CASE NO. 4951 CRB-7-05-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 26, 2006
NO RECORD OF INSURANCE
NO RECORD OF INSURANCE
JEFFREY FARNUM d/b/a NEW ENGLAND REALTY
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by Brendan Canty, Esq., Kerin & Canty, 193 East Avenue, Norwalk, CT 06855. However, the proceedings on appeal did not involve the claimant. Therefore, counsel did not appear or file a brief.
The respondent-employer, Marino’s Painting did not appear at oral argument.
The respondent-employer William Gallagher was represented by William T. Blake, Jr., Esq., Harlow, Adams & Friedman, P.C., 300 Bic Drive, Milford, CT 06460.
The respondent-employer, Jeffrey Farnum d/b/a New England Realty did not appear at oral argument.
The respondent Second Injury Fund was represented by Lisa Guttenberg Weiss, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the May 24, 2005 Finding and Award of the Commissioner acting for the Seventh District was heard November 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.
JOHN A. MASTROPIETRO, CHAIRMAN. This appeal concerns an injury sustained by a painter who fell from a ladder during a home renovation project. The respondent William Gallagher d/b/a Gallagher Construction herein appeals from a Finding and Award of the Commissioner acting for the Seventh District finding that it was a “principal employer” as defined in § 31-291 C.G.S. and therefore responsible for the claimant’s injuries. We affirm the commissioner’s decision.
Following formal hearings on June 1, 2004, August 24, 2004 and January 24, 2005 the commissioner found the following facts. The claimant, Angel Samaoya, was employed on June 30, 2003 as a painter for Marino’s Painting. Findings, ¶ 1. On that date, he fell off a ladder while painting at a house renovation project at 457 Springwater Lane, New Canaan. Findings, ¶ 2. He suffered an injury to his foot and was totally disabled for approximately 33 weeks. Findings, ¶¶ 3-4. He filed a timely Form 30C against Marino’s Painting on July 11, 2003 and a timely Form 30C against William Gallagher on October 8, 2003, asserting they were his employers. Findings, ¶¶ 5 and 8. Marino’s Painting did not contest the claim and does not have workers’ compensation insurance. Findings, ¶¶ 6-7. Gallagher did not contest the claim and asserted there was no jurisdiction. He also does not have workers’ compensation insurance. Findings, ¶¶ 9-10.
The town records of New Canaan state that Gallagher Construction was the general contractor for 457 Springwater Lane. Findings, ¶ 13. The claimant stated that Mr. Gallagher instructed Mr. Marino as to what was to be done and gave him checks. The commissioner found Mr. Gallagher had paid Marino Painting. Findings, ¶¶12, 16. The commissioner found that the three prong test under § 31-291 C.G.S. to ascertain if one was a “principal employer” had been met by both Gallagher and the property’s owner, Jeffrey Farnham, in either their individual capacity or acting via their business entities. Findings, ¶¶ C-D. He determined all principal employers were liable for any Chapter 568 benefits not paid by Marino Painting. Findings, ¶ E.
The commissioner issued his Finding and Award on May 24, 2005. A Motion to Correct was not filed by the respondent. Therefore, we will deem all facts found by the Commissioner as conclusively admitted, and are limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4; Soto-Velez v. Michael’s Chrysler-Plymouth, 4628 CRB-2-03-2 (February 3, 2004); Kelley v. Venezia Transport Services, 4184 CRB-2-00-2 (March 8, 2001); Crochiere v. Enfield Board of Education, 227 Conn. 333, 347 (1993).
In reviewing the legal basis for determination of “principal employer” the scenario herein falls squarely within the fact pattern as outlined by the Appellate Court in Hebert v. RWA, Inc., 48 Conn. App. 449 (1998). In Hebert, the claimant was injured when working for a subcontractor hired by the defendant. “There are three main elements involved in this statute. ‘One, the relation of the principal employer and contractor must exist in work wholly or in part for the former. Two, the work must be in, on or about premises controlled by the principal employer; and three, the work must be a part or process in the trade or business of the principal employer.’ Mancini v. Bureau of Public Works, 167 Conn. 189, 193 (1974).” Hebert. Id., 453.
Given the factual findings of the commissioner, each of the three prongs are satisfied. The commissioner credited testimony of the claimant that Marino acted at the direction of Gallagher, and found Marino had been paid by Gallagher. The official records of the town of New Canaan state that Gallagher was the general contractor at 457 Springwater Lane, and as held in Hebert, id. and Pacileo v. Morganti Inc., 10 Conn. App. 261 (1987), general contractors are deemed to “control” a job site for the purposes of this statute. The respondent admits that it was hired to perform framing at the premises June 1, 2004 Transcript, p. 89. Assuming arguendo, respondent was limited to acting as a framing contractor it still was a reasonable conclusion that painting was “a part or process” of that work. See Pacileo, id., 264 and Hebert, supra, 454-455.
The respondent raises two major issues on appeal. The first issue is the legal argument that the trial commissioner’s Finding and Award was “void for uncertainty” as he determined there were more than one “principal employer.” The respondent cites no Connecticut legal authority for this position. To the contrary, Palombo v. Fuller Co., 99 Conn. 353 (1923) provides for the potential of multiple “principal employers” under our statute, “the terms of the section do not countenance such a limitation upon its use; whenever an injured employee of a subcontractor receives a compensable injury he may pursue his remedy against his immediate employer or any one or more principal employers as thus defined, . . . .” Palombo, Id., 365 (emphasis added). As Palombo is binding precedent in Connecticut, the respondent’s legal argument fails.
The other claim is that the trial commissioner lacked evidence to find that Gallagher was a principal employer. As noted, this was a finding of fact, which cannot be reviewed as no Motion to Correct was filed. Even if one had been filed, we would uphold the trial commissioner. Essentially, the respondent contends the trial commissioner should not have given credence to the official records of the town of New Canaan and instead should have accepted his denial of responsibility at the formal hearing.1 “As the finder of fact the trier has the sole authority to decide what evidence is reliable and what is not, . . . .” Byrd v. Bechtel/Fusco, 4765 CRB-2-03-12 (December 17, 2004). The conclusions a trial commissioner draws from the facts must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Tovish v. Gerber Electronics, 32 Conn. App. 595, 603 (1993). We cannot second-guess the trial commissioner’s factual determination under these circumstances.
The commissioner’s Finding and Award is herein upheld. Insofar as any benefits due the claimant remain unpaid pending appeal, interest is awarded as required by § 31-301c(b) C.G.S.
Commissioners Stephen B. Delaney and Michelle D. Truglia concur.
1 Gallagher Construction is listed as General Contractor on four separate town documents: a Zoning Permit application dated October 21, 2002 and approved October 30, 2002, a Building Permit application dated October 23, 2002, a Building Permit dated December 2, 2002 and a Certificate of Occupancy dated November 24, 2003. Respondent’s Exhibits 3, 5 and 6. BACK TO TEXT