State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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CRB Case Annotations re: Section 31-291

Principal employer, contractor and subcontractor.

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THESE ANNOTATIONS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY

Full texts of opinions, statutes and court decisions should be consulted and all citations and references fully researched by the reader.

The Annotations to Compensation Review Board Opinions are presented “as is” and the Commission makes no warranties as to the suitability of this information for any given purpose.
Please note also that Annotations change periodically due to several factors including, but not limited to, Appellate and Supreme Court decisions issued in workers’ compensation cases.

Moreno v. Cablevision Systems Corporation, 5795 CRB-4-12-11 (October 8, 2013).

Claimant injured while installing equipment at customer of Cablevision cable TV system. Claimant employed by subcontractor of Cablevision which lacked insurance, and testified that he received instructions and tools from Cablevision. Trial commissioner found that Cablevision was liable under the “principal employer” statute, citing Pelletier v. Sordoni/Skanska Construction Company, 264 Conn. 509, 520 (2003). Cablevision appealed, arguing it did not exercise control of the worksite. CRB affirmed decision. Cases such as Mancini v. Bureau of Public Works, 167 Conn. 189 (1974) indicate ownership of premises not critical factor in determining control; CRB examined statutes governing cable television to ascertain respondent had significant rights to enter and use public rights of way and private premises to advance its business, unlike respondent in Brown v. Freedom Express Delivery, 4584 CRB-6-02-11 (November 14, 2003). CRB noted that technological advances now permitted off site control of employees. Evidence was claimant acted at Cablevision’s direction. See also, Moreno, § 31-298; § 31-355(b).

Covey v. Home Medical Associates, LLC, 5770 CRB-4-12-7 (July 25, 2013).

Trier determined employer-employee relationship existed between claimant’s decedent and respondent Jewish Home for the Elderly [“JHE”] relative to claimant’s decedent’s position as medical director of JHE. Claimant’s decedent was also employed as staff physician at JHE and as partner in his own private medical practice housed within JHE. CRB affirmed, noting that despite contract language stating claimant’s decedent was independent contractor, testimony concerning his duties as medical director supported finding that based on “totality of the evidence test” as set forth in Hanson v. Transportation General, Inc., 245 Conn. 613 (1998), claimant’s decedent was JHE employee. In addition, trier determined that in light of claimant’s decedent’s “unique relationship” with JHE, JHE functioned as claimant’s decedent’s principal employer relative to his duties at in-house private medical practice partnership and claimant’s decedent had not opted out of Workers’ Compensation Act. CRB affirmed, holding that evidence adduced relative to employer employee relationship in addition to testimony regarding circumstances surrounding establishment of private medical practice supported trier’s conclusion that statutory requirements of § 31-291 C.G.S. had been satisfied. See also, Covey, § 31-275(1); § 31-275(10); § 31-301 Factual findings.

Diaz v. Capital Improvement & Management, LLC, 5616 CRB-1-11-01 (January 12, 2012).

Respondent argued trial commissioner should not have pierced corporate veil to find liability against firm’s principal. CRB upheld decision. Evidence was principal commingled firm assets. Facts herein indistinguishable from Caus v. Paul Hug d/b/a Hug Construction Company, Hug Contracting Company, Crown Asphalt Paving, LLC, P. Hug Contracting, LLC, 5392 CRB-4-08-11 (January 22, 2010). See also, Diaz, § 31-275(9); § 31-275(10); § 31-288; § 31-294c.

Sobon v. Andrzej Oszmian d/b/a Andy’s Carpentry, 5368 CRB-8-08-8 (August 12, 2009).

Claimant sustained injury working for roofing subcontractor at new home construction site. Trial commissioner found injury compensable and assigned liability to subcontractor. Subcontractor did not have workers’ compensation insurance policy in force on date of injury and matter transferred to Second Injury Fund. Fund subsequently brought principal employer claims against both the architect hired by property owner’s husband to build cabinets and assist in supervising construction and the property owner’s husband who was working on-site as a mason. Trial commissioner dismissed claim against architect, concluded mason was acting as principal employer, and ordered him to reimburse Second Injury Fund. Respondent mason appealed, arguing Workers’ Compensation Commission lacked jurisdiction as neither roofing nor framing were a part or process of his regular trade or business as a mason and therefore statutory requirements set out by principal employer statute were not satisfied. CRB affirmed, noting trier’s findings were consistent with precedent and testimony of parties adequately supported his conclusions that architect was functioning as a part-time project manager while actual supervisory responsibility for and control of construction site rested with mason, who was essentially acting as a general contractor. See also Sobon, § 31-301. Factual Findings, § 31-355(b).

Jacobs v. James Dwy d/b/a New Home Exteriors, 5327 CRB-5-08-3 (May 28, 2009).

Trial commissioner found respondent who attended hearing liable as claimant’s employer; reached no finding as to liability of respondent who failed to attend proceeding. CRB remanded for new evidentiary hearing as to potential liability of other putative employer. See also, Jacobs, § 31-275(9), § 31-275(10), § 31-284(a), § 31-301. Appeal procedure, § 31-355(a), § 31-355(b).

