Summary
In Munoz, supra, the board explained that "clearly, without `control' of the premises as construed under sec. 31-291 and case law, (the principal employer) could not have hired the (subcontractor) to frame the house."
Summary of this case from HEBERT v. RWA, INCOpinion
CASE NO. 875 CRD-4-89-6
JANUARY 8, 1991
The claimant was represented by Gerald F. Stevens, Esq., and oral argument by Donald C. Cousins, Esq.
The respondents-Richard Surface Construction and Liberty Mutual Insurance Co. were represented by Kevin J. Maher, Esq., Maher Williams.
The respondent-Esquivel was not represented.
The Second injury and Compensation Assurance Fund was represented by Diane D. Duhamel, Esq., Assistant Attorney General.
This Petition for Review from the June 7, 1989 Finding and Award of the Commissioner of the Fourth District acting for the Seventh District was heard June 1, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and James Metro.
OPINION
Respondents Richard Surface Construction and its insurance carrier Liberty Mutual Insurance Company contest the Fourth District conclusion that Richard Surface construction was a principal employer under Sec. 31-291 C.G.S. The salient facts are as follows: Claimant was a resident of San Antonio, Texas who was brought to Connecticut in April, 1988 by the respondent Santos Esquivel. Esquivel was hired by Surface to perform carpentry work on a house that Surface had been hired to frame. The trial commissioner found Surface was in the business of framing houses and that it had subcontracted with Esquivel to perform work for which Surface had been hired. On April 9, 1988 the claimant while working for Esquivel on that house, fell from the second floor and suffered disabling injuries.
Surface argues that the commissioner's finding of liability pursuant to Sec. 31-291 was not legally supported by the facts found. Specifically, it states the trial commissioner failed to make any finding that the injury occurred "on or about premises controlled by the principal employer." Section 31-291 provides:
When 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. . . .
What constitutes "control" of premises has been an issue discussed in various court opinions. See e.g. Mancini v. Bureau of Public Works of Metropolitan District, 167 Conn. 189 (1974); Crisanti v. Cremo Brewing Co., 136 Conn. 529 (1950). Alpha Crane Service, Inc., v. Capitol Crane Co., 6 Conn. App. 60 (1980) cert denied 199 Conn. 808 (1986); Evary v. E F Construction Co., 27 Conn. Sup. 278 (1967). Most recently in Alpha Crane Service, supra, our Appellate Court stated:
The term "control" in this context has a specific meaning. It is merely descriptive of the work area and "is used instead of such words as `owned by him' or `in his possession' in order to describe the area in a more inclusive fashion. The emphasis is upon limitation of the area within which the accident must happen rather than upon control of the implements which caused the accident." Crisanti v. Cremo Brewing Co., 136 Conn. 529, 535 (1950), see also Ranta v. Bethlehem Steel Corporation, 271 F. Sup. 286, 289 (D. Conn. 1967).
Applying the Alpha Crane analysis we conclude that sufficient facts were found to constitute "control" over the premises where claimant was working at the time he sustained his injury. Whether the respondent-Surface satisfied the requisite elements of Sec. 31-291 is a question of fact. Alpha Crane Services, Inc., supra at 72. Fair v. People's Savings Bank, 207 Conn. 535 (1988). In the instant matter, the commissioner found in Paragraph #7, "The respondent, Surface was to have done the framing work, but hired the respondent, Esquivel, as a subcontractor to do it." Clearly, without "control" of the premises as construed under Sec. 31-291 and case law, Surface could not have hired the Esquivel to frame the house. This particular finding and all the other facts found led to the commissioner's conclusion. We cannot say that conclusion was so unreasonable as to justify our interference. Bailey v. Mitchell, 113 Conn. 721 (1931); Battey v. Osborne, 96 Conn. 633 (1921).
We therefore affirm the trial commissioner's June 7, 1989 Finding and Award.
Commissioners Andrew Denuzze and James Metro concur.