State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Owen v. Diversified Hospitality Group, Inc.

CASE NO. 4204 CRB-3-00-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 25, 2001

SHARON OWEN, Dependent widow of EUGENE OWEN

CLAIMANT-APPELLEE

v.

DIVERSIFIED HOSPITALITY GROUP, INC.

EMPLOYER

and

RELIANCE INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Robert Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Road, Suite 310, Woodbridge, CT 06525.

The respondents were represented by Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the February 28, 2000 Finding and Award of the Commissioner acting for the Third District was heard December 1, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the February 28, 2000 Finding and Award of the Commissioner acting for the Third District.1 They contend on appeal that the trier erred by finding that Eugene Owen, the deceased husband of the claimant, was an employee of the respondent Diversified Hospitality Group (DHG) at the time of his death, by finding that the decedent was in the course of his employment when his fatal accident occurred, and by failing to rule that the claimant was collaterally estopped from bringing the instant action by a court-approved settlement that she entered into following a ruling of the Texas Workers’ Compensation Commission. We affirm the trial commissioner’s decision.

The trier’s Finding and Award contains one hundred thirty findings of fact and statements of legal conclusion. We shall attempt to set forth only those that are essential to our review. On November 27, 1990, the decedent was married to the claimant and resided with her in an Atlanta, Georgia home. He had been hired as an assistant vice-president by DHG in April 1990, and had originally been assigned to an office in one of DHG’s Arlington, Virginia locations while he managed certain area restaurants and supervised food distribution. At the beginning of October 1990, the decedent’s work duties were assigned to another employee, Thomas Lewis. The decedent consequently moved out of his Virginia apartment (for whose rent DHG had reimbursed him), and began setting up a food purchasing network out of DHG’s Milford, Connecticut headquarters. Though the claimant was expecting to be reassigned to another region of the country in a few months, during the weeks before his death, he had been working out of a temporary office in Milford, and had been staying at a local inn.

On the morning of November 27, the decedent left his home in Atlanta following the long Thanksgiving weekend at about 9:30 a.m., driving a Lincoln Town car that DHG had leased for his use. His stated goal was to reach one of DHG’s Arlington restaurants in time for a business meeting that evening with Lewis and Richard Rosamila, both of whom represented DHG. He anticipated that the trip would take about ten hours. He planned to stay at a hotel overnight, then drive to the Milford office the following day. The meeting at the restaurant began as scheduled at about 6:30 p.m., and lasted until 9:30 or 10:00 p.m. Unfortunately, the decedent never arrived there. At about 9:45 p.m., he was killed in a motor vehicle accident in Woodbridge, Virginia, a Prince William County town about 20 miles southeast of Arlington. Several months later, his widow decided to pursue a workers’ compensation claim for survivor’s benefits. At this point, questions began to arise as to the identity of the decedent’s employer.

At the time that the decedent was moving from his Virginia office to the one at DHG’s Connecticut headquarters, DHG had been experiencing financial difficulties. In an effort to alleviate some of its problems, the company entered into a restructuring scheme whereby some of its employment liabilities were assumed by Flex-Staff, a Texas corporation whose costs of doing business were considerably lower than those of DHG. Among the benefits Flex-Staff could provide DHG was a Texas situs for all workers’ compensation claims, which cost less to process there than in most other jurisdictions. The contract between DHG and Flex-Staff required the latter to provide personnel and recruiting services for DHG. As of the October 1, 1990 contract date, most of DHG’s employees were officially hired by Flex-Staff, though the contract between the two parties was being implemented gradually.

During the initial stage of the contract’s “phasing in,” Flex-Staff merely acted as a payroll service, while DHG retained control over the means and methods of its former employees’ work, including that of the decedent. In fact, the contract provided that Flex-Staff had to abide by all of DHG’s employment policies and regulations, and its officers and employees had no authority to control the decedent’s income or his business activities. Following the implementation of the contract, the respondent continued to maintain the decedent’s car lease and his corporate credit card, and to reimburse him for travel expenses related to his DHG work. This arrangement remained in place through the time of his death. Indeed, after the accident, DHG initially acted as if he had been their employee. They paid his funeral expenses, planned a memorial service, and offered to name a company scholarship after him. Initial police and insurance reports prepared by DHG indicated that Eugene G. Owen, III, was its assistant vice-president.

