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CASE NO. 5025 CRB-5-05-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 1, 2006
ALLIED COMMUNITY RESOURCES, INC.
CONNECTICUT HEALTH CARE WORKERS’ COMPENSATION TRUST
NO RECORD OF INSURANCE
STATE OF CONNECTICUT DEPARTMENT OF SOCIAL SERVICES
SECOND INJURY FUND
The claimant was represented by Jack Senich, Esq., Ouellette & Senich, LLC, Attorneys at Law, 390 Middlebury Road, Middlebury, CT 06762.
At the trial level, the respondent-employer Allied Community Resources, Inc. was represented by Gabriel J. Jiran, Esq., Shipman & Goodwin, LLC, Counselors at Law, One Constitution Plaza, Hartford, CT 06103-1919. It was determined at that time they were not a liable party. Therefore, they did not file a brief or attend oral argument.
The respondent Connecticut Health Care Workers’ Compensation Trust was represented at the trial level by Poly Orenstein, Esq., Letizia, Ambrose & Falls, One Church Street, 4th Floor, New Haven, CT 06510. However, they did not participate in the proceedings on appeal as it was determined at the trial level they were not a liable party.
The respondent, Gary LaChance, 50 Wacona Street, Waterbury, CT 06706 did not participate at the trial proceedings or before the board concerning the issues on appeal.
The respondent-State of Connecticut, Department of Social Services, was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
The respondent, Second Injury Fund was represented by Lawrence G. Widem, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review filed from the October 31, 2005 Finding and Award of the Commissioner acting for the Fifth District was heard June 23, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. The present case presents this board with the challenging duty of attempting to reconcile our mission to act in a remedial and humanitarian fashion with the limited jurisdiction we possess to apply the Workers’ Compensation Act and other statutes in the manner prescribed by the Connecticut General Statutes. In an effort to give effect to our mission, the trial commissioner concluded in this matter that the claimant, a part time home health aide, had suffered a compensable injury within the scope of our statute. Upon appeal, we are forced to conclude that the relevant statutes prevent the claimant from receiving compensation for her injury, and leave us no alternative but to dismiss her claim for lack of jurisdiction.
The facts are essentially undisputed. The respondent Gary LaChance hired the claimant as a home health aide. Findings, ¶ 21. Mr. LaChance is a quadriplegic and needs assistance with various activities of daily living. Findings, ¶ 23. Mr. LaChance received assistance from the State of Connecticut, Department of Social Services which provided funds to enable him to hire home health aides. A third party vendor (Allied Community Resources, Inc.) handled the administrative tasks of preparing payment forms and handling the withholding of payroll taxes, but the employer of record was the special needs person.1 Findings, ¶¶ 14-17 and 37. The claimant was hired by Mr. LaChance on or about October 9, 2001 to assist him. She was one of a number of personal care assistants retained by Mr. LaChance. Findings, ¶ 22. Her workweek was limited to less than 26 hours per week. Findings, ¶ 34. Nonetheless, she did not work for any other employer during this time period. Findings, ¶ 24. Her duties required her to perform physical therapy and spend a great deal of time on her knees. Findings, ¶ 26. As a result, she suffered a repetitive trauma injury to her knee and started treating with Dr. Matza, who diagnosed her with a tear to the meniscus of her right knee. Findings, ¶¶ 27-29. The claimant left Mr. LaChance’s employ on or about November 4, 2002 and had knee surgery on November 14, 2002. Findings, ¶ 30. Dr. Matza testified the claimant was totally disabled from November 4, 2002 to December 23, 2002 due to her work related repetitive trauma injury. Findings, ¶¶ 31-32.
The claimant filed her Form 30C on November 19, 2002. The claim was contested and the Commissioner acting for the Fifth District held a formal hearing that commenced September 23, 2003, was continued to June 6, 2005, and the record closed on July 11, 2005. Mr. LaChance, an uninsured party, did not participate in the hearing. Representatives of the State of Connecticut appeared and took diametrically opposite positions. The Second Injury Fund appeared and contested the Commission’s jurisdiction over the injury, and in the alternative, argued that the claimant was a de facto employee of the state’s Department of Social Services. The Department of Social Services appeared and argued that the claimant was actually employed by its indigent client, Gary LaChance, and due to his lack of insurance, the Second Injury Fund was financially liable for the claim.
On October 31, 2005, the trial commissioner issued a Finding and Award for the claimant. He held that she had suffered a compensable injury that had led to medical treatment and a period of total disability. Findings, ¶¶ 38-40. He also found that she was in fact an employee under the terms of the Act. He determined that since she was not a casual employee, that § 31-275(9)(B)(iv) C.G.S. did not apply to this circumstance, as “[t]he Claimant, in my view, is not with the class of employees the statute was to exclude from workers’ compensation coverage.” Id. He concluded that she was an employee of Gary LaChance and directed him to pay the award for total disability and in the event he did not to cause the Second Injury Fund to pay the award.
On November 15, 2005, the Second Injury Fund filed a Motion to Correct, seeking to substitute findings that the claimant was an employee of the State Department of Social Services or, in the alternative, was not an employee under the terms of the Act owing to her limited hours of employment, citing Admin. Reg. § 17b-262-593(10). The trial commissioner denied the Motion to Correct and this appeal ensued.
