Sobon v. Andrzej Oszmian d/b/a Andy’s Carpentry et al.

Respondent Paul Gondek Construction Company and the Hartford Insurance Group were represented by Douglas L. Drayton, Esq., and Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033 who did not file a brief but appeared at oral argument.

Respondent Joseph Capasso Capasso Mason Enterprises, Inc. was represented by Christopher W. Huck, Esq., Michelson, Kane, Royster & Barger, P.C., 10 Columbus Boulevard, Hartford, CT 06106.

The Second Injury Fund was represented by Philip Schulz, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 061410120.

This Petition for Review from the July 28, 2008 Corrected Finding and Award of the Commissioner acting for the Eighth District was heard February 27, 2009 before a Compensation Review Board panel consisting of Commissioners Peter C. Mlynarczyk, Randy L. Cohen and Nancy E. Salerno.

OPINION

PETER C. MLYNARCZYK, COMMISSIONER. Respondent Capasso Mason Enterprises has petitioned for review from the July 28, 2008 Corrected Finding and Award of the Commissioner acting for the Eighth District. We find no error, and affirm the decision of the trial commissioner.1

The following factual determinations are pertinent to our review. The trial commissioner took administrative notice of two prior Findings and Awards dated December 13, 2005 and November 15, 2006 respectively which found that the claimant had sustained a compensable injury on May 29, 2003 on premises known as 317 Clark Hill Road, South Glastonbury, Connecticut while in the employ of respondent Andrzej (“Andy”) Oszmian, d/b/a Andy’s Carpentry.2 It was also found that Andy’s Carpentry did not have a workers’ compensation insurance policy in force on the date of injury. The appeal currently before this board arose out of a subsequent claim by the Second Injury Fund that respondent Giuseppe (“Joseph”) Capasso was the principal employer of the claimant on May 29, 2003.

At a formal hearing held on March 5, 2008, Capasso testified that he had hired Paul Gondek, an architect, to act as a parttime construction manager to oversee the construction of a personal residence Capasso was having built on land known as 317 Clark Hill Road, South Glastonbury, Connecticut. Capasso also testified that he had personally entered into a written contract in the amount of $125,000 with respondent Andy’s Carpentry to perform framing, rough carpentry and roofing at the subject premises, and that Oszmian provided Capasso and his wife, the owner of record of the subject premises, with a certificate of insurance that included workers’ compensation coverage. Respondent Capasso’s Exhibit 8.

Capasso stated that he has been a mason contractor for twenty-five years and that his primary business activity involves the construction of commercial properties; however, Capasso also indicated that he has occasionally performed work on residential properties during this period. Relative to the performance of his contract with Andy’s Carpentry, Capasso testified that he issued instructions regarding how the framing was to be done, appeared on the job site on a regular basis in order to supervise and monitor the personnel, and had the authority to terminate Andy’s Carpentry if the work was not being done to his satisfaction.

Based upon the foregoing testimony, the trial commissioner determined that the premises on which the claimant had sustained his injuries were neither owned nor controlled by respondent Paul Gondek, and the framing and roofing duties performed by the claimant were not a “part or process” of the trade or business of Paul Gondek. Rather, the trial commissioner concluded that Joseph Capasso, “by virtue of his extensive experience in the construction business and associated trades,” Findings, ¶ p, was serving as the principal employer and general contractor in the construction of the home on the subject premises, and “[t]he inescapable conclusion is reached that the respondent Capasso procured the work to be performed by a contactor which was a part or process of his trade or business.” Id. The trial commissioner dismissed the principal employer claim against Paul Gondek and ordered Joseph Capasso to reimburse the Second Injury Fund for all payments it made to the claimant as a consequence of the injuries the claimant sustained on May 29, 2003.

Respondent Capasso filed a Motion to Correct which was denied in its entirety, and this appeal followed. Capasso contends that the trial commissioner’s failure to adopt the corrections propounded in his Motion to Correct constituted error. In addition, Capasso argues that the trial commissioner’s conclusion that Capasso was acting as the principal employer relative to the construction of the residence at which the claimant sustained his injuries was clearly erroneous in that it was legally inconsistent with the factual findings and based on an inference unreasonably drawn from the underlying facts. Capasso asserts that as neither he nor his company are in the business of building homes, “Mr. Sobon’s work was not an essential part in the maintenance of Mr. Capasso’s masonry business. As such, since the framing and roofing work is not a part or process in Mr. Capasso’s business, Mr. Capasso is not liable as a principal employer under section 31-291 of the Connecticut General Statutes.” Appellant’s Brief, p. 10.

