Kogut v. J & C Building Renovation Co. et al.

The claimant was represented by Zbigniew Rozbicki, Esq., Zbigniew S. Rozbicki & Associates, 100 East Main St., P. O. Box 419, Torrington, CT 06790-0419.

The respondent employer J & C Building Renovation was not represented at oral argument. Notice sent to J. Michael Cantore, Jr., Esq., 1172 Bedford St., Stamford, CT 06905.

The respondent employer Elite Contracting Inc. and the insurer ITT Hartford were represented by Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

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

This Petition for Review from the November 22, 1996 Finding and Award of the Commissioner acting for the Seventh District was heard June 27, 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 respondents Elite Contracting, Inc. and ITT Hartford have petitioned for review from the November 22, 1996 Finding and Award of the Commissioner acting for the Seventh District. They argue that the trier erred by ordering them to assume responsibility for the benefits due to the claimant as a result of his compensable injury. We reverse the trial commissioner’s decision, and remand this case to another commissioner for further findings of fact.1

The claimant was injured when he fell from a roof on June 1, 1994, while working for Cezary Bartosiewicz, who did business as the J & C Building Renovation Company. The claimant had begun doing roofing work for Bartosiewicz in 1993, and was paid on both an hourly and a piece work basis at different times. During the five years prior to the claimant’s injury, Bartosiewicz had been working together with Elite Contracting, owned by Randy Russo. In each instance, he had subcontracted work from Elite.

This time, Elite had contracted with a general contractor, Kenneth Bacco, to roof a residence in Greenwich. There was no written contract between Elite and J & C, even though Bartosiewicz had tried to obtain such an agreement. The oral arrangement for the Greenwich job was that Elite would pay J & C $90.00 per roofing square completed. Bartosiewicz, in turn, had agreed to pay the claimant by the square as well. The job itself was performed with equipment supplied by Elite Contracting, and either Russo or his brother came to the work site several times each day. Bartosiewicz considered Russo the general contractor, as everyone on the job worked for him. The trial commissioner found that there was no credible evidence that Kenneth Bacco supervised the daily activities at the job site in any way. That function was performed by Russo and Elite Contracting.

The trier found that Bartosiewicz was the claimant’s employer on the date of the injury, and that Russo/Elite Contracting was the general contractor on the job. He then ordered that “the Respondent, Cezary Bartosiewicz and Elite Contracting, Inc., pay Claimant all monetary and medical benefits due under the Connecticut Workers’ Compensation Act.” Elite Contracting and its insurer appealed that decision. They also filed a Motion to Correct the findings, including a request that “J & C Building Renovation” be substituted for “Elite Contracting, Inc.” in the order, as the parties had been misidentified.2 That Motion to Correct was denied in its entirety.

Although the commissioner’s findings labeled Bartosiewicz as the employer and Russo as the general contractor in this matter, he did not use the words “principal employer” in his decision. Instead, he simply made both Bartosiewicz and Elite Contracting liable for the claimant’s benefits, without distinguishing the legal grounds for their responsibility. The appellants argue that this was improper, as findings regarding Elite Contracting’s status as a “principal employer” pursuant to § 31-291 C.G.S. would be necessary before any liability could be assessed against that entity or its principal.

We begin by noting that the Finding and Award does not establish a direct employer-employee relationship between Russo/Elite Contracting and the claimant. An employee is someone who renders a service for another and whose actions are subject to the will of the other “in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained.” Nelson v. Deb’s Inc., 15 Conn. Workers’ Comp. Rev. Op. 274, 276, 2228 CRB-3-94-12 (June 20, 1996) (citations omitted), aff’d., 45 Conn. App. 909 (1997) (per curiam). The evidence demonstrates that the claimant was hired by and paid by Bartosiewicz (see Claimant’s Exhibits A and B), and that Bartosiewicz controlled the hours that the claimant worked and his job duties. September 5, 1995 Transcript, p. 13-16. The claimant testified that he had never been told he was working for Randy Russo, nor had he ever heard of Elite Contracting. Id., 22. Further, Bartosiewicz testified that Russo paid him directly, and he in turn paid the claimant a portion of that money for his work. Id., 48-49. Thus, the trier found that Bartosiewicz was the claimant’s employer.

Nevertheless, even if Russo was not the claimant’s employer, a general contractor such as Elite Contracting may be liable as a principal employer if the three conditions of § 31-291 C.G.S.3 are met. See Jones v. Lillibridge, 16 Conn. Workers’ Comp. Rev. Op. 143, 145, 3149 CRB-2-95-6 (Nov. 27, 1996). The trier specifically found that one of those criteria was satisfied, i.e., that Elite Contracting had control over the premises upon which the roofing job was being performed. He also made findings that establish a subcontractor-general contractor relationship between Bartosiewicz and Russo, with the former doing work for the latter. The only criterion he did not directly discuss was whether the work done by the subcontractor was a part or process of Elite Contracting’s business.

Such an issue is a question of fact, and cannot be determined by this board. Hebert v. RWA, Inc., 3128 CRB-2-95-7 (decided May 2, 1997). We observe, however, that the fact that Elite Contracting did not actually perform any of the roofing work itself does not necessarily indicate that such work is not a part or process of its business, despite the appellants’ arguments that Russo was a middleman and “a nonparticipant insofar as actual physical labor was concerned.” Respondents’ Brief, 5. See Mancini v. Bureau of Public Works, 167 Conn. 189, 196 (1974) (“process in the trade or business” includes all operations that enter into the successful performance of the principal employer’s commercial function); Pacileo v. Morganti, Inc., 10 Conn. App. 261 (1987). The scope of a principal employer’s business is not solely dependent on the actual work performed by that entity and its employees when they are contractually responsible for accomplishing a task that they cannot finish themselves.

We hold that this case must be remanded to a new trial commissioner for expanded findings and legal conclusions on the principal employer issue, based on the evidence in the record. We also note that Bartosiewicz admitted that he had no workers’ compensation insurance in effect when the claimant was injured. September 5, 1995 Transcript, 54. Although the trier did not make a finding regarding his lack of insurance, no one disputes the fact that he was uninsured at the time of the compensable injury. Upon remand, the trial commissioner should thus make a finding regarding the employer’s lack of insurance as well, and consider an order against the Second Injury Fund pursuant to § 31-355 C.G.S.

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

1 The Second Injury Fund and the claimant have both filed motions to dismiss this appeal on the ground that the appellants’ brief was filed one week late. As a motion for an extension of time for the appellant to file its brief was granted by the Chairman on May 12, 1997, these motions to dismiss are moot. BACK TO TEXT

2 The trial commissioner described “Cezary Bartosiewicz and Elite Contracting, Inc.” as a single respondent in his order, rather than as two respondents. Nowhere else in his decision does the trier imply an identity between J & C Building Renovation and Elite Contracting; in fact, Bartosiewicz was found to be the employer, and Elite Contracting the general contractor on the job. BACK TO TEXT

3 Section 31-291 provides in relevant part that “[w]hen any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such 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 such contractor or subcontractor. . . .” BACK TO TEXT