Opinion
CASE NO. 1188 CRD-4-91-3
NOVEMBER 5, 1992
The claimant was represented at the trial level by Eddie Rodriguez, Jr., Esq., Rodriguez Rodriguez. Counsel for the claimant withdrew from the instant matter and thus, the claimant appeared pro se on appeal.
The employer/respondent did not appear.
The respondent Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.
This Petition for Review from the February 13, 1991 Finding and Award of the Commissioner for the Fourth District was heard May 29, 1992 before a Compensation Review Board panel consisting of Commissioners Gerald Kolinsky, Michael S. Sherman and George Waldron.
OPINION
The Second Injury Fund Petitioned for Review from the February 13, 1991 Finding and Award of the Commissioner for the Fourth District. The ultimate issue presented for review is whether the trial commissioner erred in concluding that subject matter jurisdiction existed over the claimant's claim for injuries arising out of his employment.
An appeal in the instant matter was originally considered by this tribunal in Kluttz v. Howard, 8 Conn. Workers' Comp. Rev. Op. 51, 664 CRD-4-87 (1990). We also note that the Claimant-Appellee's counsel withdrew and the claimant appeared on appeal pro se.
The pertinent facts are as follows: The claimant was a truck driver whose residence was in North Carolina. The claimant was injured on January 19, 1983, when the truck he was operating on Route 95 in Stratford, Connecticut was involved in a serious motor vehicle accident as the claimant was approaching a toll booth. The trial commissioner found, inter alia, that the respondent-employer, Glen Howard d/b/a Southland Distributors had an office in North Carolina, but did not have an office in Connecticut. Also, the respondent employer did not carry workers' compensation insurance.
The respondent-Second Injury Fund contends that the Connecticut Workers' Compensation Commission lacks subject matter jurisdiction over the instant matter as the contract of employment was in North Carolina and was between a North Carolina employer and employee, and the claimant's presence in Connecticut was transient in nature. The Connecticut Supreme Court case which directly addresses the issue on appeal is Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991).
In Cleveland, our Supreme Court held that in workers' compensation conflicts of law matters this State's Workers' Compensation Act should be applied where Connecticut "is the place of injury, or the place of hiring, or the place of employment relation." Id. at 192. In the instant matter there no question that Connecticut is the place where the injury occurred. Thus, under the principles of stare decisis we are bound to follow Cleveland.
The Second Injury Fund does, however, present a compelling argument which attacks the conflicts of law rule adopted by the Cleveland majority. In the instant case the employer did not carry workers' compensation insurance and North Carolina does not have an assurance component for workers' compensation. See Brief of The Respondent Second Injury Fund at 9. [Hereinafter Second Injury Fund Brief] Thus, as the employer was without Workers' Compensation insurance, the Second Injury Fund Pursuant to Sec. 31-355 was ordered to assume liability for the workers' compensation benefits found due and owing to the claimant.
In essence, the Second Injury Fund asks us to overrule Cleveland and argues, inter alia, that the better rule of law for conflicts of law matters is the rule utilized in our Appellate Court's consideration of Cleveland. In the Appellate Court's opinion in Cleveland, 21 Conn. App. 610 (1990) the Appellate Court held that a truck driver injured in Connecticut who was a New Jersey resident and worked for a New Jersey corporation was entitled to Connecticut workers' compensation benefits where the injury arose in and out of the course of employment. The Appellate Court applied an interest analysis to the matter and held that the claimant "spent 30 to 45 percent of his work time in Connecticut, and that the plaintiff had enough significant contacts with this State and that therefore Connecticut has an interest in applying its statutes for the protection of working men injured within its borders." Further, the Appellate Court noted, "It is clear that the interests of New Jersey and Connecticut in compensating the plaintiff coincide. New Jersey has no legitimate interest in Preventing Connecticut from supplementing the compensation received by the plaintiff in New Jersey." (citations omitted). Cleveland, 21 Conn. App. at 617-18.
The Second Injury Fund, additionally argues that under the instant circumstances, applying the Supreme Court's ruling in Cleveland, supra is inequitable as it requires "Connecticut employers to fund the costs of irresponsible out-of-state employers." Second Injury Fund Brief at 12 quoting Davis, Inequitable Shifting of Burdens in Compensation, Vol., 8, No. 2 Conn. Workers' Comp. Rev. Op. vii., xi.
We are indeed troubled by the application of the conflicts of, law rule set out by our Supreme Court in Cleveland to the instant matter. We agree that the law as set out in the Supreme Court's decision Cleveland, does work an inequitable result in that the duty abiding employers of Connecticut, who ultimately fund the Second Injury Fund, are forced to assume the liability for an out of state employer's failure to secure workers' compensation insurance. As we reviewed and considered the instant matter, we wondered if an exception from the Supreme Court's holding in Cleveland should be carved out for cases where the out of state employer lacks workers' compensation insurance.
