DiBlase v. Logistec Connecticut, Inc.

CASE NO. 5362 CRB-3-08-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 28, 2009

ANTHONY DIBLASE

CLAIMANT-APPELLANT

v.

LOGISTEC CONNECTICUT, INC.

EMPLOYER

and

LAMORTE BURNS & COMPANY

RESPONDENTS-APPELLEES

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 Neil J. Ambrose, Esq., Letizia, Ambrose & Falls, P.C., One Church Street, New Haven, CT 06510.

This Petition for Review from the June 19, 2008 Finding and Denial of the Commissioner acting for the Third District was heard January 23, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has taken this appeal from the June 19, 2008 Finding and Denial of the Commissioner acting for the Third District. In his ruling the trial commissioner denied the claimant-appellant’s request for attorney’s fees pursuant to § 31-300 on the basis of unreasonable contest and unreasonable delay.

This is not this tribunal’s first opportunity to consider matters between these two parties. Our first appellate consideration resulted in our opinion in DiBlase v. Logistec of CT., Inc., 4896 CRB-4-04-12 (January 19, 2006) [hereafter DiBlase I]. In DiBlase I we were asked to consider whether a trial commissioner’s holding that injuries sustained by a stevedore, while working in the hull of a ship on navigable waters were under the jurisdiction of the federal Longshore Harbor Workers’ Compensation Act and were injuries over which the Connecticut Workers’ Compensation Act had no subject matter jurisdiction. The trial commissioner concluded Connecticut was without such subject matter jurisdiction and thus, dismissed the claimant’s claim under Connecticut law.

The claimant filed an appeal with this board and the decision of the trial commissioner as to the lack of subject matter jurisdiction. The trier’s conclusion was affirmed on the basis of our Supreme Court’s holding in Leszczymski v. Andrew Radel Oyster Co., 102 Conn. 511, 527-28, 129 A. 539 (1925). In Leszczymski, our court held that the United States Supreme Court’s opinion in Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S. Ct. 524, 61 L. Ed. 1086 (1917) established the federal government had exclusive jurisdiction over maritime injuries occurring on navigable waters.

Following our opinion in DiBlase I, the claimant appealed this board’s opinion to the Appellate Court. The Supreme Court exercised its authority pursuant to § 51-199 and Practice Book § 65-1 and transferred the appeal to its docket. Thereafter, the court issued its opinion in DiBlase v. Logistec of CT., Inc., 283 Conn. 129 (2007) and reversed this tribunal’s opinion in DiBlase I. The court applied its holding in Coppola v. Logistec of CT., Inc., 283 Conn. 1 (2007) where the court overruled its holding in Leszczymski, supra, insofar as it suggested that all claims involving injuries occurring on navigable waters were exclusively under the jurisdiction of the federal government.

We review the above for the purpose of providing not only the legal background giving rise to the instant matter, but also for the purpose of documenting existence of binding precedent holding that Connecticut lacked jurisdiction over work injuries occurring upon navigable waters. In this tribunal’s consideration of DiBlase I, and in our opinion in Coppola v. Logistec of CT., Inc., 4781 CRB-3-04-2 (June 24, 2005), we referenced the various changes to federal law for injuries occurring upon navigable waters and the evolution of that law since the court’s opinion in Leszczymski. However, we acknowledged that as we are a tribunal of lesser authority than our own Supreme Court principles of stare decisis compelled us to affirm the trial commissioner’s conclusion the Connecticut Workers’ Compensation Act could not be applied given the factual scenario from which the claim arose. As we stated in Coppola:

Our Supreme Court’s holding in Leszczymski, supra, remains precedent which we are compelled to follow. The effect of post Leszczymski federal legislation in the form of the LHWCA and federal case law are interpretive matters within the province of our higher appellate courts. It would be an extra-jurisdictional act flouting the principles of stare decisis were we to rule as requested by the appellant given the factual circumstances in this matter.

This now brings us to our review of the specific issue raised on appeal, whether the trial commissioner erred in failing to find the respondent’s contest in this matter was unreasonable. Whether a respondent’s defense to a claim constitutes an unreasonable contest and the claimant is entitled to an attorney’s fee pursuant to § 31-300 is a factual question within the province of the trial commissioner. As we stated in Abrahamson v. State/Dept. of Public Works, 5280 CRB-2-07-10 (February 26, 2009):

Our scope of review of such determinations is sharply constrained, limited as it is to whether the trial commissioner’s decision constituted an abuse of discretion, which “exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001).

In his June 19, 2008 Finding and Denial the trial commissioner found that the respondents raised a bona fide defense to the claim on the basis of subject matter jurisdiction. Ultimately the claimant prevailed on the issue of subject matter jurisdiction. However, given the original trial commissioner’s conclusion that subject matter jurisdiction did not exist, as well as this tribunal’s affirming of the trial commissioner’s conclusion on the basis of our Supreme Court’s holding in Leszczymski, supra, and its status as binding precedent, we are not persuaded the trier’s ultimate conclusion was an abuse of his discretion.

We therefore affirm the June 19, 2008 Finding and Denial of the Commissioner acting for the Third District.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur.