CASE NO. 5252 CRB-8-07-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 21, 2008
C. PALMER & SONS
NO RECORD OF INSURANCE
DANIEL SEHL d/b/a D&D CARPENTRY EMPLOYER
NO RECORD OF INSURANCE
SECOND INJURY FUND
The claimant was represented by John Serrano, Esq., Serrano & Serrano, LLC, 690 Flatbush Avenue, West Hartford, CT 06110-1308.
The respondent-employer C. Palmer & Sons was represented by John Barbieri, Esq., Attorney at Law, 18 Cedar Street, P.O. Box 1445, New Britain, CT 06050.
The respondent-employer Daniel Sehl d/b/a D&D Carpentry, was represented by Ralph A. Russo, Esq., Law Offices of Ralph A. Russo, 49 Welles Street, Suite 212, Glastonbury, CT 06033.
The Second Injury Fund was represented by Philip Schulz, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review1 from the July 20, 2007 Finding and Award of the Commissioner acting for the Eighth District was heard July 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.
JOHN A. MASTROPIETRO, CHAIRMAN. There is a single issue dispositive of this appeal. Was the respondent C. Palmer & Sons LLC a “principal employer” within the scope of § 31-291 C.G.S.? Based on the undisputed facts in the record, we conclude the trial commissioner made an error of law in determining the respondent was not a principal employer. Therefore, we uphold the appeal of the Second Injury Fund in this matter and reverse the decision of the trial commissioner as to whether C. Palmer & Sons is liable for an award in this case.
The genesis of this case was an injury the claimant, Carlos Martinez, suffered on June 7, 2005 while working on a home construction site in Colchester. The claimant suffered an eye injury while using a nail gun. At the time he was employed by D&D Carpentry as an hourly employee, working a 40 hour work week at $17.00 per hour. D&D’s principal, Daniel Sehl, testified at the formal hearing his firm was in the business of working as a subcontractor framing houses, which was the project underway at the time of the accident. He testified that the claimant was an independent contractor.
The owner of the construction site, Charles Palmer, also testified at the formal hearing. He testified he had hired D&D to perform framing work on a house his firm, C. Palmer & Sons, had under construction. He testified that his primary business was excavation and remodeling buildings and houses, including the building of decks. He described the construction of new homes as a “side job,” but also testified that he had built one new home a year for each of the past 14 years. Neither C. Palmer & Sons nor D&D Carpentry had workers’ compensation insurance on the date of the accident.
Based on this record, the trial commissioner reached the following conclusions in a Finding and Award dated July 20, 2007. The trial commissioner concluded the claimant was an employee of Daniel Sehl d/b/a D&D Carpentry at the time of the accident. He concluded D&D was a subcontractor of C. Palmer & Sons; but since C. Palmer & Sons was not in the “in the regular business of building homes as a general contractor” at the time of the accident, the liability for the accident fell entirely on D&D, or, in the alternative, the Second Injury Fund due to D&D’s uninsured status. The Second Injury Fund filed a Motion to Correct seeking findings that C. Palmer & Sons was in fact a “principal employer” as defined by statute. The trial commissioner denied this motion and this appeal ensued.
The Second Injury Fund’s appeal is straightforward. They believe the trial commissioner erred in his application of § 31-291 C.G.S to the facts presented. They believe the precedent in Pacileo v. Morganti, Inc., 10 Conn. App. 261 (1987) compels a finding that C. Palmer & Sons was a “principal employer” of the claimant.
In considering this argument, we note that while we must extend great deference to the fact finding prerogative of the trial commissioner, we must also ensure the trial commissioner properly applies the relevant legal standards to the facts in the case. As we held in Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007),
In Sullivan v. Madison-Police Department, 4893 CRB-3-04-12 (June 9, 2006) we explained that although we are deferential to the finding of facts reached at the trial level, our appellate review must consider whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case.
“While this board cannot retry the facts of this case, it must review the sufficiency of the evidence against the legal standards required for granting an award. ‘The power and duty of determining the facts rests with the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found 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, 602 (1993).” Id.
We also noted in Sullivan that it is our responsibility as an appellate body to correct a commissioner’s misapplication of the law to the subordinate facts. See Carrol v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003). Id.
The parties agree that this case hinges on the interpretation of § 31-291 C.G.S. That statute reads 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 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 provisions of this section shall not extend immunity to any principal employer from a civil action brought by an injured employee or his dependent under the provisions of section 31-293 to recover damages resulting from personal injury or wrongful death occurring on or after May 28, 1988, unless such principal employer has paid compensation benefits under this chapter to such injured employee or his dependent for the injury or death which is the subject of the action.
