Barker v. All Roofs by Dominic, AC 40535

• Court: Appellate Court of Connecticut
• Writing for the Court: SHELDON, J.
• Citation: 183 Conn.App. 612,193 A.3d 693
• Parties: Christopher BARKER v. ALL ROOFS BY DOMINIC et al.
• Docket Number: AC 40535
• Decision Date: 24 July 2018

183 Conn.App. 612
193 A.3d 693

Christopher BARKER
v.
ALL ROOFS BY DOMINIC et al.

AC 40535

Appellate Court of Connecticut.

Argued April 11, 2018
Officially released July 24, 2018

193 A.3d 695

Joseph J. Passaretti, Jr., for the appellants (defendant city of Bridgeport et al.).

Joy L. Avallone, assistant attorney general, for the appellee (defendant Second Injury Fund).

Sheldon, Bright and Harper, Js.

SHELDON, J.

183 Conn.App. 614

The defendant, the city of Bridgeport (city),¹ appeals from the decision of the Compensation Review Board (board) affirming the finding and order of the Workers' Compensation Commissioner for the Third District (commissioner) holding that the city was the principal employer of the plaintiff Christopher Barker when he suffered a compensable injury while working for an uninsured subcontractor of the city on city property, and thus that the city was liable, pursuant to General Statutes § 31-291,² for all workers' compensation benefits³ due to him in connection with that injury. The city claims that the board erred in affirming the decision of the commissioner that the city was liable to the plaintiff as his principal employer because (1) § 31-291 does not apply to governmental entities and (2) even if § 31-291, in theory, can apply to a municipality, it does not impose principal employer liability on the city in this case because one fact essential to establishing such liability—that the work being performed by the plaintiff when he was injured was a part or process

183 Conn.App. 615

of the city's trade or business—has not been satisfied.⁴ We affirm the decision of the board.

193 A.3d 696

The record reveals the following facts and procedural history. In March, 2000, the city contracted with All Roofs by Dominic (All Roofs) to repair the roof of the city's transfer facility. All Roofs then subcontracted the repair work to Howard Adams d/b/a Howie's Roofing (Howie's Roofing), who in turn hired the plaintiff to perform per diem work on the project. On June 29, 2000, the plaintiff was injured when he fell from the roof of the transfer facility while performing such per diem work.

Following his injury, the plaintiff filed claims for workers' compensation benefits against Howie's Roofing, All Roofs and the city. Neither All Roofs nor Howie's Roofing carried a valid workers' compensation insurance policy. After a formal hearing, Commissioner George A. Waldron determined, on January 5, 2005, that when the plaintiff suffered his work related injury, he was an employee of Howie's Roofing, and thus that the commission had jurisdiction over his claim. Under General Statutes § 31-255, this finding required the Second Injury Fund to pay workers' compensation benefits to the plaintiff in lieu of his uninsured employer.

In 2014, the Second Injury Fund filed a motion for an order declaring that, at the time the plaintiff suffered his injury, the city was his principal employer within the meaning of § 31-291, and thus that the city was liable to pay all compensation benefits due to him in connection with that injury. Under § 31-291, "[w]hen

183 Conn.App. 616

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."

Commissioner Jack R. Goldberg conducted a formal hearing on the Second Injury Fund's motion on November 19, 2015, and February 23, 2016. At the hearing, the city conceded that it had hired All Roofs to perform roofing work at its transfer facility and that the plaintiff's injury took place on municipal property, which was under the city's control. The city denied, however, that it was liable to pay the plaintiff's workers' compensation benefits as his principal employer because the roofing work the plaintiff was performing when he was injured was not a part or process of the city's trade or business. The commissioner later summarized the evidence on which the city based its denial of principal employer liability as follows: "John Cottell, the city's Deputy Director of Public Works, testified at the formal hearing that the city did not retain an employee on staff to repair roofs because the need was not extensive enough to hire an employee. In addition, the city's collective bargaining agreement barred other employees from doing work outside their assigned trades. Cottell said it was the responsibility of his department to maintain city owned buildings. To accomplish that, the city would issue a work order to a contractor it had placed on the ‘on-call list’ and retain him as an outside contractor to do small projects such as the one the [plaintiff] had been working on. Cottell testified he was uncertain whether a sole

193 A.3d 697

proprietor such as All Roofs ...

183 Conn.App. 617

needed to provide proof of workers' compensation insurance before working on a city owned building. He testified that the city ... was not in the roofing business in 2000."

By finding and order dated June 16, 2016, the commissioner concluded that at the time of the plaintiff's injury, the city was his principal employer pursuant to § 31-291, and thus that it was required to pay all benefits to which he was entitled under the Workers' Compensation Act. In reaching this conclusion, the commissioner found that pursuant to Massolini v. Driscoll , 114 Conn. 546, 159 A. 480 (1932), a municipality can be held liable as a principal employer of an uninsured contractor's or subcontractor's injured employee; that pursuant to Pacileo v. Morganti, Inc. , 10 Conn. App. 261, 522 A.2d 841 (1987), it is not necessary for an employer to have employees who perform the particular functions that the injured worker was performing when he was injured in order to be held liable as his principal employer; that pursuant to General Statutes § 7-148, the city has a responsibility to manage, maintain, repair and control its property, including its garbage and refuse facilities; and that, although the city had no roofers on its staff, the work of repairing roofs on city owned buildings was a part or process of the trade or business of the city. The city thereafter appealed to the board, claiming: first, that municipalities, as public or governmental entities, are not, by definition, engaged in any "trade or business," and thus they cannot be held liable as principal employers under § 31-291 ; second, that it is now the statutory responsibility of the Second Injury Fund, rather than of municipalities, to pay workers' compensation benefits to injured employees of their contractors and subcontractors that do not carry workers' compensation insurance; and third, that, even if the city could be found to have engaged in a "trade or business," it was not engaged in the trade or business of roofing

183 Conn.App. 618

when the plaintiff suffered his injury, and thus it cannot be held liable, under § 31-291, as the plaintiff's principal employer, to pay him worker's compensation benefits. The board rejected each of these claims.

Before us on appeal, the city presents an amalgam of its above described arguments as a single claim of error: that the board erred in affirming the commissioner's finding...