However, when the claimant attempted to file a workers’ compensation claim in Connecticut against DHG, she was told that the decedent was really an employee of Flex-Staff, and that her right to relief was against them. She followed DHG’s instructions, and successfully pursued a survivor’s claim in Texas. The Texas Workers’ Compensation Commission entered a March 23, 1992 award on behalf of the claimant and her minor son, Jay Owen, ordering Flex-Staff’s insurer to pay benefits. The award found that the decedent died as a result of injuries he suffered during the course of his employment with Flex-Staff on November 27, 1990. The insurer then commenced an action in the District Court that was either an appeal of the award or a trial de novo on the same issues.2 See Findings, ¶ 77. On July 23, 1993, a final judgment in the form of a compromise agreement was entered, in which the judge found that the decedent’s employment status with Flex-Staff was a disputed issue, and ordered the earlier award set aside in favor of a settlement paying the claimant $273,000 and her son Jay an additional $102,000. See November 7, 2000 Ruling on Claimant’s Motion to Correct. When the Connecticut case was later rekindled, the trier concluded that the doctrines of res judicata and collateral estoppel did not bar the instant proceedings. He held that the decedent was employed by DHG, and that his fatal accident arose out of and in the course of his job duties. This entitled the claimant to compensation as a presumptive dependent under § 31-306 of the Connecticut Workers’ Compensation Act (subject to a credit for moneys that the claimant received in the Texas settlement), and leads us to the respondents’ present appeal.

The appellants raise four separate questions that implicate the authority of this board to exercise jurisdiction over the claimant’s request for benefits, each of which must be addressed in turn. First, we must review the trier’s finding that the decedent and DHG had sufficient contacts with this state to qualify the decedent as an “employee” within the meaning of § 31-275(9). Second, we must consider whether, as of November 27, 1990, the decedent continued to be an employee of DHG under that statute. Third, we must decide if the settlement of the claimant’s Texas action estops her from seeking survivor’s benefits from DHG here. Fourth and last, we must ascertain whether the decedent’s automobile accident legally arose out of and in the course of his employment as per § 31-275(1). Each of these determinations of law must be made in the claimant’s favor in order for this Commission to properly entertain the instant claim for compensation.

Generally, a state will not run afoul of constitutional due process requirements while exercising jurisdiction over workers’ compensation matters if it limits its reach to cases in which the employee claiming benefits was injured inside state boundaries, principally employed within the state, or supervised from a place of business in the state. Kelley v. Venezia Transport Services, 4184 CRB-2-00-2 (March 8, 2001); Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998). Due process considerations will also be satisfied if the state has the most significant relationship to the employment contract, if the parties have agreed that the state workers’ compensation law should determine their rights, or if the state “has some other reasonable relationship to the occurrence, the parties and the employment.” Id., quoting Simaitis v. Flood, 182 Conn. 24, 33 (1980)(citing 1 Restatement (Second), Conflict of Laws § 181). Often, states limit the reach of their workers’ compensation acts to only some of these situations by passing more restrictive statutes, or by applying conflicts of laws rules. At the time of the claimant’s 1990 accident, the relevant parameters were those set by our Supreme Court in Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991). There, it declared that “the remedial purpose of our Workers’ Compensation Act supports application of its provisions in cases where an injured employee seeks an award of benefits and Connecticut is the place of the injury, the place of the employment contract3 or the place of the employment relation.” Id., 195.4

The respondents argue that the decedent’s original contract of employment with DHG was negotiated and consummated in Georgia, and that his only contacts with Connecticut while employed by DHG were occasional trips to its corporate headquarters in Milford. In their view, assuming arguendo that the decedent was an employee of DHG on the date of his demise, there would still be no basis for this Commission to exercise jurisdiction over his widow’s claim for dependent death benefits. The trier, on the other hand, found two bases for Connecticut jurisdiction: the place of the contract’s execution, and the decedent’s relocation to the Connecticut DHG headquarters from October 15, 1990 through November 27, 1990. Findings, ¶ LL. Either of these factors would suffice to establish this Commission as a proper forum for this claim.

