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Jacobs v. James Dwy d/b/a New Home Exteriors et al.

CASE NO. 5327 CRB-5-08-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 28, 2009

KEITH JACOBS

CLAIMANT-APPELLEE

v.

JAMES DWY d/b/a NEW HOME EXTERIORS

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

DAVID TUCKER d/b/a DAVE’S VINYL SIDING

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Marci M. Aldi, Esq., Law Offices of Eugene Defronzo, P.C., 61 Field Street, P.O. Box 2244, Waterbury, CT 06722.

The respondent employer James Dwy d/b/a New Home Exteriors, 266 Homestead Avenue, Waterbury, CT 06705 did not appear at oral argument.

The respondent employer David Tucker d/b/a Dave’s Vinyl Siding, 15 Williams Drive, Prospect CT 06712 did not appear at oral argument.

The respondent Second Injury Fund was represented by Lisa G. Weiss, 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 February 13, 2008 Finding and Award of the Commissioner acting for the Fifth District was heard January 23, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal is from the Finding and Award issued to the claimant, who was injured falling off the roof at a home construction site. The trial commissioner concluded that the respondent James Dwy d/b/a New Home Exteriors was the principal employer at the project and the claimant was acting as an employee of that respondent. The trial commissioner reached no conclusion as to whether the other respondent, David Tucker d/b/a Dave’s Vinyl Siding, had an employer-employee relationship with the claimant. The respondent/appellant Second Injury Fund (the “Fund”) has appealed, arguing, among other averments of error, that the commissioner’s failure to reach a determination as to the status of Mr. Tucker was erroneous. We agree with the appellant and remand this matter for a determination on that issue.

There is no dispute that on November 13, 2005 the claimant fell off the roof of a home under construction at 22 Orchard Avenue, Naugatuck, Connecticut and the claimant was disabled for an extended period thereafter due to arm and head injuries. The circumstances as to who procured the claimant’s labor on the roof are considerably murkier, however.

The trial commissioner found that the claimant was an accomplished home improvement worker and around 2001 had met David Tucker while they were both employed at the Overhead Door Company. In 2004 the claimant set up a licensed home improvement firm with Greg Debiase, under the name GDM Construction. In September 2005 GDM ceased operations at which time the claimant began working for Mr. Tucker.

During this period Mr. Tucker found all jobs on which claimant worked including the job on which claimant was injured. The claimant was paid by Mr. Tucker in cash on an hourly basis. The claimant considered himself Mr. Tucker’s employee on these jobs.

The claimant did not know the respondent James Dwy until he arrived at the Naugatuck construction site. The first day he worked there Mr. Dwy gave the claimant $100 for gas money pursuant to the claimant’s request. Mr. Dwy did direct Mr. Tucker and the claimant as to the work he was to perform on the job. The claimant used some of his own hand tools as well as tools provided by Mr. Dwy. The claimant did not discuss his rate of pay with Mr. Dwy, nor was Mr. Dwy on the site at all times to oversee the work. The claimant testified that he could come and go as he wished on the construction job and could leave the job to take another job that could pay him more money.

On the third day he worked on the project the claimant showed up late and did not start working until 11:00 a.m. He was not reprimanded by Mr. Dwy but testified that he was “teased” that day. The reason for the claimant’s tardiness is he was up late the night before using cocaine. Evidence before the trial commissioner was that the claimant had cocaine in his system at the time of injury. The respondent Second Injury Fund did not formally advance the affirmative defense of wilful and serious misconduct prior to the formal hearing. After falling off the roof the claimant was transported by ambulance to St. Mary’s Hospital where he remained for ten days.

Based on this record the trial commissioner concluded that the claimant was an employee at the time of the accident. He found he had “tagged-along” with Mr. Tucker. He also found that Mr. Tucker was indebted to the respondent Mr. Dwy and was working off part of his debt by doing the instant job without pay.2 The trial commissioner found that Mr. Dwy was the contractor on the job and was an employer of the claimant. The trial commissioner reached no findings or conclusions as to whether an employer-employee relationship existed between the claimant and Mr. Tucker.

The respondent Second Injury Fund filed a Motion to Correct; which was granted in part and denied in part. They then filed the instant appeal. The Fund argues three separate grounds for appeal.

a) They challenge the finding that the claimant was an employee at the time of the injury; arguing that he failed to establish an employer-employee relationship existed.
b) They argue that an award to the claimant is barred under these circumstances under § 31-284(a) C.G.S. as the claimant’s use of cocaine prior to the injury constitutes “wilful and serious misconduct.”
c) They argue the Finding and Award is legally deficient as there was no findings as to whether David Tucker acted as a contractor on this job and whether he was an employer of the claimant.

