August 11, 2010

This Petition for Review from the July 10, 2009 Finding and Dismissal of the Commissioner acting for the Seventh District was heard on February 26, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.

The claimant was represented by Guy L. DePaul, Esq., Jones, Damia, Kaufman, Borofsky DePaul, LLC, 301 Main Street, P.O. Box 157, Danbury, CT 06813-0157.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick, LLC, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.


The claimant has petitioned for review from the July 10, 2009 Finding and Dismissal of the Commissioner acting for the Seventh District. We find no error and accordingly affirm the decision of the trial commissioner.[1]

The trier made the following factual findings which are pertinent to our review. The claimant’s decedent had been employed by the respondent as an “outside salesman” since January 30, 1989. The respondent employer is a manufacturer of lighting fixtures and related products. The decedent, who was hired by the respondent employer at its headquarters in New Jersey, had as his sales territory the counties of Westchester, Rockland and Putnam in New York. He also had one client in northern New Jersey. Although he resided in Ridgefield, Connecticut, the decedent never had any sales territory within the state of Connecticut. On August 4, 2005, the decedent sustained injuries in a motor vehicle accident on the Saw Mill River Parkway in Elmsford, New York while en route to a sales meeting at the respondent employer’s offices in Union, New Jersey. He died five months later, on January 3, 2006. On August 2, 2006, the decedent’s wife, acting in her capacity as executrix for his estate, filed a claim for workers’ compensation benefits on behalf of the decedent’s estate.

The decedent’s family presented evidence in support of their contention that the decedent used the basement of the family home in Ridgefield as a home office. Although the desk and chair were owned by the decedent, the decedent’s family alleges that the laptop computer, printer, fax machine, file cabinet and office supplies were paid for by the respondent. However, with the exception of the laptop computer, no receipts or expense reports which would serve to establish ownership of the rest of the office equipment were ever entered into evidence. The decedent’s family also maintains that the decedent received telephone calls from his customers at home and made business calls from the home on behalf of the respondent employer. In particular, Gerry Blandino, the decedent’s former supervisor, would call the decedent at home between 7:00 a.m. and 8:00 a.m. most mornings. The respondent employer testified that it never directed the decedent to establish a home office but did issue him a portable laptop computer and a cell phone with a New York area code. The employer also testified that pursuant to the respondent employer’s travel policy, outside salesmen were not entitled to reimbursement for mileage between their home and the first and last sales call of the day. See Respondents’ Exhibit 3.

A former co-worker of the decedent, Robert Carr, was called to testify and indicated that he was hired by the respondent employer in 1994 as a “contractor salesman/outside salesman” for the territory of Toms River, New Jersey. Carr indicated “that he left respondent’s employ in 2002 because he did not get a managerial position that he was interested in having and that the failure to obtain that position was due to the dishonesty of Messrs. Blandino (father) and Blandina (son).”[2]
Findings, ¶ 18. See also Claimant’s Exhibit O, p. 27. Carr also testified that at one point the respondent employer had requested he move closer to his territory and the Union, New Jersey office. Carr stated that as an outside salesman, he was generally on the road Monday through Friday visiting electrical contractors, architects, engineers and distributors in order to sell lighting products. Furthermore, in addition to attending the regular sales meetings held on Thursdays at the Union, New Jersey headquarters, Carr would also stop by the main office once a week to pick up sales literature.

Carr testified that he had a home office during the entire period he worked for the respondent employer. The office contained a fax machine, phone, calculator, computer, desk, cell phone, and company literature; however, Carr was uncertain who had paid for the office equipment. As was the case with the decedent, Gerry Blandino would call Carr at home early in the morning approximately three days a week. Carr would also receive faxes from customers at his home office and stored sample lighting fixtures in the office to show customers. Carr estimated that he generally spent the first and last hour of the work day in his home office; the balance of his time was spent on the road.

Robert Beavers, a sales engineer for Vitolite Electric Sales in Port Chester, New York, was also called to testify. Vitolite is a retail and commercial lighting products distributor. Beavers, who testified that he did business with the decedent for approximately seventeen years, indicated that the decedent conducted business out of his residence at 178 Kellor Drive in Ridgefield, Connecticut and he had personally seen the decedent’s home office. Beavers also indicated that the decedent’s business card displayed the Ridgefield, Connecticut address and a telephone number with a Connecticut area code. In addition, Barbara Nagle, a friend of the decedent and his family for fourteen years prior to the decedent’s death, was called to testify. She indicated that she had visited the decedent’s home while he was working in the basement and she also occasionally performed errands for the decedent. However, she never saw any customers visit the decedent’s office.

The decedent’s oldest daughter, Ashley Baron, testified that she was aware that her father had a home office where he would receive and make telephone calls and receive and send faxes. Ashley testified that office supplies in the basement were separate from household supplies and the basement telephone line was dedicated to her father’s business. She also indicated that the basement desk and chair were owned by her parents and her mother had prepared an “Equipment Return and Release” (See Claimant’s Exhibit A) allegedly in response to Gerard Blandina’s directive that he could not issue the decedent’s final paycheck until all of the respondent employer’s equipment was returned.[3] The decedent’s son, Samuel Baron, likewise testified that his father had an office in the basement and he believed the fax machine and printer were purchased by the decedent who was subsequently reimbursed by the respondent employer. However, he did concede that he had no personal knowledge of this transaction.

The decedent’s wife, who was married to the decedent for twenty-five years, testified that for five years prior to her husband’s accident, she was a full-time employee with Boehringer Ingelheim Pharmaceutical Company; as a result, she was not generally around her husband during normal business hours. She acknowledged that her husband’s sales territory was in New York but also contended he would on occasion visit customers of his clients located in Stamford, Greenwich, and New Canaan, Connecticut to address problems and/or complaints. She also claimed that the decedent spent fifty to sixty percent of his work day making telephone calls from his home office; however, telephone logs entered into evidence did not support this claim. She testified that she would assist her husband in preparing his expense reports and contended that the respondent employer would reimburse her husband for his telephone and internet bills. However, the respondent employer’s representative was “adamant” that the employer did not pay for internet connections for any salespeople. Findings, ¶ 48.

Gerard Blandina, the decedent’s supervisor on the date of injury, corroborated earlier testimony that the decedent’s sales territory consisted of Westchester, Rockland and Putnam counties in New York in addition to one account in northern New Jersey. Blandina also testified that he actively discouraged the decedent from pursuing clients in Connecticut because such activity would infringe on the Connecticut salesperson’s territory. Blandina indicated that the decedent was never instructed to set up a home office and it was Blandina’s assumption that the decedent spent most of his time on the road calling on customers. In addition to confirming the prior testimony regarding the mileage reimbursement policy, Blandina also corroborated that the respondent employer had provided the decedent with a cell phone bearing a New York area code along with a laptop computer.[4]

Based on the foregoing, the trial commissioner determined that because the claimant had “failed to show a `significant relationship between Connecticut and either the employment contract or the employment relationship,'” Findings, ¶ M (emphasis in the original), Connecticut law did not apply to the claim. The trial commissioner found that “[t]he claimant’s home was not the `place of the employment relationship,'” Findings, ¶ L and “[t]he functions that the claimant moved to the interior of his Connecticut residence were done so for his own personal convenience and not at the employer’s behest or for his employer’s convenience. . . .” Findings, ¶ F. The trial commissioner also determined that “[t]he claimant offered no evidence to show that the claimant declared his residence as a `home office’ for tax purposes.” Findings, ¶ K. Moreover, the trial commissioner concluded that the respondent employer had not required the claimant to establish an office in his home and “the claimant’s employment did not necessitate residence in Connecticut as he had no sales territory in Connecticut.” Findings, ¶ J.

The trial commissioner also noted that the respondent employer customarily held three sales meetings a month in its New Jersey offices and had made available to the outside salespeople cubicles with telephones. The trial commissioner concluded that the “gratuitous” sales calls made by the decedent to Connecticut stores “[did] not create a significant relationship to his employment because the respondent did not require this type of extraordinary conduct. In fact, there is no evidence in the record to indicate that the respondent was even aware that the claimant engaged in this type of conduct.” Findings, ¶ I.

Having determined that the workers’ compensation commission lacked jurisdiction, the trial commissioner dismissed the claim with prejudice. The claimant filed a Motion to Correct, which was denied in its entirety, and this appeal followed. On appeal, the claimant contends that the trial commissioner misapplied the relevant law to the facts of the claim and as a result erroneously concluded that Connecticut lacked jurisdiction. The claimant also argues that had the trial commissioner lent credence to the facts presented in the claimant’s Motion to Correct, she would instead have concluded that Connecticut did in fact have jurisdiction over the claim.

We begin our analysis with a recitation of the well-settled standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions.

. . . the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6
(June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

The claimant contends that the trial commissioner erroneously concluded that Connecticut lacked subject matter jurisdiction over the claim. “A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy. Such jurisdiction relates to the court’s competency to exercise power, and not to the regularity of the court’s exercise of that power.” Monroe v. Monroe, 177 Conn. 173, 185 (1979), appeal dismissed, 444 U.S. 801 (1979). Moreover, the jurisdiction of the workers’ compensation commissioners “is confined by the [Workers’ Compensation] Act and limited by its provisions. Unless the Act gives the Commissioner the right to take jurisdiction over a claim, it cannot be conferred upon [the commissioner] by the parties either by agreement, waiver or conduct.” Jester v. Thompson, 99 Conn. 236 (1923).

Our Supreme Court, however, recognizing that “[t]he oftentimes transient nature of modern employment makes it difficult for states to determine which claims are compensable and which are not,” Burse, supra, at 37, observed that inquiries such as the instant matter are perhaps “more appropriate deemed a question of conflict of laws.” Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181, 187 (1991). See also Thomas v. Washington Gas Light Co., 448 U.S. 261, 278-86 (1980). In addition,

the question of jurisdiction ordinarily precedes the conflict of laws question, for only after the commissioner determines that he has authority to entertain the action does he proceed to the “choice” of whether to award benefits under our Workers’ Compensation Act or, rather, to defer to the earlier grant of benefits under the laws of another state.[5]

Cleveland, supra, at 187.

Such a determination is consistent with the court’s observation set forth in McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615 (1988), aff’d 210 Conn. 580 (1989) (per curiam) that Connecticut has an “interest in compensating injured employees to the fullest extent possible; . . . Regardless of where an employee first seeks an award of benefits, he or she is entitled to the maximum amount allowed to an individual under either comprehensive legislative scheme.” Id., at 622-623.

Having framed the inquiry thus, we note at the outset that in Cleveland, supra, our Supreme Court set forth a three-pronged test to determine when Connecticut workers’ compensation law should be invoked. “The remedial purpose of our Workers’ Compensation Act supports application of its provisions in cases where an injured employee seeks an award of benefits and Connecticut is the place of the injury, the place of the employment contract or the place of the employment relation.”[6]
Id., at 195. This three-part test was further refined in Burse, supra, wherein the court stated, “[a]fter reviewing the sources on which we relied in Cleveland, we now clarify that this test requires, at a minimum, a showing of a significant relationship between Connecticut and either the employment contract or the employment relationship.” (Emphasis in the original.) Burse, supra, at 38-39. Consistent with these criteria, the Burse court determined that the claimant, an American Airlines pilot who resided in Connecticut, was based out of Miami, Florida, and had sustained injuries in a cabin depressurization incident somewhere over Kentucky or Ohio, was ultimately deemed ineligible for Connecticut workers’ compensation benefits.[7] Of particular significance to our analysis of the instant matter, the Burse court, noting that the claimant’s only employment connections to Connecticut were his residence, the location of his business records at a home office, and an occasional flight in or out of the state, concluded that “these contacts indicate that Connecticut had, at most, a peripheral relationship to the employment between the plaintiff and American.” (Emphasis in the original). Id., at 40. The Burse court also observed that,

[t]he plaintiff’s residence, from an employment standpoint, bears little weight in our determination, given that American did not require the plaintiff to live in Connecticut and that his employment did not necessitate such residency. Likewise, the fact that the plaintiff maintained business records in Connecticut does not indicate a significant relationship to his employment because American did not require the plaintiff to maintain such records.


Our Supreme Court recently had occasion to revisit the application of the conflict of laws principles articulated in Cleveland, supra, and Burse, supra, when it considered Jaiguay v. Vasquez, 287 Conn. 323
(2008). In Jaiguay, the claimant, the administrator of the estate of a decedent who died in a motor vehicle accident in Connecticut after leaving his work site in New York, brought a claim for Connecticut workers’ compensation benefits pursuant to § 31-293a C.G.S.[8] The lawsuit, which sought the recovery of damages stemming from the alleged workrelated negligent operation of a motor vehicle by the decedent’s co-worker, was barred by the exclusivity provision of the New York Workers’ Compensation Law (N.Y. Workers’ Comp. Law § 29[6]). The court, noting that their prior analysis in Johnson v. Atkinson, 283 Conn. 243
(2007) had raised “certain issues relating to choice of law questions in workers’ compensation cases,” Jaiguay, supra, at 331, remarked that its “jurisprudence in this area has not been fully consistent or illuminating.” Id. The Jaiguay matter therefore

[presented] an appropriate opportunity for us to reconsider and clarify the choice of law approach that is most appropriate when, as in the present case, a plaintiff who has been awarded workers’ compensation benefits brings a common-law tort action seeking damages for injuries sustained as a result of a coworkers’ allegedly negligent operation of a motor vehicle.