One might reasonably contend pursuant to this board’s decisions in Casagrande, supra n.3, and Quinn, supra n.3, that the mere signing of an employment contract in Connecticut without more would not suffice to give this state the most significant ties to that contract. We need not explore that issue in the context of this case, however, as there is strong evidence that the primary location of the employment relationship between DHG and the decedent shifted to this state during the weeks before his death. Even if the decedent’s assignment in Connecticut was set to last only a few months, it remains the case that his office had been relocated to the Milford headquarters, where he was given a desk and a work space. Finding, ¶ Y. This served as the decedent’s base of operations when he was not traveling. Lewis and Rosamila both testified that the decedent had been working in Connecticut; Claimant’s Exhibit R, Feb. 24, 1999 Deposition of Thomas Lewis, pp. 21-22, 40; Claimant’s Exhibit W, Jan. 15, 1997 Deposition of Richard Rosamila, pp. 19-20; and that he had reported to Tom McKeown, DHG’s president, at said headquarters. Id., 20. The trier relied on this testimony, and it is the trial commissioner’s prerogative to weigh all of the evidence, including the remarks of witnesses, and choose that which he finds most persuasive. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

In Cleveland, supra, our Supreme Court noted its concern that protection be afforded employees “who, because the various incidents of their employment and their injury are each linked to a different jurisdiction, may be at risk with respect to their eligibility for workers’ compensation benefits.” Id., 194. We have relied upon this humanitarian concern in construing the definition of “employee” to include individuals who might not spend the majority of their time in any one jurisdiction. Mitchell, supra, (CRB construed “employment time” in § 31-275(9)(B)(vi) broadly so that employee whose job required daily interstate travel would be covered). Given the relatively mobile nature of the decedent’s employment (he traveled often, and as of November 1990 was unsure as to where he would be assigned in the future), it is rational to place significant weight upon the fact that he had primarily been stationed at DHG’s Connecticut headquarters as of November 27, 1990. Both reason and the choice-of-law rule enunciated in Cleveland dictate that the employment relation between Eugene Owen and his employer be deemed to have some legal situs. On the date in question, Connecticut was the state in which the largest percentage of their employer-employee contacts regularly occurred. Thus, we confirm the trier’s factual finding that the employment relation between DHG and the decedent existed in Connecticut at the time of his automobile accident, insofar as we may hold that it existed anywhere.

We have provisionally qualified our last statement in recognition of another argument that the respondents have raised on appeal. They contend that the decedent technically ceased working for DHG on or about October 1, 1990, when he and many other DHG personnel were assigned to Flex-Staff pursuant to the contract discussed above. The presence of an employment relationship between two parties at the time of a prospective claimant’s injury is, of course, a prerequisite to any workers’ compensation action. Whether such a relationship exists is largely a question of fact. The essence of its proof lies with the existence of authority in the putative employer to guide the mode and manner in which the employee’s service is rendered, as well as the means that are employed in its performance. Merlin v. Labor Force of America, Inc., 3920 CRB-4-98-10 (Dec. 22, 1999), aff’d, 62 Conn. App. 906 (2001) (per curiam), citing Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 287-88, 1720 CRB-4-93-5 (April 21, 1995). As such, our law may not philosophically comport with the notion that one side of an employment relationship may be wholly transferred to a third party by the terms of a contract alone. Merlin, supra.

In their brief, the respondents do not dispute that sufficient evidence existed for the trier to find that the officers of DHG continued to exercise control over the decedent’s daily job performance. In that sense, the decedent comfortably qualified as an “employee” of DHG as per § 31-275(9), and the trier reasonably concluded as such. However, the respondents contend that the trier was not free to include that particular factual finding in this case. In light of the outcome of the claimant’s earlier legal action in the state of Texas, the respondents urge that the doctrine of collateral estoppel required the commissioner to declare that Flex-Staff was the decedent’s employer for the purposes of this action as well.

The doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion) have evolved as a means of protecting the finality of judgments, and discouraging wasteful relitigation. Dowling v. Finley Associates, Inc., 248 Conn. 364, 373 (1999); Crochiere v. Board of Education, 227 Conn. 333 (1993). Res judicata prevents a litigant from reasserting a claim that has been denied on its merits, while collateral estoppel eliminates the retrial of particular issues that have been resolved in a prior suit. Dowling, supra; Virgo v. Lyons, 209 Conn. 497 (1988). The collateral estoppel doctrine applies in cases where a factual or legal issue has actually been litigated and determined by a valid and final judgment, where such decision was essential to the judgment, and where the earlier proceeding involved the same parties or those in privity5 with them upon a different claim. Crochiere, supra, 343; Dowling, supra, 373-74. An issue is considered “litigated” if it was raised in the pleadings or otherwise submitted for resolution, and was in fact determined by the presiding judicial authority. Id., 374. Also, if an issue has been determined, but was not integral to the ultimate judgment, the parties may relitigate that issue in a subsequent action. Id.; Lafayette v. General Dynamics/Electric Boat Division, 255 Conn. 762 (2001).6

Where there is doubt as to the wisdom of issue preclusion, a full hearing on the merits remains a reliable means of guaranteeing everyone due process. The respondents here carry the burden of demonstrating that collateral estoppel is appropriate, i.e., that the Texas court decision has foreclosed our own consideration of the claimant’s employment relationship with DHG. Dowling, supra, 377. In evaluating their argument, this board encounters two significant legal obstacles that preclude the application of the collateral estoppel doctrine to these facts. One barrier is the absence of an identity of issues between the Connecticut and Texas actions, while the other is the absence of a viable final judgment in which Flex-Staff was found or admitted to be the claimant’s employer.