We must as a threshold question determine whether under the facts outlined herein the commission has jurisdiction over this injury. “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).” Mankus v. Robert Mankus, 4958 CRB-1-05-6 (August 22, 2006).
It is a canon of statutory interpretation that an appellate body should not apply a statute in a fashion that leads to “a bizarre or absurd result.” Vibert v. Board of Education, 260 Conn. 167, 177 (2002). The claimant offers an argument which the trial commissioner found persuasive that for the State to pay for home health aides and then preclude them from workers’ compensation eligibility is an interpretation of the statute inconsistent with the stated public policy of the Workers’ Compensation Act. The claimant believes the public policy behind the Act is designed to protect individuals such as her.
This agency must act within the limitations of our statutory authority. “[T]he worker’s compensation system in Connecticut is derived exclusively from statute . . . . A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Cantoni v. Xerox Corp., 251 Conn. 153, 160 (1999), citing Discuillo v. Stone & Webster 242 Conn. 570, 576 (1997).
Consequently, our review cannot focus on whether the statutes when read together are congruent with stated public policy. Instead, we must look to the plain meaning of the statute in this case. See First Union National Bank v. Hi Ho Shopping Ventures, 273 Conn. 287, 291 (2005).
General Statutes § 1-2z provides that “[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”
In reviewing the language of the definitional statute regarding “employee,” we must conclude it is plain and unambiguous. Section 31-275(9)(B)(iv) states, “Employee shall not be construed to include any person engaged in any type of service in or about a private dwelling provided he is not regularly employed by the owner or occupier over twenty-six hours per week.” The claimant argues that since the work in question could have been performed either in the patient’s home or off-site that the locus of the employment should be disregarded. Our precedent in cases such as Smith v. Yurkovsky, 265 Conn. 816 (2003) and Vanzant v. Hall, 219 Conn. 674 (1991) provide no support for this position. In determining jurisdiction, one must look to the place where the work was performed to determine whether the domestic employee exemption is applicable. Otherwise, the statutory exemption for part time household workers would become ineffectual, as the presence of day care centers and restaurant delivery services would cause part-time nannies and chefs to be placed under the compensation system in derogation of legislative intent.2
We then must look to the plain meaning of the regulations adopted pursuant to statute that established the home health aide program. “[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . .” Cogan v. Chase Manhattan Auto Finance Corp., 276 Conn. 1, 7 (2005).
Upon the date of injury, the regulations that created the personal care assistant program, under which the respondent paid the claimant expressly limited the employment of any given employee to no more than 25.75 hours per week. Admin. Reg. § 17b-262-593 (10). (adopted effective February 25, 1999). The program was also set up so as to use state money to pay for the health aides, but to ensure that the indigent patient remained the de jure employer of record. Admin. Reg. § 17b-262-589(c)(7). (adopted effective February 25, 1999). The General Assembly was required to approve these regulations, and in fact did so. As counsel for the respondent Second Injury Fund points out, extratextual evidence (although unnecessary as per First Union, supra) also supports the view that when the program was adopted, the intent of the state Department of Social Services was to avoid making either themselves or the recipient of services responsible to provide workers’ compensation coverage.
The following exchange occurred at a June 22, 2004 public hearing of the General Assembly’s Appropriations Committee and Human Services Committee:
Representative Robert Farr: The—just out of curiosity, why was there ever a 25.75 hour limit on how long the caregiver could work?
Commissioner Patricia Wilson-Coker: I think it had to do with the concern of payment of workman’s compensation hours. And the limit was, you know, was thought that if, what was it, 26 hours? Yeah, at 26 hours you have to pay workman’s compensation. So someone along the way decided that they would just place the limit on the program and not have to get into the business of workman’s compensation.
The facts are that the home health aide program limited the employment of home health aides to less than 26 hours per client per week. Given the jurisdictional limitation of our statute, we must conclude that leaving such employees outside the workers’ compensation system was in fact the intent of the General Assembly. Essentially the structure of the program was designed by the state bureaucracy to employ the same exemption created for household help by making the patient receiving services the employer of record, and limiting the permissible hours per employee. It appears from the evidence submitted, however that these workers were never advised that they should have made their own arrangements to obtain workers’ compensation insurance.
We are obligated to follow the policy judgments which the General Assembly agreed to in approving the regulations for the program. “Because of the statutory nature of our workers’ compensation system, policy determinations as to what injuries are compensable and what jurisdictional limitations apply thereto are for the legislature, not the judiciary or the board, to make.” Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 761 (1999). Any inconsistencies which the claimant believes exist are simply beyond our jurisdiction to correct. Consequently, we conclude that we must vacate the Finding and Award of the trial commissioner.
The Finding and Award is vacated. Commissioners Donald H. Doyle and Nancy E. Salerno concur in this opinion.
1 Allied Community Resources, Inc. has been adjudged a non-liable party and is no longer a party to this appeal. BACK TO TEXT
2 Claimant’s counsel argues in his brief that the court did not follow the “plain meaning” rule in Smith, supra. The subsequent enactment of § 1-2z C.G.S. requires this panel to follow it, however. BACK TO TEXT