The Jaiguay court, after an extensive review of applicable precedent, concluded “the three pronged test [articulated in Johnson, supra, and Cleveland, supra] . . . applies only when the case involves a claim for workers’ compensation benefits and not when, as in the present case, the case involves a tort claim.” Jaiguay, supra, at 345. The court identified as the rationale for the distinction the notion that

the considerations relevant to the choice of law issues raised by the two kinds of cases are materially different. In the category of cases involving claims for workers’ compensation benefits in this state, the issue is whether this state has a sufficient interest in having an injured employee receive an award of benefits under the laws of this state.”

Id. Recognizing, however, that “more than one state may have a legitimate interest in having an injured employee compensated under the applicable workers’ compensation statutes,” id., at 346, the court held that

the choice of law question posed by a claim for workers’ compensation benefits in this state is not whether Connecticut has the most significant relationship to or interest in the matter but, rather, whether Connecticut’s relationship or interest is sufficiently significant to warrant an award of benefits under its workers’ compensation statutes. (Emphasis in the original.)


The Jaiguay court also explicitly stated that “[w]e have no reason to disturb that test insofar as it applies to cases, like Cleveland, in which the choice of law issue presented is whether a claimant seeking workers’ compensation benefits in this state is entitled to such benefits under this state’s Workers’ Compensation Act.” Id., at 346-347. However, the court distinguished Cleveland and its progeny with the matter at bar in Jaiguay, noting that

[a] markedly different choice of law issue is posed, however, when, as in the present case, an injured employee brings a tort action that ostensibly falls within an exception to the exclusivity provisions of our Workers’ Compensation Act. In that category of cases, the choice of law question is not which state among one or more other states has a sufficient
interest in having its statutes invoked for the benefit of the employee. The issue, rather, is which state’s law, to the exclusion of the law of all other potentially interested states, is the governing or controlling law.

Id., at 347.

Having drawn the distinction between the two different lines of inquiry, the court then chose to adopt the “most significant relationship” test as articulated in the Second Restatement for the purpose of deciding tort actions which “involve a claim brought under an exception to the exclusivity provisions of our Workers’ Compensation Act.”[9] Id., at 350.

Turning to the matter at bar, we note at the outset that the Burse court specifically stated that neither a Connecticut residence nor the presence of business records in Connecticut were in and of themselves dispositive in terms of securing benefits pursuant to the Connecticut Workers’ Compensation Act. Thus, while the instant record contains a great deal of testimony relative to the existence of the decedent’s home office and the alleged ownership of the equipment and supplies contained therein, the trier was under no obligation to accord these factors any particular consideration. The Burse court also noted that the respondent employer in that matter had never imposed a residence requirement on the claimant; similarly, in the instant matter, the decedent’s supervisor, Gerard Blandina, testified that the decedent was never required to live in Connecticut, December 9, 2008 Transcript, p. 9, and the decedent’s wife, Donna Baron, stated that she was unaware of any such “directive.” October 2, 2008 Transcript, p. 20.

The record indicates that the decedent was employed as a salesperson and assigned to territories located in New York; his supervisor testified that his “assumption was that [the decedent] was always out making sales calls.” October 2, 2008 Transcript, p. 36. Thus, while it certainly does not strain credulity to infer that some portion of the decedent’s business was transacted from his home office, it was the prerogative of the trial commissioner to determine whether, given the totality of the circumstances, it could be reasonably inferred that a sufficient amount of business was transacted such that Connecticut could be properly construed as the place of the employment relationship. In addition, the record indicates that the decedent did not have any sales territories in Connecticut, and his supervisor had in fact actively discouraged him from seeking clients in Connecticut.[10] December 9, 2008 Transcript, p. 17. It therefore may be reasonably inferred that the majority of the decedent’s time “on the road” was spent in New York, and not Connecticut. As such, it was within the trial commissioner’s discretion to ultimately determine that the State of Connecticut lacked jurisdiction over the claim because the decedent “failed to show `a significant relationship between Connecticut and either the employment contract or the employment relationship.'” Findings, ¶ M.

