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Oliveira v. Antonio Braga d/b/a Braga Painting a/k/a Braga Painting & Drywall, Inc. et al.

CASE NO. 5209 CRB-7-07-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 20, 2008

SILVIO OLIVEIRA

CLAIMANT-APPELLEE

v.

ANTONIO BRAGA D/B/A BRAGA PAINTING A/K/A BRAGA PAINTING & DRYWALL, INC.

EMPLOYER

and

TOLL BROTHERS/WILTON HUNT

EMPLOYER

and

ONEBEACON INSURANCE

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Guy L. DePaul, Esq., Jones, Damia, Kaufman, Borofsky & DePaul, 301 Main Street , P.O. Box 157, Danbury, CT 06813-0157. However, the proceedings on appeal did not involve the claimant. Therefore, counsel did not appear or file a brief.

The respondent-employer Antonio Braga d/b/a Braga Painting a/k/a Braga Painting & Drywall, Inc. did not file a brief or appear at oral argument.

The respondents Toll Brothers/Wilton Hunt and OneBeacon Insurance were represented by Thomas A. Mulligan, Jr., Esq., McNamara and Kenney, LLC, 815 Main Street, 2nd Floor, Bridgeport, CT 06604.

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

This Petition for Review from the March 1, 2007 Finding and Award of the Commissioner acting for the Seventh District was heard January 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Toll Brothers and OneBeacon Insurance, have appealed from the March 1, 2007 Finding and Award of the Commissioner acting for the Seventh District.1 In that Finding and Award, the trial commissioner concluded that the respondent Toll Brothers was the principal employer at the job site where the claimant sustained compensable injuries. Accordingly, pursuant to § 31-291 C.G.S., the respondents were held liable for compensable injuries suffered by the claimant on March 13, 1996.

The pertinent facts in this matter are as follows. The claimant while in the employ of Braga Painting suffered serious injuries when he fell from scaffolding on March 13, 1996. The claimant is a native of Brazil and does not speak English. The claimant’s entitlement to Workers’ Compensation benefits was determined in the trial commissioner’s July 29, 2005 Finding and Award.2 In his March 1, 2007 Finding and Award the trial commissioner found Braga Painting was uninsured for its Workers’ Compensation liability. Ultimately, the Second Injury Fund [hereafter the Fund] assumed liability for payments to the claimant. However, the Fund initiated proceedings seeking to establish the respondent Toll Brothers as the principal employer at the location when and where the claimant sustained injuries to his back, right pelvis and right leg.

The law which is to be applied in the instant matter is § 31-291 C.G.S. Section 31-291 C.G.S. provides in pertinent part:

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.

Thus, in order for the respondents to be held liable, evidence must be presented from which the trial commissioner could reasonably conclude that the putative principal employer procured work to be done by a subcontractor and the work to be done was part of the trade or business of the principal employer, and was performed on premises under the control of the principal employer. Integral to the establishment of the respondents’ liability under § 31-291 C.G.S. is a finding that the claimant’s compensable injury occurred on a job site under the control of the principal employer and while doing work procured by the respondent Toll Brothers.

In his March 1, 2007 Finding and Award the trial commissioner determined that the respondent Toll Brothers was the general contractor and the principal employer at the Wilton Hunt construction site at the time of the claimant’s injury. The Fund presented evidence from the Town of Wilton’s records reflecting that the respondent had secured a number of building permits for that location. However, nowhere in the evidentiary record do we find support for a conclusion that the claimant sustained his injuries at the Wilton Hunt job site or that his employer, Braga Painting, had a relationship with the respondent to perform work at that site.

All that was established is that the claimant fell from scaffolding, was transported home and ultimately brought to Bridgeport Hospital and treated for his injuries. At the hospital it was discovered the claimant had a tumor in his kidney.3 The claimant was treated for his various medical problems on various occasions, until 1997. In 1997 the claimant returned to Brazil and did not receive any treatment for his injuries. He again returned to the United States in 2002.

While the Form 30C filed on behalf of the claimant identified the town of injury as “Wilton, CT” the claimant’s testimony before the trial commissioner stated that he was injured in Connecticut and in a town that sounds like Newtown. See July 29, 2005 Finding and Award, ¶ 2. In their Motion to Correct the trial commissioner’s March 1, 2007 Finding and Award, the appellants sought to correct the commissioner’s finding in ¶ 22. In ¶ 22 the commissioner found, “Toll Brothers had procured Antonio Braga, et al, to do painting, sheet rocking and other work at the project and the Claimant was injured while in the employ of Braga Painting.” It is their contention that the finding is unsupported by the evidence. They therefore argue that the trial commissioner’s determination that the respondent was a principal employer and liable pursuant to § 31-291 C.G.S. is in error. We agree.

We note that the record contains testimony and evidence concerning building permits issued by the Town of Wilton for the Wilton Hunt job site to the respondent Toll Brothers but it is devoid of any evidence probative of the claimant’s injury occurring on the Wilton Hunt job site or the existence of a relationship between the claimant’s employer and the respondent Toll Brothers.

