Workers' Compensation Developments 2007-2009

• Publication year: 2021
• Pages: 105

Connecticut Bar Journal Volume 83.

83 CBJ 105. WORKERS' COMPENSATION DEVELOPMENTS 2007-2009

Connecticut Bar Journal
Volume 83, No. 2, Pg. 105
JUNE 2009

WORKERS' COMPENSATION DEVELOPMENTS 2007-2009

By Robert J. Enright and John P. Clarkson(fn*)

I. Introduction

A.what is this thing Called "Comp"?

Connecticut's workers' compensation statute (the "Act"), codified at Chapter 568 of Title 31, came into existence in 1913. The Legislature brokered what might be called a Great Compromise between labor and management that entailed radical changes in resolution of disputes that arose from injuries at work. The civil justice system was divested of jurisdiction over such disputes; the Workers' Compensation Commission was established in its stead.(fn1) Recourse to the Workers' Compensation Commission became the exclusive-and, at least theoretically, expeditious-remedy for injured workers; the heart of the Act is to get people treated effectively and back to work promptly. In return, the Act almost (but not quite) entirely shields employers from civil liability for occupational injuries. The commission operates as an autonomous adjudicative system; the commissioners function essentially as administrative law judges. It has its own appellate tribunal, the Compensation Review Board, from which a large and impressive body of law has emerged. This has not prevented a steady flow of appeals from decisions by the Board to the Appellate Court and, in turn, to the Connecticut Supreme Court.

B.Scope of this Article

This article discusses most, if not all, Connecticut Supreme Court cases, as well as many Appellate Court cases that address workers' compensation issues, on a chronological continuum from roughly 2007 through June 9, 2009. The scope of the article is thus selective, not exhaustive. In selection of cases, as well as commentary on those cases, the writers have tried consciously to preserve a balanced perspective; what matters is whether a given case might be important to anyone with an interest in workers' compensation litigation, no matter whether that practitioner sits on either claimant's or respondent's side of the conference table.

II. Subject Matter Jurisdiction

As might be expected, this broad topic subsumes issues from disparate legal contexts. One incident of injury might, for example, create "conflicts"-or necessarily present "choices"-over the applicability of laws of contiguous states, for example, or even whether the jurisdiction of one sovereign is exclusive, or concurrent with that of another. 1n the past several years, Connecticut appellate tribunals have addressed quite an array of jurisdictional issues.

A.Subject Matter Jurisdiction-Basics

1n Mankus v. Mankus(fn2) the Appellate Court offered a short primer on the elements of subject matter jurisdiction under the Act. The sine qua non is an employer-employee relationship. Subject matter jurisdiction is not a "personal" right, susceptible of waiver by the parties, but a challenge to the commission's authority to adjudicate, a challenge that (I) may be raised at any time(fn3) and (2) once raised, must be immediately resolved.(fn4)

B.Timeliness of Filing

Employers who argue that a claim has not been timely filed typically couch such arguments as challenges to subject matter jurisdiction. Timeliness issues often arise in occupational disease cases, and in Fredette v. Connecticut Air National Guard(fn5) the Connecticut Supreme Court determined whether a dependent had perfected a claim for death benefits by filing it within the limitations period for occupational disease, where the decedent had never filed a claim at all. Justice Borden wrote a thoughtful, but unusually intricate majority opinion, holding that "the timely filing of any compensable claim under the act has the effect of satisfying the limitations period for all potential claims under the act ... the failure to file any compensable claim within the applicable limitations period would have the effect of barring all claims under the act, irrespective of whether they yet had become compensable."(fn6)

Fredette must be read in conjunction with a companion case, Chambers v. Electric Boat Corp.,(fn7) which presented this issue: whether, under the limitations periods applicable in 1979, a timely claim for death benefits under the federal Longshore Act(fn8) preserved the same claim under Chapter 568, in the absence of any state filing. The long and the short of Chambers is that a timely federal claim did not preserve state jurisdiction, because Chapter 568 mandates affirmative notice of intent to pursue a claim under the state Act.(fn9)

