State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Brown v. Freedom Express Delivery et al.

CASE NO. 4584 CRB-6-02-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 14, 2003

BENJAMIN BROWN

CLAIMANT-APPELLEE

v.

FREEDOM EXPRESS DELIVERY

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

FILENE’S HOME STORE

MAY DEPARTMENT STORES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Ralph Russo, Esq. 49 Welles Street, Suite 212, Glastonbury, CT 06033. However, counsel did not participate in the proceedings before the board.

The respondent Freedom Express Delivery was unrepresented and did not appear at oral argument.

The respondent Filene’s Home Store was represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent Second Injury Fund was represented by Nancy Sussman, Esq., Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 5, 2002 Finding and Award of the Commissioner acting for the Sixth District was heard May 30, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, Filene’s Home Store [hereinafter “Filene’s”], has appealed from the November 5, 2002 Finding and Award of the Commissioner acting for the Sixth District. We reverse the decision of the trial commissioner.

The pertinent facts are as follows. The claimant, Benjamin Brown, was an employee of respondent Freedom Express on or about January 23, 1998, the date of injury in this case. Findings, ¶ 1. Pursuant to the October 23, 2000 Finding and Award the claimant sustained a compensable injury on January 23, 1998 which arose out of and in the course of his employment with respondent Freedom Express. Findings, ¶ 2. Mr. Brown reported to the Filene’s Distribution Center in Manchester, Connecticut because Freedom Express had its entrance and desk/office there. Findings, ¶¶ 8(b), 8(c). The claimant was hired by Freedom Express to perform deliveries for Filene’s. Findings, ¶ 8(d). The parties stipulated that on the date of the injury Mr. Brown was delivering a sofa to a private residence in New Hartford, Connecticut. The walkway of the residence was not properly cleared of snow. The claimant slipped and fell on a piece of wood that was covered with snow and as a result sustained a severe fracture to his right ankle. Findings, ¶ 3. Pursuant to the October 23, 2000 award respondent Freedom Express was found to be uninsured on the date of Mr. Brown’s injury and the Second Injury Fund accepted liability under § 31-355 C.G.S. Findings, ¶ 5.

At issue at the May 20, 2002 formal hearing before the trial commissioner was whether Filene’s was a principal employer and therefore liable to the Second Injury Fund for compensation benefits. Findings, ¶ 6. At the hearing Filene’s objected to a finding of liability against them for several reasons. Firstly, it argued that the claim was time-barred under the statute of non-claim because Filene’s was never given notice of the claim within the one-year time period required. Findings, ¶ 10. Secondly, it argued that Filene’s is not a principal employer under § 31-291 C.G.S. Filene’s specifically contended that the claimant’s employment as a delivery person was not part and process of Filene’s trade or business. Filene’s also maintained that Filene’s had no control of the premises where the claimant’s injury occurred. Findings, ¶ 12.

On November 5, 2002 the trial commissioner made his findings and award, holding that respondent Filene’s was the claimant’s principal employer, that Filene’s non-claim defense was rejected, and ordering Filene’s to accept liability for the claimant’s injury pursuant to Chapter 568. Findings, Order ¶ 1. Filene’s filed a motion to correct the commissioner’s Finding and Award dated November 5, 2002. This motion to correct was granted in part by the trial commissioner on December 9, 2002. The corrections which were granted changed the findings in the following ways: A paragraph was added to reflect the fact that Filene’s neither owned nor controlled the private residence where the injury took place; and paragraphs were added to reflect the fact that Filene’s was not served with proper notice under § 31-294c and that the claimant failed to file a notice with the Workers’ Compensation Commission noting a claim against Filene’s. However, the portions of Filene’s motion to correct addressing the commissioner’s orders regarding their liability were denied.

The ultimate issues presented for review by the appellant-respondent Filene’s are as follows: Whether the trial commissioner erred in denying portions of its motion to correct, specifically whether the commissioner should have corrected his findings to reflect the following: (1) Filene’s was not properly served with notice of the claim and therefore the claim was time-barred, (2) the injury did not occur on or about a premises controlled by Filene’s, and (3) Filene’s is not the principal employer and therefore should not be liable for compensation benefits.1

The primary issue in this appeal is whether Filene’s was the claimant’s principal employer and therefore liable for compensation benefits. The applicable statute, § 31-291 C.G.S., states in relevant part as follows:

“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 the 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.”

