Opinion
CASE NO. 892 CRD-4-89-7
NOVEMBER 30, 1990
The claimant was represented by Burton Weinstein, Esq.
The respondent-employer, Arthur Savage, d/b/a Residential Window Cleaners was not represented and did not appear at any hearings.
The respondent-Maintenance Inc. was represented by Jason Dodge, Esq., Pomeranz, Drayton Stabnick.
The respondent Bridgeport Janitorial Services was represented by Kevin J. Maher, Esq., and Kathleen M. Byrne, Esq., of Maher and Williams.
The Second Injury and Compensation Assurance Fund was represented by Diane D. Duhamel, Esq. Assistant Attorney General.
As the issues on appeal only involved the Second Injury Fund, the claimant, respondent-Arthur Savage, respondent-Maintenance, Inc., did not appear at oral argument not did they file a brief. Respondent-Bridgeport Janitorial Services did appear at oral argument and in its brief stated that the appeal raised no issues against their interest.
This Petition for Review from the June 14, 1989 Finding and Award and June 27, 1989 Order of the Commissioner for the Fourth District was heard June 1, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and George Waldron.
OPINION
A claim against an uninsured employer has caused this appeal to be taken. The claimant Powers was employed by the individual proprietor Arthur Savage doing business under the name Residential Window Cleaners. On May 7, 1988 the claimant while in the course of washing windows fell three stories thereby sustaining a compensable injury. At that time the respondent employer Savage was a subcontractor for the respondent Maintenance, Inc. Maintenance Inc. itself was a subcontractor of Bridgeport Janitorial Services, Inc. The latter firm had obtained a contract to clean the windows at the facility where the accident occurred.
The trial commissioner issued a Finding and Award against Savage June 14, 1989. As Savage did not pay, the commissioner, pursuant to Sec. 31-355, C.G.S., on June 27, 1989 ordered the Second Injury Fund to pay. The June 14 decision also had noted that the question of possible liability of Maintenance, Inc. or Bridgeport Janitorial Services, Inc. would be addressed in future proceedings.
The fund was granted the opportunity to cross examine witnesses in the proceedings below. It was not permitted to offer evidence or present arguments on the issue of principal employer liability against Maintenance or Bridgeport Janitorial Services. The denial of that opportunity is the basis of the Fund's present appeal.
Directly on point is our decision in Kluttz v. Glenn Howard, d/b/a Southland Distributors, 8 Conn. Workers' Comp. Rev. Op. 51, 664 CRD-4-87 (1990). There we held "The mandate of Section 31-351 C.G.S. requiring that notice shall be given to the State Treasurer in hearings which may involve payment from the Second Injury Fund evinces a clear legislative intent that the Fund is, or potentially may become, the real party in interest in the proceedings, and as such it would seem pointless to have that party present, yet compelled by the commissioner to remain mute. Id at 53.
Kluttz mandates that the trial commissioner should have given the Fund an opportunity to present evidence as to the issue of a principal employer relationship and otherwise to participate fully. At the future proceedings already foreseen by the commissioner, this error can be rectified. The decision against Savage and the order against the fund are affirmed, but the matter is remanded for further proceedings.
Commissioners Andrew Denuzze and George Waldron concur.