CASE NO. 1943 CRB-2-93-12
JANUARY 17, 1996
The claimant did not appear at oral argument.
The respondent Rocky Hill Enterprises, Inc. was represented by Jon C. Leary, Esq., Kotchen Ripper, P.C.
The respondent Jodar Blasting, Inc. did not appear at oral argument.
The Second Injury Fund was represented by Philip M. Schulz, Assistant Attorney General.
This Petition for Review from the December 16, 1993 Finding and Award of the Commissioner acting for the Second District was heard March 10, 1995 before a Compensation Review Board panel consisting of Commissioners George Waldron, Roberta Smith D'Oyen, and Amado J. Vargas.
The Second Injury Fund has petitioned for review of the December 16, 1993 Finding and Award of the commissioner acting for the Second District. In that decision, the commissioner found that the claimant sustained a compensable injury on August 29, 1991 while employed by Jodar Blasting, Inc. The commissioner further found that Rocky Hill Enterprises was not a principal employer pursuant to § 31-291 C.G.S., and thus dismissed any claim against Rocky Hill Enterprises. In support of its appeal, the Second Injury Fund ("Fund") contends that the facts as found by the trial commissioner require a conclusion that Rocky Hill Enterprises was a principal employer. The Fund thus contends that Rocky Hill Enterprises should be liable for the claimant's injury, as the subcontractor, Jodar Blasting, Inc., was uninsured at the time of the injury. We agree.
The trial commissioner found the following relevant facts. On August 29, 1991, the claimant was employed by Jodar Blasting, Inc. (hereinafter "Jodar") when he injured his foot. The claimant at the time of the accident was working on premises owned by Rocky Hill Enterprises. Specifically, Rocky Hill Enterprises owned said property, which had been approved as a residential subdivision site, and had hired Jodar to remove any rock in areas designated for the installation of roads and drainage pipes. Rocky Hill Enterprises was in the business of constructing residential homes, but did not itself build roads or install drainage pipes. On August 29, 1991, no homes had yet been constructed on the subdivision site, and Rocky Hill Enterprises had no employees, did not possess a license for blasting, and did not insure its officers for workers' compensation. Jodar obtained the necessary licenses and permits for blasting at the subdivision site. On occasion, one of the corporate officers of Rocky Hill Enterprises would come to the site to inspect Jodar's rock removal operations. However, Rocky Hill Enterprises did not have control over the methods used by Jodar.
Section 31-291 C.G.S. provides in relevant part:
When 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.
Section 31-291 was intended 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).
In order for a principal employer to be liable for workers' compensation benefits, three conditions must be satisfied pursuant to 31-291: (1) The relation of principal employer and subcontractor must exist in work wholly or in part for the principal employer; (2) the work must be on or about the premises controlled by the principal employer; and (3) the work must be a part or process in the trade or business of the principal employer. Pacileo v. Morganti, Inc., 10 Conn. App. 261, 263 (1987). The record clearly indicates that Jodar was hired to perform work for Rocky Hill Enterprises. The respondent Rocky Hill Enterprises concedes in its brief that the first requirement of 31-291 is met, as found by the trial commissioner in Finding No. 11. We will examine the remaining two conditions as they apply to the facts found by the trial commissioner.
The second condition required by 31-291 is that the work be performed on or about the premises controlled by the principal employer. The appellate court has set forth an explanation of this requirement as follows:
The term "control" in this context has a specific meaning. It is merely descriptive of the work area and "is used instead of such words as `owned by him' or `in his possession' in order to describe the area in a more inclusive fashion. The emphasis is upon limitation of the area within which the accident must happen rather than upon actual control of the implements which caused the accident." Alpha Crane Service Inc. v. Capitol Crane, Co., 6 Conn. App. 60, 73-74 (1986) (quoting Crisanti v. Cremo Brewing Co., 136 Conn. 529, 535 (1950).
In the instant case, the trial commissioner found that the subdivision site where the claimant was injured was owned by Rocky Hill Enterprises. Moreover, the commissioner found that an officer from Rocky Hill Enterprises would sometimes visit the subdivision site where Jodar was performing its blasting and rock removal duties. Because the findings of fact indicate that Rocky Hill Enterprises 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. See Alpha Crane, supra, see also Pina v. Leitkowski Construction Co., 9 Conn. Workers' Comp. Rev. Op. 38, 907 CRD-2-89-8 (Feb. 1, 1991).
We note that the president of Jodar Blasting, Inc. testified that at least one of the three corporate officers of Rocky Hill Enterprises was present at the subdivision site from 7:00 A.M. to 5:00 P.M., Monday through Friday, including the day of the accident. (Transcript of 6/15/93 at p. 40).
The final element required by 31-291 is that the work must be a "part or process" in the trade or business of the principal employer. Rocky Hill Enterprises contends that the blasting and rock removal work performed by 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. This argument is legally incorrect. "It 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. . . ." Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 75 (1986) (emphasis added). The appellate court, in Pacileo v. Morganti, Inc., 10 Conn. App. 261 (1987), addressed a factual situation which was similar to the case at hand. In that case, a general contractor for a construction project hired a steel company to lay steel rods for the pouring of concrete. The appellate court found that the laying of steel rods was a "part or process" of the general contractor's trade or business pursuant to 31-291. The court reasoned as follows:
A necessary and expected part of that construction was the laying of steel rods for the pouring of concrete. Ironworkers generally lay steel rods. Since `none of the individuals directly employed by (the general contractor) were qualified to perform the job of ironworker' as stated by the plaintiff in the pleadings, the utilization of ironworkers such as the (steel company) was a part or process of the (general contractor's) trade or business. Pacileo, supra, at 264.
The fact that Rocky Hill Enterprises was not licensed or experienced in rock removal does not take that task out of the "part or process" of the development of subdivisions. Id. In the instant case, the blasting and rock removal performed by Jodar was indeed a necessary and expected part of the construction of a residential subdivision. (See Finding No. 11). Accordingly, we conclude 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.
The determination of whether an employer is a principal employer pursuant to 31 291 is a factual issue. See Pina, supra. We will not disturb such a determination unless it is found without evidence, contrary to law, or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988). The conclusions drawn by the commissioner from the facts found must stand "unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them."Fair, supra; see also Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979).
In the instant case, the facts found by the commissioner indicate that Rocky Hill Enterprises entered into an agreement with Jodar for work to be done at the subdivision site; that the subdivision site where the claimant's injury occurred was owned by Rocky Hill Enterprises; and that the removal of rock was a part of process of the development of subdivision sites, which was Rocky Hill Enterprises' trade or business. We thus conclude that the evidence presented to the commissioner required him to find that all three conditions contained in 31-291 existed, and thus required him to find that Rocky Hill Enterprises was the principal employer.
Accordingly, the trial commissioner's decision is reversed. This matter is remanded to the commissioner for him to enter the appropriate orders in accordance with the above decision.
Commissioners Roberta Smith D'Oyen and Amado J. Vargas concur.