Hebert v. RWA Roofing & Sheet Metal et al.

CASE NO. 1750 CRB-2-93-6

CASE NO. 1899 CRB-2-93-11

CASE NO. 2129 CRB-2-94-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 6, 1994

JOEL HEBERT

CLAIMANT-APPELLEE

v.

RWA ROOFING & SHEET METAL

EMPLOYER

RESPONDENT-APPELLEE

NO RECORD OF INSURANCE

and

HANSEN BROTHERS GENERAL CONTRACTORS

EMPLOYER

RESPONDENT-APPELLANT

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by David Kelly, Esq., Monstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

The respondent Hansen Bros. was represented by Brian Prindle, Esq., 627 Main St., Manchester, CT 06040.

The respondent RWA Roofing & Sheet Metal was not represented at oral argument.

The respondent Second Injury Fund was represented by Philip M. Schulz, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 4, 1993 Finding and Award of the Commissioner for the Second District was heard September 30, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The appellant-respondent Hansen Brothers General Contractors petitioned for review in a timely manner from the May 24, 1993 Finding and Award of the Commissioner for the Second District.1 Although formal hearings were held in this case, the tapes and stenographic notes of those hearings have been lost. Thus, the appellant can not provide a transcript from which we can review the commissioner’s finding that the appellant was a principal employer pursuant to General Statutes §31-291.

This Board is powerless to perform any meaningful review under General Statutes §31-301 without a record or transcript of evidence of the proceedings. Nevers v. Environmental Waste Removal, 10 Conn. Workers’ Comp. Rev. Op. 96, 1166 CRD-5-91-1 (1992). See also Warchola v. U.S. Gypsum Specialists, 11 Conn. Workers’ Comp. Rev. Op. 108, 1444 CRB-1-92-6 (1993); Vasseur v. Konica Business Machines, 10 Conn. Workers’ Comp. Rev. Op. 228, 1467 CRB-1-92-7 (1993). Thus, we must sustain the appellant’s appeal and remand this matter for further proceedings as to the issue of whether the appellant is a principal employer.

The question of whether the Second Injury Fund should be paying benefits pursuant to General Statutes §31-301 (f) or §31-355 has also been raised. Despite the fact that an appeal has been taken by the alleged principal employer, the commissioner’s finding of compensability and his award against the uninsured respondent employer, RWA Roofing & Sheet Metal, has not been challenged on appeal and remains in effect. As such, the Second Injury Fund should continue paying benefits to the claimant pursuant to C.G.S. §31-355.

We remand this matter to the Second District for further proceedings consistent with this opinion.

Commissioners George A. Waldron and Michael S. Miles concur.

1 The appellant also filed timely petitions for review from subsequent findings and awards dated November 4, 1993 and August 5, 1994, both of which addressed the issue of payment pursuant to the first finding and award. All three appeals have been consolidated for the purpose of this action. BACK TO TEXT