Decision  Joao DeOliveira v. Calumet Construction Corporation, et al

Date:	10/27/2015
Organization:	Department of Industrial Accidents
Docket Number:	DIA Board Nos. 001428-11, 000244-11, 002156-11, 002487-11, 004377-11
Location:	Boston

• Employee: Joao DeOliveira
• Employer: Calumet Construction Corp., MAR Construction, Master Construction Corp., Impact Carpentry, Inc., MC Construction, Inc.
• Insurer: Star Insurance Company, Acadia Insurance Company, Workers’ Compensation Trust Fund, Liberty Mutual Insurance Company

KOZIOL, J. Star Insurance Company (Star) appeals from a hearing decision ordering it to pay benefits, pursuant to § 18,¹ to the employee, who was injured while employed by an uninsured sub-contractor of Star’s insured, Calumet Construction Corp. (Calumet). Star raises three issues on appeal. First, it claims the judge erred in applying § 18 so as to find the general contractor responsible because he did not identify the employee’s employer. Second, it argues the judge’s determination of the employee’s average weekly wage was arbitrary and capricious. Lastly, it claims the judge acted beyond the scope of his authority and contrary to law by ordering the insurer, pursuant to § 30, to assign a nurse case manager to assist the employee in finding suitable housing and to pay a portion of the cost of his handicapped housing. We affirm the award of compensation to the employee, but recommit the matter for the judge to identify the employee’s employer on the date of injury.

¹ General Laws c. 152, § 18, provides, in relevant part:

If an insured person enters into a contract, written or oral, with an independent contractor to do such person's work, or if such a contractor enters into a contract with a sub-contractor to do all or any part of the work comprised in such contract with the insured, and the insurer would, if such work were executed by employees immediately employed by the insured, be liable to pay compensation under this chapter to those employees, the insurer shall pay to such employees any compensation which would be payable to them under this chapter if the independent or sub-contractors were insured persons .... This section shall not apply to any contract of an independent or sub-contractor which is merely ancillary and incidental to, and is no part of or process in, the trade or business carried on by the insured, nor to any case where the injury occurred elsewhere than on, in or about the premises on which the contractor has undertaken to execute the work for the insured or which are under the control or management of the insured.