CASE NO. 4961 CRB-3-05-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 23, 2007
LOGISTEC CONNECTICUT, INCORPORATED
LAMORTE BURNS & COMPANY
The claimant was represented by David A. Kelly, Esq., Montstream & May, L.L.P., 655 Winding Brook Drive., P.O. Box 1087, Glastonbury, CT 06033-6087.
The respondents were represented by Mark Oberlatz, Esq., and Peter D. Quay, Esq., Murphy and Beane, One Union Plaza, P.O. Box 590, New London, CT 06320.
These Petitions for Review from the June 3, 2005 Finding and Dismissal and January 25, 2006 ruling of the Commissioner acting for the Third District were heard May 19, 2006 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Nancy E. Salerno and Amado J. Vargas.
DONALD H. DOYLE, JR., COMMISSIONER. The claimant appeals from the June 3, 2005 Finding and Dismissal of the Commissioner acting for the Third District.1 In the Finding and Dismissal the trial commissioner concluded that a Full and Final Stipulation [hereafter “Stipulation”] was entered into by the parties. The claimant appeared before the commission for the purpose of seeking enforcement of the respondent’s obligations under the Stipulation. The commissioner concluded that subject matter jurisdiction did not exist and that any enforcement of the agreement would have to be raised in another forum.
The pertinent facts are as follows. The claimant was injured on July 25, 2002 while working as a longshoremen, or stevedore, on the maritime vessel, MV Entaing. At the time of the injury, the vessel was docked in navigable waters. Thereafter, the claimant filed a claim under the federal Longshore Harbor Workers’ Compensation Act, 33 U.S.C. Sec. 901 et. seq. [hereafter LHWCA].
The findings below indicate that the claimant never filed a Form 30C. Nonetheless, the respondent filed a Form 43 in which it claimed that subject matter jurisdiction did not exist. On January 28, 2004 the parties presented the Stipulation to a commissioner in the Third District and on that date the Stipulation was approved. The respondent failed to pay the obligations set out in the Stipulation. The claimant then sought to enforce the obligations under the Stipulation and the matter was the subject of further hearings. The trial commissioner concluded that:
Notwithstanding the Commission’s approval of the January 27, 2004 Full and Final Stipulation, the Commission has no subject matter jurisdiction, concurrent or otherwise, over the present claim, including any enforcement action relating to the January 27, 2004 Full and Final Stipulation, on the grounds that Henry Christensen held a maritime position on July 25, 2002, when he was injured on a vessel docked in navigable waters.
Finding ¶ C.
This tribunal has recently been presented with a number of cases in which we have been asked to consider whether subject matter jurisdiction exists under the Connecticut Workers’ Compensation Act for injuries occurring by one engaged in maritime employment while aboard a vessel docked in navigable waters. See e.g.; DiBlase v. Logistec of CT., Inc., 4896 CRB-4-04-12 (January 19, 2006) appeal docketed SC 17670; Coppola v. Logistec of CT., Inc., 4781 CRB-3-04-2 (June 24, 2005) appeal docketed SC 17604; Gerte v. Logistec of CT., Inc., 4820 CRB-3-04-6 (June 24, 2005) appeal docketed SC 17605.
This case as well as the others referenced above all questioned subject matter jurisdiction in light of the federal LHWCA, the United States Supreme Court’s opinion in Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (1980) and our Supreme Court’s holding in Leszczymski v. Radel Oyster Co., 102 Conn. 511 (1925). In Coppola, supra, we provided a legal analysis in which we referenced our Supreme Court’s holding in Leszczymski and its reliance on the United States Supreme Court’s holding in Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917). We acknowledged that since the time the Leszczymski opinion was issued the Congress enacted the federal LHWCA, and the United States Supreme Court issued opinions as to under what circumstances a state might apply its own workers’ compensation scheme to maritime injuries. Further we noted that the United State Supreme Court had narrowed the scope of its ruling in Jensen, supra. For that discussion we refer to the legal analysis provided in Coppola, supra. Ultimately, we concluded that Leszczymski, supra, was binding precedent on this tribunal and until our higher courts directed otherwise our ruling must be consistent with that of the Leszczymski court.
At the same time we considered Coppola, supra, we were presented with Gerte, supra. Gerte presented a similar fact pattern to that in Coppola, i.e., a worker was injured while working in the hold of a ship docked in navigable waters. The difference between Gerte and Coppola was that in Gerte a Finding and Award was previously issued in which the respondents raised the issue of subject matter jurisdiction. The question of chapter 568 subject matter jurisdiction was decided and found to exist. The respondents in Gerte did not appeal from that Finding and Award and in our review, we concluded that the respondents’ failure to appeal precluded them from raising a defense based on subject matter jurisdiction.
