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

CASE NO. 4958 CRB-1-05-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 22, 2006

THOMAS MANKUS

CLAIMANT-APPELLANT

v.

ROBERT MANKUS

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, P.C., 96 Webster Street, Hartford, CT 06114.

The respondent Second Injury Fund was represented by Donna Hixon-Smith, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 7, 2005 Finding and Dismissal1 of the Commissioner acting for the First District was heard January 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and George Waldron.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. In this matter, the claimant has appealed from the Finding and Dismissal of the Commissioner acting for the First District dismissing his claim for want of jurisdiction. Upon reviewing the record, we conclude the commissioner had good cause to reopen the original award and the commissioner correctly determined that no employer-employee relationship existed at the time of the accident. Accordingly, as this commission lacks jurisdiction over the accident, the commissioner properly dismissed the claim.

Prior to a recitation of the facts, we believe an overview of the purpose of the Workers’ Compensation Act is in order. The purpose of Chapter 568 is to provide a “prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.” Pietraroia v. Northeast Utilities, 254 Conn. 60, 74 (2000). Our Supreme Court is unequivocal that it is the claimant’s obligation to prove his injuries fall within this statutory foundation “[t]he claimant has the burden of proving that the injury claimed arose out of the employment and occurred in the course of the employment.” Kish v. Nursing and Home Care, Inc., 248 Conn. 379, 382 (1999); see also Parisi v. Yale University, 89 Conn. App. 716, 723 (2005). 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 v. Viera, 207 Conn. 420, 426 (1988). Without such status, the commission lacks an essential jurisdictional fact which is a prerequisite to awarding benefits. Id. The lack of subject matter jurisdiction may be raised at any time. Del Toro v. Stamford, 270 Conn. 532, 543 (2004).

The facts are as follows. On November 9, 1995 the claimant, Thomas Mankus, was injured falling off a ladder at a home renovation project in Windsor. Findings, ¶¶ 6-9, September 12, 1997 Finding and Award (hereafter “1997 Findings”) On December 30, 1995 he filed a Form 30C asserting that he was working for his brother, Robert Mankus, at the time of the accident. Neither Robert Mankus nor the Second Injury Fund contested jurisdiction or liability. The owner of the home, Ms. Francesca Castoldi-Strong, was added as a party to the case during 1996. 1997 Findings, ¶ 4. A formal hearing was held on the claim on April 1, 1997. Neither the presumed employer, Robert Mankus, nor the Second Injury Fund (hereafter “the Fund”) attended the hearing. Consequently, the claimant’s factual assertions were unchallenged. 1997 Findings, ¶¶ 2, 6-8. The commissioner issued a Finding and Award based on the record at that hearing on September 12, 1997. June 7, 2005 Finding and Dismissal. Findings, ¶¶ 1, 6 (hereafter “2005 Findings”). This Finding and Award found that an employer-employee relationship existed between Thomas Mankus and Robert Mankus. Robert Mankus lacked insurance, and as a result, the statutory responsibility for the compensable injury if Robert Mankus did not pay the award was the obligation of the Fund. 1997 Findings, ¶¶ 5, 15, 16, 21.

The Fund attempted to locate Robert Mankus following the 1997 Finding and Award. 2005 Findings, ¶ 7. They eventually located him in the fall of 2003. 2005 Findings, ¶ 9. When the Fund spoke to Robert Mankus, he informed them he had not employed the claimant on the date of the accident. 2005 Findings, ¶ 10. Upon learning this information the Fund moved to reopen the 1997 Finding and Award. 2005 Findings, ¶ 11. A new formal hearing was held over four sessions.2 Following the closing of the record, the trial commissioner issued a Finding and Dismissal on June 7, 2005.

In his Finding and Dismissal the trial commissioner cited two issues were under consideration; (1) whether the September 12, 1997 Finding and Award finding jurisdiction that the claimant’s injuries were compensable and all subsequent orders and awards should be reopened, modified and/or vacated due to lack of subject matter jurisdiction and (2) whether the matter should be dismissed due to the claimant’s willful misrepresentation of substantiated facts concerning his claim. He answered both questions in the affirmative and dismissed the claim. 2005 Findings, ¶¶ V-X.

