Barker v. All Roofs by Dominic

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CHRISTOPHER BARKER v. ALL ROOFS BY DOMINIC
ET AL.
(AC 40535)
Sheldon, Bright and Harper, Js.
Syllabus
The defendant city of Bridgeport appealed to this court from the decision of
the Compensation Review Board affirming the decision of the Workers’
Compensation Commissioner determining that the city was the principal
employer of the plaintiff when he suffered a compensable injury while
working for an uninsured subcontractor of the city on city property.
The plaintiff was repairing the roof of the city’s transfer facility when
he suffered his compensable injury. After a formal hearing, the commis-
sioner found that the plaintiff was an employee of the uninsured subcon-
tractor, which, pursuant to statute (§ 31-255), required the Second Injury
Fund to pay the plaintiff’s workers’ compensation benefits in lieu of his
uninsured employer. Subsequently, 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 pursuant to statute (§ 31-
291) and, thus, that the city was liable to pay all compensation benefits
due to him. After the commissioner found, inter alia, that the city was
the plaintiff’s employer, the city appealed to the board, which affirmed
the commissioner’s decision. On the city’s appeal to this court, held:
1. The city could not prevail on its claim that § 31-291 was not intended to
apply to governmental entities because such entities are not engaged in
any trade or business, as required under § 31-291 for principal employer
liability to attach: in Massolini v. Driscoll (114 Conn. 546), our Supreme
Court construed that statutory language and determined that a munici-
pality can be held liable as a principal employer of an uninsured subcon-
tractor’s employee, the board applied that precedent and determined
that building maintenance is an essential obligation of the city and, thus,
part of the business of the city, and although the city claimed that
Massolini was incorrectly decided in that it defined business in an
overly broad manner, this court was bound by that precedent and could
not alter or reinterpret that decision, especially given that the language
of § 31-291 has not changed since Massolini was decided; moreover,
the city’s claim that the legislature abrogated the rule of Massolini by
establishing the Second Injury Fund was unavailing, as the statute that
created the Second Injury Fund contained no language that referred to
or purported to modify § 31-291, the plaintiff’s purported interpretation
of the Second Injury Fund statute would effect a repeal by implication,
which was not supported by our case law, and our Supreme Court has
cited Massolini in the years since the Second Injury Fund was created
as the legal basis for holding governmental entities liable as principal
employers under § 31-291.
2. The city could not prevail on its claim that even if § 31-291 can be applied
to governmental entities, the board committed error in affirming the
commissioner’s finding that the city was the plaintiff’s principal
employer because the roofing work the plaintiff performed for the city
was not a part or process in the city’s trade or business; the commissioner
having properly concluded that the city has a responsibility to manage,
maintain, repair and control its property, including its garbage and refuse
disposal facilities, and, therefore, that the work of repairing the roof of
a city owned building was a part or process in the trade or business of
the city, the board properly affirmed the commissioner’s finding that
the city was the principal employer of the plaintiff.
Argued April 11—officially released July 24, 2018
Procedural History
Appeal from the decision of the Workers’ Compensa-
tion Commissioner for the Third District determining
that the defendant city of Bridgeport was the principal
employer of the plaintiff, brought to the Compensation
Review Board, which affirmed the commissioner’s deci-
sion, and the defendant city of Bridgeport et al. appealed
to this court. Affirmed.
Joseph J. Passaretti, Jr., for the appellants (defen-
dant city of Bridgeport et al.).
Joy L. Avallone, assistant attorney general, for the
appellee (defendant Second Injury Fund).
Opinion
SHELDON, J. 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’ compensa-
tion 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 establish-
ing such liability—that the work being performed by
the plaintiff when he was injured was a part or process
of the city’s trade or business—has not been satisfied.4
We affirm the decision of the board.
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 Roof-
ing, All Roofs and the city. Neither All Roofs nor Howie’s
Roofing carried a valid workers’ compensation insur-
ance 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 Sec-
ond 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
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 Novem-
ber 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 plain-
tiff’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’ compen-
sation 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 col-
lective bargaining agreement barred other employees
from doing work outside their assigned trades. Cottell
said it was the responsibility of his department to main-
tain 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 contrac-
tor to do small projects such as the one the [plaintiff]
had been working on. Cottell testified he was uncertain
whether a sole proprietor such as All Roofs . . .
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 busi-
ness in 2000.’’
By finding and order dated June 16, 2016, the commis-
sioner 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’ Compensa-
tion 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 enti-
ties, are not, by definition, engaged in any ‘‘trade or
business,’’ and thus they cannot be held liable as princi-
pal employers under § 31-291; second, that it is now
the statutory responsibility of the Second Injury Fund,
rather than of municipalities, to pay workers’ compen-
sation benefits to injured employees of their contractors
and subcontractors that do not carry workers’ compen-
sation 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
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 commission-
er’s finding that the city was the plaintiff’s principal
employer pursuant to § 31-291. In its brief, the city first
suggests, as it argued before the board, that the princi-
pal employer statute never was intended to apply to
public or governmental entities. Then it briefly reiter-
ates its second claim raised before the board, that the
creation of the Second Injury Fund abrogated prior case
law from our Supreme Court, which held that § 31-291
can apply to municipalities. Third and finally, it makes
its principal claim that it was not the plaintiff’s principal
employer because roofing was not a part or process in
its trade or business when the plaintiff suffered his
injury. We will address all of the city’s claims, however
incompletely they were briefed before us, because the
Second Injury Fund has responded fully to each of them.