We begin our analysis with a recitation of the well-settled standard of deference this board is obliged to apply to a trial commissioner’s findings and legal conclusions.

The resolution of this matter rests upon a determination of whether the trial commissioner correctly interpreted and applied § 31-291 C.G.S., the “principal employer” statute, which states, in pertinent part:

The purpose of § 31-291 C.G.S. was “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.” Bello v. Notkins, 101 Conn. 34, 38 (1924). Another stated rationale for “principal employer responsibility under the Workers’ Compensation Act is to allow recovery for accidents occurring in the work area which could be prevented or minimized by sufficient oversight or control.” Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 74 (1986), citing Crisanti v. Cremo Brewing Co., 136 Conn. 529, 535 (1950). In order to invoke the principal employer defense,

Alpha Crane, supra, at 72, citing Mancini v. Bureau of Public Works, 167 Conn. 189, 193 (1974); Kasowitz v. Mutual Construction Co., 154 Conn. 607, 611 (1967).

The determination of whether the required elements have been satisfied is generally a question of fact. Id. Relative to the inquiry of whether the premises are controlled by the principal employer,

In other words, “[c]ontrol of the work area, and not of the work … is the requirement of this special defense of principal employer ….” Alpha Crane, supra, at 74. Thus, in Hebert v. RWA, Inc., 48 Conn. App. 449, cert. denied, 246 Conn. 901 (1998), the trial commissioner determined that an individual who had been hired by the owners of a restaurant to facilitate the installation of a new roof was functioning as a principal employer in part based on evidence which demonstrated that the individual “visited the job site daily, inspected the ongoing work and asked the plaintiff to address certain problem areas on the roof before proceeding.” Id., at 454. The individual in question was unable to prevail based on his argument that “he did not control the premises because he did not own them, have a trailer or office on them or have the ability to control the plaintiff’s activities.” Id.

Similarly, in Pina v. Leitkowski Constr. Co., 9 Conn. Workers’ Comp. Rev. Op. 38, 907 CRD-2-89-8 (February 1, 1991), we upheld the determination of the trial commissioner that an individual who had entered into a contract with a homeowner to install a new roof on the homeowner’s premises was acting as the principal employer based on evidence indicating that although the homeowner realized the individual would subcontract out the work to another entity, the homeowner still considered the individual “responsible for any major problem that might arise on the job.” Id., at 40. The record also revealed that “[o]n at least one occasion, [the individual] drove by the job to check on its progress” and the “evidence was sufficient to show [the individual] had the work premises under his control and delegated that control in part to [a subcontractor] who in turn delegated to [another subcontractor].” Id. Finally, in Adams v. Jodar Blasting, Inc. et al., 15 Conn. Workers’ Comp. Rev. Op. 122, 1943 CRB-2-93-12 (January 17, 1996), this board reversed the determination of the trial commissioner that an enterprise which owned a residential subdivision site and hired the named respondent to remove rocks from the areas intended for the installation of roads and drainage pipes was not functioning as a principal employer. “Because the findings of fact indicate that [the enterprise] owned the subdivision site and visited it, we conclude that as a matter of law the second condition of 31-291 which requires that the work be performed on premises controlled by the principal employer has been met.” Id., at 124-125.

The third element of the defense; i.e., whether the work for which the parties contracted can be considered a “part or process” in the trade of the principal employer, has also been the subject of considerable legal analysis.

Alpha Crane, supra, at 74-75, quoting Kasowitz, supra, at 613; Crisanti, supra, at 75.

In addition, “[i]t has long been held that this 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 of the defense.” Alpha Crane, supra, at 75. Thus, in Hoard v. Sears Roebuck & Co., Inc., 122 Conn. 185 (1936), and Massolini v. Driscoll, 114 Conn. 546 (1932), rubbish removal was deemed an integral part of the principal employer’s business. Further, in Fox v. Fafnir Bearing Co., 107 Conn. 189 (1928), the window cleaning of the defendant’s factory was also considered “a part of the work of keeping the employer’s factory in running condition, and [was] therefore a part of its ‘trade or business’ though not directly connected with any manufacturing process.” Id., at 195.

