State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Nicolett v. Alimak Elevator Co.

CASE NO. 2203 CRB-4-94-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 24, 1996

DAVID NICOLETT

CLAIMANT-APPELLANT

v.

ALIMAK ELEVATOR CO.

EMPLOYER

and

LIBERTY MUTUAL INS. CO.

INSURER

and

RELIANCE INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Christopher Carveth, Esq., Stevens, Carroll & Carveth, 31 Cherry Street, P.O. Box 432, Milford, CT 06460-0432.

The respondents Reliance Insurance Co. were represented by Christopher T. Goulden, Esq., Mihaly & Kascak, 925 White Plains Road, Trumbull, CT 06611.

The respondents Liberty Mutual Insurance Co. were represented by Scott Williams, Esq. Maher & Williams, P.O. Box 550, 1300 Post Road, Fairfield, CT 06430-0550.

This Petition for Review from the October 26, 1994 Finding and Dismissal of the Commissioner acting for the Fourth District was heard June 23, 1995 before a Compensation Review Board panel consisting of the Commission Chairman, Jesse M. Frankl, and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. On November 30, 1993 the claimant sustained a brachial plexus injury to his to his neck, right (non-master) shoulder and arm when he was struck by a falling object. The injury occurred while the claimant was in the course of his employment as an elevator mechanic, and while the claimant was working at the Cumberland County, Tennessee FGD Fossil Fuel Retrofit Project for the Tennessee Valley Authority. At the time of the injury the claimant was an employee of the respondent, Alimak Elevator Company [hereinafter Alimak]. The employer, Alimak, maintained offices in Bridgeport, CT.

At issue before the trial commissioner was whether this commission had subject matter jurisdiction over the instant claim. The trier concluded that Connecticut lacked subject matter jurisdiction over the matter. In reaching that conclusion the trier found that Tennessee was the place of the employment contract, the place of the employment relation and the place of the claimant’s injury.

The claimant took the instant appeal and ultimately challenges the trier’s conclusion that Connecticut lacked jurisdiction over the claim. In support of his contention, the claimant contends that the trier erred in finding that Connecticut was not the place of the employment contract. As the parties correctly point out, our Supreme Court held in Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991) that Connecticut may exercise subject matter jurisdiction over a Workers’ Compensation matter where Connecticut is the place of the employment contract, the place of the employment relation or the place of the injury. See also Kluttz v. Howard, 228 Conn. 401 (1994). At this juncture it should be noted that since the Supreme Court’s pronouncement in Cleveland, supra, our legislature has amended §31-275(9).1 However, as this tribunal noted in Giordano v. Morganti, Inc., 3023 CRB-7-95-3 (decided November 9, 1995) that amendment applies to injuries occurring to non-residents. As the injury at issue in this matter occurred to a Connecticut resident the statute’s language as to exclusions from the definition of employee set out in Sec. 31-275(9)(B)(vi) is not applicable. The appropriate analysis to be applied is that which was announced in Cleveland, supra.2

At the outset we note that the claimant-appellant filed a Motion To Correct and assigns as error the Commissioner’s failure to grant the claimant’s Motion To Correct. Assuming for the moment that we granted the additional paragraphs the claimant seeks to add, we cannot say that the granting of these additional paragraphs compels a different outcome. Furthermore, the claimant seeks deletion of certain paragraphs and yet provides no evidentiary support or legal claim which would support the deletions sought. Therefore, the facts as found by the trier must stand. See Plitnick v. Knoll Pharmaceutical, 13 Conn. Workers’ Comp. Rev. Op. 26, 1699 CRB-8-93-4 (1994).

