5368 CRB-8-08-08 (2009). Sobon v. Andrzej Oszmian d/b/a Andy's Carpentry et al.

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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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