In Pacileo v. Morganti, Inc., 10 Conn. App. 261 (1987), the defendant, a general contractor, was hired by the City of New Haven to “oversee and implement the construction of the city hall library complex.” Id., at 264. An iron-worker was injured at the job site, and the court, noting that the construction of a garage was integral to the project, stated,

Similarly, in Hebert, supra, although the individual in question argued “that his business is residential remodeling and repair and some light commercial work, neither of which includes installing flat roofs on commercial buildings,” id., at 454, the court concluded,

Relative to the above-referenced matters that have come before this board, in Pina, supra, we affirmed the trier’s determination that the record demonstrated “[t]he roofing job was a part or process in the [individual’s] business as a contractor.” Id., at 40. In Adams, supra, although respondent Rocky Hill Enterprises asserted “that the blasting and rock removal work performed by [respondent] Jodar were functions which had never been performed by its own employees, and thus cannot be considered to be part or process of its trade or business,” id., at 125, we concluded that “the blasting and rock removal performed by Jodar was indeed a necessary and expected part of the construction of a residential subdivision” id., and found “that as a matter of law the rock removal function was a ‘part or process’ of the construction of residential subdivisions engaged in by Rocky Hill Enterprises.” Id.

Applying the foregoing analysis of relevant legal precedent to the case at bar, we conclude that the evidentiary record contained ample support for the trial commissioner’s inference that Joseph Capasso, the husband of the owner of record of the subject premises, Constantina Capasso, was serving as the principal employer and general contractor in the construction of the home on the subject premises. We note at the outset that the first element of § 31- 291 C.G.S. is readily satisfied, as the record contains a copy of the contract entered into by Joe and Tina Capasso and Andy [sic] Carpentry LLC in October 2002 securing the services of Andy’s Carpentry as an independent contractor at the amount of $125,000.4 See Respondent Capasso’s Exhibit 7. In addition, at the formal hearing on August 16, 2005, Andy Oszmian testified that his contract was with Capasso. Transcript, p. 29. The record also indicates that in a Finding and Award issued on December 13, 2005, the presiding trial commissioner concluded that the claimant was an employee of Andy’s Carpentry at the time he sustained his injury.

In order to ascertain the basis for the trial commissioner’s inference that the remaining elements of the statute were satisfied, it is necessary to review the occasionally contradictory testimony of the parties. Relative to the issue of whether Capasso controlled the premises on which the claimant sustained his injury, we note that at trial, Capasso, when queried as to whether he gave any instructions to Andy’s Carpentry regarding the matter in which the work was to be performed, confirmed that he would visit the premises “every other day or so” and if he didn’t like something, he would instruct Oszmian to make changes.5 March 5, 2008 Transcript, p. 16. Capasso also testified that Gondek conducted interviews and made recommendations to Capasso as to whom to hire to perform the various functions necessary to completing the home but could not remember whether it was he or Gondek who had entered into the contracts with the various subcontractors. Id., at 17-18. Capasso indicated that if he were unhappy with the work of any of the sub-contractors, he would consult with Gondek before firing a subcontractor, even though he recognized the right of “any owner” to do so. Id., at 21.

However, our review of the record indicates that Gondek testified quite differently regarding his role in the construction of Capasso’s home. Gondek indicated that his company was hired as a sub-contractor to build the kitchen and wall cabinetry and the paneling for the libraries, but he also received additional remuneration to assist Capasso as a part-time project manager. May 30, 2007 Transcript, pp. 14, 17. Gondek testified that he was paid extra for “keeping track of the other subcontractors on the premises” which “wasn’t near what a general contractor would have been paid. It was a fraction of it. That was our agreement going in.” Id., at 16-17. Gondek stated that he primarily served as an overseer for quality control issues and a resource if Capasso had questions regarding the work being done.6 Id., at 6. Gondek also worked with the entity retained by the Town of Glastonbury to inspect the framing and admitted that he had probably spoken with Andy Oszmian regarding deficiencies found by the inspectors but that any problems in that regard were also brought to Capasso’s attention.7 Id., at 9. In fact, Gondek testified that at one point, Capasso fired Oszmian from the project for deviating from the plans, but that Gondek himself did not have the authority to hire or fire anyone. Id., at 10-11. In addition, Gondek testified that he was not on the job site daily but only twice a week.8 Id., at 12. He also stated that in addition to hiring/firing responsibilities, Capasso handled all the contracts, insurance, payments, certificates and lien waivers.”9 Id. Gondek denied having the authority to instruct any of the subcontractors to make changes without first speaking with Capasso. Id., at 14.

Our review of the foregoing testimony leads us to conclude that the evidentiary record contained ample support for the trial commissioner’s inference that Capasso, and not Gondek, controlled the premises on which the claimant’s injury occurred. Not only did Capasso’s wife own the premises in question, but Capasso himself admitted to regularly visiting the job site, inspecting the work being performed and ordering changes when he felt it necessary. Such findings are consistent with the indicia of control set out in Alpha Crane, supra, and discussed in Hebert, supra, Pina, supra, and Adams, supra. Moreover, while Capasso’s testimony relative to the hiring process and ongoing supervision of the various subcontractors was somewhat vague and inconclusive, Gondek clearly testified that his role was to make recommendations to Capasso regarding the subcontractors but that he would ultimately defer to Capasso’s decisions. Gondek’s testimony in this regard was buttressed by the evidence pertaining to the circumstances surrounding the hiring of Andy’s Carpentry by Capasso, to which Capasso himself attested. Finally, we place little probative value on Capasso’s testimony that he never met the claimant, as such a condition precedent is not contemplated by the statute. March 5, 2008 Transcript, p. 16.

