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CASE NO. 4580 CRB-3-02-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 27, 2003
EMPLOYEE STAFFING OF AMERICA, INC. a/k/a LABOR FORCE OF AMERICA
NO RECORD OF INSURANCE
HARTFORD INSURANCE GROUP
SECOND INJURY FUND
The claimant was represented by Francis P. Cipriano, Esq., 1220 Whitney Avenue, P.O. Box 6503, Hamden, CT 06517.
The respondent Employee Staffing of America, Inc., a/k/a Labor Force of America, was neither represented at trial nor on appeal.
The respondents Olympic Steel and Hartford Insurance Group were represented by Frank Ancona, Esq., Mathis & Associates, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.
The Second Injury Fund was represented by Lisa G. Weiss, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the October 23, 2002 Finding and Award of the Commissioner acting for the Third District was heard May 30, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.
JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the October 23, 2002 Finding and Award of the Commissioner acting for the Third District. The Fund contends on appeal that the trier erred by reaching the legal conclusion that the respondent Employee Staffing of America, Inc., a.k.a. Labor Force of America (hereinafter LFA), did not have workers’ compensation insurance coverage on the date of the claimant’s injury, and by finding that the claimant was an employee of LFA on said date. We affirm the trier’s decision in part, and remand for further proceedings on the issue of whether LFA was insured on the date of injury.
The claimant suffered a compensable injury on January 31, 1994, while working at the respondent Olympic Steel as a grinder and palletizer. A heavy piece of steel fell on his right foot, injuring that extremity and its big toe. On that date and for a long time prior thereto, he was under contract with the respondent LFA as a temporary employee who would be assigned to various jobs at the direction of LFA.
As of the claimant’s injury date, he had been working at Olympic Steel on a full-time basis for several weeks. He continued to be paid weekly by LFA, whose practice was to provide the claimant with time slips that would be signed by the person who was supervising him at the job site. The claimant would then return the slip to LFA, and receive a paycheck. At some point subsequent to the claimant’s injury, he became a full-time employee of Olympic Steel, and was placed on its payroll.
The claimant filed a Form 30C on July 20, 1994. He testified that LFA sent him to see Dr. Weisman in June 1995, and that it prepared and issued a voluntary agreement in September 1995 that offered to compensate the claimant for a 10% permanency of the right great toe. Claimant’s Exhibit G. He also testified that LFA never indicated to him that they did not consider him an employee, or that they were seeking to deny liability for the January 31, 1994 compensable event. The trier concluded that this testimony was credible, and that an employer/employee relationship existed between LFA and the claimant on the date of his injury.
Initially, the commissioner made reference in his findings to a stipulation by the parties providing that LFA was not insured for its workers’ compensation liability at the time of the claimant’s injury, and entered his own findings to that effect. Findings, ¶¶ 2-3. Following the issuance of the trier’s award, the Fund moved to correct the decision. Among the corrections granted by the commissioner was a request to strike those subordinate factual findings. However, the trier declined to strike ¶ G of his conclusions, which states that LFA did not have workers’ compensation insurance coverage on January 31, 1994, nor did he strike ¶ H, which states “that in the event respondent-employer fails to pay any order pertaining to benefits due the claimant, then the Second Injury Fund, after proper notice, will be ordered to pay same, pursuant to C.G.S. 31-355.” The Fund raises this as error on appeal, along with the trier’s failure to find that the claimant was an employee of Olympic Steel rather than LFA.
The first issue we must address on appeal is the Fund’s challenge to the trier’s finding of an employment relationship between the claimant and LFA. It is axiomatic that the trial commissioner is the finder of fact in a workers’ compensation matter, a role that entails the exclusive authority to evaluate the evidence and testimony presented by the parties, and to accept or disregard any portion of that evidence. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Merlin v. Labor Force of America, Inc., 3920 CRB-4-98-10 (Dec. 22, 1999), aff’d, 62 Conn. App. 906 (2001)(per curiam), cert. denied, 256 Conn. 922 (2001). On review, this board does not have the power to reassess the evidence and draw inferences different from those reached by the trier of fact. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy, supra. We may only disturb those findings that lack any supporting evidence in the record. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). As for the trier’s legal conclusions, they also must stand unless they result from an incorrect application of the law to the facts, or an inference unreasonably drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Pallotto, supra.