We believe the first two grounds for appeal are unmeritorious. Whether or not an employer-employee relationship exists is a factual determination for the trial commissioner to resolve. While it is the claimant’s burden to prove the existence of such a relationship Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007), the facts herein were sufficient in our view to sustain the commissioner’s conclusion. The claimant testified to being directed by Mr. Dwy as to work he performed. He also testified to using various tools supplied by Mr. Dwy for the project. We find this situation analogous to the facts in Kocur v. IQ Technology, LLC, 5210 CRB-1-07-3 (March 3, 2008) where we found an employer-employee relationship existed. See also Nationwide Mutual Ins., Co., v. Allen, 83 Conn. App. 526, 535-536 (2004).

The test in Hanson v. Transportation General, Inc., 245 Conn. 613 (1998) as to whether a claimant was an employee at the time of his injury is one determined based on the “totality of the evidence.” Id., at 625. We believe sufficient evidence supports the trial commissioner’s conclusion regarding Mr. Dwy.3 As we will discuss in greater detail, substantial evidence was introduced that would suggest there was another employer, and we will consider the impact of the trial commissioner’s silence on this issue.

The Fund alleges error by the trial commissioner in awarding the claimant benefits in this case when the record indicated the claimant had used cocaine at some point prior to the accident. The Fund argues this scenario is contrary to § 31-284(a) C.G.S. and constitutes the sort of “wilful and serious misconduct” that bars an award. While this panel does not condone any use of illegal drugs by employees, the problem herein is the defense of “wilful and serious misconduct” must be advanced as an affirmative defense by the respondent. See Mason v. Dale Construction, Inc., 4354 CRB-3-01-1 (November 7, 2001). The record reflects the Fund did not seasonably raise this issue.

The record indicates that none of the hearing notices in this matter cited § 31-284(a) C.G.S. The respondent also did not raise the issue at the commencement of the formal hearing on August 8, 2007, unlike the situation in Goulbourne v. State/Department of Correction, 5192 CRB-1-07-1 (January 17, 2008). (Counsel raised repetitive trauma issue at commencement of hearing). The Fund first advanced the statutory misconduct defense in its proposed findings of December 10, 2007. We do not believe consistent with our reasoning in Mason, supra, that this constitutes “fair notice” to the claimant that the Fund was advancing an affirmative defense.

Even were we to overlook the due process deficiencies in how the Fund advanced their affirmative defense, we would find the substantive basis less than compelling. The Fund advanced no witnesses of their own testifying to the impact the claimant’s cocaine use had on his condition at the time of the injury. Nor was testimony presented that the claimant’s employer had any policies in place as to the use of alcohol or drugs. Such evidence was presented in Paternostro v. Arborio Corp., 56 Conn. App. 215, 217 (1999). The record also lacks eyewitness testimony that would support the conclusion the claimant had used alcohol or drugs at the workplace, id., at 216-217, or was impaired at the time of the accident. The record consists solely of the claimant’s testimony that he did use cocaine at a party two nights prior to the accident and hospital records documenting the presence of the drug when he was admitted. We cannot conclude that these admissions, in and of themselves, as a matter of law, demonstrate the claimant is statutorily barred from recovery.4 Since we must hold the trial commissioner’s decision to a “clearly erroneous” standard, Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007), we are not persuaded error occurred by denying the Fund’s arguments on the issue of statutory misconduct.

We do, however, find error as it relates to the determination as to who the claimant’s employer was in this matter. Substantial evidence was cited by the trial commissioner in the Finding and Award reflecting an ongoing employer-employee relationship between the claimant and Mr. Tucker. The trial commissioner failed, however, to reach any conclusions of law as to whether or not Mr. Tucker acted as an employer of the claimant on the job in which the claimant was injured. We find this situation akin to the situation in Jones v. Lillibridge, 16 Conn. Workers’ Comp. Rev. Op., 143, 3149 CRB 2-95-6 (November 27, 1996).

In Jones, supra, the commissioner issued an award to the claimant against a contractor who hired the claimant to work on a farm. The Fund argued the farm’s owner should be cited in as a “principal employer,” but the trial commissioner denied this relief. On appeal, we reversed the trial commissioner and remanded the matter for further hearings for determination of whether the farm owner was a “principal employer” under § 31-291 C.G.S.

