5327 CRB-5-08-3 (2009). Jacobs v. James Dwy d/b/a New Home Exteriors et al.
Court | Connecticut |
Connecticut Workers Compensation
2009.
5327 CRB-5-08-3 (2009).
Jacobs v. James Dwy d/b/a New Home Exteriors et al
CASE NO. 5327
CRB-5-08-3COMPENSATION REVIEW BOARD
WORKERS' COMPENSATION COMMISSION MAY 28, 2009KEITH JACOBS CLAIMANT-APPELLEE v. JAMES DWY d/b/a
NEW HOME EXTERIORS EMPLOYER NO RECORD OF INSURANCE RESPONDENT-APPELLEE and
DAVID TUCKER d/b/a DAVE'S VINYL SIDING EMPLOYER NO RECORD OF INSURANCE
RESPONDENT-APPELLEE and SECOND INJURY FUND RESPONDENT-APPELLANTAPPEARANCES: The claimant was
represented by Marci M. Aldi, Esq., Law Offices of Eugene Defronzo, P.C., 61
Field Street, P.O. Box 2244, Waterbury, CT 06722. The respondent employer James
Dwy d/b/a New Home Exteriors, 266 Homestead Avenue, Waterbury, CT 06705 did not
appear at oral argument. The respondent employer David Tucker d/b/a
Dave's Vinyl Siding, 15 Williams Drive, Prospect CT 06712 did not appear
at oral argument. The respondent Second Injury Fund was represented by Lisa G.
Weiss, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm
Street, P.O. Box 120, Hartford, CT 06141-0120. This Petition for Review (fn1)
from the February 13, 2008 Finding and Award of the Commissioner acting for the
Fifth District was heard January 23, 2009 before a Compensation Review Board
panel consisting of the Commission Chairman John A. Mastropietro and
Commissioners Peter C. Mlynarczyk and Randy L. Cohen.OPINIONJOHN A.
MASTROPIETRO, CHAIRMAN. The present appeal is from the Finding and
Award issued to the claimant, who was injured falling off the roof at a home
construction site. The trial commissioner concluded that the respondent James
Dwy d/b/a New Home Exteriors was the principal employer at the project and the
claimant was acting as an employee of that respondent. The trial commissioner
reached no conclusion as to whether the other respondent, David Tucker d/b/a
Dave's Vinyl Siding, had an employer-employee relationship with the
claimant. The respondent/appellant Second Injury Fund (the
"Fund") has appealed, arguing, among other averments of error,
that the commissioner's failure to reach a determination as to the
status of Mr. Tucker was erroneous. We agree with the appellant and remand this
matter for a determination on that issue.There is no dispute that on November 13, 2005 the claimant fell
off the roof of a home under construction at 22 Orchard Avenue, Naugatuck,
Connecticut and the claimant was disabled for an extended period thereafter due
to arm and head injuries. The circumstances as to who procured the
claimant's labor on the roof are considerably murkier, however.
The trial commissioner found that the claimant was an
accomplished home improvement worker and around 2001 had met David Tucker while
they were both employed at the Overhead Door Company. In 2004 the claimant set
up a licensed home improvement firm with Greg Debiase, under the name GDM
Construction. In September 2005 GDM ceased operations at which time the
claimant began working for Mr. Tucker.
During this period Mr. Tucker found all jobs on which claimant
worked including the job on which claimant was injured. The claimant was paid
by Mr. Tucker in cash on an hourly basis. The claimant considered himself Mr.
Tucker's employee on these jobs.
The claimant did not know the respondent James Dwy until he
arrived at the Naugatuck construction site. The first day he worked there Mr.
Dwy gave the claimant $100 for gas money pursuant to the claimant's
request. Mr. Dwy did direct Mr. Tucker and the claimant as to the work he was
to perform on the job. The claimant used some of his own hand tools as well as
tools provided by Mr. Dwy. The claimant did not discuss his rate of pay...
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