DECEMBER 21, 2006

This Petition for Review from the January 25, 2006 Finding and Dismissal of the Commissioner acting for the Second District was heard July 14, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Ernie R. Walker.

The claimant was represented by Robert B. Keville, Esq., Suisman, Shapiro, Wool, Brennan, Gray Greenberg, P.C., 2 Union Plaza-Suite 200, P.O. Box 1591, New London, CT 06320.

The respondent employer and insurer were represented by Michael A. Burton, Esq., D’Attelo, Shields, La Bella Smith, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

The respondent Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 25, 2006 Finding and Dismissal of the Commissioner acting for the Second District. He argues that the trier erred by denying his claim for concurrent employment benefits arising from his job at Foxwoods casino on the territory of the Mashantucket Pequot Tribal Nation (Tribal Nation). We find no error, and affirm the trial commissioner’s decision.[1]

The claimant was employed by the respondent Christi Cleaning Service Corp. on March 8, 2004, when he sustained a compensable back injury. He was also working as a cook for Foxwoods casino on that date, which enterprise is operated by the Mashantucket Pequot Gaming Enterprise and is on tribal property. The respondents paid the claimant benefits based upon his wages at both employers pursuant to the concurrent employment provisions of § 31-310 C.G.S. When they sought reimbursement from the Second Injury Fund for the portion of those benefits due to the concurrent employment, the Fund refused to pay on the ground that this Commission has no jurisdiction over the Mashantucket Pequot Gaming Enterprise, which is part of the Tribal Nation and enjoys sovereign immunity. The Tribal Nation established its own Workers’ Compensation Code effective July 1, 1997, and withdrew its prior consent to the jurisdiction of this Commission. The trial commissioner thus concluded that Foxwoods could not be considered an employer under either § 31-275(10) or § 31-310 C.G.S. The concurrent employment claim was accordingly dismissed. The claimant has petitioned for review from that decision.

Much of our discussion in the companion case to this appeal, Hudgensv. Goldy’s Restaurant, 4997 CRB-2-05-9, is applicable to our analysis here. There, we explained that the Tribal Nation is a sovereign entity that has withdrawn its consent to state jurisdiction, placing Foxwoods outside the Act’s definition of “employer.” See, e.g., Chodkowski v.UTC/Pratt Whitney, 8 Conn. Workers’ Comp. Rev. Op. 4, 736 CRD-3-88-5
(December 18, 1989) (United States Army Reserve is not an employer under Act). As such, we could not order the Fund to reimburse the respondents for payments they had made pursuant to approved voluntary agreements. “The casino is also not an employer under § 31-310, and this Commission has no authority to order the Fund to reimburse the respondents for benefits paid on account of wages the claimant earned at Foxwoods.”Hudgens, supra.

The claimant here adds a new approach to the argument made in Hudgens. He contends that the Tribal Nation’s exercise of sovereign immunity does not preclude it from being considered an employer for the purposes of §31-275(10),[2] as it fits the general description of a “voluntary association” under that subsection. This argument begins by incorporating the reasoning of our decision in Spears v. Spears, 2082 CRB-2-94-6
(October 30, 1997). There, we analyzed the federal statute granting recognition to the Tribal Nation, and stated that this Commission under 40 U.S.C. § 290 had the power to apply its workers’ compensation laws to the territory of the Tribal Nation, subject to standard defenses such as sovereign immunity and exemption that preclude the exercise of jurisdiction over tribal businesses without the tribe’s consent.

The claimant reasons, “Even if sovereign immunity were a defense, in the case at bar it is not the tribe that is raising the question of immunity, but, instead, the Second Injury Fund trying to shield itself from liability by raising an immunity defense that would be exclusive to the tribe.” Brief, p. 5. In the claimant’s view, citing the establishment of the Tribal Nation’s workers’ compensation code as a basis for withdrawing jurisdiction under the Act misses the point of his argument, which is that nothing under § 31-310 requires that a concurrent employer be subject to the jurisdiction of this Commission or the Act. Likewise, he asserts that nothing in the definition of “employer” under § 31-275(10) requires such an entity to be subject to this Act’s jurisdiction. Also, he observes that the Tribal Nation was considered an employer prior to the July 1, 1997 effective date of its Tribal Workers’ Compensation Code. “Either the State of Connecticut has jurisdiction or they do not. No unilateral actions by the Mashantucket Pequot Tribal Nation can cause this jurisdiction to cease.” Brief, p. 7.

Though the claimant takes steps to distinguish Chodkowski, supra, andLemieux v. General Dynamics Corp./Electric Boat Division, 14 Conn. Workers’ Comp. Rev. Op. 383, 2077 CRB-2-94-6 (October 5, 1995), we are not so persuaded. In particular, we take note of Lemieux, in which the claimant sought concurrent employment benefits based upon earnings he had been receiving as a member of the Connecticut National Guard (CNG). Although the CNG is a division of the State of Connecticut, § 27-67
C.G.S. gives the governor-appointed adjutant general full authority to adjudicate the compensation claims of officers injured incident to their service in the state militia, with compensation payable “consistent with the provisions of chapter 568 and actual necessary expenses for care and medical attendance.” We held, “Such a thorough grant of authority to adjudicate the compensation claims of CNG members would be inconsistent with this commissioner’s exercise of jurisdiction over those claims. Despite the general language in § 31-275 regarding the state as an employer, the specific language of § 27-67 preempts the application of §31-275(10) to the CNG.” Id. Because we did not have jurisdiction over National Guardsmen’s compensation claims, they could not be considered an “employer” under the Act, and this board declined to recognize a § 31-310
concurrent employment claim based on CNG wages. Here, the case against jurisdiction, if different at all, is more compelling, insofar as the Tribal Nation is a sovereign entity that has less connection to the state than does another division of state government such as the CNG.

Furthermore, we disagree with the claimant’s argument that we need not have jurisdiction over an entity before it may satisfy the statutory definition of “employer.” If an “employer” within the meaning of §31-275(10) and § 31-310 were not subject to the Act, it would create the potential for any “employee” who is not otherwise excluded by the language of § 31-275(9) to file a workers’ compensation claim against that “employer,” upon whom the requirements of this Act would be unenforceable. Without employer responsibility, liability for the compensation claim would be passed on to the Fund under § 31-355(b) when the “employer” failed to pay compensation. Such an arrangement would not only increase the number of unfunded claims; it would undermine the Act’s purpose, which is to set forth a substitute means to the tort system of resolving claims between employees and their employers. See, e.g., Powersv. Hotel Bond Co., 89 Conn. 143, 146-47 (1915). “The Act . . . imposes upon an employer, presumably, his share of a common loss in a common industry. . . . It attempts to improve the condition of the workman under modern methods of industry by giving him partial recompense for an injury, with a result more certain and speedy and less expensive than under the former method in tort litigation.” Id. Thus, it is necessary that an “employer” under § 31-275(10) or § 31-310 be an entity that is subject to this Commission’s jurisdiction.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Nancy E. Salerno and Ernie R. Walker concur.

[1] We note that, pursuant to a Motion to Postpone and Consolidate in the case of Hudgens v. Goldy’s Restaurant, 4997 CRB-2-05-9 (December 21, 2006), oral argument in this matter was consolidated with oral argument in the Hudgens case.
[2] Section 31-275(10) C.G.S. states, in relevant part, that the term “employer” includes “any person, corporation, limited liability company, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay. . . .”