CASE NO. 4997 CRB-2-05-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 21, 2006
ATLANTIC MUTUAL/GAB ROBINS
SECOND INJURY FUND
The claimant was pro se on appeal and did not attend oral argument.
The respondent employer and insurer were represented by Lawrence L. Pellett, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
The respondent Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the August 29, 2005 Finding and Dismissal of the Commissioner acting for the Second District was heard July 14, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the August 29, 2005 Finding and Dismissal of the Commissioner acting for the Second District. They argue that the trier improperly refused to award them reimbursement of concurrent employment benefits paid out as a consequence of the claimant’s job at Foxwoods casino on the territory of the Mashantucket Pequot Tribal Nation (Tribal Nation). We affirm the decision of the trial commissioner.1
On the date of the claimant’s June 21, 2002 injury, she was employed part-time as a waitress by the respondent Goldy’s Restaurant, where she suffered her compensable broken ankle. She was also employed as a blackjack dealer by Foxwoods, which casino is owned by the Tribal Nation. The claimant spoke to a representative of the respondent insurer Atlantic Mutual on the Monday following her injury, and was told that she had not needed to apply for short-term disability benefits with Foxwoods because the insurer would pay concurrent employment benefits for her work at the casino. She told personnel at Foxwoods that Atlantic Mutual would so compensate her, whereupon her application for short-term disability benefits was denied. She returned to work at Foxwoods on September 8, 2002, and to waitressing work approximately a month later.
The claimant’s base compensation rate for total disability and permanency benefits was $478.80 per week, pursuant to voluntary agreements approved on August 26, 2002 and October 9, 2003. She had been earning an average of $694.07 per week at Foxwoods during the 52 weeks preceding her injury, and 87.6% of her compensation under the voluntary agreements was from that job. The respondents sought to be reimbursed by the respondent Second Injury Fund (Fund) for that portion of the benefits paid, but the Fund refused on the ground that the statutory definition of “concurrent employment” in § 31-310 C.G.S. does not include work performed for an entity such as Foxwoods that is outside this Commission’s jurisdiction. The trier found that the Tribal Nation is a sovereign nation under federal and state law, and noted that Foxwoods did not participate in the Connecticut workers’ compensation system on June 21, 2002. The trier concluded that this state did not have jurisdiction over Foxwoods under the Workers’ Compensation Act, which relieved the Fund from having to reimburse the respondents under § 31-310. The respondents have appealed that decision to this board.
The respondents approach their claim of error from two angles. They assert that it was error for the trier to rule that § 31-310 prevents their claim for reimbursement, based on both the humanitarian purpose of the Act and the fact that this Commission has jurisdiction over the respondent employer Goldy’s Restaurant. They also allege that it was error under the “law of the case” doctrine for the trier to ignore this Commission’s prior approval of two voluntary agreements that included the claimant’s wages from Foxwoods as part of the compensation rate.
Section 31-310 states in relevant part, “Where the injured employee has worked for more than one employer as of the date of the injury and the average weekly wage received from the employer in whose employ he was injured . . . [is] insufficient for him to obtain the maximum weekly compensation rate from the employer under section 31-309, . . . his average weekly wages shall be calculated upon the basis of wages earned from all such employers in the period of concurrent employment not in excess of fifty-two weeks prior to the date of the injury . . . .” The employer responsible for the compensable injury is required to pay a portion of the compensation rate attributable to the wages it has paid to the employee, while the remainder of the injured employee’s compensation rate is paid from the Fund. The term “employer” is defined by § 31-275(10) to include “any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay . . . .”
In cases involving entities outside this Commission’s jurisdiction, this board has held that they do not meet the statutory definition of “employer,” which prevents their workers’ wages from qualifying as “concurrent employment” under § 31-310. For example, we ruled that the United States Army Reserve does not qualify as a “public corporation within the state” under the Act, because a Connecticut state agency does not have jurisdiction over the federal government. Chodkowski v. UTC/Pratt & Whitney, 8 Conn. Workers’ Comp. Rev. Op. 4, 736 CRD-3-88-5 (December 18, 1989)(statutory definition of employer cannot be expanded by judicial interpretation). A different interpretation of § 31-275(10) would be “inconceivable in the light of two centuries of constitutional law and the problems engendered by federal state relations.” Id. The Connecticut National Guard has also been deemed not to be an employer under § 31-310, primarily because § 27-67 C.G.S. gives the state’s adjutant general the power to determine entitlement to compensation in a manner consistent with the provisions of our Act. “Such a thorough grant of authority to adjudicate the compensation claims of CNG members would be inconsistent with this commission’s exercise of jurisdiction over those claims . . . [d]espite the general language in § 31-275 regarding the state as an employer . . . .” Lemieux v. General Dynamics Corp./Electric Boat Division, 14 Conn. Workers’ Comp. Rev. Op. 383, 2077 CRB-2-94-6 (October 5, 1995).