The claimant contends that in arriving at this determination, the trial commissioner applied an incorrect standard by failing to take note of the Jaiguay court’s “expansion” of the three-pronged standard enunciated in Cleveland, supra, and Burse, supra. Appellant’s Brief, p. 8. We disagree. As previously discussed herein, the Jaiguay court identified as the appropriate line of inquiry in these matters the determination as to “whether Connecticut’s relationship or interest is sufficiently
significant to warrant an award of benefits under its workers’ compensation statutes.” (Emphasis in the original). Jaiguay, supra, at 346. As the instant respondents point out, “[i]f anything the use of the term `sufficiently’ heightened the standard for jurisdiction as previously articulated in Cleveland and Burse. Whereas, previously under Cleveland a `de minimus’ significant relationship may have qualified for jurisdiction, that would not be true under Jaiguay since the relationship must be `sufficiently’ significant.” Appellees’ Brief, p. 14. At any rate, given that the trial commissioner did not find “a significant relationship” between Connecticut and the decedent’s employment relationship with his employer, it may be safely inferred that she did not find a “sufficiently significant relationship,” either.[11]

As previously mentioned herein, the claimant filed a Motion to Correct which was denied in its entirety. The claimant alleges that the denial constituted error because had the trier incorporated the corrections into her findings, she would have concluded that the State of Connecticut had jurisdiction over the claim. We disagree. Our review of the proposed corrections indicates that they primarily reflect the claimant’s desire “to have the commissioner conform his findings to the [claimant’s] view of the facts,” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728
(2002), cert. denied, 262 Conn. 933 (2003). As such, we find no error in the trial commissioner’s denial of the Motion to Correct, given that “[t]he [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id. Moreover, “[a] Motion to Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings.”[12] Pallotto, supra. See also Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (November 7, 1994).

Having found no error, the July 10, 2009 Finding and Dismissal of the Commissioner acting for the Seventh District is accordingly affirmed.

Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.

[1] We note that two motions for extensions of time were granted during the pendency of this appeal.
[2] When queried by the trial commissioner regarding the discrepancy in the spelling of the family surname, Gerard Blandina explained that his father’s legal surname was also Blandina but that when his father joined the Army, he was mistakenly identified as Gerry “Blandino.” Subsequently, it became necessary for his father to retain that spelling of his name in order to maintain his eligibility for Veteran Administration benefits. October 2, 2008 Transcript, pp. 29-30.
[3] Although Gerard Blandina disputed Donna Baron’s characterization of their conversation at the decedent’s funeral, October 2, 2008 Transcript, p. 45, he testified that he did pick up the equipment itemized on the “Equipment Return and Release” a week or two after the decedent’s death and signed the release at that time. Id., at 46-47.
[4] Blandina testified that an examination of the laptop computer upon its return to the respondent employer revealed that the decedent had never activated certain software programs installed on the laptop. December 9, 2008 Transcript, p. 3. Blandina also indicated that the decedent had successfully arranged for work related e-mail correspondence to be directed to his home computer. Id., at 4.
[5] In the instant matter, the record appears to be silent as to whether the decedent received workers’ compensation benefits from either the State of New York or New Jersey or, indeed, whether a claim for same was ever filed.
[6] In Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991), the claimant, a truck driver who resided in New Jersey and was employed by a New Jersey corporation, sought supplemental benefits under the Connecticut Workers’ Compensation Act for injuries sustained in a motor vehicle accident in Connecticut.
[7] At the time of the claimant’s injury, American Airlines had its headquarters in Michigan.
[8] Section 31-293a C.G.S. (Rev. to 2005) states, in pertinent part: “If an employee or, in case of his death, his dependent has a right to benefits or compensation under this chapter on account of injury or death from injury caused by the negligence or wrong of a fellow employee, such right shall be the exclusive remedy of such injured employee or dependent and no action may be brought against such fellow employee unless such wrong was wilful or malicious or the action is based on the fellow employee’s negligence in the operation of a motor vehicle as defined in section 14-1. . . .”
[9] After applying the “most significant relationship” test, the court ultimately determined that “the considerations relevant to our inquiry militate strongly in favor of applying New York law.” Jaiguay v. Vasquez, 287 Conn. 323, 356 (2008).
[10] Gerard Blandina testified that he would have regarded the decedent’s pursuit of Connecticut clients as “stealing.” December 9, 2008 Transcript, p. 17.
[11] We also find merit in the respondents’ observation that had the trial commissioner concluded “Connecticut did not have the most
significant relationship with the employment status,” the claimant’s argument that the trier applied an incorrect standard might have been more persuasive. (Emphasis in the original.) Appellees’ Brief, p. 15.
[12] In her Finding and Dismissal, the trial commissioner found that “[t]he claimant offered no evidence to show that the claimant declared his residence as a `home office’ for tax purposes.” Findings, ¶ K. Given that the claimant’s tax records were not submitted into evidence, and testimony on the issue was at best inconclusive, this finding was improper. See July 29, 2008 Transcript, p. 61.