Martinez v. C. Palmer & Sons, 5252 CRB-8-07-7 (October 21, 2008).

Claimant worked for subcontractor of respondent at new home construction site and was injured in nail gun accident. Respondent argued Commission lacked jurisdiction as it was not in “regular” business of new home construction; therefore they were not “principal employer”. Record was that respondent had built one house per year for 14 years, and trial commissioner found that this was not “part and process” of respondent’s business. CRB reversed. Record clearly demonstrates the prongs were met in Samoaya v. William Gallagher, 4951 CRB-7-05-6 (April 26, 2006), aff’d 102 Conn. App. 670 (2007). See also, Martinez, § 31-275(9), § 31-355(b).

Oliveira v. Antonio Braga d/b/a Braga Painting a/k/a Braga Painting & Drywall, Inc., 5209 CRB-7-07-3 (June 20, 2008).

CRB reversed trial commissioner as to his conclusion the respondent was the principal employer on the job site where the claimant sustained his compensable injury. There was no evidentiary support for the conclusion that the claimant’s employer was performing work at the request of the respondent, nor was there evidentiary support from which the trier could reasonably infer that the claimant sustained his injury at a work site in Wilton, CT. The claimant’s testimony was he was injured in Connecticut in a town that sounded like Newtown. See § 31-301. Factual findings.

Samaoya v. William Gallagher, 4951 CRB-7-05-6 (April 26, 2006).

Claimant injured after falling off ladder while painting at construction site. Trial commissioner found his employer was hired by respondent. Evidence, including town building permit, indicated respondent was general contractor and was thus a “principal employer.” Commissioner’s finding that more than one entity was a “principal employer” follows precedent in Palumbo v. Fuller Co., 99 Conn. 353 (1923). See also, Samaoya, § 31-301. Factual findings, § 31-301. Appeal procedure, § 31-301-4.

Brown v. Freedom Express Delivery, 4584 CRB-6-02-11 (November 14, 2003).

CRB reversed trial commissioner’s finding respondent was a principal employer. Claimant worked for a delivery company that was subcontracted by respondent to deliver furniture. The injury occurred on a private premise neither owned nor controlled by respondent.

Quesada v. T.J. Germaine Tree Service, 4471 CRB-7-01-12 (January 15, 2003).

See, Quesada, § 31-315 (CRB affirmed trier’s denial of motion to reopen finding, which sought to introduce further evidence on principal employer issue).

Puchala v. Connecticut Abatement Technologies, 3859 CRB-4-98-7 (September 27, 1999).

Trier did not err by declining to address § 31-291 principal employment issue, as she was within her authority to bifurcate proceedings. CRB remanded case for scheduling of hearing on possible principal employer liability. See also, Puchala, § 31-275(9). Subsequent decision at Puchala, 4232 CRB-4-00-4 (January 30, 2002), § 31-301. Appeal procedure.

Covillion v. Plante Brothers, Inc., 3364 CRB-7-96-6 (December 11, 1997), aff’d, 51 Conn. App. 901 (1998)(per curiam).

Section 31-291 does not apply where claimant is not an employee, and thus no employment relationship exists. See also, Covillion, § 31-275(9)(10).

Kogut v. J&C Building Renovation Co., 3484 CRB-7-96-12 (September 8, 1997).

Trier ordered that “the respondent, Cesary Bartosiewicz and Elite Contracting, Inc., pay Claimant all monetary and medical benefits due. . . .” Bartosiewicz was found to be the claimant’s employer, while Elite Contracting was the general contractor. CRB reversed. Trier failed to distinguish the legal grounds for each party’s liability. As the award did not establish an employee-employer relationship between the claimant and Elite Contracting, the conditions of § 31-291 had to be satisfied before liability as a principal employer might be imposed. Trier did not discuss all three criteria of the “principal employer” test, and a remand was necessary for further findings. See also, Kogut, § 31-275(9).

Hebert v. RWA Inc., 16 Conn. Workers’ Comp. Rev. Op. 169, 3128 CRB-2-95-7 (May 2, 1997), aff’d, 48 Conn. App. 449 (1998), cert. denied, 246 Conn. 901 (1998).

CRB affirmed the trial commissioner’s conclusion that Hansen was the principal employer pursuant to § 31-291 when the claimant sustained a compensable injury while working on a roofing job for RWA Inc. Decision includes a discussion of case law and requisites for finding a principal employer relationship. CRB was not persuaded by Hansen’s contention that in the absence of a claim by the claimant against him it was not proper for the Second Injury Fund to claim that he was the principal employer.

Jones v. Lillibridge, 16 Conn. Workers’ Comp. Rev. Op. 143, 3149 CRB-2-95-6 (November 27, 1996).

Commissioner found that Second Injury Fund failed to establish that third party was a principal employer. Whether elements of principal employer statute have been satisfied is a question of fact; however, commissioner appears to have applied test for existence of employment relationship rather than principal employer-subcontractor relationship. Findings that were on point support conclusion that third party was a principal employer. Remanded for further findings. See also, Jones, § 31-301. Appeal procedure.