In determining whether there is sufficient evidence to support the trier’s finding that the claimant was employed by LFA, we ask whether he could reasonably conclude from that evidence that LFA possessed the authority to control how and when the claimant performed his work. Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624, 629 (1961). “The existence of an employment relationship is a question of fact, and the key to its proof is the presence of authority in the putative employer to control the mode and manner in which the service is performed, as well as the means to be employed in its accomplishment.” Merlin, supra, citing Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 288, 1720 CRB-4-93-5 (April 21, 1995). Also relevant is § 31-292 C.G.S., which states that an employer who temporarily lends the services of a contracted employee to another person remains the employer of the lent worker for the purposes of Chapter 568.
We have considered in several recent cases whether “temp workers” in situations similar to that of the claimant qualified as lent employees within the meaning of § 31-292. See, e.g., Kearse v. Labor Force of America, 3968 CRB-3-99-1 (Feb. 1, 2000); Grebla v. Timely Temps, Inc., 3950 CRB-4-98-12 (Dec. 22, 1999); Velez-Ramos v. Labor Force of America, 16 Conn. Workers’ Comp. Rev. Op. 119, 3070 CRB-4-95-5 (Nov. 25, 1996). An employment relationship may be found to exist when a trier finds that there is a contract of service between a worker and a hiring entity (including a temporary employment agency) that, under all the circumstances, constitutes employment within the meaning of § 31-275(9) C.G.S.. Where such an employment relationship occurs, it will persist during a period of temporary lending-on-hire as per § 31-292, even though the borrowing employer may be directing the day-to-day work of the employee. Kearse, supra. Such is the nature of lent employment.
The existence of a long-standing employment relationship between the claimant and LFA is supported by the evidence: in particular, the claimant’s testimony, which the trier was entitled to credit. Duddy, supra. The claimant testified that he considered himself an employee of LFA, which sent him to work at Olympic Steel just as it had sent him to work at a variety of other jobs. February 13, 2002 Transcript, pp. 15, 36. During the course of his ongoing relationship with LFA, the claimant received weekly paychecks from LFA at an hourly rate. Id., pp. 15-16, 35. At the time of his compensable injury, he had been working full-time at the Olympic Steel location for approximately one month. Id., p. 17. In order to get paid, he would fill out a time slip, obtain a signature from an Olympic Steel representative as verification that he had worked the hours claimed on the slip, and then submit the slip to LFA. Following his January 31, 1994 injury, LFA did not attempt to deny the claimant was its employee, and began administering his workers’ compensation claim. (Though the claimant later became an employee of Olympic Steel, he did so only after filling out an application and going through a formal hiring process.)
For the purposes of resolving this issue on appeal, we shall presume that, at the time of the injury, Olympic Steel controlled the means and methods of the claimant’s on-site job performance. The findings may not specifically discuss the “right to control” test, but the evidence does not suggest that LFA exercised any governance over the manner in which the claimant performed his workplace tasks at Olympic Steel. As a temporary employment agency, LFA’s business practice was merely to provide labor to other entities. Nevertheless, the question of control over the claimant’s workplace environment is not the only relevant point. The trier’s factual findings regarding LFA’s status as an employer must be read in conjunction with the entire Workers’ Compensation Act, including § 31-292. Together, they suffice to support the legal conclusion that the claimant was still in the employ of LFA at the time of the injury, with his services having been lent to Olympic Steel pursuant to a temporary employment agreement of some sort.
Though the findings do not discuss § 31-292, we may take note of that statute in reviewing the appellant’s arguments. As was the case in Kearse, supra, the claimant had an ongoing contract of service with LFA, and at the time of his injury, was still functioning within the terms of that contract. The claimant’s subsequent decision to apply for a permanent position at Olympic Steel does not a fortiori demonstrate that, at the time of his injury, he had no expectation of returning to LFA. On appeal, it is not our place to infer that the claimant was not still employed by LFA just because he testified that it was common for people to begin working at Olympic Steel as “temps,” and then to later apply for a job. See Transcript, p. 33. The trier found that the claimant remained in the employ of LFA at the time of his injury. There is testimonial and documentary evidence sufficient to support that finding, and we will not reverse it on appeal. See Duddy, supra; Merlin, supra.
Next, we turn to the matter of LFA’s insurance coverage, or lack thereof. The transcript of the formal hearing contains statements by the attorneys for the claimant, Olympic Steel, and the Second Injury Fund expressing the understanding that LFA was uninsured on the date of the claimant’s injury, and that it had attempted to administer his claim on its own for a time before becoming defunct. Transcript, pp. 3-6. None of the documents in the case file directly or indirectly suggest that LFA was insured, and there are hearing notices that list “uninsured employer” as one of the issues for determination.
