5368 CRB-8-08-08 (2009). Sobon v. Andrzej Oszmian d/b/a Andy's Carpentry et al.
Court | Connecticut |
Connecticut Workers Compensation
2009.
5368 CRB-8-08-08 (2009).
Sobon v. Andrzej Oszmian d/b/a Andy's Carpentry et al
CASE NO.
5368 CRB-8-08-08COMPENSATION REVIEW
BOARD
WORKERS' COMPENSATION COMMISSIONAUGUST 12, 2009RYSZARD SOBON CLAIMANT-APPELLEE v.
ANDRZEJ OSZMIAN d/b/a ANDY'S CARPENTRY EMPLOYER NO RECORD OF INSURANCE
RESPONDENT-APPELLEE and PAUL GONDEK CONSTRUCTION COMPANY and HARTFORD INSURANCE
GROUP INSURER RESPONDENTS-APPELLEES and JOSEPH CAPASSO CAPASSO MASON
ENTERPRISES, INC. RESPONDENT-APPELLANT and SECOND INJURY FUND
RESPONDENT-APPELLEEAPPEARANCES: No appearance was made by or on behalf of the
claimant. No appearance was made by or on behalf of Respondent Andy's
Carpentry. 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.(fn1) 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.(fn2)
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 role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner's role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings...
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