The appellee contends that support for the trier’s findings and conclusion is found in (1) the testimony of the claimant, (2) the testimony of the secretary to the Town of Wilton’s Building department and evidence of building permits issued to the respondent Toll Brothers for construction at the Wilton Hunt site. We agree that the building permit records and the testimony proffered in relation to those records would reasonably support an inference that Toll Brothers was a principal employer at that location at the time of the claimant’s injury. The testimony, however, that the appellee points to in support of a conclusion that the claimant sustained his injury at the Wilton Hunt job is somewhat lacking. The testimony of the claimant is summarized in the footnote below.4

We are generally disinclined to disturb the conclusions drawn by a commissioner. In fact we will not disturb the conclusions of the commissioner unless they result from a misapplication of the law, are without evidence or based on unreasonable or impermissible factual inferences. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988). We believe that the instant matter is an instance where we must overturn the commissioner’s conclusion.

We do not think that the claimant’s testimony can be reasonably viewed as supporting any of the conclusions necessary for a determination that the respondent Toll Brothers was a principal employer in this matter. Having concluded the trier’s finding that the respondent Toll Brothers is a principal employer cannot stand, we reverse the March 1, 2007 Finding and Award of the Commissioner acting for the Seventh District.

Commissioners Ernie R. Walker and Charles F. Senich concur.

1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 The trial commissioner took administrative notice of the July 29, 2005 Finding and Award and incorporated it by reference. See March 1, 2007 Finding and Award ¶ 2. BACK TO TEXT

3 No claim was presented that the claimant’s kidney issues were related to this work related injury. BACK TO TEXT

4 Testimony from the July 27, 2006 Transcript, pp. 64-68 in pertinent part:

[ATTORNEY WIDEM]

Q: Thank you. Mr. Oliveira, during the course of your testimony before Commissioner Metro on February 3rd of 2005, I believe you testified that as of March 13th, 1996, you were working on a multi-unit new condominium project; is that correct?

[MR. OLIVEIRA]

A. Where I got into the accident.

Q. I’m sorry?

A. I got into an accident at a condominium in Connecticut.

Q. Was it new construction?

A. Yes, various, various. It was condominiums, new houses.

Q. And again, in your testimony before Commissioner Metro on February 3rd of 2005, you testified that as of March 13th, 1996, Braga Painting was engaged to work on the painting, taping, and sheetrocking of that new construction project; is that correct, sir?

A. Yes.

Q. As of March 13th of 1996, was Braga Painting doing any other kind of work on that condo project?

A. Various.

Q. Various?

A. Yes.

Q. Would you describe the type of work that Braga Painting was doing on the condominium project as of March 13th, 1996?

A. Taping and painting.

Q. While you were working on the project on March 13th of 1996, did you observe any employees from Toll Brothers on the construction site?

A. There, there were 16 of us.

ATTORNEY MULLIGAN: I can’t hear him.

BY ATTORNEY WIDEM:

Q. I’m sorry, 16 of who?

A. From Braga Painting.

Q. Did you see any employees of Toll Brothers?

A. I was with two.

Q. I’m sorry, you were with two what?

A. I was with two employees from Braga Painting when I got into the accident.

Q. So if I understand you correctly, there were 16 employees from Braga Painting working on the project in March of 1996?

A. Yes.

Q. Did you observe any employees of Toll Brothers on the project in March of 1996?

A. I just saw the two that were with me because they would divide themselves amongst the other locations.

THE COMMISSIONER: Attorney Widem, maybe you could ask him some questions, if he knows who Toll Brothers is, quote, unquote.

ATTORNEY WIDEM: Sure, let me try it this way. Thank you, Commissioner.

BY ATTORNEY WIDEM:

Q. Mr. Oliveira, do you know who was doing the construction of the condominiums in March of 1996?

A. The name of all of them?

Q. No, who was the general contractor?

A. Braga’s Painting, Antonio Braga.

Q. Mr. Oliveira, do you know who was putting in the foundation and putting in the walls?

A. The foundation? I don't understand you.

Q. Mr. Oliveira, while you were on the construction project, was anyone giving directions to Braga Painting?

A. No.

Q. Mr. Oliveira, have you ever heard of Toll Brothers?

A. Yes.

Q. Okay, who was Toll Brothers?

A. I heard that it’s a construction company.

ATTORNEY MULLIGAN: I’ll object to what was heard. That would be hearsay.

THE COMMISSIONER: Sustained.

ATTORNEY MULLIGAN: Move to strike any answer . . . .

RECROSS-EXAMINATION

BY ATTORNEY MULLIGAN:

Q. You mentioned an answer to Mr.Widem’s questions, two employees with you. Those were Braga employees?

A. At the house when I fell.

Q. Those were Braga employees?

A. Yes.

ATTORNEY MULLIGAN: Okay, nothing further. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: July 3, 2008

Page URL: http://wcc.state.ct.us/crb/2008/5209crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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