Foxwoods casino is a tribal business of the Mashantucket Pequot Tribe. In Spears v. Spears, 2082 CRB-2-94-6 (October 30, 1997), this board considered the status of the Mashantucket Pequot reservation, which is a federally recognized sovereign nation pursuant to the Mashantucket Pequot Indian Land Claims Settlement Act. See 25 U.S.C. §§ 1751-1760. The federal statute that establishes recognition of the Tribal Nation also provides that the state of Connecticut has jurisdiction over the reservation to the maximum extent allowable under federal provisions that allow state assumption of jurisdiction over certain matters, such as criminal offenses and civil causes of action. See 25 U.S.C. §§ 1321(a), 1322(a); see also, State v. Spears, 234 Conn. 78 (1995), cert. denied, 516 U.S. 1009 (1995)(tribal consent no longer required for state criminal jurisdiction pursuant to 25 U.S.C. § 1755). We held in Spears that these provisions do not include jurisdiction over workers’ compensation cases. 40 U.S.C. § 290 gives states the authority to apply their workers’ compensation laws to the territory of Indian reservations, which are held in trust by the United States. However, that authority is subject to the standard defenses of sovereign immunity or exemption, and has been interpreted to preclude the exercise of jurisdiction over tribal businesses without a tribe’s consent. White Mountain Apache Tribe v. Industrial Commission, 696 P.2d 223 (Ariz. Ct. App. 1985); Tibbetts v. Leech Lake Reservation Business Committee, 397 N.W.2d 883 (Minn. S. Ct. 1986); see also, Formal Opinion, Attorney General of Connecticut, December 19, 1997.
Here, the Tribal Nation has expressly withdrawn its consent to state jurisdiction effective July 1, 1997, via the enactment of a Tribal Code and establishment of a Tribal Workers’ Compensation Commission that defines the rights of employees who work for the Tribal Nation. This places Foxwoods outside the definition of “employer” in § 31-275(10). As such, the state may not enforce its workers’ compensation laws against the Tribal Nation or Foxwoods for similar reasons as those discussed in Chodkowski, supra, and Lemieux, supra. The casino is also not an employer under § 31-310, and this Commission has no authority to order the Fund to reimburse the respondents for benefits paid on account of wages the claimant earned at Foxwoods. The humanitarian purpose of the Act discussed in cases such as Davis v. Forman School, 54 Conn. App. 841, 844-45 (1999), does not provide authority for us to create jurisdiction where it does not exist. See also, Trankovich v. Frenish, Inc., 47 Conn. App. 628, 631 (1998)(where statutory language is clear, equitable concerns do not justify variation from statutory calculation formula for concurrent employment).2
The respondents also argue that, in light of this Commission’s prior approval of two voluntary agreements that included the claimant’s Foxwoods wages as part of the compensation rate, it was incumbent upon the commissioner to continue treating Foxwoods as an employer based on the doctrine of “law of the case.” That principle refers to the general judicial practice of allowing a court’s prior ruling on an issue to remain intact during further proceedings at the same level. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 292-93 (1999). “The rule is that a determination once made will be treated as correct throughout all subsequent stages of the proceeding except when the question comes before a higher court . . . .” Id., 293, quoting State v. Daniels, 209 Conn. 225, 237 (1988), cert. denied, 489 U.S. 1069 (1989)(emphasis omitted).
An approved voluntary agreement is “as binding upon both parties as an award by the commissioner” under § 31-296 C.G.S. The claimant and the respondents entered into such an agreement, and the claimant was compensated accordingly. The agreement mentions Foxwoods as the concurrent employer, but does not purport to oblige Foxwoods to make payments under the Act. In the context of the voluntary agreement approval process, it was not the responsibility of this Commission to sua sponte raise the issue of our jurisdiction over the Tribal Nation. The risk of making payment in error fell upon the respondents, who could have limited their part of the agreement to compensation for the claimant’s employment at Goldy’s Restaurant, while challenging liability for concurrent employment benefits. It was thus permissible for the district office to approve the voluntary agreements.
However, those agreements do not bind the Second Injury Fund to reimburse the respondents for concurrent employment benefits under § 31-310. The Fund was not a party to the voluntary agreements, and was entitled to participate in separate proceedings concerning a § 31-310 order, which is a different legal matter. At those proceedings, the Fund was within its rights to contest liability, raise the issue of jurisdiction over Foxwoods, and offer the defense of sovereign immunity. The “law of the case” doctrine does not apply, as no previous ruling had been made in this case regarding subject matter jurisdiction over Foxwoods or the Tribal Nation. We thus disagree that the trier’s findings are legally inconsistent with the approval of the voluntary agreements.
The trial commissioner’s decision is accordingly affirmed.
Commissioners Nancy E. Salerno and Ernie R. Walker concur.
1 We note that this board granted a motion to postpone and consolidate oral argument on this appeal with oral argument in the case of Bardales v. Christi Cleaning Service Corp., 5053 CRB-2-06-2. BACK TO TEXT
2 The respondents cite a February 15, 2001 memorandum concerning the Mohegan Tribal Gaming Authority that is inapposite to this case. Although said memorandum states that, where an employee is injured working for an employer who pays into the Second Injury Fund, concurrent employment with the Mohegan Tribal Gaming Authority is recognized, said memorandum does not concern issues of subject matter jurisdiction. The Mohegan Tribal Gaming Authority functioned at that time as a self-insured employer, and had reached an agreement with the State of Connecticut Treasurer’s Office excusing it from paying Second Injury Fund assessments in exchange for agreeing to accept responsibility for any concurrent employment payments due under § 31-310. We note, too, that the agreement prohibited the Gaming Authority from seeking concurrent employment benefit reimbursement from the Fund for injuries occurring during the course of a claimant’s employment with the Gaming Authority. BACK TO TEXT