Opinion
CASE NO. 263 CRD-1-83
APRIL 15, 1986
The claimant-appellant was represented by Barry J. Waters, Esq.
The respondents-appellees were represented by Robert D. McGann, Esq.
This Petition for Review from the September 9, 1983 Finding and Dismissal of Claim of the Commissioner for the First District was argued March 30, 1984 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Rhoda Loeb and Frank Verrilli.
FINDING AND AWARD
1-7. Paragraphs 1 through 7 of the Commissioner's September 9, 1983 Finding are adopted as paragraphs 1 through 7 of this Division's Finding.
8. Because the respondents failed to file any notice of intent to deny liability they are precluded from raising any defenses, and claimant's claim is presumed to be compensable.
OPINION
This matter with our decision written six years after the alleged compensable event pointedly illustrates the ills which the 1967 General Assembly was seeking to eliminate when it enacted 31-297(b). Two issues are involved: (1) Whether claimant appellant's Motion to Preclude Defenses lies under 31-297(b) because the respondents appellees failed to disclaim within the twenty (20) day period and (2) Whether Connecticut had jurisdiction over claimant's employment activity centered in Connecticut and extending to Massachusetts and Rhode Island despite the fact that the original contract of employment was made in Ohio.
Sec. 31-297. Hearing of claims. . . . (b) Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice in accord with a form prescribed by the commissioners stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested, and a copy thereof shall be sent to the employee. If the employer or his legal representative fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee's right to receive compensation on any grounds or the extent of his disability.
The employer Cincinnati, Inc. hired the claimant, LaVogue, in Youngstown, Ohio in early 1978 as a service representative to install and repair machines manufactured by Cincinnati. He was trained for about six months at an Ohio location of the employer. Near the end of the training period in accordance with the February 17, 1978 letter of hire the employee was assigned to a work area having a seventy-five (75) mile radius from Hartford as its geographic center. As part of his job assignment he was required to live in the Hartford area.
In the late summer of 1978 LaVogue rented a home in Manchester and moved there from Youngstown, Ohio with his family. Claimant registered his automobile in Connecticut and obtained a Connecticut driver's license. Thereafter, he frequently performed work for the employer in Connecticut, Western Massachusetts, Rhode Island and New York within the assigned area. His work was supervised from the employer's office in Worcester, Massachusetts. Infrequently at the employer's direction he also worked outside the assigned area in Eastern Massachusetts, Vermont, New Hampshire and Maine. The employer had no office in Connecticut but did pay LaVogue a monthly allowance to maintain an office space in his Manchester home for the purpose of keeping necessary Cincinnati, Inc. business records.
On May 16, 1980 the employee suffered a serious injury to his left eye while working on a Cincinnati assignment at the Robert E. Derecktor Shipyard in Coddington Cove, Middletown, Rhode Island. He underwent repair of a corneal scleral laceration and lid laceration at the Newport, Rhode Island Hospital. He was transferred the next day from the Newport Hospital to the Hartford Hospital and was discharged from the latter institution May 21, 1980 only to be readmitted June 3, 1980; and on June 5, Dr. John C. Madigan performed three surgical procedures: (1) pars plana vitrectomy, (2) lensectomy and (3) scleral buckling left eye. He was discharged June 9, from the Hartford Hospital.
Claimant was paid his medical bills and weekly compensation by Liberty Mutual Insurance Co., the employer's carrier, at the rate applicable under Massachusetts law, $227.31 weekly from May 17, 1980 until August 5, 1980. Under Ohio law his rate would have been $258.00 weekly and under Rhode Island, $199.00 weekly. His compensation rate were Connecticut law to govern would be two-thirds (2/3) of his $476.71 average wage, $317.81, plus $10.00 weekly for his dependent child or $327.81. The specific compensation payable in his case for 100% loss of the left eye is $6,000 under Massachusetts law, $16,125, Ohio and $31,840, Rhode Island. Connecticut law would award him 235 weeks of compensation at $317.81 per week or $74,685.35 for 100% loss of the left eye.
By letter dated September 23, 1981 sent registered mail, return receipt requested, the claimant served a notice of claim under the Connecticut Workers' Compensation Law on Cincinnati, Inc. at two locations, the home office at Box 11111, Cincinnati, Ohio, 45211, and the district office, 15 East Mountain Street, Worcester, Mass 01606. This notice was received September 28 at the Cincinnati location, and September 29 at Worcester. The respondents failed to file a notice of intent to deny liability within twenty (20) days as required under 31-297(b) C.G.S. However, the Commissioner below denied claimant's Motion to Preclude Defenses, because he ruled Connecticut had no jurisdiction and 31-297(b) was therefore not applicable.
The Commissioner's September 9, 1983 decision was issued before the Appellate Court ruling in Bush v. Quality Bakers of America, 2 Conn. App. 363 (1984).
Respondents-Appellees defend the Commissioner's denial of the Motion on the no Connecticut jurisdiction ground but also cite as an additional reason the holding in Adzima v. UAC/Norden Division, 177 Conn. 107 (1979). There our Supreme Court held that 31-297(b) only applied to an initial contest of compensability under Connecticut law. It did not apply to subsequent proceedings once initial compensability had been accepted or found. Respondents argue they accepted initial compensability albeit under Massachusetts law and therefore Adzima applies. We disagree. The respondents contested any compensability under Connecticut law, either initial or otherwise and therefore Menzies v. Fisher, 165 Conn. 338 (1973) rather than Adzima is controlling.
