Litke v. Crowell Builders

CASE NO. 1215 CRD-5-91-4

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

MAY 4, 1993

JOHN LITKE

CLAIMANT-APPELLEE

v.

CROWELL BUILDERS

EMPLOYER

and

SECOND INJURY FUND

INSURER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Daniel B. Scott, Esq. and Martin Walsh, Esq., Watstein and Watstein, 89 North Street, P.O. Box 1360, Bristol, CT 06010-1360.

The respondent was represented by James F. McKenna, Esq., Sivaslian, Marconi and McKenna, 249 Winsted Road, Plaza Park North, Torrington, CT 06790-2930.

The Second Injury Fund was represented at the trial level by Kathleen Smith, Esq. Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06101-0120. The Second Injury Fund did not participate in the appellate proceedings.

This Petition for Review from the April 5, 1991 Finding and Award of the Commissioner for the Fifth District was decided on the basis of papers submitted for the August 7, 1992 hearing consisting of the Commission Chairman Jesse Frankl and Commissioners James J. Metro and Roberta D’Oyen.

OPINION

JESSE FRANKL, CHAIRMAN. Respondent’s appeal is from the April 5, 1991 Commissioner of the Fifth District’s ruling granting claimant’s Motion to Preclude and ordering the respondent Crowell Builders to provide claimant with all the benefits of Chapter 568, C.G.S. for an injury incurred November 23, 1986. The pertinent facts are as follows: On November 23, 1986, the claimant John Litke suffered an accidental injury to his back. On January 17, 1987, the claimant filed a Notice of Claim for Workers’ Compensation Benefits. The respondent failed to file a proper disclaimer within the statutorily prescribed twenty day period. On July 24, 1987 the claimant filed a Motion to Preclude with the Fifth District Commissioner. In the then Fifth District Commissioner’s October 14, 1987 Finding and Award the claimant’s Motion to Preclude was granted based on the fact that the respondent had failed to comply with the Sec. 31-297(b) requirement that a notice to contest needed to be served within the prescribed twenty day period. On June 22, 1988 the respondents requested the Commissioner to vacate the October 14, 1987 order and reopen the matter for a determination of whether an employer-employee relationship existed between the parties. The subsequent Fifth District Commissioner upheld the Motion to Preclude and ordered the respondent to pay benefits.

On appeal the respondent contends the commissioner was in error in upholding the Motion to Preclude. The respondent argues in order to find that an injury falls within the Workers’ Compensation Act, the commissioner must first find that an employer-employee relationship exists. The respondent further argues that the failure to make a finding on this issue deprives the commissioner of jurisdiction to make any further orders.

The issues on appeal are: (1) whether the commissioner was in error in upholding the Motion to Preclude and (2) should the commissioner first establish whether an employer-employee relationship existed in order to find that an injury falls within the Workers’ Compensation Act.

The entire statutory scheme of the Workers’ Compensation Act is directed toward those who are in the employer-employee relationship as those terms are defined in the act and discussed in our cases. That relationship is threshold to the rights and benefits under the act; a claimant or his representative who is not an employee has no right under this statute to claim for and be awarded benefits. The act is not triggered by a claimant until he brings himself within its statutory ambit. The conclusive presumption of Sec. 31-297(b) is, accordingly, not triggered by the filing of a claim with the attendant notice by an “employee” against an “employer” until the “employee” proves, where the requisite relationship is challenged, that that relationship existed. This requisite relationship was a jurisdictional fact to be proven in this to bring the plaintiffs within the class that the legislature obviously intended be covered. Castro v. Viera, 207 Conn. 420, 433 (1988).

The claimant argues that the evidence clearly indicates that the issue of employer-employee relationship had been addressed and determined in the initial formal hearing on July 27, 1987. From the record it is not clear whether a determination of an employer-employee relationship was ever made. On June 22, 1988 the respondent requested that the commissioner reopen the matter for a determination of whether an employer-employee relationship existed between the parties.

The determination of the existence of an employer-employee relationship is not a defense from which the employer is precluded due to the failure to file a disclaimer within the prescribed twenty day period. As it does not appear that an employer-employee relationship was ever determined in the proceedings before either commissioner, the instant matter is remanded with the direction to determine whether such a relationship existed between the parties.

We therefore remand the instant matter for further proceedings consistent with this opinion.

Commissioners James J. Metro and Roberta D’Oyen concur.