State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Jones v. New Haven Child Development

CASE NO. 4316 CRB-3-00-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 29, 2001

PEGGY K. JONES

CLAIMANT-APPELLEE

v.

NEW HAVEN CHILD DEVELOPMENT

EMPLOYER

and

ACE USA

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Nickola J. Cuhna, Esq., formerly of Lettick & Lettick, P.C., 2494 Whitney Avenue, Hamden, CT 06518.

The respondents were represented by Colette S. Griffin, Esq., Howd & Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114-1190.

This Petition for Review from the November 3, 2000 Finding Re: Claimant’s Motion to Preclude of the Commissioner acting for the Third District was heard April 27, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the November 3, 2000 Finding Re: Claimant’s Motion to Preclude of the Commissioner acting for the Third District. They contend on appeal that the trier erred by precluding them from contesting the claimant’s neck injury, and by precluding them from attempting to show that the claimant was working for another employer at the time of her injury. We affirm the trial commissioner’s decision.

The claimant sent a Form 30C via certified mail to the respondent New Haven Child Development on February 11, 2000, alleging that on October 20, 1999, she was involved in a motor vehicle accident during the course of her employment while delivering paperwork between two job sites. Her injuries were listed as “Broken neck, multiple traumatic injuries — awaiting medical reports.” The certified mail receipt shows that delivery was accepted by an agent of her employer on February 14, 2000. Claimant’s Exhibit A. In response to that notice, neither the employer nor its insurer filed a notice of intent to contest liability within the requisite 28 days provided by § 31-294c(b) C.G.S. However, the respondents did file a Form 43 on April 17, 2000, contesting the claimant’s alleged neck fracture on the ground that there was a “question of injury or occupational disease arising out of and during the course of employment as relates to THE FRACTURE[D] SPINE.” The claimant then filed a second Form 30C on April 26, 2000, further defining the injured body parts as “neck, right shoulder, right upper extremity, both hands, MULTIPLE TRAUMATIC INJURIES.”

On June 6, 2000, the claimant moved to preclude the respondents from contesting liability to pay her workers’ compensation benefits arising from the injuries she sustained in the October 20, 1999 automobile accident, as the respondents had failed to file a Form 43 within 28 days of receiving the February 11, 2000 Notice of Claim. The respondents objected to this motion on two grounds. First, the listed injury of “broken neck” had proven to be inaccurate, as the fracture itself had actually occurred at some prior time. Second, the claimant was not an employee at the time of the accident “inasmuch as she was on her lunch break and, therefore, was on personal time.”

The trial commissioner found that the initial Form 30C substantially complied with the requirements of § 31-294c(a)1 C.G.S., inasmuch as it adequately apprised the employer of the existence of a claim and allowed it to make a timely investigation. See Pereira v. State, 228 Conn. 535, 542-43 n. 8 (1994); Chase v. State, 45 Conn. App. 499, 503-504 (1997). Not only was the Form 43 filed late in response to the claim notice, but the trier found that it did not allege that the claimant was not an employee of the respondent on October 20, 1999. Findings, ¶ 11. In fact, a contract of employment between the claimant and the respondent existed on October 20, 1999. The respondent was merely contending that, at the time of the injury, the claimant was “working for someone else on a detour or frolic and therefore her injury didn’t arise out of and during [the course] of her employment . . . .” Findings, ¶ 13, citing October 3, 2000 Transcript, pp. 7-8. The commissioner did not view this as an issue of subject matter jurisdiction, citing Bush v. Quality Bakers of America, 2 Conn. App. 363 (1984). Therefore, the trier granted the Motion to Preclude, and ordered the respondent employer and its insurer to accept liability for the claimant’s October 20, 1999 injuries. The respondents have filed an appeal from that decision with this board.

We begin our review by observing that the trial commissioner applied the correct legal standard in evaluating the sufficiency of the notice of claim. The Form 30C filed by the claimant on February 11, 2000, clearly set forth her motor vehicle accident and the type of injuries that she had allegedly suffered from it. This notice was sufficient to allow the employer or its insurer to immediately investigate the claimant’s workers’ compensation claim. Thus, the respondents were obligated to file a responsive Form 43. See, e.g., Chase, supra, 506; Cifarelli v. Pitney Bowes, Inc., 3994 CRB-8-99-3 (March 8, 2000). Failure to meet this obligation now prevents the employer from later challenging the compensability of the incident and the alleged injury or injuries that arise from it, though the extent of disability remains open for future discussion.