This board last had occasion to consider this statute and the Pacileo case in Samaoya v. William Gallagher, 4951 CRB-7-05-6 (April 26, 2006), aff’d, 102 Conn. App. 670 (2007). In Samaoya the respondents argued that they did not fall within the statutory definition of “principal employer.” We disagreed, citing Hebert v. RWA, Inc., 48 Conn. App. 449 (1998).
“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. Samaoya, supra.
Our conclusion in Samaoya was driven by the uncontroverted fact that the respondents had obtained permits for the construction project from the Town of New Canaan. We determined based on the precedent in Pacileo, the three prongs in the statute had been met, since the claimant’s employer had been hired by the respondent, general contractors are deemed to “control” a work site and various subcontracted tasks still could be part of the “part or process” of work. Id. As Pacileo, specifically states:
In Connecticut, there is a long line of cases explaining the meaning of “part or process.” It has been defined as including “‘all those operations which enter directly into the successful performance of the commercial function of the principal employer. If the work is of such a character that it ordinarily or appropriately would be performed by the principal employer’s own employees on the prosecution of his business, it is a part or process in his business.’” Pacileo, supra, 264.
Applying the uncontroverted facts in the case to the law, we find that D&D Carpentry was retained by C. Palmer & Sons to perform work on its behalf. We find that C. Palmer & Sons controlled the worksite as the term “control” is defined by appellate precedent. Finally, we conclude the trial commissioner erred in concluding that the work performed by D&D was not part of the “part or process in the trade or business of such principal employer.”
The trial commissioner herein decided that C. Palmer & Sons was not “in the regular business of building homes” in determining they did not fall under the principal employer statute. We disagree for two reasons. First, the record indicated that the respondent generally built one new house per year. The dictionary definition of “regular” is “usual; normal; customary.” The record does not support a finding that the respondent’s construction of new homes was unusual, abnormal, or not customary; indeed it is clear although building new homes may not have been the respondent’s most prominent business it was a business the respondent chose to engage in systemically during an extended period of time.2 We note that statute states that the enterprise in which the injury occurred must only be “a part” of the respondent’s trade or business; had the General Assembly intended to limit the employer’s liability to only those activities which were a “substantial,” “significant,” “important,” “principal,” “primary” or “major” part of an employer’s operations, the statute would have been written in that fashion.3
Additionally, applying the law to the facts of this case, we do not think that there is any material difference between a general contractor engaging in home remodeling and home construction. The claimant herein suffered an injury using a nail gun. The question is whether such labor is among “those operations which enter directly into the successful performance of the commercial function of the principal employer.” Pacileo, at 264. The locus of this labor whether at a finished home or an unfinished home does not present a significant jurisdictional issue when the respondent is a general contractor.
The respondents argue that the evidence before the trial commissioner was that since C. Palmer & Sons did not perform such tasks as framing the new homes they built, that the work performed by the claimant was not an essential part of the respondent’s business, citing Battistelli v. Connohio, Inc., 138 Conn. 646 (1952). Battistelli was a case which found an ice manufacturer not liable for the injury of an electrician temporarily retained to fix a defective machine; we are not persuaded this precedent is relevant to the issue herein. The present case is where a building contractor retained a subcontractor who hired a tradesperson to help construct a building. Nor do we find Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60 (1986), cert. denied, 199 Conn. 808 (1986) persuasive authority for the respondent’s position. In Alpha Crane, the Appellate Court reversed a trial court finding that “principal employer” status was not present, concluding “each element of the defense was proven as a matter of law.” Id., 72.
Based on the undisputed facts on the record, we conclude that the Second Injury Fund did establish that as a matter of law the respondent C. Palmer & Sons was a “principal employer” as defined by statute, since the claimant’s injury occurred in the performance of the commercial function of the principal employer. We also reject the jurisdictional arguments presented by the respondent, asserting deficiencies in the Form 30C filed by the claimant. Pursuant to the holding in Antos v. Jaroslaw Korwek d/b/a Jerry’s Home Improvement, 5225 CRB-7-07-5 (April 4, 2008) we find no showing of prejudice to the respondent, hence this argument is unmeritorious.
The appeal is sustained and the trial commissioner is directed to correct the Finding and Award so as to make C. Palmer & Sons liable for the award pursuant to § 31-291 C.G.S.
Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.
1 We note that a postponement was granted twice during the pendency of this appeal. BACK TO TEXT
2 The Second Injury Fund cites Adams v. Jodar Blasting, Inc., 1943 CRB 2-93-12 (January 17, 1996) for the proposition a principal employer does not have to frequently engage in an activity, or even to have proper permits to be found liable as a “principal employer” under Chapter 568. BACK TO TEXT
3 “The absence of a term from the language of a statute can be telling.” Walter v. State, 63 Conn. App. 1 (2001). We cannot by administrative interpretation interpose words of limitation which are not to be found in the “plain meaning” of the statutes. See § 1-2z C.G.S. BACK TO TEXT