Opinion
CASE NO. 850 CRD-5-89-4
NOVEMBER 9, 1989
The claimant was represented by Edward T. Dodd, Jr., Esq.
The respondent-employer John Guerrera and its insurer were represented by Louis N. George, Esq., Gordon, Muir Foley. The respondent-employer L B Builders and its insurer were represented by Anne Kelly, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the April 6, 1989 Ruling on claimant's Motion to Preclude of the Commissioner At Large acting for the Fifth District was heard September 29, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank J. Verrilli and Gerald Kolinsky.
OPINION
Liminal jurisdictional issues were the reasons cited by the commissioner below in dismissing the claim after a Sec. 31-297(b) motion to preclude defenses. Claimant Marchesseault was a carpenter employed by the respondent employer J.P. Guerrera Construction Co. While Marchesseault was working at a J.P. Guerrera job site, he and a fellow J.P. Guerrera worker were asked to assist L B Builders employees in raising a wall on an adjacent lot. Claimant injured his back while helping to raise the wall.
Sec. 31-297(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.
By a Notice of Claim received September 19, 1988 Claimant notified J.P. Guerrera and the fifth district commissioner that he had sustained injuries as follows: "D/A: 8/25/85 Back Spine Injury Location: Waterbury." A similar notice of claim subsequently sent to L B Builders was received November 3, 1988.
J.P. Guerrera contested liability with a disclaimer filed
September 12, 1988 stating "employee's injury did not occur in or out of the course of his employment with J.P. Guerrera Construction Company."
We have ruled that a properly served disclaimer filed before the actual written Notice of Claim has been received will serve to avoid the default provisions of Sec. 31-297(b), Skorupski v. Commercial Union Assurance Co., 2 Conn. Workers Comp. Rev. Op. 133, 338 CRD-3-84(85) and Elmassri v. Vinco, Inc., 5 Conn. Workers Comp. Rev. Op. 96, 584 CRD-7-87(1988).
Similarly, L B Builders contested liability. However their disclaimer filed March 20, 1989 was not timely filed under the provisions of Sec. 31-297(b). The L B disclaimer was more specific than J.P. Guerrera's. L B stated:
Respondent contends that the medical condition to the back, associated medical expenses and disabilities did not arise out of and during the course of his employment with respondent. Respondent further contends that there is neither an employer-employee nor principal employer-employee relationship between respondent and claimant, therefore, respondent does not have any responsibility to pay worker's compensation benefits to or on behalf of claimant."
The instant matter only involves the claim against the employer J.P. Guerrera. Claimant moved to preclude defenses because the employee's September 12 disclaimer was "insufficiently specific" and therefore did not conform to the requirements enunciated in Menzies v. Fisher, 165 Conn. 338 (1973). There was no evidentiary hearing and the motion was submitted to the commissioner for decision on stipulated facts.
In his memorandum the commissioner held claimant "had temporarily abandoned his employment" and therefore no employer-employee relationship existed at the time of injury. Consequently, relying on Castro v. Viera, 207 Conn. 420 (1988), he ruled there was no subject matter jurisdiction and therefore dismissed the claim in its entirety.
At that stage of the proceedings below it would have been the better procedure to deny the motion to preclude, if that was the commissioner's inclination, and then proceed to a full evidentiary hearing on the merits and the jurisdictional issues. Our motion to preclude practice is only an analogue to summary judgment procedures in the courts when liability is to be conclusively presumed. It is not intended to be a summary proceeding without full hearing when liability may be denied. The parties' stipulation of facts related only to the decision on the motion. It presented a situation somewhat comparable to common law demurrer practice where well pleaded facts are assumed to be true only for the purpose of a decision on the pleading.
Were that our only objection we would simply remand the matter to the fifth district for further proceedings. However, we think the commissioner's jurisdictional analysis itself was incorrect.
