State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Gerte v. Logistec Connecticut, Inc.

CASE NO. 5086 CRB-3-06-5

CASE NO. 5116 CRB-3-06-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 27, 2007

RAYMOND GERTE

CLAIMANT-APPELLEE

v.

LOGISTEC CONNECTICUT, INC.

EMPLOYER

and

CRUM & FORSTER

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by David A. Kelly, Esq. Montstream & May, LLP 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondents were represented by Peter D. Quay, Esq., Law Office of Peter D. Quay, P.O. Box 70, Taftville, CT 06380.

These Petitions for Review from the April 12, 2006 Finding and Award and the July 6, 2006 Order of the Commissioner acting for the Third District were heard October 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and James J. Metro.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal is based on a claim for an injury sustained October 22, 1998 at the respondent’s docking facilities in New Haven. This is the second time our board has had to consider an appeal over this matter. On June 24, 2005 we issued an opinion Gerte v. Logistec of CT., 4820 CRB-3-04-6, (hereafter “Gerte I”) wherein we reversed the June 2, 2004 Finding and Dismissal of the trial commissioner, who had determined subject matter jurisdiction was not present. We concluded in Gerte I that a prior formal hearing in 2000 had considered the issue of subject matter jurisdiction and after an adversarial proceeding subject matter jurisdiction had been established by the finder of fact. Following Gerte I the trial commissioner held a new hearing and awarded benefits to the claimant. The respondents have appealed from this award.1 During the pendency of the appeal the claimant sought payment of benefits pursuant to § 31-301(f) C.G.S. The trial commissioner awarded these benefits, and the respondent has appealed that order as well.

We conclude that our analysis of the issues regarding subject matter jurisdiction in Gerte I was sound, hence we dismiss the appeal challenging that decision and uphold the Finding and Award. We agree with the claimant that interlocutory relief in the form of a § 31-301(f) C.G.S. order is compulsory; therefore we uphold the trial commissioner’s order.

The gravamen of the respondents’ argument is that pursuant to DelToro v. Stamford, 270 Conn. 532 (2004) subject matter jurisdiction can always be challenged. While we understand this argument, we believe we dealt with it in detail in Gerte I and explained our reasoning for applying the previous decision of the trier of fact, i.e., that our commission possessed subject matter jurisdiction over the injury. Since the issuance of Gerte I we have had occasion to examine the issue of belatedly raising an issue years later after formal hearings were held wherein the issue in question could have been determined.

In Kalinowski v. Meriden, 5028 CRB-8-05-11 (January 24, 2007) we dealt with the claimant’s arguments he should be permitted to seek § 31-308(a) benefits years after his injury. The trial commissioner there dismissed the claim, concluding that these benefits could have been sought at a prior formal hearing. We upheld his dismissal as we concluded the delay was inconsistent with “the public interest in the prompt and comprehensive resolution of workers’ compensation claims;” citing Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 27-28 (1996). We also determined that since the claimant failed to raise the issue earlier that this was the sort of piecemeal litigation discouraged in the precedents in Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 273-274 (1948), Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001), Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005) and Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 2150 CRB 3-94-9 (December 7, 1995).

The respondents’ position herein is weaker than the claimant’s position in Kalinowski, supra. As we pointed out in Gerte I, the issue of subject matter jurisdiction was actually litigated and determined in favor of the claimant by former Commissioner Robin Wilson in her August 2, 2000 Finding and Award. The respondents did not appeal that adverse decision. “To assert successfully the doctrine of issue preclusion, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case.” (Citations omitted; internal quotation marks omitted.) Dowling, Sr. v. Finley Associates, Inc., 248 Conn. 364, 374 (1999). This is precisely the situation herein.

The respondents argue our subsequent decision in DiBlase v. Logistec of CT., Inc., 4896 CRB-4-04-12 (January 19, 2006) is incompatible with Gerte I. In DiBlase we upheld a trial commissioner who set aside a previous voluntary agreement once he determined the Commission lacked subject matter jurisdiction. The two scenarios are greatly dissimilar. While we discussed the difference at some length in our recent decision in Christensen v. Logistec Connecticut, Incorporated, 4961 CRB-3-05-6 (February 23, 2007), a further discussion is warranted under these circumstances.