‘‘As a threshold matter, we set forth the standard of
review applicable to workers’ compensation appeals.
The principles that govern our standard of review in
workers’ compensation appeals are well established.
The conclusions drawn by [the commissioner] from
the facts found must stand unless they result from an
incorrect application of the law to the subordinate facts
or from an inference illegally or unreasonably drawn
from them. . . . It is well established that [a]lthough
not dispositive, we accord great weight to the construc-
tion given to the workers’ compensation statutes by
the commissioner and [the] board.’’ (Internal quotation
marks omitted.) Marandino v. Prometheus Pharmacy,
294 Conn. 564, 572, 986 A.2d 1023 (2010).
I
The city first suggests, as it argued before the board,
that § 31-291 was never intended to apply to governmen-
tal entities such as municipalities. Alternatively, it
argues that even if § 31-291 at one time applied to munic-
ipalities, it ceased to do so with the creation of the
Second Injury Fund, which has become responsible for
paying workers’ compensation benefits for all employ-
ees of uninsured employers like Howie’s Roofing and
All Roofs.
Under § 31-291, principal employer liability attaches
‘‘[w]hen 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 per-
formed in, on or about premises under his control
. . . .’’ Section 31-291 involves three main elements:
‘‘(1) the relation of the principal employer and contrac-
tor must exist in work wholly or in part for the former;
(2) the work must be on or about premises controlled
by the principal employer; [and] (3) the work must be a
part or process in the trade or business of the principal
employer.’’ (Emphasis added; internal quotation marks
omitted.) Gigliotti v. United Illuminating Co., 151
Conn. 114, 118, 193 A.2d 718 (1963).
A
The city first suggests that § 31-291 was not intended
to apply to governmental entities because such entities
are not engaged in any trade or business. The statutory
language that the city asks us to interpret, however,
was authoritatively construed by our Supreme Court in
Massolini. There, in an opinion by which we are bound,
the court expressly discussed as follows the statutory
definitions of trade and business. ‘‘The language of the
statute is disjunctive—‘trade or business.’ Both terms
are, therefore, to be given their natural meaning, and
are not used synonymously. ‘Trade’ commonly con-
notes the buying, selling or exchanging of commodities.
‘Business,’ however, is a much broader term. . . .
When applied to a public corporation, the term signifies
the conduct of the usual affairs of the corporation, and
such as commonly engage the attention of its officers.’’
(Citations omitted.) Massolini v. Driscoll, supra, 114
Conn. 552. The court in Massolini concluded that a
valid claim for compensation had been established
against the city of Hartford because the plaintiff’s dece-
dent had been injured ‘‘while engaged in doing an act
incidental to and in furtherance of the operations
involved in the business of the city . . . .’’ Id., 553.
In rejecting the city’s claim, the board correctly noted
that Massolini ’’clearly stands for the proposition that
a municipality can be a principal employer and it is
indistinguishable from the present case on both the
facts and on the law.’’ (Emphasis in original.) Applying
the rule of Massolini, the board determined that build-
ing maintenance is an essential obligation of the city,
because ‘‘maintaining a public works department and
addressing refuse collection are among the usual activi-
ties of municipal government . . . [and] maintaining
its buildings and facilities in good repair are among
those operations which enter directly into the success-
ful performance of municipal government.’’
In seeking to persuade us not to follow Massolini,
the city suggests that Massolini was decided incorrectly
because the definition of ‘‘business’’ it used was unduly
broad and at variance with the commonly understood
meaning of that term. That argument, of course, must be
rejected because our task as an intermediate appellate
court is to enforce the decisions of our Supreme Court,
not to alter them by reinterpretation. Because the lan-
guage of § 31-291 has not changed since Massolini was
decided, and our Supreme Court has never offered its
own reinterpretation of such language, we must con-
clude that its meaning remains unchanged to this date,
and thus that municipalities can be held to be liable as
principal employers under the statute.
B
As a fallback position, the city argues, as it claimed
before the board, that the legislature abrogated the rule
of Massolini by establishing the Second Injury Fund,
the purpose of which assertedly is to ensure that all
injured workers whose employers do not carry workers’
compensation insurance, nonetheless, are paid all
workers’ compensation benefits to which they are enti-
tled for their work related injuries through the Second
Injury Fund.5 There are two important reasons why
this argument must be rejected as well. First, there is
nothing in the statute creating the Second Injury Fund
that even refers to, much less purports to modify, the
principal employer statute. Any such construction of
the Second Injury Fund statute would therefore effect
a repeal by implication, which is strongly disfavored.
