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Lesniewski v. W.B. Furze Corp.2/23/1998
This is an appeal of a Workers' Compensation judgment that found W.B. Furze Corporation (Furze Corp.) to be the employer of petitioner, Zenon Lesniewski, at the time he was injured in the course of his employment on April 17, 1995. We affirm.
On April 17, 1995, petitioner suffered a catastrophic injury at the construction site of EJ's Grille at 651 North Michigan Avenue, Kenilworth. The injury left him a paraplegic. The first floor of the building under construction was essentially complete, with the exception of an opening in the floor for the basement staircase. To access the basement, workers placed a ladder against the frame of the opening and as petitioner was descending the ladder, it slid out causing him to fall to the concrete floor and sustain his injuries. The facts surrounding petitioner's employment follow.
In 1994, Eugene Lord and Joseph O'Neill formed a corporation called EJ's Grille, Inc. (EJ's) and purchased a building to start a restaurant business. They had planned to renovate the building and hired Four Star Construction to gut the old building, but later decided to raze the old building and construct a new one. They hired a contractor to demolish the structure and excavate the lot. They also hired an architect to design a new building, and engaged subcontractors for the electric, heating and air conditioning, and roofing. Lord, the president of EJ's, obtained all of the necessary local permits. EJ's maintained no workers' compensation insurance during the time that the building was under construction.
In November 1994, Wayne Furze, the principal of Furze Corp., became acquainted with EJ's. Furze Corp. is a contracting company engaging in masonry, carpentry, and construction work. Furze Corp. maintained workers' compensation insurance. O'Neill, vice president of EJ's, asked Furze whether his company would be interested in doing masonry block work. Furze, without a written contract, accepted O'Neill's offer for his company to work as a subcontractor. The verbal agreement was that the company would be paid by the block and by the yard of concrete. Furze billed EJ's for his services by submitting "W.B. Furze Company, General Contractors," invoices. Supplies were purchased by Furze on that company's line of credit. A sign stating that Furze Corp. was the general contractor was placed at the site and remained there throughout construction.
In November 1994, Lesniewski passed the construction site and observed Furze and O'Neill looking at plans. He was unemployed at the time and, therefore, inquired of O'Neill whether they needed a mason. O'Neill told him to speak with Furze. Furze hired Lesniewski and after observing petitioner on the job, told him that he would pay $15.00 per hour.
In November 1994, Furze performed work on the foundation. Upon completion of the foundation work, Furze did not work at the site again until around December 10, 1994 when block work needed to be done on the roof line.
O'Neill worked at an auto body shop located across the street from the construction site. He would frequently visit the job site, but would never tell Furze how his job should be performed, how many hours he should work, or what types of materials to use. Further, he did not instruct Furze on who to hire or fire. O'Neill testified that he did not possess the technical expertise to supervise the site, as he could not read blueprints. Likewise, Lord would visit the site one to three times a week for short periods of time, but would not provide any directions to Furze or his workers. The only supervision Furze received was from the architect, who would review the blueprints to determine whether the specifications were being followed.
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