RUDY ALTIERI, CLAIMANT-APPELLEE v. B.K.S. EXCAVATING, INC. EMPLOYER, RESPONDENT-APPELLEE and AETNA LIFE AND CASUALTY, INSURER, RESPONDENT-APPELLEE and SECOND INJURY FUND, RESPONDENT-APPELLANT

CASE NO. 1146 CRD-3-90-12Workers’ Compensation Commission
APRIL 10, 1992

The claimant was represented by Nancy Aldrich, Esq.

The respondent-employer, B.K.S. Excavating, Inc., was represented by Scott Centrella, Esq. The respondents George Terenzio, Inc., and Aetna Life and Casualty were represented by Douglas Drayton, Esq., Lucas Strunk, Esq. and Anne Zovas, Esq., Pomeranz, Drayton and Stabnick.

The Second Injury Fund was represented by Howard Levine, Esq., Assistant Attorney General.

This Petition for Review from the December 4, 1990 Finding and Award of the Commissioner for the Third District was heard October 25, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Donald Doyle and Jesse Frankl.

OPINION

JOHN ARCUDI, CHAIRMAN.

The issue litigated before the Third District was whether the claimant Rudy Altieri was an independent contractor or an employee of the respondent B.K.S. Excavating, Inc. when he sustained a right hip fracture on July 28, 1989. The commissioner ruled that claimant was an employee. He also dismissed the claim against George Terenzio, Inc., a putative principal employer under Sec. 31-291, C.G.S. in the same ruling. As B.K.S. was not insured for its workers’ compensation obligation, this ruling created a potential liability against the Second Injury Fund. The Fund therefore has appealed.

In his Finding and Award, the trial commissioner noted, paragraph #10, “The sole issue to be decided is whether or not Rudy Altieri was an employee of B.K.S. Excavating, Inc.” On appeal the Fund argues that the proceedings below had been limited to a determination of claimant’s employment status with B.K.S. Excavating and that the commissioner’s decision foreclosed any opportunity to litigate issues relating to George Terenzio, Inc. and Sec. 31-291‘s principal employer provisions. We agree. In the formal hearing before the commissioner counsel for the Second Injury Fund clearly indicated that it was the Fund’s intention to pursue a claim against George Terenzio. See July 26, 1990 TR at 2-6, 44.

The fact that B.K.S. was the employer of the claimant, as the commissioner found, did not ipso facto eliminate the potential liability of a principal employer, if George Terenzio, Inc. were found to be one. Sec. 31-291 states “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.” In essence Sec. 31-291 is the workers’ compensation analogue to the joint tortfeasor concept in the common law of torts. A finding against one tortfeasor does not automatically exonerate other potential tortfeasors. At the very least, such exoneration is not possible without hearing evidence and litigating the issues to conclusion against the others.

We therefore sustain the Fund’s appeal, reverse the ruling below dismissing claims against the respondent George Terenzio, Inc. and remand for further proceedings consistent with this opinion.

Commissioners Donald H. Doyle and Jesse M. Frankl concur.