In Gerte, we acknowledged that a challenge to subject matter jurisdiction can be raised at any time but there are instances where public policy supports leaving a judgment undisturbed when subject matter jurisdiction is later challenged. We quoted In Re Shamika F., 256 Conn. 383, 407-8 (2001) stating:
“Unless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs. . . . A collateral attack on a judgment is a procedurally impermissible substitute for an appeal.” (Citation omitted; internal quotation marks omitted.) Joe’s Pizza, Inc. v. Aetna Life & Casualty Co., supra, 236 Conn. 876. “[A]t least where the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so.” (Internal quotation marks omitted.) Upjohn Co. v. Zoning Board of Appeals, 224 Conn. 96, 104, (616 A.2d 793) (1992).
We therefore concluded that the respondents had the opportunity to litigate the issue of subject matter jurisdiction and could therefore not use that as means to defend their chapter 568 obligations when they had failed to appeal that Finding and Award. Following Gerte we were again asked to consider the application of chapter 568 to an injury sustained by a maritime worker on a ship while docked in navigable waters in DiBlase v. Logistec of CT., Inc., 4896 CRB-4-04-12 (January 19, 2006).
In DiBlase, the claimant suffered a 1999 injury to his right shoulder and a 2000 injury to his left shoulder. In 2002 a Voluntary Agreement was executed for the 2000 injury. However, the trial commissioner concluded that notwithstanding the approved Voluntary Agreement for the 2000 injury subject matter jurisdiction did not exist as the injuries occurred over navigable waters. In the CRB’s opinion in DiBlase the panel opined that the facts in DiBlase were substantially similar to those in both Jensen, supra, and Leszczymski, supra, i.e., the injury occurred over navigable water and that as both opinions concluded subject matter jurisdiction did not exist, the matter was dismissed.
The existence of an approved Voluntary Agreement in DiBlase is mentioned briefly in the text of the opinion and then discussed in a footnote.2 Sec 31-296 provides for the parties to resolve claims through the use of Voluntary Agreements.
If an employer and an injured employee, or in case of fatal injury his legal representative or dependent, at a date not earlier than the expiration of the waiting period, reach an agreement in regard to compensation, such agreement shall be submitted in writing to the commissioner by the employer with a statement of the time, place and nature of the injury upon which it is based. . . . and thereafter it shall be as binding upon both parties as an award by the commissioner. (emphasis ours).
Case law interpreting our Workers’ Compensation Act has held that the term “stipulation” is included within the term “voluntary agreement.” Davis v. Forman School, 54 Conn. App. 841, 846 (1999). The Davis court also noted there was no distinction to be drawn between the two terms.
What sets the instant matter apart from DiBlase and compels a ruling that more closely harmonizes with the rationale applied in Gerte, is that in the instant matter the respondent had the opportunity to litigate the question of subject matter jurisdiction but failed to pursue that opportunity. We are unable to discern from the DiBlase opinion whether the respondent had knowledge of the existence of a defense on the basis of subject matter jurisdiction before it entered into the Voluntary Agreement at issue there. Thus, we can only consider the factual circumstances giving rise to the Stipulation at issue here. We believe the policy concerns reviewed in Gerte in which we denied the respondent another opportunity to defend liability on the basis of a lack of jurisdiction are equally present here.
We therefore reverse the June 3, 2005 Finding and Dismissal of the Commissioner acting for the Third District.
Commissioners Nancy E. Salerno and Amado J. Vargas concur.
1 Note, during the prosecution of this appeal the appellant filed two appeal petitions which were consolidated into this one. The date of the last appeal filed was February 23, 2006. BACK TO TEXT
2 In DiBlase v. Logistec of CT., Inc., 4896 CRB-4-04-12 (January 19, 2006) note 1, the CRB stated:
Claimant presents the argument that the execution of the Voluntary Agreement estops the respondents from contesting jurisdiction. However, the issue of subject matter jurisdiction can be raised at any time. Del Toro v. Stamford, 65 Conn. App. 1, 5-7 (2001). This jurisdictional deficiency cannot be waived by the parties. “. . . the doctrine of waiver to which claimant relies cannot avail, since jurisdiction cannot be waived, nor can it be conferred by agreement.” Walsh v. Waldron & Sons, 112 Conn. 579, 584 (1931). BACK TO TEXT