In the March 23, 1992 ruling of the Texas Workers’ Compensation Commission, the Acting Executive Director entered a finding stating that, “On or about November 27, 1990, Flex-Staff was a subscriber under the Texas Workers’ Compensation Act with insurance carried by St. Paul Fire & Marine Insurance Company. In their employ was Eugene Gibson Owen, III . . . .” Respondents’ Exhibit 1. No mention of DHG was made in that award, which contained few additional findings: it simply listed the lawful beneficiaries of the decedent’s estate under Texas law, and set forth the amount of benefits that the claimant and her son were entitled to collect. The respondents in the Texas action (Flex-Staff and its insurer, St. Paul Fire & Marine) then sought to have that award set aside by a Texas court for lack of jurisdiction. See Respondents’ Exhibit 6, Defendant and Counter-Plaintiff’s Post Submission Statement. The claimant opposed that request to set aside, while reminding the court that her pursuit of a Connecticut claim against DHG had been suspended pending the resolution of the Texas case. Id. At that time, the claimant also acknowledged her concern that a finding in the Texas award that the decedent was a Flex-Staff employee might collaterally estop a Connecticut workers’ compensation commissioner from finding that he had been employed by DHG.

It is not surprising that the claimant’s Texas counsel had such a concern. The existence of an employment relationship in a matter involving two putative employers is often presumed to be an “either-or” situation by all parties, as there is usually only one entity that is identified as having the right to control the means and methods of a putative employee’s services. See, e.g., Velez-Ramos v. Labor Force of America, 16 Conn. Workers’ Comp. Rev. Op. 119, 3070 CRB-4-95-5 (Nov. 25, 1996)(claimant held to be employee of manufacturer rather than lent employee of temporary employment agency). However, such a presumption is not always accurate. If the circumstances of a case indicate that more than one entity has exercised significant control over an employee’s job performance, our law would allow a finding of a joint employment relationship. See Taylor v. St. Paul’s Universalist Church, 109 Conn. 178, 182 (1929)(“one may hold the legal relation of employee to more than one employer at the same time”).

“Joint employment occurs when a single employee, under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. In such a case, both employers are liable for [workers’] compensation. . . . Joint employment is possible, and indeed fairly common, because there is nothing unusual about the coinciding of both control by two employers and the advancement of the interests of two employers in a single piece of work.” 3 Larson’s Workers’ Compensation Law (2000), § 68.01. Examples of joint employment cases include Alli v. Mandel Security Bureau, Inc., 448 N.Y.S.2d 256 (1982), where liability for compensation was shared equally between a firm that furnished a security guard and the World Trade Center, which exercised enough control over the placement, dress and use of said guard to establish a special employment relation, and Renfroe v. Higgins Mfg. Co., 169 N.W.2d 326 (Mich. App. 1969), where a temporary labor supplier and a manufacturer were held to be jointly liable for workers’ compensation benefits under an “economic reality” test. Larson’s, supra, § 68.02D.

The instant case also presents an opportunity for a finding of a joint employment relationship. There is evidence that both Flex-Staff and DHG played important roles in governing the decedent’s work activities at the time of his death due to the “phasing-in” period of their recently-established contract, under which control over DHG’s restaurants was slowly being transferred to Flex-Staff. Thus, a finding by a Texas court that the decedent had been a Flex-Staff employee on November 27, 1990 would not necessarily preclude a Connecticut court from finding that the decedent was also a DHG employee at the time of his death. It follows that the trial commissioner was not required to apply the principle of collateral estoppel to that fact, as the issue of the decedent’s employment with Flex-Staff that was litigated in Texas was not legally identical to the issue litigated in Connecticut, i.e., the decedent’s employment with DHG.

