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Kearse v. Labor Force of America et al.

CASE NO. 3968 CRB-03-99-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 1, 2000

SAMUEL KEARSE

CLAIMANT-APPELLEE

v.

LABOR FORCE OF AMERICA

EMPLOYER

and

UTICA MUTUAL INSURANCE

INSURER

RESPONDENTS-APPELLANTS

and

TAIT MOVING COMPANY

EMPLOYER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Amy E. Johnson, Esq., Law Office of W. Martyn Philpot, Jr., 52 Whitney Avenue, New Haven, CT 06510.

The respondents Labor Force of America and Utica Mutual Insurance were represented by John Cassone, Esq., Avery & Crone, 25 Third Street, Stamford, CT 06905.

The respondent Tait Moving Company was represented by Thomas C. Pellegrino, Esq., Law Office of William H. Clendenen, Jr., 400 Orange Street, P.O. Box 301, New Haven, CT 06502.

The Second Injury Fund was represented by Mee Carolyn Wong, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120, who did not appear at oral argument.

This Petition for Review from the January 8, 1999 Finding and Award of the Commissioner acting for the Third District was heard September 10, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl, and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondent Labor Force of America (“LFA”) and Utica Mutual Insurance have petitioned for review from the January 8, 19991 Finding and Award of the Commissioner acting for the Third District. In that decision the trial commissioner concluded that the claimant entered into a contract of service with LFA which subsequently lent him to Tait Moving Company, and thus found LFA responsible for the claimant’s compensable injury pursuant to § 31-292. In support of their appeal, the appellants argue that there was no contract of service between the claimant and LFA, and therefore § 31-292 does not apply.

The trial commissioner found the following relevant facts. On July 18, 1996, LFA was operating a temporary employment agency in New Haven, Connecticut. LFA was insured by Utica Mutual, which contended that it insured only its clerical staff but not its temporary employees (including the claimant). On July 18, 1996, the claimant entered into an employment contract with LFA. The claimant had contracted with LFA for temporary employment for various periods over the prior eight years. On July 18, 1996, the dispatcher at LFA instructed the claimant to report to an apartment complex to move furniture. The claimant was paid eight dollars per hour by LFA. The claimant reported to the apartment complex at 8:30 A.M. on July 18, 1996, and there were ten other workers provided by LFA at the site.

James Quinn, the president of Tait Moving Company, testified that the apartment complex contacted his company regarding the moving job. He further testified that his company uses temporary employees but does not have any employees of its own. James Quinn provided a rental truck for the moving project, which was to be performed in one day. On July 18, 1996, Teddy Benoit was assigned by LFA to act as the truck driver. The apartment complex representatives provided a list of the units to be moved to James Quinn, who testified that he gave the list to LFA personnel. Representatives of the apartment complex instructed the LFA personnel regarding which apartments were to be moved. The LFA personnel gave their time cards to Mr. Quinn for his signature, and then they brought the time cards back to LFA.

On July 18, 1996, the LFA personnel, including the claimant, completed the moving of two apartment units and took a lunch break at approximately noon. After lunch the LFA personnel began moving the third apartment. The claimant testified that Mr. Benoit, the truck driver, was directing the moving activities. The claimant was in the back of the truck while moving the furniture from one apartment to the next, when the truck was in an accident with a bus at approximately 1:30 P.M. The claimant was injured when some furniture in the back of the truck fell on him. The trial commissioner found that LFA temporarily lent the services of its employees, including the claimant, to Tait Moving Company on July 18, 1996. Accordingly, the trial commissioner concluded that pursuant to § 31-292, the claimant was a lent employee and LFA2 is therefore responsible for the claimant’s workers’ compensation benefits.

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.”

In Minuit v. P.D.F. Construction Company, 16 Conn. Workers’ Comp. Rev. Op. 133, 135, 3145 CRB-3-95-7 (Nov. 26, 1996), the board explained: “Under § 31-292, ‘liability is in all cases imposed upon an employer who has ‘temporarily lent or let on hire’ to another the services of one of his employees.’” Minuit, supra, citing Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 644 (1936). Similarly, in Velez-Ramos v. Labor Force of America, 16 Conn. Workers’ Comp. Rev. Op. 119, 3070 CRB-4-95-5 (Nov. 25, 1996), the board held that “(i)n order for the appellant to succeed in its argument that [the employment agency] lent the claimant’s services to Contract Plating within the meaning of § 31-292, it must first establish that there was an employment relationship between the claimant and [the employment agency]. Id. at 121, (citing Minuit v. P.D.F. Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 1, 4, 1551 CRB-3-92-11 (Oct. 7, 1994)). In the instant case, the trial commissioner specifically found that there was a “contract of service” between LFA and the claimant.