At the initial hearing regarding Mr. Gerte’s claim, the finder of fact reached the opposite conclusion regarding subject matter jurisdiction from the finder of fact in DiBlase. In the Gerte case, the issue of jurisdiction “actually was litigated” Dowling, supra, 374. In DiBlase prior to any adversarial hearing it had been “conferred by agreement.” See, Walsh v. Waldron & Sons, 112 Conn. 579, 584 (1931). While a voluntary agreement does have the force of an award, see Christensen, supra, we note that it is long settled that an award can be reopened and modified to correct a mistake of fact. Marone v. Waterbury, 244 Conn. 1, 17 (1998). The first time the trial commissioner considered this issue in an adversarial proceeding in DiBlase he determined jurisdiction was not present. Conversely, we determined in Gerte I the fact of subject matter jurisdiction had been previously litigated and resolved in the claimant’s favor by the trier of fact. As we explained in Christensen, supra, “there are instances where public policy supports leaving a judgment undisturbed when subject matter jurisdiction is later challenged.”2

The respondents further cite a land use litigation case for the premise that we should overrule the finding of fact regarding subject matter jurisdiction. They state Gay v. Zoning Board of Appeals, 59 Conn. App. 380 (2000) should cause us to determine these proceedings were void ab initio. We find the factual predicate of that decision inapplicable to this case. “[A] collateral attack on a previously unchallenged condition will be permitted where the ‘condition was so far outside what could have been regarded as a valid exercise of zoning power that there could not have been any justified reliance on it . . . .’” Id., 387-388. First, we note there is no finding of fact in the August 2, 2000 Finding and Award specifically locating the injury on navigable waters.3 Additionally, in DiBlase supra, we cited a number of appellate decisions from other jurisdictions at variance with elements of the Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917) precedent relied upon by the respondents, such as American Dredging Co. v. Miller, 510 U.S. 443 (1994) and Mooney v. City of New York, 219 F.3d 123 (2nd Cir. 2000).4 We cannot conclude the August 2, 2000 Finding and Award was on its face so irregular as to be unworthy of enforcement.

The respondents appeal from the § 31-301(f) C.G.S. order based on one principle; that since the overall award is void for lack of subject matter jurisdiction, the interlocutory relief is void as well. They offer no relevant legal authority for the position that a jurisdictional dispute relieves the respondents of the obligation to honor the terms of an interlocutory award pending an appeal. The claimant on the other hand cites a number of cases for the opposite proposition: that when a claimant obtains a § 31-301(f) C.G.S. order the respondent is obligated to honor the award. “We hold that § 31-301(f) requires the payment of benefits pending appeal upon request by the claimant, as was done in this case” (emphasis in original) Horn v. State/Dept. of Correction, 4764 CRB-3-03-12 (January 24, 2005). As the Supreme Court pointed out in Coley v. Camden Associates, Inc., 243 Conn. 311 (1997) the intent of the legislature was that the claimant remains obligated to repay the benefits received should the respondent prevail on appeal. We lack the authority to reach a different outcome, as the plain meaning of the statute directs the respondent to honor this award during the pendency of the appeal. Should the respondents’ position regarding jurisdiction prevail at the Supreme Court pursuant to their pending appeal of Gerte I, they have the statutory mechanism under § 31-301(g) C.G.S. to seek repayment of the sums advanced under § 31-301(f) C.G.S. See Hummel v. Marten Transport, Ltd., 4760 CRB-5-03-12 (November 19, 2004).5

“We have held ‘a claimant is not entitled to multiple opportunities to raise and resolve the same issue’ Schreiber, supra, and respondents are also precluded from obtaining multiple hearings on the same issue. The respondent simply cannot overcome the fact that these issues are now precluded from further consideration.” Hicking v. State/Department of Correction, 4935 CRB-2-05-4 (April 10, 2006). We find no reason to conclude our original decision in Gerte I was incorrect. Therefore we affirm the trial commissioner and dismiss these appeals.

Commissioners Donald H. Doyle, Jr. and James J. Metro concur with this opinion.

1 Our decision in Gerte I, as to whether the Commission has subject matter jurisdiction over this injury is presently on appeal to the Connecticut Supreme Court, Gerte v. Logistec of CT., Inc., S.C. 17605. BACK TO TEXT

2 The Appellate Court has held “a judge should be hesitant to change his own rulings in a case and should be even more reluctant to overrule those of another judge.” Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293-294 (1999). BACK TO TEXT

3 Commissioner Wilson identified the locus of the injury as on a “loading dock.” Findings, ¶ 4, August 2, 2000 Finding and Award. The respondents argue the evidence presented placed the injury aboard a ship, which in fact Commissioner Marcarelli found in his June 2, 2004 Finding and Dismissal. The respondents did not seek a Motion to Correct the finding of fact from the 2000 Finding and Award. Therefore, in regards to the “law of the case,” we must accept the validity of the facts found by the first trial commissioner and this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4 and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993). BACK TO TEXT

4 In American Dredging, supra, Justice Scalia stated in his majority opinion, “It would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty jurisprudence . . . .” Id., 452. We find this a more authoritative statement as to the current state of the law than the respondents’ characterization of the Jensen opinion; see Respondents’ Brief, pp. 8-10. BACK TO TEXT

5 The respondents raised a number of administrative issues in their Reasons for Appeal concerning the specific provisions of relief contained in the § 31-301(f) C.G.S. order. However, the respondents did not brief these issues or provide sufficient oral argument on these issues for this board to render a decision on those matters. To the extent these matters remain unresolved, further proceedings will be required before the trial commissioner. BACK TO TEXT

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