In the instant matter we are asked to review whether the trier erred in concluding that Tennessee was place of the employment contract. As this tribunal noted in its decision in Casagrande v. Federal Express, 12 Conn. Workers’ Comp. Rev. Op. 170, 172-73, 1561 CRB-5-92-11 (1994);

[i]n determining the place of the employment contract, we recite certain common law rules of contract formation. In order to form a binding contract, there must be an offer and an acceptance based on a mutual understanding by the parties. Cavallo v. Lewis, 1 Conn. App. 519, 520 (1984). A contract is considered made when and where the last thing necessary to create an enforceable agreement-the acceptance-is done. Alfred M. Best Co., Inc. v. Goldstein, 124 Conn. 597, 602 (1938); Supreme Colony v. Towne, 87 Conn. 644, 646-47 (1914). Unless the offer provides otherwise, an acceptance made in a manner and by a medium invited by the offer is operative as soon as its transmission begins and it is put out of the offeree’s possession. L. & E. Wertheimer, Inc., v. Wehle-Hartford Co., 126 Conn. 30, 35 (1939); Lyon v. Adgraphics, Inc., 14 Conn. App. 252, 255, cert. denied, 208 Conn. 808 (1988); Restatement (Second) of Contracts, Sec. 63(a).”

The trier found that the claimant first learned of the Tennessee job in early November, 1993 through his Union Local 91 (International Union of Elevator Contractors) in East Hartford, CT. Telephone conversations as to wages, duration of employment and reimbursement for expenses occurred while the claimant was in Bridgeport, CT. The trier further found that “In order to accept the job at the Tennessee site, claimant had to travel from Bridgeport to Tennessee. His travel expenses ... were only to be reimbursed if he accepted the job after arrival in Tennessee.” Paragraph 20.

Clearly by virtue of the above noted factual findings, there were sufficient facts found which support the trier’s conclusion that Tennessee was the place of the employment contract. However, it should be noted that the claimant contends that Connecticut should be found to be the place of employment as Connecticut was the place where the Union Hall from which the claimant was hired was located.

In support of its argument, the claimant cites authority from outside this jurisdiction, most notably Gomez v. Federal Stevedoring, 5 N.J. Super 100, 68 A.2d 482 (1949) and a more recent Massachusetts case, Steven Conant’s Case, 33 Mass. App. Ct. 695, 604 N.E.2d 711(1992). Both of these cases involve the utilization of a union hall for the procurement of workers. These decisions hold that where the union hall acts as an “agent” for the employer in procuring workers the state in which the union hall is located is the place of the employment contract. Specifically in Gomez, the court noted that a New Jersey union hall’s activities constituted an offer of employment on behalf of a New York employer seeking employees to work on a site in New York.

The Gomez court held that as the terms of the contract were fixed by a collective bargaining agreement the employee’s mere showing up at the designated meeting site in New Jersey constituted acceptance of the contract and thus, New Jersey was the place of the employment contract. Likewise the Conant court held that where a Massachusetts union hall transmitted a job offer for work to be done in Vermont, Massachusetts was the place of the employment relation.

Where ... [the] number of workers needed in a particular craft and the relationship between the employer and the union is such that at the job site workers need not be screened as to their qualification, and wages and terms of employment need not be negotiated, it is reasonable to assume that a contractual relationship is created between the employer and the worker when the worker accepts the offer and undertakes to travel to the job site. In such circumstances, the routine filling out of forms upon arrival the job site is more properly regarded as an administrative detail than as an application for employment.

Conant, supra at 714.

While the appellant in the instant matter advocates strongly for the application of the so called “union hall” analysis exemplified in Gomez and others, See A.Larson, Workers’ Compensation Law § 87.32 p. 16-104 et seq., the cases and the holding cited merely represent persuasive authority and while of note and interest, are not binding on this body. We are compelled to apply the principles of contract formation in this forum and conclude that Connecticut was not the place of the employment contract.3

Additionally, we are asked to consider whether the trier erred in finding that Connecticut was not the place of the employment relation. Whether Connecticut is the place of the employment relation is also a question of fact. Gibson v. Keebler Co., 37 Conn. App. 392 (1995). In this case the trier found that the labor requirements were supervised by an employee of the respondent at the site in Tennessee. See paragraphs 12, 13 and 14. We believe this and the site of Tennessee as the place where the work was to be performed support a conclusion that Tennessee was the site of the employment relation.

Finally, we note that the respondent-Reliance filed a Motion to Dismiss on the basis that the claimant-appellant failed to file his brief by the date set out in the Compensation Review Board’s calendar. As we have noted on other occasions we do not countenance the untimely filing of briefs, but we fail to see how the respondents were prejudiced by the late filing in light of our granting an extension of time as to the filing of their brief. McNulty v. Stamford, 12 Conn. Workers’ Comp. Rev. Op. 32, 1332 CRD-7-91-10 (Jan. 26, 1994), rev’d other grounds, 37 Conn. App. 835 (1995). Thus, the respondents Motion To Dismiss is denied.