At first blush this represented an approach which we found equitably appealing but, unfortunately, was without support law. Section 31-355(a) C.G.S. provides:
When an award of compensation shall have been made under the provisions of this chapter against an employer who fails or is unable to pay the medical and surgical aid or hospital and nursing service required under section 31-294 or any type of compensation for disability, or both, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, dependency allowance, or any adjustment in compensation required by this chapter, hereafter referred to as "the compensation" and whose insurer fails or is unable to pay the compensation, such payments shall be made and compensation provided from the second injury and compensation assurance fund established in section 31-354. Upon finding by the commissioner of such failure to pay compensation, he shall give notice to the treasurer of such award, directing the treasurer to make payment from said fund.
Clearly, Sec. 31-355 provides that where an employer fails or is unable to pay compensation benefits, payments shall be made from the Second Injury Fund. If we were to hold that payments under Sec. 31-355 may only be made where the employer is an employer located within the geographical boundaries of Connecticut we would be engrafting a construction onto the term "employer" not included in the text of Sec. 31-355. Further in the Appellate Court's ruling in Cleveland, supra, the respondent argued that the requisite employer/employee relationship did not exist as the respondent did not satisfy the definition of employer as stated in Sec. 31-275(6).
Sec. 31-275(6) defined employers as "any person, corporation, firm, partnership, voluntary association, joint the state and any public corporation within the state using the services of one or more employees for pay. . . ." (Emphasis added) The Appellate Court noted, "It is apparent from the language of subsection (6) [of Sec. 31-275] that `within the state' must have been intended to modify only `public corporations' and not the entire list of entities preceding it." Id. at 614.
Although the Supreme Court affirmed the Appellate Court's ruling in Cleveland albeit on different grounds, (i.e., the Supreme Court announced a new rule of law as to the resolution of workers' compensation conflicts of law questions) we think that the above reasoning of the Appellate Court is applicable by analogy to the argument posed by the Second Injury Fund. That is, if the Appellate Court refused to distinguish between in-state and out-of-state employers in the construction of Sec. 31-275(6) where the actual text of the statute had at least some passing reference to a distinction among employers, then how can we distinguish between in-state and out-of-state employers where not even a passing reference to such a construction.
In effect, the Second Injury Fund not only asks us to overrule the Supreme Court's ruling in Cleveland, but to act as a super legislature. Sympathetic as we may be to the plight of Connecticut's employers, the remedy which the respondent only available through a change in existing appellant seeks is only available through a change in existing legislation.
Finally, the Second Injury Fund cites the dissent in the Supreme Court's ruling in Cleveland in support of its argument that the better rule of law to be applied in conflicts of law matters, is an interest analysis and a significant contacts analysis. In its brief the Second Injury Fund argues: "Intuitively it should be appreciated that there is no special interest for this state insuring that out-of-state parties injured in the State of Connecticut are compensated for lost wages, lost physical function, disfigurement and medical expenses just because the injury occurred in Connecticut." Brief of the Second Injury Fund at 7.
However, the dissent in Cleveland focused its criticism of the majority opinion not so much in the rule that a state could apply its Workers' Compensation laws when the State was the place of the injury, the place of hiring or the place of employment relation, but in the majority's statement that "Connecticut an interest in compensating injured employees to the fullest extent possible." Writing for the dissent Justice Shea stated:
I disagree, however the portion of Part II [the majority opinion] that holds the substantive provisions of Connecticut workers' compensation statutes, which provide a higher level of benefits for an injured employee than those of New Jersey, to be the proper choice of law for the determination of a dispute over the amount of compensation to be paid by a New Jersey employer to its employee, who resides and spends most of his working time in that state. . . .
It is a strange rule of law that would give to one party to a legal controversy the right to choose the rule of substantive law to be applied in deciding it simply because, as the claimant he can select a forum in any state having a sufficient interest to satisfy jurisdictional requirements. Despite its incongruity with conflict of laws theory, however, the rule may be justified in circumstances where a significant interest of one of the potential forum states may be adversely affected if the law of another state under orthodox conflict principles must govern. For example, if for this claimant's injury and he had required medical treatment in this state when he was injured, Connecticut would have a substantial interest in assuring payment of his medical expenses and other needed support while he remained here. The state having the more significant interest with respect to the medical payment aspect of workers' compensation law must certainly be the one whose citizenry would have to bear those expenses in some way or other if they were not borne by the employer. (Emphasis ours).
Cleveland supra at 195-96, 198.
Arguably the circumstances in the instant matter are more analogous to the hypothetical posed by the dissent and quoted above. In essence, like the hypothetical claimant in the above the claimant before us is one who is without workers' compensation benefits albeit due to the actions or rather non-actions of the employer. However, before us is an injured claimant, and even under the reasoning in the Cleveland, dissent, the State of "Connecticut would have a substantial interest in assuring payment of. . . medical expenses and other needed support while he [the claimant] remained here." Cleveland, supra at 198.
We therefore affirm the Finding and Award of the trial commissioner.
Commissioners Michael S. Sherman and George Waldron concur.