Moreover, collateral estoppel cannot be invoked unless an issue has been actually litigated and determined by a valid final judgment to which the resolution of that issue is essential. Crochiere, supra, 343. Though the decedent was found to be an employee of Flex-Staff by the Texas Workers’ Compensation Commission, the award containing that finding was set aside as part of the compromise settlement and agreement that resolved the subsequent Texas court action that had been initiated by Flex-Staff and its insurer, St. Paul Fire & Marine. The settlement recites, “The Court finds that this is a claim of disputed liability; specifically there exists a factual dispute concerning the issues of whether the decedent, Eugene Owen, was hired in Texas, whether he was an employee of Flex-Staff at the time of his death, and whether he was in the course and scope of such employment at the time of his death. . . . The Court, therefore, approves the agreement between the Plaintiff and the Defendant to resolve this claim . . . .” Claimant’s Exhibit N. The court also found that the compromise settlement agreement had been entered into as the result of a bona fide dispute and that it represented a fair, just and reasonable means of buying peace and settling that dispute. “[N]o payments made nor releases or other consideration given shall be construed as an admission of liability; all liability is expressly denied.” Id.

This denial of liability cannot fairly be read to constitute a final adjudication of the decedent’s employment status. Not only was the Texas Workers’ Compensation Commission’s finding of an employment relationship between Flex-Staff and the decedent set aside by agreement of the parties, but the compromise settlement itself in no way relies upon an admission or a finding that such a relationship existed. In Nowell v. Nowell, 157 Conn. 470, cert. denied, 396 U.S. 844 (1969), our state Supreme Court noted that, under Texas law, a Texas judgment cannot be pleaded defensively so long as there is an appeal pending. Id., 477 (Connecticut must look to Texas law to determine when a judgment there is considered final for res judicata purposes). In terms of its authority, the adjudication of material facts alleged here falls short of even a judgment pending appeal. The settlement effectively vacates the prior workers’ compensation award, and memorializes the respondents’ refusal to admit that the decedent worked for Flex-Staff at the time of his death. It is a negotiated compromise of an officially disputed claim. A finding of an employment relationship would clearly be unnecessary to such an agreement. Thus, neither the settlement nor the workers’ compensation award that preceded it collaterally estopped the adjudication of the decedent’s employment relationship with DHG in another forum.

The respondents’ final argument is that the decedent’s injury and death could not have arisen out of or in the course of his employment based upon the time and place of his automobile accident. They characterize the accident as having occurred while the decedent was still approximately an hour’s drive from a business meeting that had begun several hours earlier, and was in the process of breaking up. In order to establish that the decedent’s accident occurred in the course of his employment, the claimant must show that it took place within the period of his employment, at a place he reasonably could have been, and while he was fulfilling duties of his employment or doing something incidental to it. Kish v. Nursing & Home Care, Inc., 248 Conn. 379, 383 (1999).7 Injuries sustained on a public highway while going to or from work are ordinarily not compensable because a job ordinarily does not commence until an employee has reached his employer’s premises, and because an employee’s means of transportation and route to work are not normally controlled by his employer. Dombach v. Olkon Corp., 163 Conn. 216, 222 (1972). However, there are several exceptions to this rule, including situations where the work requires the employee to travel on the highways, where the employer furnishes transportation for the employee, and where the employee is injured while using the highway in doing something incidental to his employment, for the joint benefit of employer and employee, with the employer’s knowledge and approval. Id.; Hannon v. Independent Office Installations, 3781 CRB-6-98-12 (June 28, 1999).

The trial commissioner’s findings do indicate that the decedent was not on pace to reach the meeting before it disbanded, as he would likely have reached Arlington sometime between 10:30 and 11:00 had his accident not occurred. However, the compensability of his injury is not affected by this fact. The decedent unambiguously set out to attend the Virginia meeting when he left his Georgia home on the morning of November 27, 1990. Traveling was a significant component of his job, and he was driving a company car. His sole known purpose for driving to Virginia was to participate in this meeting, which the president of DHG wanted him to attend, according to Rosamila. Claimant’s Exhibit W, pp. 12-16. These facts satisfy several of the “coming and going” exceptions discussed in Dombach, supra. Though the decedent expected the drive to take ten hours, experience counsels us that such an estimate could prove to be too conservative depending on traffic and road conditions. We find no error in the trier’s conclusion that the decedent’s car accident occurred during the course of his employment with DHG.

