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CASE NO. 5336 CRB-2-08-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 26, 2009
HAWKEYE CONSTRUCTION, LLC
GALLAGHER BASSETT OF NEW YORK
The claimant was represented by Sean C. Donohue, Esq., The Law Offices of Sean C. Donohue, 5 Shaw’s Cove, Suite 202, New London, CT 06320.
The respondents were represented by Robert K. Jahn, Esq., Morrisson Mahoney, LLP, One Constitution Plaza, 10th Floor, Hartford, CT 06103.
This Petition for Review from the April 1, 2008 Finding and Dismissal of the Commissioner acting for the Second District was heard October 24, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. This case presents the question of when Connecticut possesses jurisdiction over injuries that occur outside the state. The claimant, who was injured in Florida while working for a New York employer, appeals from a Finding and Dismissal of his claim. We conclude that based on the facts herein the state of Connecticut did not have a substantial relationship to the claimant’s employment. Therefore, we affirm the trial commissioner and dismiss this appeal.
Events subsequent to the 2004 hurricane season are the basis for this claim. In September of that year the claimant, a member of the Brotherhood of Electrical Workers’ Union, (Local 104) based in Boston, Massachusetts, had returned to his Connecticut home after having worked on hurricane recovery efforts in Florida. Once he had returned home he found a message from his union to contact the respondent-employer, a utility construction company located in Hauppauge, New York, if he was interested in returning to Florida to work. The claimant telephoned the respondent-employer from his Connecticut home and was told to report to the respondent-employer’s premises in New York prior to 11:00 p.m.
The trial commissioner was presented with somewhat conflicting testimony as to the relationship between the parties immediately following the phone call. The claimant testified that he indicated to the respondent-employer during the telephone call that he accepted their employment and he further testified it was his understanding that he would get paid from the moment he hung the telephone up. A Vice President for the respondent, Charles Gravina, testified that when a union member calls the respondent-employer agreeing to work, the respondent-employer holds a spot for them. Mr. Gravina further testified that a union member in transit from his home to the respondent-employer’s premises in New York is not paid for travel time, but is paid from the time he arrives at the respondent-employer’s premises. Mr. Gravina further testified that while employment was not promised to prospective hires until they reached the respondent’s office; he was unaware of any union member having been turned away after arriving at the respondent-employer’s premises. There is no dispute the claimant immediately traveled to the respondent’s Long Island office and he filled out a “new hire packet” which includes payroll and safety information, received protective equipment and was assigned to a crew. On November 8, 2004 the claimant sustained a compensable injury to his knee in the state of Florida which arose out of and during the course of his employment with the respondent-employer.
Based on these facts, the trial commissioner concluded that while an employment contract between the claimant and the respondent-employer was consummated during the claimant’s telephone call from Connecticut to the respondent-employer in New York, the claimant did not commence his employment with the respondent-employer and did not begin to earn wages until he arrived at the respondent-employer’s facility in New York and completed his employment paperwork. The trial commissioner concluded the claimant’s employment relationship with the respondent-employer took place exclusively outside of Connecticut. Since the claimant failed to sustain his burden of proof that there was a substantial relationship between Connecticut and his employment contract with the respondent-employer, the trial commissioner concluded that Connecticut lacked jurisdiction over the claimant’s injury and dismissed the claim. The claimant filed a Motion to Correct which was granted in part and denied in part. This appeal ensued.
On appeal, the claimant’s argument is that the trial commissioner erred by concluding there was no significant or substantial relationship between his employment contract with the respondent and the State of Connecticut. He argues that pursuant to Burse v. American International Airways, Inc., 262 Conn. 31 (2002) and Zolla v. John Cheeseman Trucking, Inc., 5261 CRB-5-07-8 (August 4, 2008) that the facts in this case establish that Connecticut had jurisdiction over this injury. We disagree that Burse and Zolla stand for this proposition. Both cases require a finding of fact that Connecticut had a significant interest in the employment contract. The facts in this case did not compel the trial commissioner to reach this conclusion.
In Zolla, this board engaged in a rather detailed examination of when Connecticut has jurisdiction over out-of-state injuries which occur to Connecticut residents employed by out-of-state employers. This examination was done in the wake of the Supreme Court’s decision in Jaiguay v. Vasquez, 287 Conn. 323 (2008), which is also relied upon by the claimant. Our rationale for extending jurisdiction to Mr. Zolla’s injury is inapplicable to this case.
The trial commissioner in Zolla determined the “facts herein were consistent with the claimant’s employment relationship being in Connecticut. The claimant lived in Torrington, Connecticut and routinely drove to respondent’s East Windsor, Connecticut terminal to receive his trucking instructions and/or pick up his loads to be driven to a location assigned by the respondent.” We also noted “[t]he evidence further suggested the claimant’s routine during the months prior to the time of injury focused on picking up windows from a single Connecticut manufacturer and delivering them to a construction project in Atlantic City.” Id. Since the claimant’s employment responsibilities were centered upon the respondent’s terminal in Connecticut, we concluded Connecticut was the “place of the employment relationship” and distinguished the case on the facts from Burse, supra.
In distinguishing the facts in Zolla from Burse, we noted that the Supreme Court had reversed this board on the issue of whether the facts in Burse were sufficient to attach Connecticut jurisdiction to that injury. The Supreme Court’s opinion in Jaiguay, supra, 339-340, outlined their grounds for reversal.
