Genden v. American Airlines

The claimant was represented by Jack Senich, Esq., Dodd, Lessack, Ranando & Dalton, 700 West Johnson Ave., Suite 305, Cheshire, CT 06410.

The respondents were represented by Robert Enright, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.

The Second Injury Fund was represented by Taka Iwashita, Esq. and Michael J. Belzer, Esq., Assistant Attorneys General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the September 5, 1996 Finding and Award of the Commissioner acting for the Fifth District was heard May 9, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the September 5, 1996 Finding and Award of the Commissioner acting for the Fifth District. The Fund argues on appeal that the trier erred by finding that this Commission had subject matter jurisdiction over the instant claim.1 We affirm the trial commissioner’s decision.

The claimant alleges that he injured his back at LaGuardia Airport in Flushing, New York on September 5, 1989, when he slipped exiting an airliner that he had been piloting. The respondent insurer accepted this injury by voluntary agreement, and placed the Fund on notice of its intent to transfer liability pursuant to § 31-349 C.G.S. The Fund has refused to accept transfer because they contend that the claimant had insufficient contacts with this state to confer jurisdiction over his claim.

The commissioner found that the claimant was a Woodbury resident on the date of his injury. He had been hired by the respondent employer in 1966 while living in California, and moved to Connecticut in 1967 after his ninety days of training in California were completed. He has lived here ever since. His work base has been John F. Kennedy Airport in New York City since he was hired, which encompasses satellite airports in Philadelphia, Newark, Newburgh, N.Y., and Bradley International Airport in Windsor Locks. The employer itself is based in the Dallas/Fort Worth area.

The claimant would determine his work schedule by calling from his Connecticut home to the “crew schedule” in New York or Texas, and would receive training notices, paychecks, and company mailings at his Connecticut home. He also received his e-mail at Bradley Airport, and had a personal computer in his home that he used to obtain information on his employer’s flight systems. He maintained a separate phone line at his own expense for communications with the respondent employer, and had a separate office in his home for airline business. Because of his seniority in the company, the claimant had been able to bid for and receive flights out of and returning to Bradley Airport during the last few years, which constituted most of his routes. He also treated with Connecticut physicians after his September 5, 1989 injury.

Based on these facts, the commissioner found that the place of the employment relation between the claimant and his employer was Connecticut, and that this state had the most significant relationship to the contract of employment with respect to workers’ compensation. Thus, he ruled that this Commission had subject matter jurisdiction over the claimant’s injury. The Fund has petitioned for review from that decision.2

According to our Supreme Court, “[t]he remedial purpose of our Workers’ Compensation Act supports application of its provisions in cases where an injured employee seeks an award of benefits and Connecticut is the place of injury, the place of the employment contract or the place of the employment relation.” Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 195 (1991); Nicolett v. Alimak Elevator Co., 15 Conn. Workers’ Comp. Rev. Op. 322, 2203 CRB-4-94-11 (June 24, 1996). The Fund argues that the trier improperly concluded from the factual findings that Connecticut was the place of the employment relationship in this case. We disagree. The trier found that the claimant performed work-related activities from an office in his Connecticut home, and that most of his flights had originated from Bradley Airport during the last few years before his injury. He also treated with Connecticut physicians after he was injured. These facts have not been challenged, and they provide sufficient support for the conclusion that Connecticut was the place of the claimant’s employment relation.

Contrary to the Fund’s argument, Gibson v. Keebler Company, 37 Conn. App. 392 (1995), is not inconsistent with this decision. In Gibson, the trial commissioner made a factual finding that Connecticut was not the place of the claimant’s employment relation after being presented with conflicting testimony by the claimant regarding the location of his office. Credibility was an important factor in that decision, and the trier resolved the inconsistencies in the evidence against the claimant. Id., 396. Here, the trier found the claimant to be a credible witness, and accepted as true a version of the facts that contains support for the commissioner’s conclusion that the claimant’s employment was based in Connecticut. We cannot disturb that decision on review.

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The Fund also raises a short argument in its brief regarding the trier’s denial of its Motion to Reopen. That issue was neither mentioned in the Reasons of Appeal nor raised at oral argument, and we will not consider it in this opinion. See Romeo v. H & L Chevrolet, Inc., 10 Conn. Workers’ Comp. Rev. Op. 72, 1149 CRD-7-90-12 (March 31, 1992). BACK TO TEXT

2 The Fund did not file a Motion to Correct in conjunction with their appeal. Although that limits this board to the use of the facts found by the commissioner in considering this appeal, see Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996), it does not require automatic dismissal of the Fund’s appeal. A purely legal appellate argument would not require a Motion to Correct; it is only where the facts themselves are challenged that such a motion is necessary. Thus, the respondents’ Motion to Dismiss is denied.. BACK TO TEXT