Opinion
CASE NO. 820 CRD-1-89-1
JULY 6, 1990
The claimant was represented by Robert Halloran, Esq., Jeffrey J. Holley, Esq., and Charles T. Alfano, Esq.
The respondent-employer was represented by Brian E. Prindle, Esq.
The respondent-Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.
This Petition for Review from the January 18, 1989 Finding and Award of the Commissioner At Large acting for the First District was heard February 23, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and George Waldron.
OPINION
In this matter the Second Injury Fund is a real party in interest under Sec. 31-355 as the Respondent Mark Hall is uninsured. The claimant fractured his leg November 15, 1987 when he jumped or fell from the rafter while employed in the construction of a barn. The barn was located on the residential premises of Mark Hall. Respondent's business was known as New England Remodeling Company.
The Respondent-Employer and the Second Injury Fund argue (1) the commissioner erred in finding the claimant was an employee of Mark Hall, and (2) in failing to find that claimant's claim was barred by Sec. 31-275(5)(D). Additionally the Fund argues claimant was a casual employee pursuant to Sec. 31-275(5)(B) and therefore not covered under the act.
As often held, the touchstone for determination of employee status is dependent upon the control which the alleged employer may have asserted over the claimant. Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624 (1961). Further that determination needs to be based on the fact situation in each case. Francis v. Franklin Cafeteria, Inc., 123 Conn. 320 (1937). We will not disturb factual determinations by a commissioner unless contrary to law, without evidence or based on unreasonable or impermissible factual conclusions. Besade v. Interstate Security Systems, Inc., 212 Conn. 441 (1989); Fair v. People's Savings Bank, 207 Conn. 535 (1988). In this instance there was evidence presented before the trial commissioner from which he could reasonably conclude that the respondent Mark Hall had the requisite control over the claimant necessary to establish an employment relationship. (Deposition of Eddie W. Vanzant, May 24, 1988 at 9-10, Claimant's Exhibit 1.)
Both respondents have also argued that the trial commissioner erred as a matter of law. The respondent Hall contends claimant's claim was barred under Sec. 31-275(5)(B) C.G.S. Sec. 31-275(5)(B) provides in pertinent part;
Employee means any person who has entered into or works under any contract of service or apprenticeship with an employer . . . but said term shall not be construed to include . . . one whose employment is of a casual nature, and who is employed otherwise than for the purposes of the employer's trade or business . . .
We recently reviewed this provision in Velez v. Zappone, 7 Conn. Workers' Comp. Rev. Op. 79, 693 CRD-5-88-2 (1989) aff'd 21 Conn. App. 812 (1990) cert denied 215 Conn. 802 (1990). Our Supreme Court defined casual employment as "the occasional or incidental employment, the employment which comes without regularity." Thompson v. Twiss, 90 Conn. 444, 451 (1916). Sec. 31-275(5)(B) also requires a conclusion that the employment was not for the purposes of the employer's trade or business. In this instance Hall's trade or business was the New England Remodeling Company. On the facts presented the trial commissioner might have found that the construction of the barn was a part of the respondent's trade or business. That issue was squarely raised before the commissioner, and he failed so to find. Further, in order to satisfy this exclusion from coverage both prongs must be satisfied, i.e., the trial commissioner must find that the employment was both (1)casual and (2)not for the purposes of the employer's trade or business. Pallanck v. Donovan, 105 Conn. 591 (1927); Lake v. City of Bridgeport, 102 Conn. 337 (1925); Thompson, supra. That was also a question of fact to be decided. Velez, supra. As noted previously we will not disturb the trier's factual determinations.
The Second Injury Fund argues on appeal that the trial commissioner erred in failing to find that the claimant was barred from recovery under our Workers' Compensation Act pursuant to Sec. 31-275(5)(D).
Section 31-275(5)(D) provides in pertinent part:
Employee means any person who has entered into or works under any contract of service or apprenticeship with an employer, . . . but said term shall not be construed to include . . . any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week. . . .
The Fund's last argument relies on Finding # 8 in which the commissioner impliedly found claimant's work week was only twenty hours. Sec. 31-275(5)(D) excludes domestic service in or about a dwelling for less than twenty-six hours per week. But even if the claimant's week was to be less than twenty-six hours, the construction of a barn is not the "any type of service in or about a private dwelling" contemplated by the statute. The legislative history indicates that Sec. 31-275(5)(D) referred to housekeeping, baby-sitting and gardening chores, Joint Standing Committee Hearings, Labor Committee, General Assembly p. 369; 1961 House Proceedings 3461; 1961 Senate Proceedings 2972.
We therefore affirm the Finding and Award and dismiss the appeal.
Commissioners Frank Verrilli and George Waldron concur.