Relative to the inquiry into whether the framing performed by Andy’s Carpentry could be considered a part or process of Capasso’s trade or business, we find the evidentiary record contained sufficient support for the trial commissioner’s inference that Capasso was essentially acting as the general contractor in the construction of his home rather than merely as a mason subcontractor. As such, it logically follows that the framing and other subcontracted responsibilities necessary to the construction of a personal residence were a part or process of Capasso’s trade or business when he was acting in that capacity. For instance, although Capasso testified that he was “strictly a subcontractor,” id., at 15, and was “definitely” functioning as a homeowner rather than a general contractor, id., at 17, he admitted under cross-examination that he was acting as a general contractor for the construction of his new office building in Middletown. Id., at 23.10 Capasso also testified that his company primarily does the “block and brick” construction for Connecticut schools but that in his last twenty-five years in business, he did recall doing two residential homes. Id.

In addition to these admissions by Capasso, the trial commissioner’s conclusions are also supported by Gondek’s testimony, the substance of which would seem to refute many of Capasso’s assertions. For instance, at the formal hearing held on May 30, 2007, Gondek stated that it was his impression he had entered into an oral “agreement” rather than a contract with Capasso to assist him in building the home.11 Transcript, p. 4. Moreover, when queried further under direct examination, Gondek agreed that Capasso had essentially functioned as a general contractor for the subject premises and that he had prior experience in home building because he had built his previous home three or four years before. Transcript, at 12-13. In fact, Gondek testified that Capasso had told him he had acted as the general contractor for the previous project. Id., at 13. Gondek also testified that he regarded Capasso as the general contractor and himself as a part-time project manager, which is how Capasso would refer to him in meetings.12 Id., at 5. Finally, although Gondek confirmed that his company had on occasion built a house “from scratch,” he also testified that he would have had to hire a framer because framing and roofing are not a part or process of the business of Gondek Construction. Id., at 18.

The admittedly contradictory nature of the foregoing testimony notwithstanding, we conclude that the trial commissioner’s determination that Capasso was in fact acting as the principal employer in the construction of his personal residence did not constitute error. While we recognize that Capasso testified that the primary function of his business was commercial masonry, we also note that the record clearly supports the inference that Capasso’s overall responsibilities at the subject job site far exceeded those which would routinely be expected from a subcontractor. In light of the discussion herein concerning Capasso’s apparent control over most if not all of the various elements of the construction project, we may infer that the trial commissioner concluded that Capasso’s argument that he himself did not perform such functions as framing and roofing was insufficient to relieve Capasso of the overall responsibility for the completion of the project. As this board has previously remarked, the “statute states that the enterprise in which the injury occurred must only be ‘a part’ of the respondent’s trade or business; had the General Assembly intended to limit the employer’s liability to only those activities which were a ‘substantial,’ ‘significant,’ ‘important,’ ‘principal,’ ‘primary,’ or ‘major’ part of an employer’s operations, the statute would have been written in that fashion.” Martinez v. C. Palmer & Sons et al., 5252 CRB-8-07-7 (October 21, 2008).

In addition, and as mentioned above, the Alpha Crane court stated quite specifically that “those tasks which are necessary to the routine functioning of a business are also included within the scope of this element of the defense.” Alpha Crane, supra, at 75. It is obvious that framing and roofing would be necessary components in the construction of a personal residence. The trial commissioner’s findings in this regard would seem to comport with Pacileo, supra, in which the court found that the general contractor hired to oversee the library construction was liable as a principal employer because the act of hiring subcontractors, in this case, iron-workers, to perform specialized functions that his company could not was a part or process of the general contractor’s trade or business. Similarly, in Hebert, supra, the court held that although the contractor who hired subcontractors to install a roof on the subject restaurant testified that his company did not do roofing, he was nevertheless liable as a principal employer because he had negotiated the contract between the subcontractor and the restaurant and paid himself a fee for doing so. Finally, in Adams, supra, this board determined that the blasting and rock removal activities performed by subcontractors were “a necessary and expected part of the construction of a residential subdivision,” id., at 125, and accordingly found Rocky Hill Enterprises liable as the principal employer even though their representative had testified that the business itself never performed such functions. In light of this legal precedent, we find that the trial commissioner’s assessment in the instant matter that Capasso was operating as a general contractor and “procured” Andy’s Carpentry to perform work which was a part or process of Capasso’s business is entirely consistent with the parameters set out in the foregoing case law and we therefore are not inclined to reverse the trier’s conclusions on appeal.