However, we also observe that § 31-348 C.G.S. obligates insurers to report the effective dates and expiration dates of all workers’ compensation insurance policies to this Commission. The rules prescribed under § 31-348 require such notices to be sent to the National Council of Compensation Insurance (NCCI), a computer database that serves as this commission’s official notification unit. See Dibello v. Barnes Page Wire Products, 3970 CRB-7-99-2 (March 2, 2000), aff’d, 67 Conn. App. 361 (2001). According to these records (of which this Commission is presumed to be aware), LFA was insured by a workers’ compensation insurance policy on the date of the claimant’s injury. Thus, prima facie evidence of insurance does appear to exist insofar as it is part of the set of official records that this Commission is statutorily obligated to maintain.
As noted above, the trial commissioner initially included findings in his October 23, 2002 award reflecting a stipulation by the parties that Employee Staffing of America a/k/a Labor Force of America was not an insured employer as required by Chapter 568. Findings, ¶¶ 2-3. On October 31, 2002, the Fund filed a Motion to Vacate the award “based on the discovery of an insurance policy issued to the alleged respondent-employer, Employee Staffing of America a/k/a Labor Force of America, reported to be in effect on the claimed date of injury. According to the Workers’ Compensation Chairman’s office records, Labor Force of America, Inc., of Milford, Connecticut was insured by Utica Mutual Insurance Company policy 1644863 in effect from April 1, 1993 through April 1, 1994.” The claimant objected, and the trier denied the Fund’s Motion to Vacate.
In addition to the Motion to Vacate, the Fund also filed a Motion to Correct certain findings on November 6, 2002, which the trier granted in part. Among the granted corrections were excisions of both factual findings that concerned LFA’s not having been insured. Despite these corrections to the subordinate facts, the trier did not change his ultimate legal conclusion that LFA did not have workers’ compensation coverage on January 31, 1994. He then stated in ¶ H of his conclusions that, should LFA fail to pay any order pertaining to benefits due the claimant, the Fund would be ordered to pay same pursuant to § 31-355. The Fund now argues on appeal that the law does not allow it to be held liable absent evidence that no responsible insurer exists (or that an insurer has failed to pay compensation pursuant to § 31-355).
We agree with the Fund’s argument in this regard. The Workers’ Compensation Act gives a commissioner jurisdiction to determine whether the circumstances are such that the Fund must be required to assume responsibility for a claim under § 31-355. Until it has been determined that an employer and its insurer have failed to or are unable to pay compensation, the Fund cannot be ordered to assume responsibility under § 31-355(b). Moreover, where a trial commissioner’s conclusions are unsupported by the factual findings, this board cannot leave them intact on appeal.
The trier’s striking of ¶¶ 2 and 3 of his Finding and Award leaves no basis for the conclusion in ¶ G that LFA did not have insurance on the date of the claimant’s injury. Given the fact that this Commission’s database indicates that an insurance policy was in effect on the date of the claimant’s injury, it would seem appropriate to schedule an additional evidentiary hearing on the issue of insurance. Though it is regrettable that there have been significant delays in the administration of this claim due to the mistaken assumption by all parties that coverage did not exist, we decline to fall back on general equitable authority to dictate that the Fund assume liability, as the respondent Olympic Steel would have us do.
Section 31-355(b) contemplates that the Fund will become liable after an employer and an insurer (if one exists) fail to pay. We recognize that the Act is a remedial statute that should be construed generously to accomplish its purpose, and that § 31-355(b) does not purport to make distinctions based upon why an employer or insurer has failed to pay compensation. Matey v. Dember, 256 Conn. 456, 485-86 (2001). We also recognize that the Fund bears significant responsibility for failing to identify the possible existence of an insurer during the long pendency of this action. Once the Fund has meaningfully participated in litigation proceedings, it need not be granted additional opportunities to contest its liability after the entry of an award. Matey, supra, 493-94. However, the Fund’s Motion to Correct the trier’s award in this case was timely filed, and the trier granted it. As discussed above, the award cannot stand as is. Given the information in our official records, there is cause to believe that a liable insurer exists. As this Commission has jurisdiction to make such a determination, the most efficient resolution of this case will be achieved by an expedited hearing to resolve the insurance issue, followed by the trier’s entry of revised findings. Therefore, the appropriate procedure is to remand this case for a further evidentiary hearing on whether LFA was covered by a valid insurance policy on January 31, 1994, as suggested by our own records.
The trial commissioner’s decision is accordingly affirmed in part, and reversed in part with direction to conduct further proceedings on remand.
Commissioners James J. Metro and Howard M. Belkin concur.
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