In support of their appeal, the appellants argue that it was error to deny their Motion to Correct in order to indicate that Tait Moving Company had control over the claimant during the moving project. The appellants argue that this correction would mandate a conclusion that Tait Moving Company is the responsible employer. We disagree, as in any scenario where an employee is temporarily lent to another employer, it would likely follow that the borrowing employer would direct the work of the employee. Indeed, our Supreme Court recognized this, and in explaining the history and purpose of § 31-292 the court stated: “The right of direction and control of the employee is no longer the test in determining the question of liability for compensation, but such liability is in all cases imposed upon an employer who has ‘temporarily lent or let on hire’ to another the services of one of his employees.” Lucarelli, supra, at 644.

In the instant case, a great deal of evidence and testimony was introduced regarding the claimant’s relationship with LFA and with Tait Moving Company. A trial commissioner’s fact-finding authority entitles him to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses, even if such evidence seems to be uncontradicted. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). Here, the trial commissioner found that LFA did more than merely process the claimant’s paycheck; that the claimant had a pre-existing relationship with LFA; that the claimant was required to bring his time card to LFA; and that the claimant applied for employment with LFA rather than with Tait Moving Company. Compare Velez-Ramos, supra, and Grebla v. Timely Temps, Inc., 3950 CRB-4-98-12 (Dec. 22, 1999).

We conclude that the evidence in the record amply supports the trial commissioner’s finding that there was a contract of service between the claimant and LFA, and that LFA temporarily lent the claimant to Tait Moving Company. Accordingly, we may not disturb that finding on appeal. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

We will now address the Motion to Submit Additional Evidence filed by the appellants. In that motion, the appellants seek to secure a former unspecified employee of LFA whose testimony will allegedly indicate that there was no employment contract between the claimant and LFA, and that the claimant was never under the direction or control of LFA. The appellants contend that this evidence was not introduced earlier because they did not know that the lent employee statute was at issue.

The admissibility of additional evidence is controlled by Administrative Regulations § 31-301-9 which states that additional evidence will be admitted if such evidence is material and if there were good reasons for failure to present it at the time of the proceedings before the trial commissioner. The evidence must not only be unavailable at the time of the proceedings, but must also be undiscoverable with due diligence. Crouse v. A.A.I.S., Inc., 3797 CRB-3-98-4 (June 16, 1999) (citing Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 550 CRD-7-87 (Dec. 1, 1988)). Normally, if an issue was decided without notice to the parties, we would find a denial of due process and allow a further hearing. See Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (April 12, 1995), appeal dismissed, June 29, 1995, A.C. 14747.

In the instant case, four formal hearings were held and at the fourth formal hearing the trial commissioner granted the appellant’s request for a continuance for two weeks in order to secure additional testimony. (3/31/98 TR. at 90-91). During these formal hearings, the issues presented included the issue of whether the claimant was an employee of LFA or Tait Moving Company. Ample evidence was presented by the parties regarding the claimant’s relationship both with LFA and with Tait Moving Company. Although the appellants contend that they were not aware that the lent employee statute was at issue, nevertheless the elements of this statute (whether the claimant entered into an employment contract with LFA which then lent3 his services to Tait Moving Company) were covered in depth during the formal hearing, and the evidence described in the appellants’ motion would have been relevant even in the absence of § 31-292. Accordingly, the additional evidence having been discoverable at the time of trial and no good reason for the failure to present this evidence at the time of trial having been given, the appellants’ Motion to Submit Additional Evidence is denied.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 We note that by typographical error the Finding and Award is dated January 8, 1998 rather than 1999. BACK TO TEXT

2 The trial commissioner held that the issue of whether Utica Mutual’s contract of insurance covered the claimant was conclusively presumed pursuant to § 31-343. See Coley v. Camden Associates, 3432 CRB-2-96-9 (April 6, 1998). BACK TO TEXT

3 We note that it is undisputed that LFA sent the claimant to work at the job site at the request of Tait Moving Company. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: January 4, 2005

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