However, the basis of the Commissioner's ruling and the principal ground on which the appellees rely is the alleged lack of Connecticut jurisdiction. They maintain that the language of 31-297(b) is irrelevant and so also the cases interpreting that statute, Menzies v. Fisher' supra, Adzima v. UAC/Norden Div., supra, DeLeon v. Jacob Brothers, Inc., 38 Conn. Sup. 331 (1981), Bush v. Quality Bakers of America, 2 Conn. App. 363 (1984), Cortes v. Allegheny Ludlum Steel Corp., 61 CRD-3-81, 1 Conn. Workers' Comp. Rev. Op. 173 (1982) Yuknat v. State of Connecticut, Case No. 274 CRD-2-83 (3/19/86).
In Menzies the employer had filed a timely disclaimer, but it simply stated "(w)e deny a compensable accident or injury." The majority of the Supreme Court found that such a disclaimer failed to state "the specific grounds on which the right to compensation" was being opposed and therefore ruled that there was an irrebuttable presumption of compensability. The court stated:
". . . A general denial that a claimant has a compensable injury reveals no specific defense or reason why the claim is contested. Such a conclusionary statement would leave open numerous possible defenses, such as a defense of lack of employer-employee status, a defense that the death was due to suicide or to homicide or a claim that death was caused by an intervening injury. . . ."
Menzies v. Fisher, supra, 344.
Later in the same majority opinion:
". . . The amendment . . . adopted in 1967 embodies the recognition that it is within
the employer's power to supply the answers to such questions . . . As a procedural rule, this part of the statute operates nevertheless substantively in requiring initial affirmative acts from an employer beyond those normally incident to a court proceeding. . ."
Menzies v. Fisher, supra, 345.
As we discussed in Cortes, supra. the Menzies opinion in the language quoted above declared that 31-297(b) required the filing of a disclaimer whenever the defense was a denial of employer-employee status. Without such a status there can be no workers' compensation jurisdiction. Yet Menzies held that such a defense of lack of jurisdiction because of no employer-employee status must be specifically pleaded in a timely fashion if the employer wished to avoid the irrebuttable presumption of compensability under 31-297(b).
This Menzies holding was further strengthened by Bush v. Quality Bakers of America, supra. The Bush analysis demonstrated that the conclusive presumption of the 1967 amendment "does not conclusively presume any fact either jurisdictional or evidentiary." Instead the statute conclusively presumes compensability if no specific defenses are filed in a timely manner. "The jurisdictional claim is illusory. By not contesting compensability, (it) waived any jurisdiction claim." Bush v. Quality Bakers, supra, 373.
In our view the Bush holding is dispositive of the matter. Claimant's Motion to Preclude Defenses for failure to file a timely and specific denial of the claim should have been granted at the outset. However, we will discuss respondents' other contention concerning Connecticut's jurisdiction, one to which they devoted the major part of their argument. Appellees maintain that Morin v. Lemieux, 179 Conn. 501 (1980), the latest evocation of the place of contract rule, is controlling in the conflicts of law situation of the instant case. They hold that Simaitis v. Flood, 182 Conn. 24 (1980) is inapplicable since its interests analysis place of employment relation approach was really obiter dicta and not a binding precedent. But Simaitis is not so lightly dismissed. After seven decades of Workers' Compensation the court felt it necessary in that case to examine the place of contract rule. Given the tremendously increased mobility of the work force and of work assignments reaching across state borders throughout the nation and especially given the changed constitutional and juridical foundations of Workers' Compensation, such a re-examination was long overdue.
Connecticut's 1913 Act was "elective rather than compulsory in order to avoid a claim of its unconstitutionality," Powers v. Hotel Bond Co., 89 Conn. 143, 147 (1915). Because it was elective the law applied only when there was a voluntary contract between employer and employee to accept its provisions. Otherwise the common law alternative would remain.
In Hopkins v. Matchless Metal Polish Co., 99 Conn. 457 (1923) Chief Justice Wheeler compared the various state laws: "some Acts contractual in character, some compulsory, some optional, and some ex delicto," supra, 462. All the cases that followed holding to the place of contract rule depended on the Wheeler rationale that our state was a contract state because our law was based on this elective contractual consensual undertaking between employer and employee.
But in 1959 the voluntary nature of the Workers' Compensation obligation ended when Connecticut made its law compulsory. By then the Depression, the New Deal and two World Wars had caused vast changes in the constitutional climate which gave rise to Hoxie v. New York, N.H. H.R.R. Co., 82 Conn. 352 (1909) and Ives v. South Buffalo Ry., 201 N.Y. 271, 94 N.E. 431 (1911) Because of those changes both in constitutional interpretation and legislative enactments, the Simaitis court considered it appropriate to apply Professor Larson's interests analysis to the employment relation. It expands the place of contract theory to consider all the contacts with the employment relation.
We could probably find no better example for Professor Larson's theory than the present case. One supposes that it might even be possible to consider that La Vogue had two contracts of employment, one the initial training contract in Ohio when he was receiving less money than when he removed to Connecticut and actually began working at the job where he earned much more than during his training period. One could then continue the legal fiction and say the actual employment contract was not actually made until he arrived in Connecticut and hence its place of making was Connecticut. But why should it be necessary to engage in such fictions? There were significant contacts with Connecticut in LaVogue's employment activity. Those contacts were enough to give Connecticut jurisdiction over that employment relation. Therefore, even on the question of jurisdiction, we would rule that LaVogue had a compensable claim under Connecticut law.
The decision of the Commissioner below is reversed, the appeal of the claimant is sustained, and the matter is remanded for further proceedings consistent herewith.
Commissioners Rhoda Loeb and Frank Verrilli concur.