 14, 1994 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JOHN A. ARCUDI, COMMISSIONER. In a ruling based on §31-291 C.G.S.,1 the Third District found both the general contractor-principal employer, Soda Construction Co. (Soda), and the uninsured subcontractor, Benson Construction Co. (Benson), liable for a July 17, 1991 injury to the claimant, a Benson employee. Both Soda and Benson appeal.

They argue that the claimant’s testimony, on which the commissioner relied to find an employment relationship, was not credible and therefore the award should be reversed. The determination of witness credibility and the weight to be given to evidence lies within the province of the trial commissioner. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The claimant here testified to an arrangement between himself and Benson that if one of them found work, he would hire the other to work on that job. Under that agreement Benson hired the claimant on the Lyda Drive job.

Benson paid the claimant on an hourly wage basis. No tax withholding or FICA contributions were deducted from the sums paid to the claimant. Those facts did not preclude a finding of an employment relationship. Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624 (1961). Therefore, there was sufficient evidence to find claimant was Benson’s employee.

Benson was therefore liable to pay workers’ compensation benefits to the claimant. For Soda also to be liable for benefits, three conditions needed to be satisfied pursuant to §31-291: “(1) The relation of principal employer and contractor must exist in work wholly or in part for the former; (2) the work must be on or about premises controlled by the principal employer; (3) the work must be a part or process in the trade or business of the principal employer.” Kasowitz v. Mutual Construction Co., 154 Conn. 607, 611 (1967). There was evidence before the commissioner to find that all three conditions existed. We therefore will not disturb his conclusions. Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 72 (1986); Pina v. Leitkowski Construction Co., 9 Conn. Workers’ Comp. Rev. Op. 38, 40, 907 CRD-2-89-8 (1991), citing Wheat v. Red Star Express Lines, 156 Conn. 245 (1968).

Soda’s final argument relies on §31-355 C.G.S. Under that section, when an employer or its insurer fails or is unable to pay an award of benefits, the Second Injury Fund shall pay the award. Soda contends that since the uninsured employer Benson has failed to pay, then the obligation should fall on the fund.

Section 31-355 was enacted well after §31-291, and Soda maintains that the two laws conflict, the earlier one putting the ultimate obligation on the principal employer, and the later law, on the fund. Therefore the later law should govern. This argument is flawed. The two statutes are not necessarily in conflict. It is easily possible to read them as compatible. “It is presumed that the legislature, in enacting a statute, acts with the knowledge of existing relative statutes and with the intention of creating one consistent body of law.” Commissioner v. Freedom of Information Commission, 204 Conn. 609, 621 (1987). Section 31-291 was intended to “protect employees of minor contractors against the possible irresponsibility of their immediate employers, by making the principal employer who has general control of the business in hand liable as if he had directly employed all who work upon any part of the business which he has undertaken to carry on.” Bello v. Notkins, 101 Conn. 34, 38 (1924). The basic thrust of §31-291 was to treat the principal employer as an employer of its subcontractor employees with the resultant obligation to pay workers’ compensation to those employees. The purpose of §31-355 is to have the fund pay when the employer fails or is unable to pay.

We therefore affirm the December 1, 1992 Finding and Award .

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 Section 31-291. Principal employer, contractor, and subcontractor. “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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