In Samaoya v. Gallagher, 102 Conn. App. 670 (2007) the Appellate Court made clear that for the purposes of liability under Chapter 568, an employee may have more than one employer. “It is well established that multiple employers can be held liable as principal employers.” Id., at 678. In the present case the exact nature of the business relationship between Mr. Dwy and Mr. Tucker was not defined by the trial commissioner by way of a conclusion of law. Since the terms of § 31-291 C.G.S. provide for joint and severable liability between principal employers; or between a principal employer and a subcontractor, we believe a determination must be reached as to Mr. Tucker’s status.5

There is also a due process concern herein. The Fund has intervened in the case as neither Mr. Dwy nor Mr. Tucker was insured for workers’ compensation. Mr. Dwy attended the formal hearing and defended the case and Mr. Tucker, although properly noticed, did not. The rather clear implication herein is that the party who responded to the notice will now be the party obligated for the award, wherein Mr. Tucker is to be rewarded for his absence. We find that Mr. Tucker’s testimony was essential to a proper determination of the principal employer issue. See Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). Neither the Fund nor Mr. Dwy had the opportunity to cross-examine Mr. Tucker on the facts of this case.6

As previously discussed, the subordinate facts found herein indicate Mr. Tucker had found all the recent jobs in which the claimant had worked and that Mr. Tucker paid the claimant cash on an hourly basis. The claimant also believed he was an employee of Mr. Tucker. The claimant did not know Mr. Dwy prior to commencing work on this project and did not negotiate the form of his compensation with Mr. Dwy.

Therefore, the Finding and Award is simply absent of the rationale for determining that Mr. Dwy is the sole principal employer and Mr. Tucker is not an employer in any capacity. For the reasons stated in Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007), a remand is necessary to resolve this issue.

Such specific grounds for the trial commissioner’s finding are simply not present herein. Therefore, we must conclude this case is similar to Bennett v. Wal-Mart Stores, Inc., 4939 CRB-7-05-5 (May 15, 2006) where the findings by the trial commissioner regarding disability omitted requisite facts and we decided “[w]hile this board is obligated to defer to facts found by the trial commissioner the record herein is simply inadequate to make such an inference regarding this issue on appeal.” Id. See also Garcia v. Middletown Nissan, 5035 CRB-8-05-12 (December 20, 2006) “[t]he circumstances herein are similar to other recent cases where a Finding and Award was remanded due to the absence of necessary subordinate facts to legally sustain the Commission’s action” and Bazelais v. Honey Hill Care Center, 5011 CRB-7-05-10 (October 25, 2006) (matter remanded for articulation when grounds for commissioner’s findings were vague).

For the reasons outlined herein, we remand this matter for a new evidentiary hearing on the issue of whether Mr. Tucker employed the claimant on the date of the compensable injury. On the other issues under appeal, we affirm the Finding and Award.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

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

2 The trial commissioner also concluded, among other conclusions, the claimant asked Mr. Dwy for gas money since he probably knew that Mr. Tucker was “broke;” Finding, ¶ D, and also concluded Mr. Dwy and Mr. Tucker were close acquaintances and did not discuss payment to the claimant because they “knew they could work it out with each other.” Finding, ¶ G. The conclusions were deleted in those elements of the respondent’s Motion to Correct granted by the trial commissioner. BACK TO TEXT

3 Among the evidence supportive of this determination was the claimant’s testimony he was directed by Mr. Dwy as to what work to perform (August 8, 2007 Transcript, pp. 11-12, 33 and 39) and that Mr. Dwy supplied tools that he used. August 8, 2007 Transcript, pp. 12 and 38. BACK TO TEXT

4 Our precedent indicates certain elements of scienter must be present to implement a defense of “wilful and serious misconduct.” “Misconduct which exposed an employee to serious injury might or might not be serious misconduct, depending upon whether the misconduct was a grave and aggravated character, and whether its character was known to and appreciated by the employee.” Mancini v. Scovill Mfg, Co., 98 Conn. 591, 597 (1923).

While the claimant’s “off the clock” use of cocaine was “wilful” and “serious;” the record in this case (the claimant testified to drug use more than 24 hours before the injury, August 8, 2007 Transcript, p. 36, 45-46), does not allow the inference he knew or should have known this act would have contributed to his injury. Compare with Paternostro v. Arborio Corp., 56 Conn. App. 215 (1999) where testimony as to the level of claimant’s intoxication at the time of the injury was presented by the respondent. BACK TO TEXT

5 Sec. 31-291. Principal employer, contractor and subcontractor. 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. BACK TO TEXT

6 We also note that the record indicates one of the building permits taken out for the project in question was issued to Mr. Tucker. See August 8, 2007 Transcript, pp. 50-52. Similar evidence of a town building permit was cited by this board and the Appellate Court to justify assigning the status of “principal employer” to a contractor facing a claim under Chapter 568. See Samaoya v. Gallagher, 102 Conn. App. 670, 672, 676 (2007). This further bolsters the argument Mr. Tucker was a necessary party to this hearing. BACK TO TEXT

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Page last revised: June 15, 2009

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