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Mason v. Dale Construction, Inc.

CASE NO. 4354 CRB-3-01-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 7, 2001

THOMAS MASON

CLAIMANT-APPELLANT

v.

DALE CONSTRUCTION, INC.

EMPLOYER

and

OHIO CASUALTY GROUP

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Charles Harris, Esq., Harris & Harris, Westgate Office Center, 11 Belden Avenue, Second Floor, Norwalk, CT 06850.

The respondents were represented by David J. Weil, Esq., Nuzzo & Roberts, One Town Center, P. O. Box 747, Cheshire, CT 06410.

This Petition for Review from the January 18, 2001 Ruling Denying the Claimant’s Motion to Preclude by the Commissioner acting for the Third District was heard June 22, 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 claimant has petitioned for review from the January 18, 2001 Ruling Denying the Claimant’s Motion to Preclude by the trial commissioner acting for the Third District. In the Motion to Preclude, the claimant sought to preclude the respondents from presenting any evidence that the claimant was intoxicated at the time of the alleged injury. In support of his appeal, the claimant contends that the trial commissioner was required to grant his Motion to Preclude because the respondents had failed to assert the defense of intoxication in their Form 43 and were thus barred from asserting said defense at the formal hearing.

We must first consider whether we have jurisdiction over the claimant’s appeal from the trial commissioner’s ruling.1 A brief procedural history is in order. The trial commissioner issued his ruling during a formal hearing on January 18, 2001. In making his ruling, the trial commissioner explained that the claimant’s motion sought to preclude the respondents from defending the claim on any basis other than those defenses listed in its timely filed Form 43 of February 18, 2000. Jan. 18, 2001 Transcript, p. 2. Specifically, the claimant sought to preclude the respondents from presenting evidence regarding the claimant’s alleged intoxication at the time of the alleged injury. Id.

The trial commissioner explained that whether the claimant was intoxicated at the time of the injury implicated the jurisdiction of the commission, as the Act specifically disqualifies a claim when said injury is caused by intoxication [§ 31-284(a) and 31-275(1)(C)]. The trial commissioner thus concluded that the issue of alleged intoxication should be presented and decided. The trial commissioner noted that the central issue in the instant case was whether there existed an employer-employee relationship, or whether the claimant was acting as an independent contractor and thus not subject to the Workers’ Compensation Act. Jan. 18, 2001 Transcript, p. 4. However, he reasoned that because the intoxication issue also affected jurisdiction, in the interest of judicial economy it should also be addressed. Id.

We will first consider the respondents’ argument that it is premature for this board to consider the claimant’s appeal, as the trial commissioner has not yet issued any findings of fact. Section 31-301(a) gives this board jurisdiction to hear an appeal from “a decision of the commissioner upon a motion.” We have held that the statute contemplates some jurisdiction in this board over “interlocutory rulings in the districts.” Dixon v. United Illuminating Co., 14 Conn. Workers’ Comp. Rev. Op. 215, 1996 CRB-4-94-3 (Aug. 4, 1995) (citation omitted). As in Rowe v. Yale University, 4124 CRB-3-99-9 (Nov. 27, 2000), because no findings have been made, we must cull the relevant facts from the transcript and from the documents filed by the parties. It thus follows that any information stated here is “merely contextual, and does not carry any precedential weight.” Id.

We will now turn to the merits of the claimant’s appeal. It has repeatedly and consistently been held that whether a claimant is an employee or an independent contractor implicates the subject matter jurisdiction of this commission. Our Appellate Court has explained as follows:

A claimant must first prove an employee-employer relationship before the Connecticut Workers’ Compensation Act, General Statutes 31-275 et. seq., may be invoked because the existence of that relationship involves subject matter jurisdiction. Castro v. Viera, 207 Conn. 420, 422 (1988). The first question to be resolved, therefore, is whether there was subject matter jurisdiction, namely an employee-employer relationship.
Shira v. National Business Systems, 25 Conn. App. 350 (1991) (emphasis added).

In the instant case, the record indicates that whether the claimant was an independent contractor or an employee is disputed by the parties, and thus this issue must be decided by the trial commissioner in order for subject matter jurisdiction to exist. Shira, supra.

In contrast, the issue of whether the claimant was intoxicated at the time of the injury does not implicate subject matter jurisdiction, but rather constitutes an affirmative defense. See Del Toro v. Stamford, 64 Conn. App. 1 (2001), cert. denied, 258 Conn. 913 (2001); Paternostro v. Arborio Corp., 3659 CRB-6-97-8 (Sept. 8, 1998), aff’d, 56 Conn. App. 215 (1999), cert. denied, 252 Conn. 928 (2000); Ogdon v. Treemasters, Inc., 3071 CRB-4-95-6 (Dec. 20, 1996). In Del Toro, the respondents contended that the claimant’s injury was not compensable under § 31-275(16)(B)(ii) which precludes recovery for a mental or emotional injury unless it arises from a physical injury or an occupational disease. The respondents thus argued that even though they did not contest the claimant’s claim in a timely manner as required by § 31-294c, the trier could not grant the claimant’s Motion to Preclude under § 31-294c because there was no subject matter jurisdiction. On this basis, the trier denied the Motion to Preclude and the board affirmed said decision. The court reversed, and held that “[t]he concept that subject matter jurisdiction encompasses the issue of compensability of an injury finds no support in our case law.” Id., 7. Rather, the court explained that “subject matter jurisdiction is implicated only with issues concerning the existence of an employee-employer relationship . . . or the proper initiation of the claim itself.” Id. (citations omitted).

