Chiriboga v. Daniel Stein

CASE NO. 5245 CRB-3-07-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 29, 2008

FREDY CHIRIBOGA

CLAIMANT-APPELLEE

v.

DANIEL STEIN

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Donna Civitello, Esq., Carter & Civitello, Attorneys at Law, One Bradley Road, Suite 301, Woodbridge, CT 06525.

The respondent-employer Daniel Stein did not file a brief or appear at oral argument.

The Second Injury Fund was represented by Kenneth Kennedy, Jr., 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 July 13, 2007 Finding and Order of the Commissioner acting for the Third District was heard January 25, 2008 before a Compensation Review Board consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The appellant Second Injury Fund appeals from the July 13, 2007 Finding and Order of Commissioner George Waldron acting for the Third District.1 The procedural history which gives rise to this appeal begins with the August 17, 2006 Finding and Award of Commissioner Ralph Marcarelli. In that Finding and Award Commissioner Marcarelli found that on November 6, 2004 the claimant sustained a foot injury while in the course of his employment with the respondent, Daniel Stein. Commissioner Marcarelli also found that following the injury the claimant suffered complications due to his diabetes. The commissioner ordered the respondent Daniel Stein, inter alia, to pay temporary total disability benefits for the period from November 6, 2004 through April 12, 2005 and ordered the payment of § 31-308(a) benefits from April 13, 2005 to August 17, 2006. Ultimately, the respondent, Daniel Stein, who was uninsured for Workers’ Compensation failed to pay benefits due under the August 17, 2006 Finding and Award. On January 3, 2007 Commissioner George Waldron issued an Order For Payment in which the Fund was directed to pay benefits in accordance with Commissioner Marcarelli’s August 17, 2006 Finding and Award.

Thereafter, proceedings were held before Commissioner George Waldron for the purpose of ordering the Fund to pay all benefits which the respondent failed to pay. Commissioner Waldron took administrative notice of the August 17, 2006 Finding and Award and incorporated it by reference. The Fund only disputed payment of those benefits relating to the claimant’s award under § 31-308(a). The gravamen of the Fund’s appeal is whether the claimant’s status as an illegal alien bars an award of § 31-308(a) benefits. Specifically, the Fund argues that § 31-308(a) requires the claimant to demonstrate an amount he is able to earn after his compensable injury and due to his status as an illegal alien the claimant cannot work in the United States legally pursuant to 8 C.F.R. § 274a.12 (1998). See Appellant’s Brief, p. 2.

However, before we reach the issue presented by the Fund, we must determine whether this specific issue has been properly preserved for review. The record indicates that the Fund was present and participated in the hearings that culminated in Commissioner Marcarelli’s August 17, 2006 award of § 31-308(a) benefits. At no time in the proceedings before Commissioner Marcarelli prior to the close of the record did the Fund raise the issue that claimant’s immigration status should serve as a bar to § 31-308(a) benefits. In Stec v. Raymark Industries, Inc., a/k/a Raybestos Company, 5156 CRB-4-06-11 (November 21, 2007) appeal docketed AC 29346 (filed November 29, 2007) we relied on Matey v. Dember, 256 Conn. 456 (2001) and held the Fund could not participate in the adjudication of a claim and then wait until an order for payment is issued against it to appeal the claim on its merits. We noted:

In Matey, the Court held that where the Second Injury Fund fully participated in proceedings resulting in the commissioner’s Finding and Award the subsequent order of payment directed against the Fund pursuant to § 31-355(b) did not provide the Fund with “yet another opportunity to relitigate its claims.” Id., 494. In DeLucia, supra,[ v. Modena, 12 Conn. Workers’ Comp. Rev. Op. 212, 1471 CRB 3-92-7 (March 15, 1994)] this tribunal did not permit the Second Injury Fund to challenge the findings of an earlier Finding and Award following the Fund’s appeal of a subsequent Finding and Award.

Stec, supra. See also Dechio v Raymark Industries, Inc., a/k/a Raybestos Manhattan, et al, 5155 CRB-4-06-11 (November 28, 2007) appeal docketed AC 29461 (filed December 17, 2007).

The Fund attempts to cure its failure to raise the issue on a timely basis by its assertion that the issue concerns subject matter jurisdiction. The Fund then argues that as issues concerning subject matter jurisdiction can be raised at any time, the Compensation Review Board should consider the issue of whether an illegal alien may be permitted an award of § 31-308(a). We do not think the issue the Fund would have us review presents an attack on the jurisdiction of the Workers’ Compensation Commission, i.e., whether the claim is timely filed, whether an employer/employee relationship exists or whether the injury is one for which the Workers’ Compensation Act permits an award. Del Toro v. Stamford, 270 Conn 532 (2004). The issue presented is merely whether the trial commissioner misapplied the law, not whether the Workers’ Compensation Commission had the legal capacity to determine the issue.

Further our Supreme Court’s opinion in Dowling v. Slotnik, 244 Conn. 781 (1998) established that subject matter jurisdiction exists within this forum to determine if a member of the class to which the claimant belongs is entitled to Chapter 568 benefits.2 Additionally, the Dowling court stated:

[T]here is support for the proposition that an illegal alien’s immigration status does not, as a matter of public policy, preclude him from falling within the definition of “employee” in § 31-275(9)(A)(i). We find that support in the fact that when the legislature acted to exclude illegal aliens from eligibility for unemployment compensation and general assistance, it took no action to amend the Workers’ Compensation Act to exclude illegal aliens. We conclude, therefore, that any illegality that attached to the employment agreement between the claimant and the respondents, by virtue of the claimant’s immigration status and the respondents’ actions in knowingly employing an undocumented alien, does not preclude that employment agreement from constituting a “contract of service” within the meaning of § 31-275(9)(A)(i).

Dowling, supra, 812. As the Second Injury Fund failed to appeal the August 17, 2006 award of § 31-308(a) benefits to the claimant until it raised the issue in the appeal taken from the July 13, 2007 Finding and Order we deem the appeal of the issue untimely under § 31-301(a).

We therefore, dismiss the Second Injury Fund’s appeal from the July 13, 2007 Finding and Order of the Commissioner acting for the Third District.

Commissioners Ernie R. Walker and Charles F. Senich concur.

1 We note extensions of time were granted during the period this appeal was pending. BACK TO TEXT

2 In Dowling v. Slotnik, 244 Conn. 781, 796-97 (1998) the court upheld an award of temporary total benefits to an illegal alien. The court noted:

[E]xcluding such workers from the pool of eligible employees would relieve employers from the obligation of obtaining workers’ compensation coverage for such employees and thereby contravene the purpose of the Immigration Reform Act by creating a financial incentive for unscrupulous employers to hire undocumented workers. See Conn. Joint Standing Committee Hearings, Judiciary, 1913 Sess., p. 124, remarks of Professor Willard C. Fisher. BACK TO TEXT