Hebert v. RWA Inc. d/b/a RWA Roofing & Sheet Metal et al.

The claimant was represented by Michael Finn, Esq. and David Kelly, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087, who did not appear at oral argument.

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

The respondent RWA Inc. d/b/a RWA Roofing & Sheet Metal was not represented at oral argument.

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

This Petition for Review from the July 10, 1995 Finding and Award of the Commissioner for the Second District was heard June 28, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The employer William Hansen d/b/a Hansen Brothers General Contractors (hereinafter “Hansen”) has petitioned for review from the July 10, 1995 Finding and Award of the commissioner acting for the Second District. In that decision, the trial commissioner found that Hansen was the principal employer pursuant to § 31-291 when the claimant sustained a compensable injury on October 20, 1992 while working on a roofing job for RWA Inc. d/b/a RWA Roofing & Sheet Metal (hereinafter “RWA”). In support of his appeal, Hansen contends that the record does not support the trial commissioner’s conclusion that Hansen was the principal employer. In addition, Hansen contends that in the absence of a claim by the claimant against him it was not proper for the Second Injury Fund (“Fund”) to claim that he was the principal employer.

A brief procedural history is in order. On May 24, 1993, a trial commissioner acting for the Second District issued a Finding and Award which held that the claimant sustained a compensable injury on October 20, 1992 while employed by RWA; that RWA did not have workers’ compensation insurance on October 20, 1992; and that Hansen was the principal employer pursuant to § 31-291. In two subsequent decisions of November 4, 1993 and August 5, 1994 that trial commissioner issued rulings regarding the payment of the May 24, 1993 award. The respondent Hansen appealed from all three decisions to the compensation review board, which addressed the appeal as a consolidated appeal in Hebert v. RWA Roofing & Sheet Metal, 13 Conn. Workers’ Comp. Rev. Op. 43, 1750 CRB-2-93-6 (Dec. 6, 1994). In that decision the board remanded the matter to the Second District due to the lack of a proper record for review, as there was no transcript. In addition, the board held that the Fund should continue paying benefits pursuant to § 31-355. Id. at 44. Subsequent to the remand, the transcript of the April 26, 1993 formal hearing was sent to the Second District.

Upon remand, a different trial commissioner held a formal hearing and issued a decision on July 10, 1995, which is the subject of the present appeal. The trial commissioner found the following relevant facts. On October 20, 1992, the claimant was employed by RWA when he injured his back while installing a rubber roof over an existing flat roof on a restaurant building. RWA had been hired by Hansen to install said roof over an existing roof on the building, and entered into a contract under which Hansen agreed to pay RWA $10,250.00 . (Findings No. 7, 8 and 29). Hansen was a general contractor who did building and remodeling of residential and commercial projects. (Finding No. 17 and 25). Hansen visited the roofing site on a daily basis “for the purpose of making sure that the job was progressing.” (Finding No 38). Hansen expressed an interest in the order in which tasks would be performed and how quickly the work would progress. (Finding No. 12). Neither Hansen nor RWA carried workers’ compensation insurance for the roofing project.

Section 31-291 C.G.S. provides in relevant part:

Section 31-291 was intended to “protect employees of minor contractors against the possible irresponsibility of their immediate employers, by making the principal employer who has general control of the business in hand liable as if he had directly employed all who work upon any part of the business which he has undertaken to carry on.” Sgueglia v. Milne Construction Co., 212 Conn. 427, 433 (1989) (quoting Bello v. Notkins, 101 Conn. 34, 38 (1924)).

In order for a principal employer to be liable for workers’ compensation benefits, three conditions must be satisfied pursuant to § 31-291: (1) The relation of principal employer and subcontractor must exist in work wholly or in part for the principal employer; (2) the work must be on or about the premises controlled by the principal employer; and (3) the work must be a part or process in the trade or business of the principal employer. Pacileo v. Morganti, Inc., 10 Conn. App. 261, 263 (1987). Each of these three conditions presents a question of fact for the trial commissioner. See Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 72 (1986), see also Pina v. Leitkowski Construction Co., 9 Conn. Workers’ Comp. Rev. Op. 38, 907 CRD-2-89-8 (Feb. 1, 1991).

The record in the instant case indicates that RWA was hired by Hansen to install the roof, and accordingly Hansen concedes in his brief that the first requirement of § 31-291 has been met. However, Hansen contends that the record does not support the trial commissioner’s determination that the second and third conditions of § 31-291 were established. Specifically, Hansen contends that he did not have control over the work being performed by the claimant in that he was “not overseeing or directing any of the work...” (Appellant’s Brief at p. 8). This argument is legally incorrect, as control over the work itself is not a requirement under § 31-291. Jones v. Lillibridge, Case No. 3149 CRB-2-95-6 (Dec. 10, 1996).