We will focus on the first question for one fundamental reason. Once a determination is reached that we lack subject matter jurisdiction no further inquiry is warranted. As noted previously, a party can raise the issue of subject matter jurisdiction at any time. Del Toro, supra. In Castro, supra, the Supreme Court held “once the question of lack of jurisdiction . . . is raised, [it] must be disposed of no matter what form it is presented.” Id., 429.

On appeal, the appellant raises a number of issues. To the extent they are directed at issues beyond that of subject matter jurisdiction we will decline to respond in detail to these claims. If the Commission lacked subject matter jurisdiction there is no controversy to be resolved.3 To that end we will address the claimant’s argument that the commissioner erred in reopening the 1997 award.

A trial commissioner has the statutory authority to reopen a Finding and Award pursuant to § 31-315 C.G.S. “The commissioner shall also have the same power to open and modify an award as any court in the state has to open and modify a judgment of such court.” This issue has been frequently considered by our appellate courts and by this board. In Meadow v. Winchester Repeating Arms Co., 134 Conn. 269 (1948) the Supreme Court indicated that cases should not be reopened to offer cumulative evidence “[w]here an issue has been fairly litigated, with proof offered by both parties.” Id., 274. However, an award might be opened due to “mere negligence, without intentional withholding of evidence.” Id. “In the absence of other controlling circumstances, the ultimate question for the determination of the compensation commissioner is whether it appears likely an injustice has been done and upon a rehearing a different result would be reached. Id., 275. Some specific reasons to permit the reopening of an award were enumerated in Marone v. City of Waterbury, 244 Conn. 1 (1998) “[t]his provision extends the commission’s power to open and modify judgments to cases of accident, to mistakes of fact, and to fraud” [Internal citations omitted] Id., 17. This board cannot reverse such a decision unless it determines such a decision constitutes an abuse of discretion. Besade v. Interstate Security Services, 212 Conn. 441, 452-453 (1989). “An abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App 592, 603 (2001).

We do not believe that reopening an award after new evidence was presented that challenged the jurisdiction of the commission to issue an award was “arbitrary” or “vitiates logic.” Indeed, many of the elements herein were dealt with by this Commission in our decision in Audi v. Blakeslee Arpaia Chapman, 4234 CRB-3-00-5, 4151 CRB-3-99-11 (June 26, 2001). In Audi, the trial commissioner determined that the claimant had executed an agreement in error due to his limited English language skills and undue reliance on representations from the respondent’s insurance carrier. The trial commissioner reopened the agreement. We upheld his decision as “[t]he decision to open and modify a voluntary agreement or award falls within the discretion of the trial commissioner, and will not be disturbed by this board unless the commissioner has arbitrarily reached an unreasonable result.” The respondents argued the reopening was not based on any of the grounds which were statutorily enumerated, and we dismissed this argument as “[w]e believe that instant case can reasonably be held to fall under the rubric of ‘mistake’ for the purposes of § 31-315 and therefore affirm the reopening of the voluntary agreement.” 4

Similar to the circumstances in Audi, the trial commissioner in this case found that the claimant actively caused the respondent, Robert Mankus not to attend the 1997 formal hearing. However, even if the respondent’s absence from the earlier formal hearing was due to neutral circumstances such as hospitalization, incarceration or having left the state of Connecticut, the trial commissioner still would face the question of whether this commission had jurisdiction. The testimony offered by Robert Mankus and credited by the trial commissioner that the claimant wasn’t his employee at the time of injury implicated our jurisdiction pursuant to § 31-275(1) since we are limited to compensating employees for injuries incurred in an employer-employee relationship. As noted in Marone, a “mistake of fact” can justify reopening an award if, as noted in Meadow, supra, “it appears likely an injustice has been done and upon a rehearing a different result would be reached.” Obviously, the 1997 Finding and Award was granted based on the mistaken belief that the Commission had jurisdiction over the injury, thus the operative requirements of both Marone and Meadow are present herein.

