Argued
April 11, 2018
Procedural
History
Appeal
from the decision of the Workers' Compensation
Commissioner for the Third District determining that the
defendant city of Bridgeport was the principal employer of
the plaintiff, brought to the Compensation Review Board,
which affirmed the commissioner's decision, and the
defendant city of Bridgeport et al. appealed to this court.
Affirmed.
Joseph
J. Passaretti, Jr., for the appellants (defendant city of
Bridgeport et al.).
Joy L.
Avallone, assistant attorney general, for the appellee
(defendant Second Injury Fund).
Sheldon, Bright and Harper, Js.
OPINION
SHELDON, J.
The
defendant, the city of Bridgeport (city), [1] appeals from the
decision of the Compensation Review Board (board) affirming
the finding and order of the Workers' Compensation
Commissioner for the Third District (commissioner) holding
that the city was the principal employer of the plaintiff
Christopher Barker when he suffered a compensable injury
while working for an uninsured subcontractor of the city on
city property, and thus that the city was liable, pursuant to
General Statutes§ 31-291, [2] for all workers' compensation
benefits[3] due to him in connection with that injury.
The city claims that the board erred in affirming the
decision of the commissioner that the city was liable to the
plaintiff as his principal employer because (1) § 31-291
does not apply to governmental entities and (2) even if
§ 31-291, in theory, can apply to a municipality, it
does not impose principal employer liability on the city in
this case because one fact essential to establishing such
liability-that the work being performed by the plaintiff when
he was injured was a part or process of the city's trade
or business-has not been satisfied.[4]We affirm the decision of the
board.
The
record reveals the following facts and procedural history. In
March, 2000, the city contracted with All Roofs by Dominic
(All Roofs) to repair the roof of the city's transfer
facility. All Roofs then subcontracted the repair work to
Howard Adams d/b/a Howie's Roofing (Howie's Roofing),
who in turn hired the plaintiff to perform per diem work on
the project. On June 29, 2000, the plaintiff was injured when
he fell from the roof of the transfer facility while
performing such per diem work.
Following
his injury, the plaintiff filed claims for workers'
compensation benefits against Howie's Roofing, All Roofs
and the city. Neither All Roofs nor Howie's Roofing
carried a valid workers' compensation insurance policy.
After a formal hearing, Commissioner George A. Waldron
determined, on January 5, 2005, that when the plaintiff
suffered his work related injury, he was an employee of
Howie's Roofing, and thus that the commission had
jurisdiction over his claim. Under General Statutes §
31-255, this finding required the Second Injury Fund to pay
workers' compensation benefits to the plaintiff in lieu
of his uninsured employer.
In
2014, the Second Injury Fund filed a motion for an order
declaring that, at the time the plaintiff suffered his
injury, the city was his principal employer within the
meaning of § 31-291, and thus that the city was liable
to pay all compensation benefits due to him in connection
with that injury. Under § 31-291, ‘‘[w]hen
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.''
Commissioner
Jack R. Goldberg conducted a formal hearing on the Second
Injury Fund's motion on November 19, 2015, and February
23, 2016. At the hearing, the city conceded that it had hired
All Roofs to perform roofing work at its transfer facility
and that the plaintiff's injury took place on municipal
property, which was under the city's control. The city
denied, however, that it was liable to pay the
plaintiff's workers' compensation benefits as his
principal employer because the roofing work the plaintiff was
performing when he was injured was not a part or process of
the city's trade or business. The commissioner later
summarized the evidence on which the city based its denial of
principal employer liability as follows: ‘‘John
Cottell, the city's Deputy Director of Public Works,
testified at the formal hearing that the city did not retain
an employee on staff to repair roofs because the need was not
extensive enough to hire an employee. In addition, the
city's collective bargaining agreement barred other
employees from doing work outside their assigned trades.
Cottell said it was the responsibility of his department to
maintain city owned buildings. To accomplish that, the city
would issue a work order to a contractor it had placed on the
‘on-call list' and retain him as an outside
contractor to do small projects such as the one the
[plaintiff] had been working on. Cottell testified he was
uncertain whether a sole proprietor such as All Roofs . . .
needed to provide proof of workers' compensation
insurance before working on a city owned building. He
testified that the city . . . was not in the roofing business
in 2000.''
By
finding and order dated June 16, 2016, the commissioner
concluded that at the time of the plaintiff's injury, the
city was his principal employer pursuant to § 31-291,
and thus that it was required to pay all benefits to which he
was entitled under the Workers' Compensation Act. In
reaching this conclusion, the commissioner found that
pursuant to Massolini v. Driscoll, 114 Conn. 546,
159 A. 480 (1932), a municipality can be held liable as a
principal employer of an uninsured contractor's or
subcontractor's injured employee; that pursuant to
Pacileo v. Morganti, Inc., 10 Conn.App. 261, 522
A.2d 841 (1987), it is not necessary for an employer to have
employees who perform the particular functions that the
injured worker was performing when he was injured in order to
be held liable as his principal employer; that pursuant to
General Statutes § 7-148, the city has a responsibility
to manage, maintain, repair and control its property,
including its garbage and refuse facilities; and that,
although the city had no roofers on its staff, the work of
repairing roofs on city owned buildings was a part or process
of the trade or business of the city. The city thereafter
appealed to the board, claiming: first, that municipalities,
as public or governmental entities, are not, by definition,
engaged in any ‘‘trade or business, ''
and thus they cannot be held liable as principal employers
under § 31-291; second, that it is now the statutory
responsibility of the Second Injury Fund, rather than of
municipalities, to pay workers' compensation benefits to
injured employees of their contractors and subcontractors
that do not carry workers' compensation insurance; and
third, that, even if the city could be found to have engaged
in a ‘‘trade or business, '' it was not
engaged in the trade or business of roofing when the
plaintiff suffered his injury, and thus it cannot be held
liable, under § 31-291, as the plaintiff's principal
employer, to pay him worker's compensation benefits. The
board rejected each of these claims.
Before
us on appeal, the city presents an amalgam of its above
described arguments as a single claim of error: that the
board erred in affirming the commissioner's finding that
the city was the plaintiff's principal employer pursuant
to § 31-291. In its brief, the city first suggests, as
it argued before the board, that the principal employer
statute never was intended to apply to public or governmental
entities. Then it briefly reiterates its second claim raised
before the board, that the creation of the Second Injury Fund
abrogated prior case law from our Supreme Court, which held
that § 31-291 can apply to municipalities. Third and
finally, it makes its principal claim that it was not the
plaintiff's principal employer because roofing was not a
part or process in its trade or ...