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CASE NO. 3950 CRB-04-98-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 22, 1999
TIMELY TEMPS, INC.
THE HARTFORD INSURANCE GROUP
The claimant was represented by David Behnke, Esq., Law Offices of George R. Koteas, 1198 Main Street, P.O. Box 1778, Bridgeport, CT 06601.
The respondents Robohand, Inc. and The Hartford Insurance Group were represented by Joseph E. Skelly, Esq., Edward M. Henfey & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.
The respondent Timely Temps was not represented at oral argument or at the trial level.
This Petition for Review from the December 17, 1998 Finding and Award of the Commissioner acting for the Fourth District was heard August 6, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl, and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
JESSE M. FRANKL, COMMISSIONER. The respondents Robohand Inc. and The Hartford Insurance Group (“respondents”) have petitioned for review from the December 17, 1998 Finding and Award of the Commissioner acting for the Fourth District. In that decision the trial commissioner concluded that the claimant sustained a compensable injury while employed by Robohand. The trial commissioner specifically found that there was no contract of service between the claimant and Timely Temps, and thus concluded that § 31-292 did not apply. In support of their appeal, the respondents argue that the claimant entered into a contract of service with Timely Temps, and therefore under § 31-292 the claimant continued to be an employee of Timely Temps rather than Robohand.
The trial commissioner found the following relevant facts. In October of 1995, the claimant was seeking employment as a machinist. While driving, the claimant saw the sign “Robohand” and decided to apply for employment. He completed an application for Robohand which was examined by the Personnel Director, who then interviewed the claimant. After the interview, the Personnel Director took the claimant inside the facility and interviewed the claimant with the foreman. The Personnel Director informed the claimant that he would “get back” to the claimant regarding employment. Upon returning home later that day, the claimant received a call from Timely Temps, a temporary agency. Prior to this phone call, the claimant had never heard of Timely Temps. Timely Temps informed the claimant that Robohand was interested in the claimant, but that the claimant would have to work for Timely Temps for three months before Robohand would hire him, and that he could go back to Robohand and fill out an application for Timely Temps. The claimant did so and began working at Robohand the following Monday. The claimant had no further contact with Timely Temps until the day of his accident on December 7, 1995.
Timely Temps “was not involved in any way in the claimant’s work at Robohand.” (Finding ¶ 21). The claimant filled out time sheets for Timely Temps which were signed by the Personnel Director of Robohand, and the claimant’s paychecks were mailed to his home from Timely Temps. However, the claimant had to punch a time card for Robohand and the foreman at Robohand kept track of the claimant’s time. Robohand required the claimant to phone in if he was going to take the day off, but there was no requirement that the claimant call Timely Temps. The “only contact the claimant had with Timely Temps during his entire employment period with Robohand was the one phone call the claimant received at home the end of October 1995 after interviewing with Robohand and receipt of his weekly checks via mail.” (Finding ¶ 39).
General Statutes § 31-292 provides: “When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another.” In Minuit v. P.D.F. Construction Company, 16 Conn. Workers’ Comp. Rev. Op. 133, 135, 3145 CRB-3-95-7 (Nov. 26, 1996), the board explained that “(u)nder § 31-292, ‘liability is in all cases imposed upon an employer who has ‘temporarily lent or let on hire’ to another the services of one of his employees.’” Minuit, supra, citing Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 644 (1936). In Minuit, the Board further explained:
In order to be liable under § 31-292, a lending employer must be a “person with whom the (injured) worker has entered into a contract of service.” Additionally, given the temporary nature of the lending or letting for hire to another, the required employer-employee relationship between the claimant and the lending employer must not only have existed immediately before the lending occurred but must also have been contemplated to have resumed after the lending.
Minuit, supra, at 135-36.
Similarly, in Velez-Ramos v. Labor Force of America, 16 Conn. Workers’ Comp. Rev. Op. 119, 3070 CRB-4-95-5 (Nov. 25, 1996), the board held that “(i)n order for the appellant to succeed in its argument that [the employment agency] lent the claimant’s services to Contract Plating within the meaning of § 31-292, it must first establish that there was an employment relationship between the claimant and [the employment agency]. Id. at 121, (citing Minuit v. P.D.F. Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 1, 4, 1551 CRB-3-92-11 (Oct. 7, 1994)). The board further explained that “the key factor in establishing an employment relationship is the presence of authority in the alleged employer to control how and when the alleged employee performs his work.” Id., (citations omitted).
In the instant case, as in Velez-Ramos, supra, the trial commissioner specifically found that there was never a “contract of service” between the employment agency and the claimant, and thus § 31-292 did not apply. The trial commissioner specifically found that Timely Temps “was not involved in any way in the claimant’s work at Robohand.” (Finding ¶ 21). Even if the claimant was going to miss a day of work, he was only required to telephone Robohand but was not told to contact Timely Temps. Aside from his receipt of his weekly checks via mail, the only other connection between the claimant and Timely Temps was the telephone call to the claimant from Timely Temps instructing him to return to Robohand to fill out an application for Timely Temps after he had already applied and interviewed at Robohand. (Finding ¶ 39).
This evidence sufficiently supports the trial commissioner’s finding that there was no contract of service between the claimant and Timely Temps. Accordingly, we may not disturb that finding on appeal. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).
The trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
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