CASE NO. 3859 CRB-04-98-07
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 27, 1999
CARL PUCHALA, JR.
CONNECTICUT ABATEMENT TECHNOLOGIES
NO RECORD OF INSURANCE
PRAIRIE LAND CONTRACTING
TRAVELERS PROPERTY & CASUALTY
CHERRY HILL CONTRACTORS
VALLEY FORGE INSURANCE CO./CNA
ENVIRONMENTAL CONSULTING GROUP, INC.
LIBERTY MUTUAL INSURANCE CO.
SECOND INJURY FUND
The claimant was not represented at oral argument. Notice sent to Robert Sheldon, Esq., Tremont & Sheldon, 64 Lyon Terrace, Bridgeport, CT 06604.
The respondent Connecticut Abatement Technologies was represented by Stacey M. Daves-Ohlin, Esq., Durant, Nichols, Houston, Mitchell & Sheahan, 1057 Broad Street, P.O. Box 351, Bridgeport, CT 06601-0351.
The respondents Prairie Land Contracting and Travelers Property & Casualty were represented by Frank Ancona, Esq., Sizemore Law Offices, Crossroads Corporate Park, 6 Devine Street, First Floor, North Haven, CT 06473.
The respondents Cherry Hill Contractors and Valley Forge Insurance Co./CNA were represented by Howard Levine, Esq. and Elizabeth Saccardi, Esq., Law Offices of Grant H. Miller, Jr., 29 South Main Street, Suite 310N, West Hartford, CT 06107.
The respondents Environmental Consulting Group and Liberty Mutual Insurance Co. were not represented at oral argument. Notice sent to Steven Howe, Esq., Law Offices of Robert M. Brennan, One Century Tower, 265 Church Street, Suite 802, New Haven, CT 06510-7014.
The Fund was not involved in the issues on appeal, and therefore did not participate in oral argument. Notice sent to Office of the Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the July 10, 1998 Finding and Award of the Commissioner acting for the Fourth District was heard February 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
JESSE M. FRANKL, CHAIRMAN. The respondent Connecticut Abatement Technologies, Inc. has petitioned for review from the July 10, 1998 Finding and Award of the Commissioner acting for the Fourth District. It argues on appeal that the trier erred by finding that it, and not the respondent Prairie Land Contracting, was the claimant’s employer, and also argues that the trier erred by refusing to address the § 31-291 C.G.S. “principal employer” issue at the formal hearings. We affirm the trial commissioner’s decision, and remand the case for further proceedings.
The trier found the following facts. The claimant was hired by Connecticut Abatement Technologies, Inc. (CAT) in May 1995. He verbally contracted with Bruce Black, the director of operations for CAT, to perform asbestos removal, for which the claimant has received special training and certification. Black is also the owner of the respondent Prairie Land Contracting (Prairie), a sole proprietorship engaged in demolition and land contracting work. CAT and Prairie share the same business address, and Black is individually responsible for securing jobs for both companies. Sometimes, they are involved simultaneously on the same project, with each having contracted to perform different tasks.
The claimant worked between 25-40 hours per week for CAT, and was paid by check at a varying wage rate. Nearly all of these checks were drawn from the CAT bank account, except for two or three checks drawn from the Prairie account during June 1996, when the CAT bank account lacked sufficient funds to cover the claimant’s wages. The claimant did not receive a tax form from Prairie for the year 1996; from CAT, on the other hand, he received a W-2, a wage and tax statement form, and a form 1099-MISC. The claimant used specialized tools to perform the abatement work for CAT, including protective suits and respirators, which were provided by the company. Between May 1995 and September 30, 1996, the claimant’s job entailed about 90% asbestos removal and 10% miscellaneous duties, including painting. Whenever the claimant performed demolition work, it was done in conjunction with and in order to facilitate the job of asbestos removal. Every morning, Black would prescribe the claimant’s duties for the day once he arrived at work.
On September 30, 1996, the claimant reported to work at the CAT office and packed the company van with the equipment he needed that day. He and two co-workers drove to a building owned by United Illuminating (UI), where they were to perform demolition work and asbestos removal. Their task was to demolish the skylights in the roof and the parapet walls on the building’s exterior, and to remove all of the asbestos in the roof. The trio of workers labored for several hours that morning. The claimant had just completed the removal of asbestos material from a skylight on the roof, and had begun working on a second skylight, when a co-worker suggested that the claimant obtain additional tools to aid in the completion of the job. As the claimant was walking over to the hatchway to descend from the roof, a portion of the structure collapsed, and he fell about fifteen feet onto a concrete floor, badly fracturing several bones.
At the time of this injury, CAT did not have workers’ compensation insurance as required by § 31-284(b), while Prairie insured its workers’ compensation liability with the respondent Travelers. Prairie, not CAT, paid benefits to the claimant without prejudice as a result of his injuries, which left him totally disabled through April 7, 1997, and resulted in moderate permanent partial disabilities to his wrists, pelvis and low back, as well as over $40,000 in medical bills. The trier found, however, that Prairie’s insurance application represented that the company was not involved in the business of demolition.
