CASE NO. 3149 CRB-2-95-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 27, 1996
THOMAS JONES, SR.
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was not represented at oral argument. Notice sent to Ralph Bergman, Esq., 99 Main St., Norwich, CT 06360.
The respondent Charles Lillibridge appeared pro se at oral argument.
The respondent Steven Washilyshyn was represented by Scott Roberts, Esq., 349 Mitchell Street, Groton, P. O. Box 883, Groton, CT 06340.
The Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the June 9, 1995 Finding and Award of the Commissioner acting for the Second District was heard June 14, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the June 9, 1995 Finding and Award of the Commissioner acting for the Second District. The Fund argues on appeal that the commissioner erred by not finding that the respondent Steven Washylishyn was a principal employer pursuant to § 31-291 C.G.S. The pro se respondent has also raised a question regarding the claimant’s eligibility to receive temporary total disability payments as per the commissioner’s award. We affirm his decision on that issue, but reverse his decision on the principal employer matter and remand the case to him for further proceedings.
The claimant suffered a compensable right foot injury on July 16, 1989, leading to disability and medical expenses for which the respondent Charles Lillibridge was found liable. See Finding and Award, May 29, 1990. Lillibridge was not insured for workers’ compensation at the time of the injury. The Second Injury Fund was ordered to pay the award pursuant to § 31-355 C.G.S. on June 18, 1990. The claimant made further claims, which led to a second Finding and Award ordering Lillibridge to pay medical expenses. These bills remained unpaid through the close of the formal hearings in this case; apparently, no order was entered directing the Fund to pay them.
The commissioner found that, according to the record, the claimant recovered $20,000 from the respondent Steven Washylishyn in a third party action stemming from the original injury. The Fund successfully moved to cite in Washylishyn as an additional respondent on August 3, 1992, contending that he was the claimant’s principal employer on the date of the injury. The commissioner noted Lillibridge’s testimony that he had contracted with Washylishyn to cut hay on the latter’s property, bale it, and store it in Washylishyn’s barn at a cost of $1.25 per bale; that he paid his own employees, including the claimant; and that Washylishyn did not tell him when to start and finish the work, or evaluate and inspect the work. He also noted Washylishyn’s testimony that he leased the farm, and merely contracted with Lillibridge to harvest, bale and store the hay without exercising control over how the job got done. The commissioner concluded that the Fund had failed to produce sufficient evidence that Washylishyn was a principal employer under § 31-291. The Fund has petitioned for review from that ruling.
The Fund argues on appeal that the commissioner applied the wrong legal test in determining whether § 31-291 applies in this case. In order to establish liability under § 31-291, three conditions must be satisfied: “(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; and (3) the work must be a part or process in the trade or business of the principal employer.” Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 72 (1986); Phelan v. Soda Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 53, 55, 1583 CRB-3-92-12 (Dec. 20, 1994). Rather than applying that test, the Fund argues that the commissioner considered criteria more properly used in determining whether a claimant is an employee or an independent contractor. See Nelson v. Deb’s Inc., 2228 CRB-3-94-12 (decided June 20, 1996) (the key factor in establishing employee status is the employer’s right to control how work is done).
Whether or not the elements of the principal employer statute have been satisfied in a given case is ordinarily a question of fact for the trial commissioner to decide. Alpha Crane Service, Inc., supra; see also Crochiere v. Board of Education, 227 Conn. 333, 346-48 (1993). The conclusions that the commissioner draws from the facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an illegal or unreasonable inference drawn from the facts. Id., 347. The findings in this case establish that Washylishyn leased the farm on which the claimant was injured, and that he had contracted with Lillibridge to cut hay on that property, bale it, and store it in his barn. Washylishyn exercised no control over how and when the job should be done, nor was he responsible for paying Lillibridge’s employees. Although the latter facts would be pertinent if the issue was the existence of an employer-employee relationship between Washylishyn and either Lillibridge or the claimant, there is no dispute that the claimant was in fact an employee of Lillibridge when he was injured.
The issue instead is whether Washylishyn procured work to be done by Lillibridge as a contractor, which work was a part or process in Washylishyn’s trade or business, and performed on premises under his control. See § 31-291. We agree with the Fund’s observation that the commissioner’s findings seem to be geared more toward the employer-employee test than the principal employer-contractor test. The findings that are on point unequivocally support the legal conclusion that Washylishyn was a principal employer within the meaning of § 31-291. Because we believe that the commissioner incorrectly applied the law in this case, we hold that this matter must be remanded for expanded findings and legal conclusions on the principal employer issue.1
The pro se respondent Lillibridge has also raised several points on appeal, although he did not independently file a petition for review from the Finding and Award. These points all relate to his argument that the claimant was overpaid temporary total disability benefits. Because Lillibridge did not file an appeal, he quite naturally did not file a Motion to Correct. Thus, the commissioner’s findings cannot be altered on appeal. See Eligio v. DiLauro Bros., 2212 CRB-3-94-11 (decided May 24, 1996). Those findings include reference to a medical opinion from Dr. Richeimer that the claimant was totally disabled through September 16, 1991, and again from September 10, 1992 until April 6, 1993. The commissioner also noted that Lillibridge did not present evidence that the claimant was working during the claimed periods of his disability. These findings adequately support the conclusion that the claimant was totally disabled for the periods of time listed above, and we will not disturb them on appeal. Crochiere, supra.
The trial commissioner is reversed with respect to his conclusion on the principal employer issue. The case is remanded for further consideration of that matter, and for consideration of whether Lillibridge should be fined under § 31-288c C.G.S. for failure to carry workers’ compensation insurance.
Commissioners George A. Waldron and Robin L. Wilson concur.
1 We also note that no brief was filed on behalf of Washylishyn, thus reducing his appellate defense to the suggestion at oral argument that the Fund had not taken full advantage of its opportunity to introduce evidence relevant to the principal employer issue at the formal hearings. Because the trial commissioner misapplied the law on this issue, we believe a remand is appropriate even assuming that Washylishyn’s objection has merit. However, we also note that the record contains plenty of evidence relevant to the principal employer issue that was not cited by the commissioner. (See, e.g., Sept. 28, 1993 Tr., pp. 4-5.) BACK TO TEXT