State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Burse v. American International Airways, Inc.

CASE NO. 3480 CRB-2-96-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 7, 1997

WILLIAM J. BURSE

CLAIMANT-APPELLEE

v.

AMERICAN INTERNATIONAL AIRWAYS, INC.

EMPLOYER

and

GAB ROBINS NORTH AMERICA, INC.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Bart Sayet, Esq., Sayet & Seder, 126 Main St., P. O. Box 128, Norwich, CT 06360.

The respondents were represented by Michael Finn, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the November 26, 1996 Finding of the Commissioner acting for the Second District was heard June 27, 1997 before a Compensation Review Board panel consisting of the Commissioners James J. Metro, John A. Mastropietro and Michael S. Miles.

OPINION

JAMES J. METRO, COMMISSIONER. The respondents have petitioned for review from the November 26, 1996 Finding of the Commissioner acting for the Second District. They argue on appeal that the commissioner erred by holding that the claimant, a Connecticut resident, could obtain workers’ compensation benefits under the laws of this state for an injury he suffered over Ohio airspace while piloting an airplane owned by the Michigan-based company American International Airways. We affirm the trial commissioner’s decision.

The trier of fact found that American International Airways (AIA) is in the business of air freight transportation, with corporate offices located in Ypsilanti, Michigan. Its pilots fly cargo throughout the United States and the world. The claimant originally sought employment with AIA1 in 1986. He was at his home in Canterbury, Connecticut, when he received a call from AIA seeking to employ him as a pilot. The employer requested that he go to Michigan with his pilot certification information, which is necessary for one to legally work as a pilot. The claimant also met with the employer a second time after AIA called his home again the following week. However, the commissioner specifically noted that the claimant understood that he was hired prior to providing the pilot certification, and found that the provision of such information was a condition subsequent to the employment contract. She concluded that the claimant was hired in Connecticut in March of 1986.

Normally, the claimant would begin work by receiving a call from AIA, often at his home, instructing him to pick up a plane at a certain airport. During the hours of his employment with AIA, the claimant received a per diem amount of $1 per hour. Payment would commence one hour prior to his departure from a local airport to pick up his plane. He would also be paid for travel from his home in Canterbury to the location of the airplane he would be using. The claimant would bid for a base that would involve a specific flight route over an 18 to 20 day period, during which time he might not return home. At the time of his injury, the claimant was flying planes out of Miami, Florida. The claimant documented all of this information in logs that he kept at his home.

The claimant’s employer would supervise him from Michigan or Florida, never Connecticut. This is so even though AIA regularly has cargo planes flying out of Bradley International Airport in Windsor Locks, and may employ at least one worker, a mechanic, in this state. AIA considers Michigan to be the place of hiring for pilots and the place of their domicile, as well as the state where workers’ compensation benefits are to be paid, regardless of the place of injury. In fact, it has paid workers’ compensation benefits pursuant to Michigan law even where jurisdiction has not lain in that state. That includes benefits paid to this claimant. However, the claimant was free to live anywhere in the contiguous 48 states while working for AIA. He has lived in Connecticut since beginning his employment with AIA, and he always received his paychecks at his Canterbury home.

On March 15, 1994, while cruising over Ohio airspace, the claimant suffered oxygen deprivation that has left him with memory deficits and communication difficulties. He received treatment for this injury in Kentucky and Ohio before being transferred to facilities in Connecticut. This disability has completely prevented him from obtaining employment of any kind. Although the respondents argued that this Commission lacks jurisdiction to award the claimant benefits under the Connecticut Workers’ Compensation Act, the commissioner concluded that the place of the claimant’s employment contract and employment relationship was Connecticut, thus establishing subject matter jurisdiction in this state. The respondents have appealed that decision, along with the denial of their Motion to Correct.