We therefore affirm the trial commissioner’s conclusion.

Commissioner Amado J. Vargas concurs.

ROBERTA S. TRACY, COMMISSIONER, dissenting. I dissent. Firstly, I am inclined to adopt the analysis and the reasoning of the courts in both Gomez v. Federal Stevedoring, 5 N.J. Super 100, 68 A.2d 482 (1949) and Steven Conant’s Case, 33 Mass. App. Ct. 695, 604 N.E.2d 711(1992).

Secondly, §31-275(9)(A) provides, “‘Employee’ means any person who: (I) Has entered into or works under any contract of service or apprenticeship with an employer, whether the contract contemplated the performance of duties within or without the state...” (emphasis mine). In the instant case we are presented with a Connecticut employer, an employee who is a Connecticut resident and an agreement to perform work outside this State. In my estimation, the language in §31-275(9)(A) covers factual situations like the one at hand and thus, Connecticut’s exercise of jurisdiction is proper and not merely an exercise of choice of laws.

Furthermore, while I am completely cognizant of the unfortunate underlying facts involved in Kluttz v. Howard, 228 Conn. 401 (1994) and the legislature’s attempt at amending our Workers’ Compensation Act so as to prevent future perceived inequities4 to employers in Connecticut, I am troubled that the human tragedy surrounding the injuries in Kluttz have tainted our view regarding application of the Connecticut Workers’ Compensation Act. I fear that we are losing sight of the underlying broad humanitarian purpose of the act.

1 Public Act 93-228 § 1 amendment to §31-275(9)(B)(vi) excludes from the definition of employee, “Any person who is not a resident of this state but is injured in this state during the course of his employment, unless such person (I) works for an employer who has a place of employment or a business facility located in this state at which such person spends at least fifty per cent of his employment time, or (II) works for an employer pursuant to an employment contract to be performed primarily in this state.” BACK TO TEXT

2 Even if we were to view this matter in light of §31-275 (9)(B)(vi) as we noted in Giordano v. Morganti, Inc., Case No. 3023 CRB-7-95-3 (decided Nov. 9, 1995) that amendment was the intended codification of Justice Shea’s dissent in Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 195-99 (1991). Arguably under an examination of the instant matter in light of the principles encouraged by the dissent in Cleveland we are left to consider Connecticut’s relationship and the significance of contacts with this forum. In determining whether Connecticut has significant contacts one is referred to the Restatement Second Conflicts of Law which in § 181 provides:

(a) the person is injured in the State, or

(b) the employment is principally located in the State, or

(c) the employer supervised the employee’s activities from a place of business in the State, or

(d) the State is that of most significant relationship to the contract of employment with respect to the issue of workmen’s compensation under the rules of §§ 187-188 and 196, or.,

(e) the parties have agreed ... that their rights should be determined under the workmen’s compensation act of the State, or

(f) the State has some other reasonable relationship to the occurrence, the parties and the employment.

Sec. 188 (2) provides:

In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place of contracting,

(b) the place of negotiation of the contract,

(c) the place of performance,

(d) the location of the subject matter of the contract, and

(e) the domicile, residence, nationality, place of incorporation and place of business of the parties.

These contacts are to be evaluated according to their relative importance with respect to the particular issue. (emphasis ours)

Thus, whether Connecticut is the situs of the employment relationship or the place of the employment contract appear to be appropriate touchstones for a determination as to whether Connecticut’s Workers’ Compensation Act should be invoked. BACK TO TEXT

3 We are cognizant of this tribunal’s decision in Quinn v. Mid-South Industries, Case No. 2020 CRB-2-94-4 (decided November 28, 1995) and its holding that Connecticut as the place of employment contract alone did not permit Connecticut to exercise jurisdiction when the claimant was not a resident of Connecticut at the time of the injury, the employer was not located in Connecticut, and the injury did not occur in Connecticut. In this matter the trier found the claimant was a resident of Connecticut at the time of the injury thus, Quinn is distinguishable. BACK TO TEXT

4 See §31-275(9)(B)(vi) and note 1 supra. BACK TO TEXT

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