We appreciate the fact that the Appellate Court’s decision had not been issued at the time of the trial commissioner’s ruling in the instant case, and that the Appellate Court’s decision overturned a line of cases holding otherwise. See Franco v. Dependable Motors, Inc. d/b/a Branford Dodge, 4281 CRB-3-00-8 (July 17, 2001), fn. 1. Additionally, we appreciate the trial commissioner’s concern for judicial economy. However, as explained above, the issue of an employee-employer relationship must first be determined by the trial commissioner in the instant case, and after that decision is made, he may consider the claimant’s Motion to Preclude.

Regarding the claimant’s Motion to Preclude, we note the following. The claimant argues that the respondents should be precluded from asserting any defenses other than those listed on its February 18, 2000 Form 43 which states:

Disclaimed pending investigation. No medical evidence of disability or injury. Alleged employee not an employee of insured, but independent contractor. No employer/employee relationship. Alleged employee is a licensed home improvement contractor conducting his own business.
Claimant’s Brief, p. 2.

The claimant thus seeks to preclude the introduction of “any evidence relating to an alleged defense that the [claimant] was intoxicated at the time of the November 4, 1999 workplace accident.” Id. The claimant argues that the evidence regarding intoxication, specifically a police report and medical records, were “readily available” to the respondents “several months before their Form 43 was even filed.” Id., p. 6.

On the other hand, the respondents counter that they acted with due diligence in investigating and defending the claim. Specifically, the respondents contend that they attempted to depose the claimant prior to the formal hearing, but that the claimant’s counsel objected. Furthermore, the respondents contend that the trial commissioner ruled on November 15, 2000 that the respondents could depose the claimant, and that the claimant was deposed on November 28, 2000. Based on the claimant’s testimony at said deposition, the respondents “were able for the first time to develop credible evidence that the claimant may have been under the influence of alcohol when he fell on November 4, 1999.” Respondents’ Brief, p. 2.

In the instant case, the issue of whether the respondents may present evidence of intoxication presents an evidentiary issue rather than a preclusion issue under § 31-294c C.G.S. This is because there is no allegation that the respondents failed to file a timely and proper notice to contest the claimant’s claim so as to invoke the statutory preclusion of defending compensability under § 31-294c C.G.S. Rather, the claimant is merely arguing that because the timely Form 43 included some defenses, but did not include the defense of intoxication, the respondents were thereafter barred from ever raising the defense of intoxication. The claimant cites no authority for this contention. Rather, we have repeatedly explained that workers’ compensation commissioners have broad powers to inquire into the facts. Commissioners are not bound by common law or statutory rules of evidence, “but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” Sec. 31-298 C.G.S.

Included in the commissioner’s discretion is the decision to continue a formal hearing under Administrative Regulations § 31-279-3 and § 31-279-4. Thus, this board found no error in a trial commissioner’s decision to continue a formal hearing so as to allow the respondent to produce witnesses to testify regarding the defense of horseplay, which defense was not apparently articulated by the respondent until the formal hearing. Simmons v. Philip Bonhotel, d/b/a Bonhotel’s Lawn Maintenance, 13 Conn. Workers’ Comp. Rev. Op. 234, 1778 CRB-5-93-7 (April 13, 1995), aff’d, 40 Conn. App. 278 (1996).

The board explained that “(i)t is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” Id., 237, citing Korpinen v. George A. Tomasso Co., 1700 CRB-8-93-4 (decided March 14, 1994) (quoting Connolly v. Connolly, 191 Conn. 468, 475-76 (1983); Osterlund v. State, 129 Conn. 591, 596 (1943)); see also Fusco v. TRW Geometric Tool, 4 Conn. Workers’ Comp. Rev. Op. 132, 134, 472 CRD-3-86 (1987). In Simmons, the board was not persuaded by the claimant’s contention that he was subjected to a “trial by surprise” as the claimant was provided with sufficient notice that the issue of horseplay would be covered at the continued formal hearing. We note, however, that this board recognizes that a party “is not entitled to present his case in a piecemeal fashion. . . .” Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 2150 CRB-3-94-9 (Dec. 7, 1995).

Because of the discretion provided to the trier under § 31-298, we are not persuaded that any defense not listed in a Form 43 may subsequently never be asserted by a respondent.2 Rather, the respondent is expected to make a diligent and timely investigation of the claim, and certainly during its investigation it may uncover evidence unknown to it which may support additional defenses. Thus, in the instant case, the trial commissioner should assess the respondents’ due diligence in investigating the claim, and should decide whether the defense of intoxication was made in a timely manner. See fn. 2, supra. In order to be appealable, this decision should include the underlying findings of fact regarding the due diligence in investigating the claim. Of course, as explained above, the trial commissioner must first decide whether the employee-employer relationship exists so as to confer subject matter jurisdiction.

The trial commissioner’s ruling on the claimant’s Motion to Preclude is thus vacated and remanded in order for a written decision to be issued.

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

1 We note that the respondents have withdrawn their Motion to Dismiss which had been based upon the claimant’s alleged late filing of Reasons of Appeal. BACK TO TEXT

2 We note that the trial court allows the addition of special defenses before, during, and even after trial. Rosenberg v. Castaneda, 38 Conn. App. 628, 635 (1995); Echols v. Balck, 9 Conn. App. 620, 621 (1987). “The trial court’s discretion to grant or deny amendments to pleadings extends to the addition of special defenses by the parties.” Rosenberg, supra, at 635. The court explained as follows:

The trial court has wide discretion in granting or denying amendments before, during, or after trial. Belated amendments to the pleadings are permitted unless the amendment will cause an unreasonable delay, mislead the opposing party, take unfair advantage of the opposing party, or confuse the issues, or unless the delayed amendment is attributable to some misconduct on the part of its proponent.

Rosenberg, supra, at 635. BACK TO TEXT

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