CASE NO. 680 CRD-2-88-1Workers’ Compensation Commission
AUGUST 10, 1989
The claimant was represented by Dennis A. Ferdon, Esq., Law Offices of Carl D. Anderson and Associates.
The respondents were represented by John Clarkson, Esq. and Robert E. Beach, Jr., Esq. of Naab Danforth.
This Petition for Review from the December 23, 1987 Ruling on Motion to Preclude of the Commissioner for the Second District was heard March 31, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Michael S. Sherman and A. Thomas White, Jr.
Ruling on Motion to Preclude
1-2. Paragraphs 1 and 2 of the trial commissioner’s Ruling on Motion To Preclude Defense Pursuant To Section 31-297(b), C.G.S. are affirmed and adopted as paragraphs 1 and 2 of this Division’s Ruling on Motion to Preclude.
3. On September 22, 1986 claimant mailed to respondent by certified mail, return receipt requested, notice of said injury in accordance with Section 31-294, C.G.S.
4-7. Paragraphs 4 through 7 of the trial commissioner’s Ruling on Motion to Preclude Defense Pursuant to Section 31-297(b), C.G.S. are affirmed and adopted as paragraphs 4 through 7 of this Division’s Ruling on Motion to Preclude.
8. Claimant is a truck driver making many deliveries in Connecticut. Between Connecticut deliveries and driving thru the state, claimant spends 35-40 percent of his time in this state.
9. Paragraph 9 of the trial commissioner’s Ruling on Motion to Preclude Defense Pursuant to Section 31-297(b), C.G.S. is affirmed and adopted as paragraph 9 of this Division’s Ruling on Motion to Preclude.
The conclusion and the order of the trial commissioner is affirmed and adopted as the conclusion and order of this tribunal.
OPINION
JOHN ARCUDI, CHAIRMAN.
Respondents seek to overturn the Second District December 23, 1987 Ruling granting claimant’s Motion to Preclude. The facts found by the trial are as follows. Claimant alleged he was injured during the course of his employment in South Windsor on or about March 11, 1988. At that time he was a New Jersey resident whose employment as a truck driver by a New Jersey employer required him to spend 35-40 percent of his work time in Connecticut. Claimant on or about September 22, 1986[1] mailed to respondent by certified mail, return receipt requested, a notice of claim. Respondent signed the return receipt card on September 1986 but failed to file a disclaimer of liability within the 20 days prescribed by Sec. 31-297(b), C.G.S. Claimant’s employment status was conceded. The Commissioner concluded this state had jurisdiction and the Connecticut Workers’ Compensation Law applied as there were enough significant contacts with Connecticut in the employment status. Therefore, the Motion to Preclude was held to lie.
Respondents argue that the trial Commissioner had no subject matter jurisdiction over the claim and cite Castro v. Viera, 207 Conn. 420 (1988). Castro holds that absent an employer-employee relation there was no workers’ compensation jurisdiction to entertain a Motion to Preclude liability. But Castro did not overrule LaVogue v. Cincinnati, Inc., 9 Conn. App. 91, cert denied, 201 Conn. 814 (1986). In LaVogue the employer-employee relation was admitted. The jurisdictional contest was over the situs of that relationship, a conflicts of laws problem. The Castro court disagreed with the broad language used in part of the Appellate Court’s opinion, “and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds. . .” Castro v. Viera, supra, 439, but it did not quarrel with LaVogue’s holding that, given an admitted employer-employee relation, the conflicts of law objection would not defeat the Motion to Preclude.
Castro and Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276, (1988) cert denied, 207 Conn. 805 (1988) did mandate that a jurisdictional objection may be raised at time even after the limitation period provided in Sec. 31-297(b) has passed. Once such an objection is raised it must be litigated and decided, presumably by means of an evidentiary hearing to determine the existence or the non-existence questioned jurisdictional fact. This was done by the Commissioner in the instant matter. Only after the facts established the employment status and sufficient Connecticut contacts within that employment status to overcome the conflicts of law objection did the Commissioner grant the Motion to Preclude. We have previously considered similar issues in DeLorenzo v. United Autoworkers, 5 Conn. Workers Comp. Rev. Op. 31, 400 CRD-1-85 (1988), and Austin v. Roy Brothers, Inc., 4 Conn. Workers Comp. Rev. Op. 115, 342 CRD-6-84 (1987). In those cases as in LaVogue we followed the, rationale set down by the rulings in O’Connor v. O’Connor, 201 Conn. 632 (1986) and Simaitis v. Flood, 182 Conn. 24 (1980) and concluded that subject matter jurisdiction in our Workers’ Compensation forum should be determined on the basis of the interest analysis recommended by Professor Larson[2] and Sec. 181 of the Restatement (Second) Conflict of Laws.[3]
Unlike Austin, the Commissioner here made a factual finding about the employment situs. We think his finding and conclusion reflect a correct application of the conflicts of law rules as provided by our courts. We will not disturb the factual findings and conclusions of the trial Commissioner unless without evidence, based on impermissible or unreasonable factual inferences or contrary to law, Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
Finally the respondents argue that the venue was improper. Matters of venue under the Workers’ Compensation Act are controlled by Sec. 31-278. Since 1971 Sec. 31-278 provides in pertinent part, “[E]ach [commissioner] shall have jurisdiction of all claims and questions arising in such district under this chapter, provided, if it is uncertain in which district a claim arises, or if a claim arises out of several injuries or occupational diseases which occurred in one or more districts, the commissioner to whom the first request for hearing is made shall have jurisdiction to hear and determine such claim to the same extent as if it arose solely within his own district.” (emphasis ours*) In 1985 a change in Sec. 31-294 providing that jurisdiction would lie if a of claim were given to the employer or any commissioner further broadened venue and jurisdiction concepts.
They cite Jester v. Thompson, 99 Conn. 236 (1923) as supporting the improper venue argument. However, the predecessor statute, Sec., 5357, Conn. Gen. Stats., Rev. of 1918 construed in Jester contained substantially different language from 31-278. It did not then permit a commissioner to assume jurisdiction over claims outside of his district unless the commissioner was temporarily incapacitated or disqualified. In essence Jester has been made obsolete by the statutory changes.
We, therefore, affirm the trial Commissioner’s finding and award.
Commissioners Michael S. Sherman and A. Thomas White, Jr. concur.