Opinion
CASE NO. 907 CRD-2-89-8
FEBRUARY 1, 1991
The claimant was represented by Dennis Ferdon, Esq.
The respondents Leitkowski Construction Co. and Hartford Insurance Group were represented by Lucas Strunk, Esq. and Jason Dodge, Esq., both of Pomeranz, Drayton Stabnick. The respondent Bossie, d/b/a Air-Tite Technology was represented at the trial level by Donald Beebe, Esq. The respondent Mark Worthington appeared for himself.
The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.
This Petition for Review from the August 21, 1989 Finding and Award of the Commissioner for the Second District was heard June 29, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners A. Thomas White, Jr. and James Metro.
OPINION
In Uncasville on November 21, 1985 claimant fell from a house roof sustaining injuries to his back and right hand. At the time of the fall he was employed in roofing repairs on that house. The Second District concluded claimant was entitled to benefits.
As part of his decision the trial commissioner found that at the time of the injury claimant was an employee of Mark Worthington. Worthington was a subcontractor of Brian Bossie, d/b/a Air-Tite Technologies. He also found that Brian Bossie had a contractual relationship with the respondent. Leitkowski Construction and therefore concluded that Leitkowski was a principal employer against whom liability should be assessed pursuant to Sec. 31-291 C.G.S.
Respondents Leitkowski Construction and its insurer Hartford Insurance Group, appealed contending (1) the trial commissioner erred in concluding Leitkowski Construction was a principal employer (2) the commissioner should not have received evidence or made a finding concerning the prior subcontracting relationship between respondent Leitkowski and respondent Bossie and (3) the commissioner erred in denying respondents' Motion for Articulation and Motion to Correct.
Whether Leitkowski was a principal employer against whom liability should be assessed under Sec. 31-291 is a factual question. Alpha Crane Service, Inc., v. Capitol Crane Co., 6 Conn. App. 60, 72 (1980). As such, the ultimate conclusion must rest on the factual findings of the commissioner. We cannot substitute our findings for his when those findings depend on the weight and credibility to be accorded the evidence. Wheat v. Red Star Express Lines, 156 Conn. 245 (1968). Here weight and credibility issues were critical to the determinations reached.
Sec. 31-291 C.G.S. 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.
There was evidence presented that Dr. Anthony Tramontozzi, the owner of the Uncasville house where claimant later suffered injury, contacted Gary Leitkowski about a roof repair job. Other testimony (Finding, #20) showed Leitkowski gave Tramontozzi a written proposal to perform the work for $1050 (Finding, #26). Although Dr. Tramontozzi knew that Leitkowski would not do the work himself but probably subcontract it to Bossie, he still considered Leitkowski responsible for any major problem that might arise on the job. (Finding #13, 23, 24, 25). On at least one occasion Gary Leitkowski drove by the job to check on its progress (Finding #26) Bossie in turn engaged Mark Worthington as a subcontractor to strip shingles from the roof (Finding, #16). Worthington hired claimant to work at $6.00 per hour (Finding, #2).
This evidence was sufficient to show Leitkowski had the work premises under his control and delegated that control in part to subcontract Bossie who in turn delegated to Worthington. The roofing job was a part or process in Leitkowski's business as a contractor. As there was such evidence presented below and the commissioner reached his conclusion based on that evidence, we may not disagree. See Fair v. People's Savings Bank, 207 Conn. 535 (1988). The totality of the trier's factual findings support his legal conclusion under Sec. 31-291.
Next respondents argue the commissioner erred in considering evidence as to a prior subcontracting relationship between Leitkowski and Bossie. Their entire argument in support of that contention states: "The respondent submits that past dealings are not relevant or probative on the issue of whether a current contract for a specific work project exists." See Brief of the Respondent Leitkowski at 6. They fail to cite any rule of evidence or case law. That omission would be reason enough not to consider the argument further. Nonetheless it is useful to indicate why their argument is mistaken. Our Supreme Court has held:
The rules for determining the admissibility of evidence are will settled. The trial court has broad discretion to determine both the relevancy and remoteness of evidence. State v. Fritz, 204 Conn. 156, 167, 527 A.2d 1157 (1987); State v. Boucino, 199 Conn. 207, 225, 506 A.2d 125 (1986); Turgeon v. Turgeon, 190 Conn. 269, 273, 460 A.2d 1260 (1983); Hughes v. Contemporary Mission, Inc., 180 Conn. 150, 153, 429 A.2d 827 (1980). Only upon a showing of a clear abuse of discretion will this court set aside on appeal rulings on evidentiary matters. State v. Fritz, supra, 167-68; State v. Boucino, supra; State v. Falcon, 196 Conn. 557, 566, 494 A.2d 1190 (1985). In considering the relevancy of evidence, we ask whether "it tends to establish the existence of a material fact or to corroborate other direct evidence in the case. State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. Mastropetre, 175 Conn. 512, 517, 400 A.2d 276 (1978)." State v. Talton, 197 Conn. 280, 285, 497 A.2d 35 (1985).
Dunham v. Dunham, 204 Conn. 303, 324 (1987). See also, State v. Alvarez, 216 Conn. 301, 309 (1990). What is true for traditional court proceedings is doubly so in worker's compensation matters. The commissioner "proceeds to hearing without pleadings and without regard to the ordinary rules of evidence" Powers v. Hotel Bond Co., 89 Conn. 143, 149. Following Dunham we cannot say that it was an abuse of discretion to admit such evidence and to include a finding based on such evidence in his decision.
The final point is on respondents' Motion for Articulation and Motion to Correct. Specifically, respondents sought articulation of the factual basis for the trier's conclusion that a contractual relationship existed between Bossie and Leitkowski Construction. Sec. 31-291 and the assessment of liability thereunder does not require a finding of a contractual relationship per se. The statutory elements needed to be satisfied were discussed above. We need not repeat those comments except to say that the forty-three paragraphs in parts III and IV of the commissioner's Finding and Award are sufficiently detailed to support his conclusions without further elaborations.
As to the denial of the respondents' Motion to Correct we refer to our decision in Hill v. Pitney Bowes, Inc., 8 Conn. Workers' Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990).
"To the extent that the commissioner's finding discloses facts, his finding cannot be changed unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed." Grady v. St. Mary's Hospital, 179 Conn. 662 (1980), citing Wheat v. Red Star Express Lines, 156 Conn. 245, 248 (1968). The factual findings of the trial commissioner here depend upon the weight and credibility to be accorded the testimony of the witnessed. Wheat supra. Some factual findings sought by claimant are in dispute and not conceded. Respondents' brief clearly indicates the extent to which they were disputed. See Brief of Employer-Appellee at 1-7. The substitution of other requested factual findings even if granted would not alter the legal conclusion of the trial commissioner. We, therefore, affirm the trial commissioner's ruling as to the Motion to Correct. See Tortorici v. Moosop, Inc., 107 Conn. 143 (1927).
The appeal is denied, and the commissioner's August 21, 1989 Finding and Award is affirmed.
Commissioners A. Thomas White, Jr. and James Metro concur.