5327 CRB-5-08-3 (2009). Jacobs v. James Dwy d/b/a New Home Exteriors et al.

CourtConnecticut
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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