The claimant’s February 11, 2000 notice of claim delineated a broken neck and other traumatic injuries from the October 20, 1999 accident, whose specification awaited the receipt of further medical reports. Later, the injuries were narrowed down to “neck, right shoulder, right upper extremity, both hands.” Once the compensability of an incident is established, disability related to later injuries that arise from that same incident may be compensated without the filing of an additional notice of claim. Roman v. Eyelets for Industry, 3040 CRB-5-95-4 (Feb. 14, 1997), aff’d, 48 Conn. App. 357 (1998); Landrette v. Bristol, 11 Conn. Workers’ Comp. Rev. Op. 149, 1279 CRD-6-91-8 (Aug. 19, 1993). That being the case, we find no merit in the respondents’ argument that the downgrading of the “broken neck” injury in the second claim notice to a lesser neck injury, and the addition of newly-mentioned body parts, somehow constitutes a completely new claim, or renders the first claim defective. Whether a notice of claim is defective is a question of law. Chase, supra, 508. There is no visible defect in the February 11, 2000 notice provided by the claimant, as it was sufficient to provoke an investigation of the automobile accident and its physical consequences. The claimant’s amendment of the listed injuries in a later notice does not serve to excuse the respondents’ failure to reply to the initial claim notice. The compensability of the automobile accident and its resultant injuries has thus provisionally been established (pending our resolution of the other issue on appeal). Thus, the respondents would have to accept liability for any disability and medical expenses that can be shown to be attributable to injuries occasioned by that mishap.

The respondents’ other argument is that the claimant was not acting in the course of her employment with New Haven Child Development at the time of her injury, which they believe implicates the subject matter jurisdiction of this Commission over the instant claim. This raises an interesting point. Before we may consider a Motion to Preclude as per § 31-294c(b) and Admin. Reg. § 31-297(b)-1, we must first ascertain that we have subject matter jurisdiction over the pending case. Castro v. Viera, 207 Conn. 420, 426-29 (1988); Marandino v. Marandino’s, 3130 CRB-6-95-7 (March 20, 1997) aff’d, 48 Conn. App. 916 (1998)(per curiam), cert. denied. 245 Conn. 919 (1998). Our Appellate Court recently identified two issues that concern subject matter jurisdiction in workers’ compensation proceedings: the existence of an employer-employee relationship, and the proper and timely initiation of the claim itself. Del Toro v. Stamford, 64 Conn. App. 1, 7-8 (2001) (compensability of “mental-mental” injury under § 31-275(16)(B)(ii), like other issues involving whether injury arose out of and in course of employment, does not implicate subject matter jurisdiction). Regarding the former of those issues, “The burden in a workers’ compensation claim rests upon the claimant to prove that he is an “employee” under the act and thus is entitled to invoke the act.” Castro, supra, 426.

Here, there was no dispute that an employment contract between the claimant and her alleged employer was in effect at the time of her accident. Therefore, the trier ruled that this Commission had subject matter jurisdiction over this claim. The respondents’ defense was, to the trier, categorically different: they maintained that the claimant, though an employee of New Haven Child Care at the time of her injury, was actually performing a task for another employer when her car accident occurred. The trier ruled that the gravamen of this defense was that the injury did not arise out of and in the course of the claimant’s admitted employment with the respondent, which does not constitute a jurisdictional issue. Findings, ¶ 14. Accordingly, the trier did not allow the respondents to introduce evidence on this subject prior to ruling on the Motion to Preclude.

The case cited by the trier in ¶ 15 of the Findings, and on page 8 of the formal hearing transcript, is Bush v. Quality Bakers of America, 2 Conn. App. 363 (1984), cert. denied, 194 Conn. 804 (1984). In Bush, the claimant was the widow of a man who had suffered cardiac arrest and died after playing racquetball at a private health club with the president of Quality Bakers on May 2, 1980. She filed a Form 30C, to which Quality Bakers failed to respond within the statutory time limit (then, twenty days). The trial commissioner granted the claimant’s Motion to Preclude the respondents from contesting liability, but also found that the decedent’s death did not arise out of and during the course of his employment. The Appellate Court held that the commissioner did not lack jurisdiction to compensate the claimant, as Bush was admittedly an employee of Quality Bakers who had died.

‘The statute clearly speaks to a threshold failure on the employer’s part to contest “liability”: to claim, for example, that the injury did not arise out of and in the course of employment; see Menzies v. Fisher [165 Conn. 338, 340 (1973)]; that the injury fell within an exception to the coverage provided by workmen’s compensation; see Draus v. International Silver Co., 105 Conn. 415, 418 [](1926); or that the plaintiff was not an employee of the defendant, but an independent contractor; see Biederczycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 704 [](1926). If there is such a failure to contest, both liability, and any substantive claim as to the extent of disability, are precluded.’ Adzima v. UAC/Norden Division, 177 Conn. 107, 113-14 [](1979). Quality conceded compensability and jurisdiction to adjudicate the Bush claim when it failed to contest the initial claim. Any other interpretation of that statute would gut the remedial purpose of the twenty day rule. The jurisdictional claim is illusory. By not contesting compensability, Quality waived any jurisdiction claim.

