Opinion
CASE NO. 797 CRD-7-88-12
APRIL 27, 1990
The claimant was represented by Judith Rosenberg, Esq., Wofsey, Rosen, Kweskin and Kuriansky.
The respondent-Daw's Critical Care Registry was represented by Paul Chill, Esq. and Markus Penzel, Esq., Garrison, Kahn, Silbert and Aterton.
The respondents Darien Convalescent Center and Employers Insurance of Wausau were represented by David C. Davis, Esq., McGann, Bartlett and Brown.
The Second Injury and Compensation Assurance Fund represented at the trial level by Brewster Blackall Esq., Assistant Attorney General, filed no brief and did not appear at oral argument.
This Petition for Review from the December 6, 1988 Finding and Award of the Commissioner for the Seventh District was heard December 1, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White, Jr. and James J. Metro.
OPINION
Claimant nurse sustained an injury to her neck, back and right shoulder on March 17, 1988 at the Darien Convalescent Center. The Seventh District awarded benefits. The December 6, 1988 Award ordered the Darien Convalescent Center and its insurer, Employers' Insurance of Wausau, to pay all Chapter 568 benefits due. Darien Convalescent Center, the Claimant and the Second Injury Fund have all appealed.
Both respondents and claimant have referred to the date of claimant's injury as March 17, 1988. However the date of injury in the December 6, 1988 Finding and Award is cited as March 17, 1987.
Issues in this appeal concern claimant's employee-employer relationship with Darien Convalescent Center. Claimant, a licensed practical nurse, was regularly employed by Dr. Charles Rhodes of Norwalk. She did not work for Dr. Rhodes Thursday evenings or Saturday or Sunday. Therefore she registered her availability for other assignments at those times with Daw's Critical Care Registry, Inc. of West Redding. Daw's was in the business of furnishing relief nurses to some fifty hospitals and nursing homes.
Beginning in November, 1987 claimant accepted assignments from Daw's to the Darien Convalescent Center. In the twenty-six weeks preceding her March 17, 1988 injury she earned $4,737.50 on those Convalescent Center assignments, an average of $182.21 weekly. Darien Convalescent Center had employees other than relief nurses and carried Workers' Compensation Insurance as indicated above. Daw's carried no Workers' Compensation insurance for employees assigned as was claimant. However, Daw's paid claimant for her services at Darien Convalescent Center but did not withhold any sums for Social Security or federal income taxes from those earnings.
The trial commissioner found (#12.A.) that as to Daw's claimant was "an independent contractor, not an employee." He also found (#12.B.) "The claimant was not an employee of the Convalescent Center (DCC)."
But he concluded:
12.D. At all times mentioned herein DCC was, as to this claimant, a principal employer, which had procured the work to be done by the claimant, a subcontractor, through Daw's, as contractor, and the work so procured to be done was a part of the business of DCC as principal employer, and was performed in, on and about premises under the control of DCC.
That finding in 12.D. above formed the basis for the Commissioner's Award of benefits. The language quoted is an adoptation of the verbal formula appearing in our principal employer statute, Sec. 31-291. However, in his earlier findings, the commissioner concluded that claimant was not an employee of the Darien Center or of Daw's. In order for the Center to be a "principal employer" it must first be found to be an "employer." "Employer" as defined in Sec. 31-275(6) "means any person, corporation, firm . . . within the state using the services of one or more employees for pay." Whatever relationship the Center may have had with other individuals performing services for it, the commissioner found that with respect to this claimant there was no employer-employee relationship. The #12.B. finding specifically held claimant was not a DCC employee. See Francis v. Franklin Cafeteria, 123 Conn. 320 (1937); U.S. Fidelity Guaranty Co. v. Spring Book Dairy, 135 Conn. 294 (1949).
Sec. 31-291 at the time of claimant's injury provided: Sec. 31-291. Principal employer, contractor and subcontractor. 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.
Moreover in #12.D. the commissioner found the claimant to be a subcontractor and Daw's to be a contractor. Neither of those findings bespeaks an employer-employee relationship with any of the parties involved. In order for worker' compensation jurisdiction to lie, there must be such a relationship, Castro v. Viera, 207 Conn. 420 (1988). Absent such jurisdiction, the commissioner was powerless to make any award of benefits.
We therefore must reverse the decision below simply to reassess and recast the commissioner's factual findings to reach our own legal conclusions, we would be impermissibly usurping the trier's function. Instead we must remand to the district for further proceedings. In such proceedings the trier must hear further testimony if necessary and arrive at appropriate factual findings. Kaliszewski v. Weathermaster Alsco Corporation, 148 Conn. 624 (1961) and the cases there reviewed provides an excellent analysis of the legal principles which must then be applied to those facts in order to determine the existence or non-existence of an employer-employee relation.
The matter is remanded to the Seventh District for further proceedings consistent with this opinion.
Commissioners A. Thomas White Jr., and James J. Metro concur.