Castro v. Viera, supra, simply holds that there must be an employer-employee relationship for jurisdiction to exist. Here, there is no doubt that Marchesseault was an employee of J.P. Guerrera. That fact seems even to be conceded in the September 12 disclaimer which states the "employee's injury did not occur in or out of the course of his employment." The. disclaimer thus stated is a work connection, not a jurisdictional defense. This becomes abundantly clear when we compare the respondent's disclaimer with the L B Builder's March 20 document. L B employs similar not arising out of and during the course of employment language and then also raises the jurisdictional defense of no employer-employee relationship.
Once the existence of the underlying employment relationship is established the workers' compensation commissioner has jurisdiction over the res. Compensability contentions may then proceed to be aired within the boundaries subject matter. Instead if causation defenses are held to raise jurisdictional issues, Sec. 31-297(b) would become a superfluous law. A claimant would have to prove his whole case before he could rely on the statutory irrebuttable presumption. That certainly was not the intent of the 1967 legislature when it enacted the section.
As the matter must be remanded it would be worthwhile to review briefly the causation of workplace injuries as it relates to the instant case. Larson has likened work connection defenses in workers' compensation to proximate causation litigation in tort. That a worker's deviation from an existing employment relation may form the basis for an employer's work connection defense has long been recognized in our law. In Robinson v. The State of Connecticut, 93 Conn. 49 (1918) the court reversed the commissioner's denial of benefits stating at page 52:
Larson, Workmen's Compensation Law, Sec. 6.60, p. 3-6 et seq (1984)[.]
". . . the case turns on the question whether one employed as foreman of a repair gang. . . steps outside his employment as a matter of law, because he starts to cross the road in response to a friendly salutation, for the purpose of conversation, when there is no evidence as to how long he intended to talk, and no evidence that his starting to cross the road did interfere, or that his intended conversation would have interfered, with the due performance of his work as foreman. We think this question must be answered in the negative."
An even earlier case, Mann v. Glastonbury Knitting Co., 90 Conn. 116(1916) concerns a knitting mill foreman who injured his hand when attempting to heat a bottle of tea or coffee by placing it inside a door in a hot air pipe behind which there was a circulating fan. The employer had acquiesced in the employees' custom of heating their bottles at the mouth of the pipe in another room but not at the particular place which this employee used. The commissioner's benefits award was reversed by the Superior Court, and the Supreme Court affirmed the denial. The majority opinion held that an injury occurring during a deviation from employment may nonetheless be compensable if the employer has acquiesced in the practice. Since the employer had not acquiesced in the heating method used by this claimant then the injury did not arise out of or in the course of the employment. Justice Wheeler's concurrence holds that the injury occurred during the course of the employment but did not arise out of it.
Three decades later the court decided the matter of an employee killed when he took a forbidden path along a railroad track in East Norwalk while returning from a work errand, Herbst v. Hat Corporation of America, 130 Conn. 1 (1943). Herbst had been sent from plant 3 to plant 1 to obtain some nails. The nails not being obtainable he started to return. Among the three possible return routes available he chose the shortest taking him along a spur track of the New York, New Haven and Hartford Railroad. The employer had posted signs forbidding employees to use the path along the spur track, but it had knowledge that employees continued to use it. The commissioner denied benefits. The Supreme Court reversed and remanded for further proceedings. Its opinion stated, "The precise question. . . is, what incidental acts, performed in the course of the employment but not performed for the benefit of the employer, will prevent recovery?", id, 6[.]
In analyzing that question the court compared common law agency principles and whether a deviation from the agency terminated the relationship. At page 7 it cited the following language from an early decision:
. . . The trier must take into account, not only the mere fact of deviation, but its extent and nature relatively to time and place and circumstances, and all the other detailed facts which form a part of and truly characterize the deviation, including often the real intent and purpose of the servant in making it.
Ritchie v. Waller, 63 Conn. 155, 165 (1893)
The opinion continued:
This rule leads to the conclusion that unless the case lies clearly the one side or the other the question whether an employee has so departed from his employment that his injury did not arise out of it is one of fact.
