Covillion v. Plante Brothers, Inc.

CASE NO. 3364 CRB-07-96-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 11, 1997

JOSEPH COVILLION

CLAIMANT-APPELLANT

v.

PLANTE BROTHERS, INC.

EMPLOYER

and

TRAVELERS INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Harry Cohen, Esq., Cohen & Kessler, 62 Bridge St., P.O. Box 427, New Milford, CT 06776.

The respondents were represented by Joseph Pasaretti, Esq., Law Offices of Christine Harrigan, 185 Asylum St., P.O. Box 9802, Hartford, CT 06536-0802.

Notice also sent to David Chapman, Esq., Law Offices of Larry Lewis, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the June 19, 1996 Finding and Dismissal of the Commissioner acting for the Seventh District was heard March 14, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 19, 1996 Finding and Dismissal of the Commissioner acting for the Seventh District. In that decision, the trial commissioner determined that the claimant was a sole proprietor, and was not an employee at the time that he was injured. The trial commissioner thus dismissed the claimant’s claim for benefits. In support of his appeal, the claimant contends that the claimant was an employee at the time he was injured. In addition, the claimant contends that § 31-291 applies to the instant case. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant was injured on November 17, 1994 when he fell from a roof while performing services for the respondent Plante Brothers, Inc. The claimant had previously been employed by Plante Brothers from 1978 to 1985, and left that employment in 1985 to start his own business. The claimant maintained a roofing and siding business, JNJ Siding, which operated as a sole proprietorship from 1991 until the time of the injury. The claimant purchased a workers’ compensation insurance policy in which the claimant specifically chose to exclude himself. (Finding No. 12-13). On November 16, 1994, the claimant called Plante Brothers in search of work, and agreed to perform a roofing job for thirty-five dollars per square foot. He was injured the following day while working on said roofing project.

The trial commissioner concluded that the claimant was self-employed as the sole proprietor of JNJ Siding when he was injured on November 14, 1994. Section 31-275(10) states that a sole proprietor “may accept the provisions of this chapter by notifying the workers’ compensation commissioner having jurisdiction, in writing, of his intent to do so.” The statute does not presume that a sole proprietor needs workers’ compensation insurance; rather, he must opt into the Act by following a prescribed course of action. See Marandino v. Marandino’s, Case No. 3130 CRB-6-95-7 (June 4, 1996). In the instant case, the trial commissioner specifically found that the claimant was a sole proprietor and chose not to be included under his workers’ compensation insurance policy. The record fully supports the trial commissioner’s determination and thus the decision may not be disturbed by this board. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The claimant’s reliance on § 31-291 is misplaced, as that provision only applies where there is an employee-employer relationship. Section 31-291 provides in relevant part that the 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 (a) contractor or subcontractor.” Section 31-291 does not apply where the injured worker is excluded from coverage under the Workers’ Compensation Act and is thus not entitled to receive benefits. Russell v. R.N. Russell Welding, Inc., 226 Conn. 508, 513-14 (1993).

We thus find no error in the trial commissioner’s dismissal of this claim.

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.