The trial commissioner’s decision is accordingly affirmed. Insofar as benefits due may have remained unpaid pending appeal, interest is awarded as required by § 31-301c.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 The claimant also filed a petition for review from the trier’s decision, but later moved that her appeal be withdrawn after the parties reached an agreement on the proper amount of the respondents’ credit for compensation already paid. This Commission granted that withdrawal request on September 17, 2000. BACK TO TEXT

2 During the pendency of this Texas litigation, the claimant’s Connecticut attorney wrote to the Commissioner acting for the Third District to request a suspension of any further proceedings until the ongoing case in Texas was resolved. BACK TO TEXT

3 The “place of contract” language of Cleveland, supra, has been interpreted with reference to Simaitis, supra, insofar as Simaitis adhered to a “most significant relationship to the contract of employment with respect to workers’ compensation” standard. Casagrande v. Federal Express Corp., 15 Conn. Workers’ Comp. Rev. Op. 300, 301-302, 2247 CRB-5-94-12 (June 20, 1996)(claimant accepted offer of employment from his Connecticut home, but Kentucky had a more significant relationship to employment contract); Quinn v. Mid-South Industries, 15 Conn. Workers’ Comp. Rev. Op. 34, 36-38, 2020 CRB-2-94-4 (Nov. 28, 1995)(claimant accepted job offer from Connecticut home, but Alabama had more significant connection to contract). It is the opinion of this board that such an interpretation best approximates the true intent of the Court majority in Cleveland. The Court explicitly intended to adopt a conflict of laws rule recommended by the National Commission on State Workmen’s Compensation Laws and by Professor Larson that advocated applying the local statute if “the place of injury, or the place of hiring, or the place of employment relation is within the state.” Id., 192, quoting 4 A. Larson, Workmen’s Compensation Law, § 87.00, p. 16-67. In setting forth this rule, however, the National Commission and Professor Larson were implementing the Restatement (Second) approach advocating relief where a state had, inter alia, “the most significant relationship to the contract of employment.” Cleveland, supra. BACK TO TEXT

4 The legal landscape for non-resident claimants became more complex following the passage of Public Act 93-228, § 1(9)(B)(vi), which took effect on July 1, 1993. Our legislature decided to enact into law the dissenting opinion in Cleveland, supra, by excluding “a mere passing through the state as a provision of receiving workers’ compensation benefits.” Kluttz v. Howard, 228 Conn. 401, 409 (1994), quoting Conn. Joint Standing Committee Hearings, Labor and Public Employees, 1993 Sess., pp. 1210-11 (remarks of Jesse M. Frankl, then-Chairman of Connecticut Workers’ Compensation Commission). This was done by adding subsection (vi) to § 31-275(9)(B), omitting 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.” This provision has been held to implicitly encompass injuries occurring outside of Connecticut to non-resident claimants, as any other interpretation would lead to a bizarre result whereby one’s case for jurisdiction would be strengthened by taking away Connecticut as the place of injury. Mitchell, supra; Giordano v. Morganti, Inc., 15 Conn. Workers’ Comp. Rev. Op. 21, 25, 3023 CRB-7-95-3 (Nov. 9, 1995). However, the instant claimant is not implicated by P.A. 93-228, § 1(9)(B)(vi), as our Supreme Court held in Kluttz, supra, that this law does not retroactively apply to injuries that occurred before the date it took effect. BACK TO TEXT

5 “Privity” denotes “a relationship between one who is a party of record and another who is a nonparty, but is sufficiently close to mandate the application of res judicata or collateral estoppel.” Mazziotti v Allstate Ins. Co., 240 Conn. 799, 813 n.1 (1997). Though the exact prerequisites of privity may vary with the circumstances, there must always be “such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion.” Id., 814. BACK TO TEXT

6 This board was specially asked to take notice of the Supreme Court’s recent decision in Lafayette following the completion of oral argument. Though the central issue in Lafayette is the applicability of collateral estoppel principles to a workers’ compensation action, its analysis is largely inapposite to the case before us here. While the instant matter concerns the effect of a Texas settlement that expressly denies an employment relationship between the claimant and a Texas corporation, Lafayette concerned the effect of a judgment under the Longshore and Harbor Workers’ Compensation Act in which the administrative law judge specifically found that the claimant’s lung cancer was caused by asbestos exposure during his employment. The key question in the latter case was the effect on the judge’s findings, if any, of a superseded statutory presumption that shifted the burden of proof. The issues discussed in Lafayette are thus very specific, and shed little light on the legal questions raised before us here. BACK TO TEXT

7 An injury “arises out of the employment” when it occurs in the course of the employment, and when it results from a risk involved in the employment or incident to it or to the conditions under which it must be performed. Dombach v. Olkon Corp., 163 Conn. 216, 221-22 (1972). BACK TO TEXT

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