At the formal hearing, Black testified that the claimant was sent to the UI job site as an employee of Prairie on September 30, 1996. He said that another CAT employee, Sam Patrick, had been instructed to perform the asbestos removal, while the claimant and a second Prairie employee were directed to do the demolition work. Black produced no invoices or written contracts regarding the UI job, but stated that Prairie would have had to be the company paid for the UI contract, because no notice was sent to the state of Connecticut, as required by law for any job involving asbestos abatement. Black also stated that any employee who worked for both CAT and Prairie during a given year would receive a W-2 form and a 1099 form from both employers. As noted above, Black did not produce any such forms to show that the claimant worked for Prairie during 1996.
The trial commissioner concluded that Black hired the claimant to perform asbestos and lead abatement work for CAT, which company was the claimant’s employer on September 30, 1996. She ordered CAT to accept liability for the claimant’s compensable injuries. She also ordered CAT to reimburse Travelers for the amount it paid to the claimant without prejudice, and stated that there would be a credit for the payments that Travelers made to the claimant. She then levied a $5,000 fine against CAT under § 31-288(c) for failing to maintain workers’ compensation insurance, and explicitly dismissed Black’s claim that the claimant was employed by Prairie on the date of injury. With respect to a potential § 31-291 claim against a principal employer, the trier ruled that the issue was not before her, and stated that such a claim “shall remain open and subject to further hearings as the parties may reasonably request.” It is from that decision that the respondent CAT has appealed.
In determining whether an employment relationship exists between a claimant and a putative employer, the trier of fact must decide whether the putative employer had the right to control the means and methods used by the worker in the performance of his job at the time of the injury. Hanson v. Transportation General, Inc., 245 Conn. 613, 620 (1998). This decision is dependent upon the subordinate facts found by the trial commissioner, which in turn depend upon her assessment of the credibility of the evidence that the parties offer. An appellate tribunal cannot disturb the conclusions drawn by the commissioner unless they result from an incorrect application of the law to the facts, or an unreasonable inference drawn from them; similarly, we may not disturb the factual findings unless they are wholly without evidence to support them, or unless they omit undisputed material facts. Id., 623; Jones v. Lillibridge, 16 Conn. Workers’ Comp. Rev. Op. 143, 145, 3149 CRB-2-95-6 (Nov. 27, 1996); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).
Here, the challenge in identifying the claimant’s employer is in separating the two businesses that were essentially managed by Bruce Black, as the employees of each company were under his direction and control. After he and the claimant both testified, the trial commissioner concluded that the claimant was an employee of CAT rather than Prairie. The transcript of the claimant’s testimony strongly supports this conclusion. He stated that he was hired by Black to work for CAT as an asbestos removal specialist, explained that his demolition work was incidental to the process of asbestos removal, and described his work activity of September 30, 1996 as ripping out asbestos from the roof flashing. Feb. 6, 1998 Transcript, p. 46-50. He also explained that he did work other than asbestos removal only 10% of the time, and that Black would offer him this employment when there were no asbestos jobs to perform. Id., 54. However, the claimant still named CAT as the only company he worked for during 1996. Id., 62.
The trier was certainly entitled to credit this testimony, and to base her factual findings upon it. The fact that Black considered the claimant to have been working for Prairie on the date of injury was simply a matter of his own opinion, as he brought no documentary proof that the claimant was an employee of Prairie either at the time of the accident or earlier. Id., 85. The trial commissioner was certainly not required to rely upon his unsubstantiated explanation of the facts. Indeed, where Black had the right to simultaneously control the employees of both CAT and Prairie, it was reasonable for the trier to rely upon the wage statements and tax forms that were in evidence to help her decide which of the two companies the claimant was working for. See Dupree v. Masters, 13 Conn. Workers’ Comp. Rev. Op. 316, 1791 CRB-7-93-7 (April 25, 1995), affirmed, 39 Conn. App. 929 (1995) (per curiam). Thus, her conclusion that the claimant was an employee of CAT must stand on appeal.1
The appellants also contend that the trier erred by failing to address the issue of whether either of the general contractors on the UI project was a principal employer under § 31-291.2 The trier explicitly stated in both her Finding and Award and in the transcript that she was not allowing either party to address the principal employer issue, as she preferred instead to leave it open for future hearings. Findings, ¶ 95; Transcript, supra, p. 5. She stated that the only issues that she would consider at the formal hearing were the identity of the claimant’s immediate employer at the time of his injury, and the extent of his disability. Id.
Pursuant to her factfinding authority under § 31-298, the trier was entitled to withhold discussion of § 31-291 at the hearing, especially considering that the Second Injury Fund did not attend the proceedings below. Walton v. Hector Trucking, 13 Conn. Workers’ Comp. Rev. Op. 239, 1835 CRB-1-93-9 (April 13, 1995), which the appellant cites in its brief, does not purport to declare that a trial commissioner may not bifurcate proceedings regarding the applicability of § 31-291. That case merely held that the trier there should have been willing to schedule a hearing on the principal employer issue where the conditions of the statute may have been satisfied. Id., 240. In the instant case, now that CAT has been found to be the employer, and the Fund may be liable to pay benefits under § 31-355(b), hearings may be held to determine whether or not a principal employer can be identified under § 31-291.
The trial commissioner’s decision is hereby affirmed. This matter is remanded to the trier for the scheduling of a hearing on principal employer liability under § 31-291.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
1 Though the issue was not raised by either party, Black’s alleged occasional use of the claimant as an employee of Prairie would appear to implicate the “lent employee” statute, § 31-292. BACK TO TEXT
2 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