The claimant argues that since the respondent failed to appear at the 1997 formal hearing that the Finding and Award cannot be reopened. The ultimate outcome of the claimant’s argument would cause what equates to a default judgment to confer permanent subject matter jurisdiction on the Commission. Such reasoning is untenable with Castro, supra, and Del Toro, supra. “In other words, the employer can always contest the existence of ‘jurisdictional facts.’” Del Toro, supra. (Emphasis added)5 Moreover, it is incompatible with black letter law wherein default judgments lack the force of collateral estoppel. “Collateral estoppel is ‘that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.’ Rinaldi v. Town of Enfield, 82 Conn. App. 505, 516 (2004).” Robert v. General Dynamics, 4691 CRB-2-03-7 (June 14, 2004) (Emphasis added).6

Consequently, the first time the Commission had occasion to determine a contest over jurisdiction was the 2005 formal hearing. At that hearing both the claimant and the respondent had the ability to introduce a substantial amount of evidence, and the record reflects a substantial amount of evidence was presented for consideration by the trial commissioner.7 We are precluded from revisiting his evaluation of the evidence barring atypical circumstances. For the findings of a trial commissioner to be overturned they must be without evidentiary support, contrary to the law, or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, 248 Conn. 379 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). In this case, despite hours of testimony the trial commissioner had to believe just one witness on one issue to warrant a dismissal of the claim.

On May 26, 2004, Commissioner Walker asked these questions of Robert Mankus.

Q. Okay. Another question for you is, do you agree or disagree that Mr. Thomas Mankus was, indeed, an employee of yours on the date of injury of 11/9/1995?
A. I disagree
Q. And your position is as to whether or not he was an employee is you disagree. Did he ever work for you at any point, sir?
A. No, he did not.
May 26, 2004 Transcript, p. 13-14.8

The commissioner found Robert Mankus credible. 2005 Findings, ¶ B. Having done so he was obligated to dismiss this claim for want of jurisdiction. 2005 Findings, ¶¶ L, T and X.9 The trial commissioner made additional findings as to the claimant’s lack of credibility. 2005 Findings, ¶¶ Q and R. Insofar as many of the trial commissioner’s findings go beyond the jurisdictional facts mandating dismissal we decline to discuss them in detail; other than to restate the black letter law that it is the claimant’s burden to prove his case, Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001) and if the trial commissioner is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal. Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000). Connecticut precedent bars us from re-evaluating a trier’s credibility determinations on appeal.

Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude. . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.” (Internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327 (2002). Burton v. Mottolese, 267 Conn. 1, 40 (2003).

Since the trial commissioner did not find the claimant credible, we are powerless to render a different decision. A review of the record persuades us that the Finding and Dismissal was based on evidence consistent with the standards in Kish, supra. We find no reason to consider the trial commissioner’s findings as “clearly erroneous” as required for reversal as per the holding in Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 665-666 (2006).

We must address two additional issues. The claimant argues the trial commissioner should have caused privileged documents reviewed by a witness prior to her testimony to be presented to the claimant. At that time the witness who was an investigator for the Fund, was assisting in a pending criminal investigation. The trial commissioner conducted an in-camera review of the documents and released the non-privileged material to the claimant, and redacted the privileged information. We find no error. The Finding and Dismissal can be upheld on alternative grounds, making the admission of evidence from this witness redundant. See Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995). We also do not find Brady v. Maryland, 373 U.S. 83 (1963) applicable to a civil proceeding, especially in light of the statutory policy in § 1-210(3)(c) C.G.S. creating an exemption from FOI disclosure of “information to be used in a prospective law enforcement action if prejudicial to such action.” In a recent case regarding privileged documents the Connecticut Supreme Court made clear it did not take an expansive view of waiving attorney-client privilege, not withstanding the plaintiff ‘s claim such documentation was essential to his case, Harp v. King, 266 Conn. 747, 766-775 (2003). We are persuaded the attorney-client and attorney work product privileges asserted herein were not waived. We also find no error in the trial commissioner’s denial of the claimant’s motion to correct. The claimant sought to substitute their view of the facts for the conclusions found by the trial commissioner , and pursuant to D’Amico v. Dept. of Correction, 73 Conn. App. 718 ,728 (2002) the trial commissioner properly denied this motion.

