Claim of Castrovilla v. Di Corrado

Appeal 'by the employer Benjamin Di Corrado, doing business as Di Corrado Construction Co. and its carrier from a decision of the Workmen’s Compensation Board. The sole issue involved in this appeal is who was the claimant’s employer at the time of the accident. Although the issue is clear we are presented with a rather confusing record. The claimant in filing his claim stated that when the accident happened on March 5, 1956 he was employed by the Comeau Building Corp. The Comeau Building Corp. was made up of Charles W. Comeau and Charles M. Comeau and Benjamin Di Corrado. Claimant testified he was working on a job building a fence around the house of one Nicholas Cusenza, a brother-in-law of Charles M. Comeau. He stated that he had been hired by Charles M. Comeau and his brother-in-law who had paid him for the previous week’s work. A eoemployee, one Eddie Capone, testified that he was working for Charles M. Comeau and that the brother-in-law had paid him. It appears that the Comeau Building Corp. stopped doing business in January or February, 1956 when it got into financial difficulties and lawsuits between the Comeaus and Di Corrado arising out of the corporation were constantly popping up in the compensation hearings and interfering with the orderly hearing of the claim. Charles M. Comeau testified that he had not hired the claimant but that he had been hired by Di Corrado. Cusenza testified that he had hired Di Corrado to do the work and had paid him $200 on account. Di Corrado testified that although the claimant worked for him after his accident, he was not working for him at the time of the accident. He stated that he himself was hired as a laborer by Cusenza but denied receiving any money. The Referee pointedly commented, “ One is lying ”. The Referee eventually determined that Benjamin Di Corrado doing business as Di Corrado Construction Co. was the employer and the board affirmed. The appellants contend that substantial evidence does not support the 'board’s decision. The claimant himself maintained that he had been hired by Comeau and Cusenza although his testimony is very confusing due at least in part to language difficulty. At one point he admitted having worked for Di Corrado between February 6 and March 6, 1956. Cusenza testified that he hired Di Corrado to do the job and made a partial payment on account to him and it would seem that this was sufficient to create a question of fact for the board. This pure question of fact has been determined by the board upon the evidence they found to be credible and its decision should not be disturbed. Decision and award unanimously affirmed, with costs to the Workmen’s Compensation Board.