In reviewing the denial of a Motion to Correct, this board is not permitted to reassess a trial commissioner’s determinations of evidentiary credibility. Brown v. Connecticut Aerosol, 3169 CRB-309505 (decided April 7, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). If the findings of the trier are reasonably inferable from the evidence and do not omit undisputed material facts, this board cannot draw contrary inferences on appeal. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In this case, the appellants seek to establish that the evidence does not support a finding that Connecticut was either the place of the claimant’s injury, employment contract or employment relation. Under our Supreme Court’s decision in Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 195 (1991), the claimant, a Connecticut resident, must establish one of those relationships as a basis for the exercise of jurisdiction by this Commission. See also, Quinn v. Mid-South Industries, 15 Conn. Workers’ Comp. Rev. Op. 34, 36-37, 2020 CRB-2-94-4 (Nov. 28, 1995) (where claimant merely accepted an offer of employment from her home in Connecticut, but maintained no continuing relationship with the state, CRB ruled that we should not assert jurisdiction; Simaitis v. Flood, 182 Conn. 24 (1980), followed).

The respondents have done a thorough job in their appellate brief of highlighting testimony that tends to contradict the existence of any of the three grounds for applying Connecticut law cited in Cleveland. However, we have also performed our own review of the transcripts and the exhibits. We are not persuaded that the commissioner drew unreasonable inferences from the testimony or ignored incontrovertible material evidence in concluding that the claimant’s contract of employment was made in Connecticut, and that the place of his employment relationship was here as well.

The claimant testified repeatedly regarding the circumstances of his hire. Some of his statements conflict with one another at first glance, but much of that can be explained by the focus of the respondents’ cross-examination on the “formalization” of the employment while the claimant was in Michigan. In fact, the trier could reasonably have found that the chief pilot of Connie Kalitta Services had offered the claimant a job during their initial telephone conversation while the claimant was in Connecticut. See January 31, 1996 Transcript, 7. The need for the claimant to meet with the employer in Michigan to review his certification and other details does not prove the lack of such an agreement. The parties could have mutually understood the claimant to be hired based on the information in his resume and their telephone conversation. See Lyon v. Adgraphics, Inc., 14 Conn. App. 252, 255, cert. denied, 208 Conn. 808 (1988). The employer’s temporary suspension of the job offer and its subsequent confirmation of the claimant’s employment could have been found by the commissioner to relate back to the initial offer and acceptance as well. The intent of the parties here was primarily a factual determination, and the trial commissioner permissibly inferred from the slightly muddled circumstances of this case that the employment contract originated in Connecticut.

The commissioner also found that Connecticut was the place of the claimant’s employment relationship with AIA. Although AIA is clearly a Michigan-based organization, and the claimant often traveled to Michigan for work-related purposes, he is still a Connecticut resident who managed his business affairs from his home. When he received a call to pick up a plane, he would be entitled to per diem payments beginning one hour before his departure from a local airport and ending one-half hour after he returned. He occasionally flew loads of cargo in and out of Bradley airport, where the respondent often has planes arriving and departing. Although AIA does not appear to have offices in this state, there was testimony supporting a finding that at least one mechanic was likely employed by AIA to service planes at Bradley. See, e.g., January 31, 1996 Transcript, 38-39 (Testimony of AIA’s vice-president of human resources).

As a pilot who flew both domestic and international missions, the claimant did not spend the majority of his employment time in any given location. Thus, the issue of where his employment relationship was located is more likely to be a subject of reasonable dispute. Based on our review of the evidence in the record, it was not improper for the trial commissioner to infer that Connecticut was the place of the claimant’s employment relationship with AIA. Therefore, we must affirm her decision that this Commission has subject matter jurisdiction over the instant claim.

Commissioners John A. Mastropietro and Michael S. Miles concur.

1 The claimant actually approached AIA’s corporate predecessor, Connie Kalitta Services, for a job. The company changed its name to AIA sometime between 1986 and 1994, but remained the same entity otherwise. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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