The purpose of § 31-291 is 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 at 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.” Phelan v. Soda Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 53, 1583 CRB-3-92-12 (December 20, 1994).

Section 31-291 contains a three-part test used to determine whether a respondent is a principal employer within the meaning of the statute. In order to be liable for workers’ compensation benefits (1) the principal employer must procure any work to be done wholly or in part for him by a contractor or through him by a subcontractor, (2) the work must be part or process in the trade or business of the principal employer, and (3) the work must be performed in, on, or about a premises under control of the principal employer. Crisanti v. Cremo Brewing Co., 136 Conn. 529, 531 (1950); Mancini v. Bureau of Public Works, 167 Conn. 189, 197 (1974); Jones v. Charles Lillibridge, 16 Conn. Workers’ Comp. Rev. Op. 143, 3149 CRB-2-95-6 (November 27, 1996).

“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.” Id. “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.

The trial commissioner’s finding under the first part of the § 31-291 test is uncontested. There was a contractual relationship between Freedom Express and Filene’s for Freedom Express to deliver furniture for Filene’s. Findings, ¶ B. Therefore, the requirement that the principal employer procure any work for him to be done wholly or in part for him by a contractor or through him by a subcontractor has been met. Although Filene’s disputes whether the second part of the test has been met, the commissioner made a factual finding that based on the contract between the parties, the claimant’s job was part and process of the trade or business of Filene’s. Findings, ¶ D. Logically, the delivery of furniture would seem part and process of the trade of selling furniture. Respondent Filene’s has not put forward any reason that would lead this review board to determine that this finding was without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. Therefore, the commissioner’s finding regarding this issue will stand. Kish v. Nursing and Home Care, 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The third part of the principal employer test requiring that the work the claimant performed was in, on or about premises under the control of the principal employer is the crucial issue in this case. The respondent Second Injury Fund argues that the claimant’s activities were controlled by Filene’s through their contract with Freedom Express. The Fund argues that since the contract in evidence indicated that Filene’s was overseeing and directing Freedom Express’s work, including the claimant’s, there was sufficient evidence of control over Mr. Brown to designate Filene’s as his principal employer. The Fund argues that evidence of ownership of the premises is not the only means of establishing control, citing Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60,73-74 (1980). According to the Fund, the fact that Filene’s did not own or control the premises where the injury occurred is not fatal to a finding of principal employment. However, the case law on the ‘control of the premises’ prong of the principal employment test leads us to a different conclusion.

The term “control” in the statute has been interpreted by case law to have a specific meaning. Alpha Crane supra, 73; Wilson v. Largay Brewing Co., 125 Conn. 109, 111 (1939); Hebert v. RWA, Inc., 48 Conn. App. 449, 454 (1998) cert. denied, 246 Conn. 901 (1998); Crisanti, supra, 535. The term control is descriptive and is used to mean “owned by him or in his possession.” Id. “The emphasis is upon limitation of the area within which the accident must happen rather than upon actual control of the elements which caused the accident.” Id.

The purpose of the condition that the claimant’s work is in, on or about premises under the control of the principal employer is to allow recovery only for accidents in a work area that the principal employer could prevent or limit via adequate supervision and control. Alpha Crane, supra, 74; Bates v. Connecticut Power Co., 130 Conn. 256, 259 (1943). An examination of the facts of precedent case law is helpful to our analysis. Wilson, supra, is a case that involves a brewing company which employed a subcontractor to erect a sign advertising its product. The brewing company had an agreement with a package store that allowed the brewing company to enter the premises to hang their sign. The claimant, who worked for the subcontractor, was injured while hanging the sign. The court found that the brewing company’s right to hang a sign at the premises was at most a license to enter, erect the sign and make repairs to the sign. The court found that the brewing company could do nothing on that premises except what it might do to execute this license. Therefore the court found that the brewing company was not sufficiently in control of the premises as to make it liable under the principal employer statute. Wilson, 112, 113. Similarly, in this case Filene’s had no right to enter the private residence or take any action there other than the one task of delivering the furniture.