It is obvious that in order to reach his conclusions, the trial commissioner was obliged to sift through a great deal of contradictory testimony and he ultimately chose to place more credence in the testimony of Gondek than that of Capasso. This determination was his prerogative as a fact-finder and one which we are unable to second-guess on appeal.

As mentioned herein, respondent Capasso filed a Motion to Correct which was denied in its entirety. Our review of said Motion suggests that the primary purpose of the proposed corrections contained in the Motion to Correct was to re-litigate the matter in order to have the trial commissioner conform his findings to the respondent’s view of the facts. However, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).

Having found no error, the Corrected Finding and Award dated July 28, 2008 of the Commissioner acting for the Eighth District is accordingly affirmed.

Commissioners Randy L. Cohen and Nancy E. Salerno concur in this opinion.

1 We note that an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 In the Findings and Awards dated December 13, 2005 and November 15, 2006, the claimant’s date of injury was reported as May 28, 2003. It was subsequently determined that the correct date of injury was May 29, 2003 and in order to correct the error, the parties filed a joint Motion to Correct Findings and Awards by Stipulation which the trial commissioner granted. BACK TO TEXT

4 The scope of the project was defined as follows: Andy will complete all framing and rough carpentry according to the plans, including the installation of exterior doors (installation of garage doors excluded), windows, roofing materials and house wrap. Respondent Capasso’s Exhibit 7. BACK TO TEXT

5 Capasso stated, “When I used to go there every other day or so and I didn’t like something, I’d say ‘Andy, you got to fix — that window is crooked,’ or Andy, you need another 2x4 here, Andy, where’s the rest of the guys?’ You used to promise me you were going to give me 8 guys, I only have 5 guys.” That’s my instructed.[sic]” March 5, 2008 Transcript, p. 16. BACK TO TEXT

6 Gondek explained that Capasso “would ask me, you know, for quality control kind of — to oversee that. You know, the guys were doing the job that on occasions he would ask me to review work orders, on occasion, if he thought they were more than they should be because he had some knowledge of overall construction. If he had questions on things, he would ask me. That was it for the most part.” May 30, 2007 Transcript, p. 6. BACK TO TEXT

7 We note that Gondek testified that he was not involved in hiring Andy’s Carpentry and in fact had advised Capasso against it. He testified that Andy’s “was the lowest bidder and Joe elected to go with him and I told him that’s not always the best thing to do because he is grossly under. And this is why we’re all here.” May 30, 2007 Transcript, p. 8. BACK TO TEXT

8 At his deposition held on August 29, 2005, the claimant testified that he did not see Gondek’s trucks at the job site but that he did see “trucks and pickup trucks with a sign of a Joe Capasso.” Respondents’ Exhibit 1 (November 1, 2005), page 13. The claimant also testified that Capasso was on the job site “[a]lmost every day. Either in the morning or in the afternoon.” Id., at 18. BACK TO TEXT

9 The evidentiary record indicates, and the trial commissioner so found, that Gondek obtained a building permit on August 29, 2002 and a variance on April 18, 2008 from the Town of Glastonbury for the subject premises. Findings, ¶¶ 6, 7. See also May 30, 2007 Transcript, p. 6; March 5, 2008 Transcript, p. 5, Respondent Second Injury Fund’s Exhibit 3; Respondent Capasso’s Exhibit 6. BACK TO TEXT

10 Capasso testified, “I’m doing a building right now, as I’m speaking, in Middletown, which is our office, it’s all made out of blocks, and I’m doing that. So if you want to call me a general contractor, you could, but I’m not a general contractor.” March 5, 2008 Transcript, p. 23. BACK TO TEXT

11 Gondek testified that he entered into “[a]n agreement. It wasn’t so much a contract. He bought a piece of property from a guy that I know and he asked me if I would help him oversee a house — build a house with him because he’s a mason contractor�. And he had just previously built his own house and he said he didn’t know if he would have the time to build this one 100%, would I be interested in helping him? And I said yes. So that was the agreement we had.” May 30, 2007 Transcript, p. 4. BACK TO TEXT

12 Capasso asserted that it was “[a]bsolutely not true” that Gondek was only a part-time project manager for the building of the house but was never able to produce a contract indicating otherwise. March 5, 2008 Transcript, at 19. BACK TO TEXT