Herbst v. Hat Corporation of America, supra, 7. Finally in ordering the remand, "If the employment was the principal thing and the carrying of the pipe was an unimportant incident, a different conclusion might be reached.", id, 8.
If this matter proceeds to a hearing on the merits questions posed by these precedents are those which the trier must answer. How far was the J.P. Guerrera work site from the L B Builders location? How much time was intended to be spent by the claimant and his fellow worker at the L B site? Was it a common practice for J.P. Guerrera employees to leave their jobs for a short time to help other workers? If there was such a practice had the employer acquiesced in it?
However by setting down principles involved in adjudicating work connection defenses we do not necessarily assume that the commissioner will automatically deny claimant's motion to preclude. The thrust of that motion is that the employer's disclaimer is not sufficiently specific. We earlier alluded to the differences in the disclaimers filed by the two employers. The L B disclaimer specifically delineated the differences between the arising out of the employment causation defense and the lack of employer-employee relationship jurisdictional defense. This employer employed very general arising out of employment work connection language and then argued that the words used constituted a Castro jurisdictional defense, a lack of employer-employee relationship.
The fact that the commissioner below treated the "did not occur in or out of the course of employment" language to encompass jurisdictional issues, despite many case law precedents which have considered such phrases to denote causation, is itself evidence that the disclaimer conveyed a vague confusing message rather than the specific one mandated by Menzies v. Fisher, supra. However the Appellate Court in two recent cases, Wilcox v. Naugatuck, 16 Conn. App. 676 (1988) and Tovish v. Gerber Electronics, 19 Conn. App. 273 (1989) seems to have reached apparently conflicting results concerning the amount of specificity required in a disclaimer.
Wilcox ruled per curiam that the following language did not conform to Sec. 31-297(b) requirements: "Employee did not sustain accidental injury as defined by the Workers' Compensation Act. We deny the injury, any disability and causal relation." A year later Tovish held "[I]njury (heart attack) did not arise out of or in the course and scope of employment" to be sufficiently specific language to defeat a motion to preclude.
Menzies in 1973 seemed to say that a Sec. 31-297(b) disclaimer needed to plead specific facts and the pleading should be couched in language a layman could understand. Hence the Menzies majority held that the pleading of a legal conclusion in non-specific language possibly comprehensible to lawyers did not comply with the statute. That 1967 statute and the 1973 court interpretation recalls the nineteenth century American development of the Field Codes of civil procedure. The various states, following New York's lead, abandoned the common law forms of pleading which we had inherited from English practice. They decided that those forms were anachronistic, legalistic and artificial. Instead the legislatures enacted factual pleading. Thus in 1848 the New York legislature enacted a Code of civil procedure stating that a complaint in a civil action should contain, "A statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what intended."
New York Laws 1848, C. 379, Sec. 120[.]
A workers compensation defense stating that the injury did not arise out of and in the course of the employment simply repeats the legal formula contained in the statutory definition, Sec. 31-275(12). That formula may be meaningful to Professor Larson and other scholars learned in workers compensation law, but in the Menzies rationale it does not communicate any meaningful substantive factual content "to enable a person of common understanding to know what is intended."
The Wilcox court considered the Menzies holding so clear it simply issued a per curiam opinion. Tovish instead seemed to approve general denial lawyer language in the disclaimer. The only clue to the reconciliation of the two holdings may be in the Tovish language describing the specific injury, the heart attack. In the sense that modern medicine usually considers that a heart attack arises from a variety of causes and not just from one precipitating event it may be argued that the Tovish court read the disclaimer to deny that work was the precipitating event of that particular type of injury.
But since the commissioner below never really heard any part of the case when he dismissed it on jurisdictional grounds we remand the entire matter for his finding and decision, first on the question of the claimed irrebuttable presumption of liability under Sec. 31-297(b), and if that not be found, for a hearing on the merits.
The matter is remanded to the fifth district for further proceedings consistent with this opinion.
Commissioners Frank J. Verrilli and Gerald Kolinsky concur.