Hebert, supra, is the case the Second Injury Fund primarily relies on to bolster the proposition that there was sufficient control of the premises in this case. However, Hebert is factually distinguishable. In Hebert, the claimant was employed by RWA, a company who was subcontracted by Hansen, a general contractor, to install a roof at a private restaurant. The Hebert court found that a representative of Hansen visited the job site daily, inspected the on-going work, and asked RWA to address certain problems that arose as the roof was being installed. Hebert, supra, p. 454. The Hebert court found that although Hansen did not own the restaurant where the roof was installed, Hansen asserted enough control over the area through their actions and appearance at the site as to render them in control of the premises under § 31-291. Id. In the case at bar, Filene’s had no control of the premises. In fact, no agent of Filene’s had ever entered the premises where the accident occurred.

In Bates, supra, the claimant was employed by a subcontractor who was hired to erect poles on a public highway by a utility company. The Bates court found that the utility company was charged with maintaining continuous supervision and physical control of the electricity distributing system, including the poles, for the purpose of rendering them safe and making needed repairs, painting and replacement. Id., 257. However, the court found that the public highway where the pole struck the claimant could not be an area under the control of the utility company for the purpose of the principal employment statute because the utility company did not have the authority to manage or control a public highway. Id., 261. The court found that word “premises” in the statute refers to some definite place or land. Id. The Bates court also reiterated the point that where the premises are private property belonging to others, it is generally not under the control of the principal employer. Id., 260 citing Wilson, supra, and Downing v. Stamford Community Chest, 125 Conn. 728 (1939) (where claimant was injured while hanging a sign for a charitable organization on a public street, the charitable organization was found not to be the principal employer). The Bates court pointed out that an employer would only be liable for an accident on premises that it did not own if it exerted actual control of the premises through its actions. Id., citing Palumbo v. Fuller Co., 99 Conn. 353, 364 (1923) (a contractor was held to have sufficient control of excavation work as to be deemed the principal employer). In the instant case, the definite place where the accident occurred was premises over which Filene’s exerted no ownership or control.

Although there is no case on point which specifically deals with a claimant becoming injured while delivering goods to a third party, the Crisanti case demonstrates a scenario in which an entity that hires another to transport its goods could be found to be a principal employer. In Crisanti, the claimant was an employee of a transportation company. He was injured while loading the respondent company’s bottles into the transportation company’s truck. The vehicle was backed up to respondent’s loading platform at its own plant. The respondent was ultimately found to be in control of the premises, because the accident occurred at the plant which it owned. The bottle company argued that it was not liable, as the actual accident occurred inside the truck which the transportation company owned. However, the court found that the truck was not real estate and therefore could not be considered the premises. Id., 536. “The premises upon which the plaintiff was when he was injured were the land under the control of the defendant.” Id. The instant case is distinguishable from Crisanti in that the injury did not occur at Filene’s warehouse, but premises that the claimant went to after leaving the distribution center. Our case law supports the proposition that an employer should only be held liable as a principal employer for accidents that he might have foreseen or prevented. Alpha Crane, supra, 74; Bates, supra, 259.

In this case the trial commissioner granted respondent Filene’s motion to correct and added the following paragraph to his findings: “The private residence on which claimant was injured was neither owned nor controlled by Filene’s Home Store or May Department Stores.2” In adding this finding, as a matter of law, respondent Filene’s could not be in control of the premises within the meaning of § 31-291. Therefore, we must reverse the November 5, 2002 Finding and Award of the Commissioner acting for the Sixth District.

Commissioners James J. Metro and Howard H. Belkin concur.

1 Although not dealt with in their appellate brief, at oral argument respondent Filene’s argued that this action should be barred as untimely under § 31-294c because Filene’s was never provided proper notice under the statute. Section 31-294c states in relevant part: “Notice of a claim for compensation may be given to the employer or the commissioner . . .” (emphasis added). We need not reach this issue in light of our ultimate conclusion in this case. span class="back">BACK TO TEXT

2 Filene’s Home Store is a division of the May Department Stores Company. Respondent’s Exhibit 2. span class="back">BACK TO TEXT

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