Bush, supra, 373. This analysis was later applied in LaVogue v. Cincinnati, Inc., 9 Conn. App. 91 (1986)(per curiam), cert. denied, 201 Conn. 814 (1986), (failure to timely contest compensability precluded respondents from arguing that Connecticut lacked jurisdiction over employment relationship due to insufficient contacts, though court noted that claimant lived in Connecticut and had an office in his home); and in Yuknat v. State, 9 Conn. App. 425 (1987)(per curiam) (decedent was admittedly a state employee, his widow’s claim met the notice requirements of § 31-294, and state’s failure to timely contest claim was fatal).

In 1988, our Supreme Court issued its decision in Castro v. Viera, supra. There, a trial commissioner had found that the decedent worked for the respondents as an independent contractor, and that no employment contract existed between the parties within the meaning of the Workers’ Compensation Act. The respondents had failed to file a Form 43 in response to the notice of claim filed by the decedent’s surviving dependents, however. Relying on Bush, supra, the claimants accordingly moved to preclude the respondents from contesting liability. The trier denied their motion, holding that the respondents were still entitled to contest their right to receive benefits on jurisdictional grounds. The commissioner pointed out that in Bush, the lack of an employer-employee relationship was not at issue, and the trier opined that the Appellate Court’s reference to waivers of jurisdictional claims did not apply to situations where an employment relationship was wholly absent.

The Supreme Court eventually affirmed the trier’s disposition of the case. “The burden in a workers’ compensation claim rests upon the claimant to prove that he is an ‘employee’ under the act and thus is entitled to invoke the act. . . . This relationship is threshold because it is settled law that the ‘commissioner’s jurisdiction is “confined by the Act and limited by its provisions.”’ Gagnon v. United Aircraft Corporation, 159 Conn. 302, 305 [](1970). . . . ‘Unless the Act gives the Commissioner the right to take jurisdiction over a claim, it cannot be conferred upon [the commissioner] by the parties either by agreement, waiver or conduct.’ Jester v. Thompson, 99 Conn. 236, 238 [](1923).” Castro, supra, 426. Once the issue of subject matter jurisdiction has been presented to the presiding commissioner, its primacy may not be circumvented by the conclusive presumption in § 31-294c(b) [formerly, § 31-297(b)]. Id., 430. Because the employer-employee relationship is threshold to the rights and benefits under the Workers’ Compensation Act, such a presumption cannot be triggered by the filing of a claim “until the ‘employee’ proves, where the requisite relationship is challenged, that that relationship existed.” Id., 433. Thus, the trier had correctly given the respondents an opportunity to show that the decedent did not have an employment relationship with them, and that he was not working as an employee of the defendants on September 30, 1983, when he died after falling from a ladder at the respondents’ building. Id., 422.

The language of the Castro decision would seem to lead in a different direction than does the language of the Supreme Court’s 1979 decision in Adzima, supra, as cited in Bush, supra. However, in analyzing the facts of Castro, the Court took great pains to note that none of the earlier Supreme Court, Appellate Court or compensation review division decisions ran contrary to its analysis. “In none of those cases was the critical relationship of employer and employee, as comprehended by the act, at issue.” Id., 436. The Court then cited a host of cases in which preclusion had been granted, including Menzies, supra; Adzima, supra; Bush, supra; Yuknat, supra; and LaVogue, supra. Though the circumstances of Bush involved an employee whose injury ostensibly occurred while playing racquetball at a health club, the fact that he was clearly an employee of Quality Bakers exempted his survivors’ claim from subject-matter jurisdictional scrutiny. The Court indicated no disapproval of the fact that the employer was forced to pay compensation despite the commissioner’s factual finding that the claimant was not acting in the scope of his employment at the time of his cardiac arrest.

Since Castro, our courts have confirmed that the possibly untimely filing of a claimant’s Form 30C also creates an issue of subject matter jurisdiction. Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276 (1988). Meanwhile, the causal connection between a claimant’s employment and his alleged injury does not raise such an issue, even where the statute itself excludes a type of injury from the definition of “personal injury” in § 31-275(16). Del Toro, supra; see also, DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441 (1992) (relationship of employer and employee existed, thereby conferring subject matter jurisdiction on commissioner; issues of causation are not included in that concept). Such cases have cited Bush, supra, and LaVogue, supra, as persuasive authority. Consistent with Castro, this board has held that “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.” Litke v. Crowell Builders, 11 Conn. Workers’ Comp. Rev. Op. 77, 79, 1215 CRD-5-91-4 (May 4, 1993); see also, Marandino, supra. However, since Castro was decided, we have not been asked to confront a situation in which the employer’s argument was that, though an employment relationship admittedly existed between the claimant and the respondents, at the precise moment of the injury, the claimant was not acting within the scope of that employment.