Adams v. Jodar Blasting, Inc., 15 Conn. Workers’ Comp. Rev. Op. 122, 1943 CRB-2-93-12 (January 17, 1996).

CRB reversed commissioner’s decision that Rocky Hill Enterprises was not a principal employer, and thus CRB held Rocky Hill Enterprises liable for an accident which occurred to a claimant who worked for Jodar Blasting. CRB concluded that the blasting and rock removal performed by Jodar was indeed a necessary and expected part of the construction of a residential subdivision which was being done by Rocky Hill Enterprises. Accordingly, CRB concluded that as a matter of law the rock removal function was a “part or process” of the construction of residential subdivision. Discussion of requirements of § 31-291.

Walton v. Hector Trucking, 13 Conn. Workers’ Comp. Rev. Op. 239, 1835 CRB-1-93-9 (April 13, 1995).

Where trial commissioner found that truck driven by claimant had been leased by employer to third party contractor at time of injury, sufficient evidence existed to require further findings as to potential liability of third party as principal employer under § 31-291. Remanded. See also, Walton, § 31-355(b).

Phelan v. Soda Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 53, 1583 CRB-3-92-12 (December 20, 1994).

Record contained evidence of all three conditions necessary under statute to find liability as principal employer. Respondent also argued that § 31-355 requires Second Injury Fund to pay award because subcontractor uninsured, and statute in conflict with § 31-291. Held, statutes not in conflict; inconsistent with purpose or language of either statute to require principal employer to pay where subcontractor is uninsured. See also, Phelan, § 31-275(9), § 31-301. Factual findings, and § 31-355(b). See subsequent Phelan, 14 Conn. Workers’ Comp. Rev. Op. 389, 1979 CRB-3-94-3, 2107 CRB-3-94-7 (October 17, 1995), § 31-310.

Hebert v. RWA Roofing & Sheet Metal, 13 Conn. Workers’ Comp. Rev. Op. 43, 1750 CRB-2-93-6, 1899 CRB-2-93-11, 2129 CRB-2-94-8 (December 6, 1994).

Further proceedings below are necessary for determination of principal employer status where no record or transcript of evidence exists. See also, Hebert, § 31-301. Appeal procedure.

Smith v. Boland, 12 Conn. Workers’ Comp. Rev. Op. 234, 1502 CRB-7-92-9 (March 28, 1994).

CRB affirmed trier’s finding that at the time of claimant’s injury no relationship of general contractor and subcontractor existed, thereby concluding uninsured employer, Boland, liable absent a principal employer relationship. See also, Smith, § 31-301. Appeal procedure.

Altieri v. B.K.S. Excavating, Inc., 10 Conn. Workers’ Comp. Rev. Op. 83, 1146 CRD-3-90-12 (April 10, 1992).

Reversed. Trier failed to allow Second Injury Fund the opportunity to litigate whether a potential principal employer liability claim existed pursuant to § 31-291. The fact that the trial commissioner found B.K.S. Excavating the uninsured employer does not eliminate the need to fully litigate and hear evidence regarding a possible § 31-291 principle employer claim. See also, Altieri, § 31-275(10), § 31-301. Factual findings and § 31-355(b).

Pina v. Leitkowski Construction Co., 9 Conn. Workers’ Comp. Rev. Op. 38, 907 CRD-2-89-8 (February 1, 1991).

Trial commissioner’s decision as to principal employer status will not be disturbed on appeal where totality of evidence and factual findings were sufficient to conclude work performed was delegated by Leitkowski, was under the control of Leitkowski, and was a part or process in Leitkowski’s trade. Where statutory elements are met the assessment of liability does not require a finding of a contractual relationship per se. See also, Pina, § 31-301. Factual findings.

Munoz v. Richard Surface Construction, 9 Conn. Workers’ Comp. Rev. Op. 11, 875 CRD-4-89-6 (January 8, 1991), aff’d, 27 Conn. App. 906 (1992)(per curiam).

Sufficient facts were found to conclude employer, Richard Surface, had control over the premises claimant was working at the time of his injury so as to conclude Surface was the principal employer.

Powers v. Savage, 8 Conn. Workers’ Comp. Rev. Op. 178, 892 CRD-4-89-7 (November 30, 1990).

CRD remanded for further proceedings in order to provide S.I.F. an opportunity to litigate issue of principal employer. See also, Powers, § 31-355(a).

Halliday v. Daw’s Critical Care Registry, 8 Conn. Workers’ Comp. Rev. Op. 74, 797 CRD-7-88-12 (April 27, 1990).

Remanded. Trial commissioner’s finding that claimant was not an employee of subcontractor inconsistent with finding and conclusion that respondent was the principal employer. See also, Halliday, § 31-301. Factual findings, § 31-301. Appeal procedure. See later case, Halliday, 10 Conn. Workers’ Comp. Rev. Op. 187, 1196 CRD-7-91-3 (September 14, 1992), dismissed lack of final judgment, A.C. 11770 (January 7, 1993), cert. denied, 225 Conn. 905 (February 18, 1993), § 31-275(9).

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