“What constitutes ‘control’ of premises has been an issue discussed in various court opinions.” Munoz v. Surface Construction, 9 Conn. Workers’ Comp. Rev. Op. 11, 13, 875 CRD-4-89-6 (Jan. 8, 1991) (citing Mancini v. Bureau of Public Works of Metropolitan District, 167 Conn. 189 (1974); Crisanti v. Cremo Brewing Co., 136 Conn. 529 (1950); Alpha Crane, supra; and Evary v. E & F Construction Co., 27 Conn. Sup. 278, 282 (1967)). In Munoz, supra, the board explained that “clearly, without ‘control’ of the premises as construed under sec. 31-291 and case law, (the principal employer) could not have hired the (subcontractor) to frame the house.” Munoz, supra, at p.13. In Pina, supra, the requisite control was established where the principal employer had visited the job site on only one occasion and did not own the property where the injury occurred. In the instant case, the issue of whether Hansen had the requisite control was contested by Hansen during the formal hearing. We conclude that the trial commissioner made sufficient findings of fact to support the determination of the requisite control by Hansen over the premises where the claimant was working when he was injured. Accordingly, we will not disturb that determination. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In further support of his appeal, Hansen disputes the trial commissioner’s determination that the third element required by § 31-291 has been established, specifically that the work was a “part or process” in the trade or business of the principal employer. Specifically, Hansen reiterates his contention made at the trial level that he was in the business of residential remodeling and repair, and that “(c)ommercial style flat rubber roofing systems is not one of the commercial functions of that business.” (Appellant’s Brief at p. 10). However, it “has long been held that this (part or process) condition is not limited to the main tasks performed in the principal employer’s trade or business. Rather, those tasks which are necessary to the routine functioning of a business are also included within the scope of this element....” Adams v. Jodar Blasting, Inc., Case No. 1943 CRB-2-93-12 (Jan. 17, 1996) (quoting Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 75 (1986)).

In the instant case, there was sufficient evidence presented to support the trial commissioner’s determinations that Hansen was a general contractor whose business included light commercial remodeling, and that the installation of the roof was “part or process of the trade or business” of Hansen. Hansen’s contention that his business did not normally include commercial roofing projects is not determinative. See Pacileo v. Morganti, Inc., 10 Conn. App. 261, 264 (1987); Mancini, supra, at 196; and Adams, supra.

The determination of whether an employer is a principal employer pursuant to § 31-291 is a factual issue. See Pina, supra. We will not disturb such a determination unless it is found without evidence, contrary to law, or based on unreasonable or impermissible factual inferences. Fair, supra. The conclusions drawn by the commissioner 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.” Fair, supra; see also Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). In the instant case, the facts found by the trial commissioner fully support the determination that Hansen was a principal employer pursuant to § 31-291.

We will next address Hansen’s contention that it was improper for the trial commissioner to take judicial notice of the April 26, 1993 transcript. During the May 25, 1995 formal hearing, the April 26, 1993 transcript was introduced, and Hansen did not object to its introduction. (5/25/95 TR. at p. 81). The transcript was used primarily to refresh the recollection of Hansen regarding his prior testimony. (See Finding No. 11, 26, and 38). Moreover, the trial commissioner’s decision is fully supported by the evidence presented during the formal hearing on May 25, 1995 and is not dependent upon the April 26, 1993 transcript. Accordingly, we find no error.

Finally, we will address Hansen’s contention on appeal that the trial commissioner’s ruling that Hansen was the principal employer was improper in the absence of a claim made by the claimant against Hansen. We find no merit to this argument. The Connecticut Supreme Court has addressed the issue of the operation of § 31-291 and § 31-355 in Sgueglia, supra. In that case, the court explained that a principal employer “would be liable to the state of Connecticut for any payments made from the second injury fund to the plaintiff under § 31-355 in the event that neither it, the subcontractor, nor the insurance carrier had paid benefits.” Sgueglia, supra, at 435. See also Jones, supra; Phelan v. Soda Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 53, 1583 CRB-3-92-12 (Dec. 20, 1994); and Altieri v. B.K.S. Excavating, Inc., 10 Conn. Workers’ Comp. Rev. Op. 83, 1146 CRD-3-90-12 (April 10, 1992).