The appeal is dismissed. Commissioners Nancy E. Salerno and George Waldron concur in this opinion.

1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 The hearings were held on May 26, 2004, September 14, 2004, October 19, 2004, November 30, 2004 and continued to February 7, 2005 when the record was closed. BACK TO TEXT

3 The claimant claims error by the failure of the trial commissioner to admit additional evidence, i.e. the claimant’s acquittal on criminal workers’ compensation fraud charges after the closure of the formal hearing. We find no error. This evidence fails to comport to the requirements enumerated in Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57-58 (2001). Acquittal in a criminal proceeding lacks relevance as to whether the commission ever had subject matter jurisdiction over the claim. BACK TO TEXT

4 The respondents in Audi were chastised by this board as we found “the respondents took advantage of [the claimant’s] lack of sophistication to obtain his signature.” We do not condone the use of misrepresentation or artifice by either claimants or respondents in proceedings before this Commission. BACK TO TEXT

5 The U.S. Supreme Court reached a similar conclusion regarding subject matter jurisdiction this year in Arbaugh v. Y & H Corp., 126 S. Ct. 1235 (2006). The unanimous opinion held in part, “subject-matter jurisdiction, because it involves the court’s power to hear a case, can never be forfeited or waived . . . . Second, in some instances, if subject-matter jurisdiction turns on contested facts, the trial judge may be authorized to review the evidence and resolve the dispute on her own . . . . Third, when a federal court concludes that it lacks subject-matter jurisdiction, the court must dismiss the complaint in its entirety.” BACK TO TEXT

6 We recently pointed out that while a decision after a contested hearing has the force of estoppel, decisions reached without a contested hearing lack enforceability against third parties. In Buser v. G.R. Cummings Co., 4963 CRB-5-05-6 (June 8, 2006), we cited Barron v. City Printing Company, 55 Conn. App. 85 (1999) “In the apportionment hearings in Barron, the prior employers were able to hold a hearing on the issue of causation since the original insurer had been precluded from contesting compensability due to failing to state a timely defense.” Id, 87. BACK TO TEXT

7 The total hearing transcripts exceed 240 pages. For that reason, the argument in claimant’s brief that some sort of “surprise” occurred at the conclusion of the formal hearing is unpersuasive. The record does not reflect that the claimant was hindered in challenging any of the respondent’s testimony or evidence, reflects that they were given an opportunity to submit additional evidence to rebut the respondent’s allegations as to intoxication, October 19, 2004 Transcript, pp. 102-104, and reflects they acquiesced to the closure of the record. Therefore there is no error pursuant to the precedent in Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). BACK TO TEXT

8 The claimant stresses in his brief that he does not believe he had an obligation to cause the respondent to attend the formal hearing, even if he was a blood relative. We note that since the trial commissioner found the claimant willfully caused the respondent to miss the hearing, this theory seems at odds with longstanding black letter law, “the governing principle is that whenever a party who as actor seeks to set the judicial machinery in motion and obtain some remedy, has violated conscience, or good faith, or other equitable principle, in his prior conduct, then the doors of the court will be held against him in limine.” Keystone Co. v. Excavator Co., 290 U.S. 240 (1933). This is largely irrelevant, however, since the jurisdictional failure occurred when the Form 30 C was filed claiming that an employer-employee relationship existed, which obviously predated the scheduling of the formal hearing. As the testimony of Robert Mankus makes clear, there is credible evidence the Form 30C misstated the existence of jurisdiction at the inception of this claim, leaving it voidable at any future date. BACK TO TEXT

9 This case is the mirror image of Slater v. Broderick Macari, 4979 CRB-2-05-7 (June 27, 2006) where the commissioner found the claimant credible and the respondent not credible on the existence of an employer-employee relationship. BACK TO TEXT

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