See Powers v. Ulichny, 185 Conn. 145, 153, 440 A.2d
885 (1981).
The second reason for negating the city’s argument
that the rule of Massolini was abrogated by the state
statute creating the Second Injury Fund is, as the board
itself determined, our Supreme Court has cited Massol-
ini in the years since the Second Injury Fund was cre-
ated as the legal basis for holding governmental entities
liable as principal employers under § 31-291. See Man-
cini v. Bureau of Public Works, 167 Conn. 189, 355
A.2d 32 (1974) (finding defendant, public entity, to be
principal employer). Accordingly, we are persuaded
that municipalities like the city still may be held liable
as principal employers when the injured employees of
their uninsured contractors or subcontractors qualify
for such benefits under § 31-291.
II
The city finally claims that, even if § 31-291 can be
applied to governmental entities, the board committed
error in affirming the commissioner’s finding that the
city was the plaintiff’s principal employer in this case
because the roofing work he was performing for the
city was not a part or process in the city’s trade or
business. The commissioner’s conclusions on that
issue, however, ‘‘must stand unless they could not rea-
sonably or logically be reached on the subordinate
facts.’’ (Internal quotation marks omitted.) Samaoya v.
Gallagher, 102 Conn. App. 670, 675, 926 A.2d 1052(2007).
‘‘Generally . . . whether the work in which the
[worker] is engaged is a part or process in the trade or
business of the principal employer is a question of
degree and fact.’’ (Internal quotation marks omitted.)
Mancini v. Bureau of Public Works, supra, 167 Conn.
195. ‘‘[T]he words process in the trade or business . . .
[include] all those operations which entered directly
into the successful performance of the commercial
function of the principal employer. . . . The issue also
has been framed in terms of whether the defendant’s
employees ordinarily or appropriately would perform
the work in question . . . although this test is not nec-
essarily conclusive.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 196. ‘‘[I]t
is clear that the part or process element is intended to
include all of those tasks which are required to carry
on the principal employer’s business.’’ Alpha Crane Ser-
vice, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 76,
504 A.2d 1376, cert. denied, 199 Conn. 808, 508 A.2d
769 (1986); see also Mancini v. Bureau of Public Works,
supra, 195–96 (narrow construction of whether work
to be done is part of trade or business ‘‘would contra-
vene the frequent support given to a broad interpreta-
tion of the act’’).
In the present case, the commissioner’s conclusion
that, pursuant to § 7-148, the city has a responsibility
to manage, maintain, repair and control its property,
including its garbage and refuse disposal facilities, and
therefore that the work of repairing the roof of a city
owned building is a part or process in the trade or
business of the city, must stand. Accordingly, we con-
clude that the board properly affirmed the commission-
er’s finding that the city was the principal employer of
the plaintiff.
The decision of the Compensation Review Board is
affirmed.
In this opinion the other judges concurred.
1
The defendants in the matter before the commissioner were All Roofs
by Dominic, Howard Adams d/b/a Howie’s Roofing, the city of Bridgeport,
and its insurer, PMA Insurance Company. This appeal is brought by the city
and its insurance company.
2
General Statutes § 31-291 provides in relevant part that ‘‘[w]hen 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. . . .’’
3
The defendant Second Injury Fund is the appellee in this appeal. The
plaintiff’s direct employer did not have workers’ compensation insurance.
Under General Statutes § 31-355 (h), ‘‘[w]hen a finding and award of compen-
sation has been made against an uninsured employer who fails to pay it,
that compensation shall be paid from the Second Injury Fund . . . .’’ The
plaintiff did not file briefs before the board or this court.
4
We note that the language of § 31-291 refers to ‘‘a part or process in the
trade or business of such principal employer . . . .’’ (Emphasis added.) Our
Supreme Court, in decisions addressing § 31-291; see Mancini v. Bureau
of Public Works, 167 Conn. 189, 194, 355 A.2d 32 (1974); Massolini v. Driscoll,
114 Conn. 546, 551, 159 A. 480 (1932); and the board in its decision inter-
changeably use the phrase ‘‘a part or process of the trade or business . . . .’’
We therefore do the same.
5
The city cites to General Statutes § 31-355, which provides in relevant
part: ‘‘(a) The commissioner shall give notice to the Treasurer of all hearing
of matters that may involve payment from the Second Injury Fund, and may
make an award directing the Treasurer to make payment from the fund.
‘‘(b) When an award of compensation has been made under the provisions
of this chapter against an employer who failed, neglected, refused or is
unable to pay any type of benefit coming due as a consequence of such
award or any adjustment in compensation required by this chapter . . .
such compensation shall be paid by the Second Injury Fund. . . .
‘‘(c) The employer and the insurer, if any, shall be liable to the state for
any payments made out of the fund in accordance with this section or which
the Treasurer has become obligated to make from the fund, together with
the cost of attorney’s fees as fixed by the court. . . .
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‘‘(h) When a finding and award of compensation has been made against
an uninsured employer who fails to pay it, that compensation shall be paid
from the Second Injury Fund . . . .’’