In Burse v. American International Airways, Inc., 262 Conn. 31, 808 A.2d 672 (2002), this court again was required to decide a choice of law issue involving a claim for workers’ compensation benefits in this state. The plaintiff, William J. Burse, resided in Connecticut and was employed as an airline pilot for the named defendant, American International Airways, Inc., a freight carrier based in Michigan that had only minimal contacts with Connecticut. Id., 33, 39–40. After Burse was injured during a flight somewhere over the Midwest, Burse sought workers’ compensation benefits in Connecticut. Id., 34. The workers’ compensation commissioner concluded that Burse was entitled to benefits because Connecticut was Burse’s place of employment and the place of the employment contract. Id., 35. The compensation review board affirmed the commissioner’s decision. Id. On appeal to this court, we reviewed the test set forth in Cleveland and refined it, explaining that a claimant seeking workers’ compensation benefits in this state as the place of the employment contract or the employment relationship must, ‘‘at a minimum, [make] a showing of a significant relationship between Connecticut and either the employment contract or the employment relationship.” 11 (Emphasis in original.) Id., 38–39. Upon review of the facts, we concluded that the compensation review board improperly had determined that Burse had established the requisite nexus between Connecticut and the employment contract or relationship to warrant the award of workers’ compensation benefits in this state. Id., 40, 45.
The facts as found by the trial commissioner herein were that “the claimant did not commence his employment” with the respondent until he reached their offices in New York, Finding, ¶ D and did not earn wages until he arrived in New York, Finding, ¶ E. The claimant offers no legal precedent that, as a matter of law, an executory contract in and of itself (which is at best what the claimant arguably had with the respondent at the conclusion of his phone call with the respondent), constitutes a substantial or significant relationship with the state of Connecticut. Indeed, the precedent in Burse would suggest that is not the standard for Connecticut jurisdiction under Chapter 568. While the court in Burse focused on a series of telephone conversations between the claimant and his employer which led the court to conclude the initial contract offer was withdrawn, we also note the court therein concluded that the contract in Burse was not actually “formed” until the claimant was in Michigan training at the respondent’s facility. Id., at 42-45.1 On the facts, the result in Burse is consistent with the trial commissioner’s determination in this matter.
While decided on slightly different facts (a job offer had not yet been proffered to the claimant at the time of injury) we find the Appellate Court’s reasoning in Bugryn v. State, 97 Conn. App. 324 (2006) relevant to this issues at hand. “At a bare minimum, an offer of employment by an employer, followed by performance by the prospective employee, would be necessary to conclude that the parties have entered into a contract of service” Id., at 330. (Emphasis in original) The trial commissioner concluded that the employment pursuant to the contract between the claimant and respondent did not commence until the claimant got to the respondent’s office. This is a finding of fact to which we must extend deference to the conclusions of the trial commissioner.2
If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.) 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra.
Clarizio v. Brennan Construction Company, 5281 CRB-5-07-10 (September 24, 2008).
The claimant also argues on appeal that the respondent is actually a Connecticut employer pursuant to § 31-275(10) C.G.S. He also argues that it was reversible error for the trial commissioner to deny those portions of his motion to correct which were denied. Our review of the evidence presented regarding the respondent’s alleged presence in Connecticut does not lead us to conclude the trial commissioner’s determination was “clearly erroneous.” Dudley v. Radio Frequency Systems, 4995 CRB-8-05-9 (July 17, 2006).3 The motion to correct essentially sought to interpose the claimant’s conclusion as to the facts presented, and to seek the trial commissioner to accede to claimant’s legal conclusions. Since the commissioner did not accept these conclusions, we find no error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002).
In Jaiguay, supra at 345, the Supreme Court held “[t]he issue is whether this state has a sufficient interest in having an injured employee receive an award of benefits under the laws of this state.” The trial commissioner concluded that based on the facts of this case, the formation of an executory contract alone did not create a sufficient interest to invoke Connecticut jurisdiction. We cannot conclude the trial commissioner’s conclusion there was no significant or substantial nexus between Connecticut and the employment contract was clearly erroneous. Indeed, we find the result herein in accordance with binding precedent in Burse, supra.
The Finding and Dismissal is affirmed and the appeal is dismissed.
Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.
1 We note that in footnote 16 of Burse v. American International Airways, Inc., 262 Conn. 31 (2002) the Supreme Court determined, that even given this board’s interpretation of the facts in a manner favorable to the claimant “we nevertheless conclude that there was insufficient evidence to support a conclusion that there was a substantial relationship between Connecticut and the contract. We therefore reject the claimant’s theory that the place of contract “formation” alone, as a matter of law, creates jurisdiction for this Commission, and reject claimant’s interpretation of the Burse case which does not consider the import of this footnote. BACK TO TEXT
2 The parties do not dispute the trial commissioner’s conclusion that the claimant did not perform any work for the respondent-employer within the State of Connecticut between the time he commenced working for the respondent and his November 8, 2004 injury. Finding, ¶ I. Compare with Burse, where occasional employment coming or going from Bradley Airport was deemed “at most, a peripheral relationship,” and thus inadequate to engage Connecticut jurisdiction. Burse, at 40. BACK TO TEXT
3 The claimant argues that he subsequently worked for the respondent after the 2004 injury at a subsidiary firm or affiliated firm located in Groton. We note that this goes to the fact-finding prerogative of the trial commissioner. We also note that the relevant jurisdictional question is the claimant’s relationship with the respondent at the time of the injury, not at some point in time subsequent to his injury. BACK TO TEXT
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