From the opinion in Castro, supra, it is evident that our Supreme Court sought to distinguish rather than to overrule Bush, supra, regarding which it had denied certiorari only several years earlier. In the Court’s view, the situation where no employee-employer relationship exists between two parties differs from a situation where such a relationship does exist, but the cause of the injury itself might be unrelated to that employment. The former circumstance implicates subject matter jurisdiction because the Workers’ Compensation Act can only be invoked on behalf of someone who is in an employer-employee relationship as defined by § 31-275(9) and related caselaw. Castro, supra, 433. “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.” Id. Once one acknowledges the existence of such a relationship, one acknowledges that the employee possesses the legal status to bring a workers’ compensation claim against his or her employer under the Act.

Here, it is established that the claimant worked under a contract of service with New Haven Child Development on the date of her injury within the meaning of § 31-275(9)(A)(i). The respondents do not purport to challenge the existence of that relationship. Instead, they seek to show that, at the precise time of her injury, the claimant was engaged in a separate endeavor, possibly for another employer. This is not a jurisdictional objection. Rather, it challenges the notion that the injury arose out of and in the course of the claimant’s employment with this particular employer.

Insofar as it implicates subject matter jurisdiction over the claimant’s claim of injury against that employer, there is no legal difference between a defense that the claimant’s injury occurred playing racquetball at a private health club and a defense that the claimant’s injury occurred while she was furthering the interests of a separate business entity. Each lacks the same element of causal connection between employment and injury. Though the latter defense has great merit insofar as it contests that causal connection, it does not eliminate the underlying employment relationship between the two parties that forms the basis of a claimant’s right to bring an action under Chapter 568. To illustrate that point, we note that one may hold the legal relation of employee to more than one employer at the same time if one is simultaneously performing services for two employers. Owen v. Diversified Hospitality Group, Inc., 4204 CRB-3-00-3 (July 25, 2001), citing Taylor v. St. Paul’s Universalist Church, 109 Conn. 178, 182 (1929).

Several years ago, this board addressed a case in which a claimant who was employed by the New Canaan Cemetery Association was injured while splitting wood on his employer’s premises during his unpaid lunch break as part of a personal business endeavor. Luciana v. New Canaan Cemetery Association, 3644 CRB-7-97-7 (Aug. 12, 1998). The trial commissioner denied compensation on the ground that the injury did not arise out of and in the course of the claimant’s employment with the cemetery association. In affirming the trier’s decision on review, this board did not treat the matter as a jurisdictional issue. Instead, we analyzed the matter in the same vein as had the trial commissioner, studying whether the injury had occurred as the result of a risk involved in the employment, within the period of employment, and while the employee was fulfilling the duties of employment or doing something incidental to them. See Mazzone v. Connecticut Transit Co., 240 Conn. 788 (1997); McNamara v. Hamden, 176 Conn. 547 (1979). The fact that the claimant’s woodcutting was hazardous and was meant to further a separate financial endeavor made it philosophically different from recreational activities such as playing Ping-Pong and eating lunch (which were found to be incidental in McNamara and Mazzone, respectively), even though the employer had consented to the claimant’s on-premises conduct. We held that personal comfort activities did not include acts that pertained to running one’s own business on the side, and thus held that the claimant’s woodcutting injury did not occur in the course of his employment. The existence of jurisdiction to entertain the claim was never questioned, however.

Under the precedents set forth by caselaw, the respondents have not raised an issue of subject matter jurisdiction before the trial commissioner. Neither of their grounds for objection to the Motion to Preclude are sufficient to potentially divest this Commission of authority to entertain that motion. Thus, we must affirm the trial commissioner’s decision to grant the Motion to Preclude. Further proceedings will presumably be necessary to determine benefits due and the extent of disability attributable to the injuries that the claimant sustained in her automobile accident.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 The portions of § 31-294c relevant to this claim provide as follows: “(a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . which caused the personal injury . . . . Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident . . . , and the name and address of the employee and of the person in whose interest compensation is claimed.

(b) Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. . . . If the employer or his legal representative fails to file the notice contesting liability on or before the twenty-eighth day after he has received the written notice of claim, the employer shall commence payment of compensation for such injury or death on or before the twenty-eighth day after he has received the written notice of claim, but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim . . . . [A]n employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death.” BACK TO TEXT

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