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Magarian v. Open Hearth Mission

CASE NO. 1895 CRB-1-93-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 11, 1995

JAMES MAGARIAN

CLAIMANT-APPELLANT

v.

OPEN HEARTH MISSION

EMPLOYER

and

CONTINENTAL INSURANCE CO.

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Barbara J. Morelli, Esq., Asselin & Associates, One Courthouse Square, Willimantic, CT 06226.

The respondents were represented by Steven Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the November 9, 1993 Finding and Dismissal of the Commissioner acting for the First District was heard October 28, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the First District Commissioner’s November 9, 1993 Finding and Dismissal. On appeal, the claimant challenges the trial commissioner’s finding that the claimant failed to give timely notice of the claim to his employer. We affirm the trial commissioner’s decision.

The claimant alleged that he suffered a compensable hip injury while he was working at the respondent Open Hearth Mission in Hartford. The commissioner found that the respondent supplies room and board for its residents, and provides counseling for substance abuse problems. The respondent is designated as a work site by the City of Hartford as defined by § 17b-689 C.G.S. (formerly § 17-281a C.G.S.). The claimant worked approximately 35 hours per week for the respondent, in exchange for which he received room and board, for which the respondent was reimbursed by the City of Hartford. The city also supplied the claimant with a medical card and paid him $10.00 per week through the Workfare program. Residents of Open Hearth Mission must participate in Workfare in order to remain eligible for public assistance. See § 17-689(a).

The claimant filed a notice of claim on June 5, 1985 with the Workers’ Compensation Commission alleging a June 20, 1984 injury while in the employ of the respondent Open Hearth Mission. The commissioner determined that the claimant was in fact an employee of the City of Hartford, however, based on his participation in Workfare. Because the city did not receive timely notice, the commissioner dismissed the claim pursuant to § 31-294c. The claimant has appealed from that decision.

Section 17-689(g) provides in pertinent part:

For purposes of chapter 568, each employable person participating under this section in a work program or training or education program approved by the labor commissioner shall be considered to be an employee of the town from which he is receiving support, and participation in a work program or training or education program . . . shall be considered to be such person’s employment by such town at a wage equal to the minimum hourly wage . . . . To the extent any such employable person . . . receives workers’ compensation benefits, payments for support and other assistance to such person provided under this chapter by the town from which he is receiving support shall be correspondingly reduced.

The statute plainly states that a Workfare employee is considered to be an employee of the town supporting him for the purpose of the Workers’ Compensation Act, and that his participation in a work program shall be considered to be his employment by that town. Where, as here, the meaning of a statute is clear on its face, we will not interpret it to mean otherwise. All Brand Importers, Inc. v. Department of Liquor Control, 213 Conn. 184, 194-95 (1989). The claimant does not challenge the commissioner’s findings that he participated in Workfare as a condition of his employment at the Open Hearth Mission. Thus, the statute on its face applies to this case.

The claimant argues, however, that the respondent satisfies the definition of “employer” under § 31-275(10) C.G.S. because the respondent had control over the claimant’s employment, and the respondent profited from the claimant’s work activities. The respondent may indeed have satisfied the general definition of employer; we need not dispute that assertion. Nevertheless, § 17b-689(g) provides that for the purpose of the Workers’ Compensation Act, a person’s participation in a Workfare program shall be considered to be employment by the town. The point of this statute is clear: the town is to be treated as the employer instead of the entity for whom the Workfare participant directly performs services. The claimant himself notes that the intent behind the statute was to encourage employers to hire Workfare recipients by relieving them of workers’ compensation liability for the Workfare recipients’ injuries. Consequently, we believe that it would be plainly inconsistent with § 17b-689(g) to hold that the respondent was the claimant’s employer for purposes of the Workers’ Compensation Act.

Although notice of claim was filed within one year of the injury under § 31-294c, Open Hearth Mission was named as the employer, not the City of Hartford. The record discloses no attempt to join the City of Hartford in these proceedings. The claimant has proceeded under the theory that the mission was his employer, which we have already held to be incorrect. The claimant also argues that the mission acted as the agent of the City of Hartford for the purpose of receiving notice. Aside from the fact that the Workfare statute does not create an agency relationship between the respondent and the City of Hartford in this case, the claimant has not shown that the elements of an agency relationship have been satisfied in this case. See Hall v. Peacock Fixture & Electric Co., 193 Conn. 290, 294 (1984). We thus have no factual basis on which to consider the argument that notice to the respondent was legally sufficient to notify the City of Hartford of the claimant’s workers’ compensation claim.

In this case, we do not have jurisdiction to enter a claim against the City of Hartford under § 31-294c(a) because a written notice of compensation has not been filed naming it as a responsible employer. Whether Open Hearth Mission knew of the claimant’s injury is not relevant, because it is exempt from workers’ compensation liability for the claimant’s injury under § 17b-689(g). The true employer, the City of Hartford, is not a party to these proceedings, and no award can be entered against it. Therefore, the commissioner had no choice but to dismiss the claimant’s claim.

The trial commissioner’s decision is affirmed.

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

Workers’ Compensation Commission

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