C. Concurrent Jurisdiction-Federal Longshore Act and Chapter 568/State Act

In two companion cases, Coppola v. Logistec Connecticut, Inc.(fn10) and DiBlase v. Logistec Connecticut, Inc.,(fn11) the court addressed a "jurisdictional" question that did not entail a "conflict" between the state and federal statutory schemes, but instead involved the "scope of exclusive federal jurisdiction over maritime matters."(fn12) The claimant in Coppola prevailed under the Longshore Act, and the court held that the Longshore Act was not his "exclusive remedy"; concurrent jurisdiction arose between the Longshore Act and the state Act, once certain factual criteria were met, e.g., the injury had to have occurred on the state's territorial waters.(fn13)

D. Choice/Conflict of Laws

In Jaiguay v. Vasquez (fn14) the Connecticut Supreme Court had to grapple with the legal implications of a death in Connecticut that led to civil litigation in Connecticut, where death arose out of and in the course of New York employment, and where the New York workers' compensation law, in contradistinction to Connecticut's, contains no motor vehicle exception to the exclusive remedy rule. The court concluded that when such a conflict of laws arises (or when a "choice" of laws necessarily presents itself), separate analyses must occur: a claim for workers' compensation benefits in Connecticut is analyzed differently from civil justiciability of a tort case. In so doing, the court reversed Johnson v. Atkinson,(fn15) decided only about a year before; this case did not appreciate any distinction between two "general categories," namely, cases that involved only claims for workers' com-pen-sation benefits in this state, and such cases as Jaiguay, where a "tort" issue arose as a result of an exception to the exclusivity provisions of the applicable workers' compensation statute.(fn16) The court reversed itself so adroitly, deploying a masterly exposition of the evolution of Connecticut case law on this issue, that it appeared not to be retreating, but merely advancing in a different direction. The rule now for invocation of jurisdiction of the commission in Connecticut-actu-ally, a variant of "concurrent" jurisdiction, since workers' compensation claims can proceed in more than one jurisdiction-is this: "whether Connecticut's relationship or interest is sufficiently significant to warrant an award of benefits, and that criterion is satisfied either when Connecticut is (1) the place of the injury, or (2) the place of the employment contract, or (3) the place of the employment relationship."(fn17) The court noted that the choice-of-law issue, where the tort action arises from the exception to the exclusivity provisions of Connecticut's act-the other "general" category-involves essentially an either/or proposition: the invocation of one state's law will exclude application of any other state's law.(fn18)

E. Appellate Jurisdiction

Late filing of a petition for review-such a petition is necessary to perfect an appeal to the Compensation Review Board-does not abate appellate jurisdiction to hear a late appeal, unless a timely motion to dismiss(fn19) is filed; if no timely motion to dismiss is filed, the Board retains discretion to hear a late appeal. So held the Appellate Court in Stec v. Raymark Industries, Inc.(fn20) In other words, an appellee can waive a challenge to the timeliness of the appeal.(fn21 )Therefore, a late appeal is not void, but merely voidable.(fn22)Stec was decided with a companion case, Dechio v. Raymark Industries, Inc.(fn23) In that case the appellee did file a timely motion to dismiss, and dismissal was upheld.(fn24)

While an untimely motion to dismiss might render a belated appeal only voidable, in Dechio the Second Injury Fund failed altogether to file notice of intent to appeal with the trial commissioner and thus "did not attempt to preserve its right of appeal."(fn25) The Stec and Dechio cases serve as a reminder to those who wish to perfect appeals: one must be mindful, at every step along the way, not only of rules and regulations under Chapter 568, but also under civil rules of appellate procedure; those rules apply to appeals from trial decisions to the board and from the board to the Appellate Court.(fn26)

Finally, workers' compensation appeals to the Appellate Court involve a final judgment requirement.(fn27) The final judgment requirement is characterized as implicating appellate subject matter jurisdiction.(fn28)

III. What Constitutes A Cognizable Claim Under The Act - And What Benefits May Be Awarded

One might crystallize the operation of the Act as follows: employees who suffer injuries that arise out of and in the course of employment are entitled to receive benefits in the form of reasonable and curative medical treatment, as well as monetary indemnity for lost wages and permanent injury. Every element of that formulation, however, can spawn questions, e.g., who is an employee, what constitutes medical treatment, and how precisely does the phrase "arising out of and in the course of employment" apply to atypical circumstances?

A.who is/is not an "Employee "

In Muniz v. Allied Community Resources(fn29) the Appellate Court held that, under General Statutes Section...