CASE NO. 5261 CRB 5-07-8CONNECTICUT COMPENSATION REVIEW BOARD CONNECTICUT WORKERS’ COMPENSATION COMMISSION
AUGUST 4, 2008
This Petition for Review from the August 7, 2007 Finding and Ruling on Motion to Preclude of the Commissioner acting for the Fifth District was heard March 28, 2008 before a Compensation Review Board panel consisting of Commissioners Ernie R. Walker, Charles F. Senich and Stephen B. Delaney.
The claimant was represented by Barry S. Moller, Esq., Cramer
Anderson, 46 West Street, P.O. Box 278, Litchfield, CT 06759.
The respondent was represented by Richard W. Lynch, Esq., Lynch, Traub, Keefe Errante, 52 Trumbull Street, P.O. Box 1612, New Haven, CT 06506.
ERNIE R. WALKER, COMMISSIONER.
The present appeal from a Finding and Ruling on the Motion to Preclude granted to the claimant in this case is based on the respondent’s position that the claimant, an interstate truck driver, should not have been able to file an injury claim before this Commission. They advance a number of separate arguments around this central theme. They argue that the claimant was barred by contract from bringing a claim in Connecticut and his sole contractual remedy was before the Ohio Bureau of Workers’ Compensation (“Ohio BWC”). They further argue that the facts of this case, where a Connecticut resident working for an Ohio employer was injured while in New Jersey, do not present a situation where Connecticut has jurisdiction. Finally, they argue that the Ohio BWC has rendered a judgment in the respondent’s favor on this claim, and this denial should be binding on the Connecticut forum.
We have considered these arguments at length, but in light of the Connecticut Supreme Court’s recent decisions in Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008) and Jaiguay v. Vasquez, 287 Conn. 323
(2008), we find these arguments unpersuasive. There is no dispute in this case that the respondent failed to file a disclaimer of liability within the statutory period to contest this claim, and pursuant to Harpaz, supra, the claimant’s injury is conclusively presumed to be compensable under Connecticut law. Our application of the legal standard regarding claims under Chapter 568 delineated in Jaiguay, supra, directs us to the conclusion this Commission had concurrent jurisdiction over the claimant’s injury. As a result, we affirm the Finding of the trial commissioner and dismiss this appeal.
The trial commissioner found the following facts which are relevant to this appeal. On December 27, 2001 the claimant suffered a heart attack in Atlantic City, New Jersey aboard a truck he was operating for the respondent. The respondent’s administrative office and one of its terminals are in Ft. Recovery, Ohio, but the respondent also operates a truck terminal in East Windsor, Connecticut. The claimant lives in Torrington, Connecticut and routinely drove to the East Windsor terminal to receive instructions and to pick up loads for delivery.
When the claimant was hired by the respondent he had to travel to their Ohio office to fill out his job application, undergo a physical examination and pick up his truck. While in Ohio he was directed to sign a preprinted form issued by the Ohio BWC which sought to make Ohio the state of exclusive remedy for all workers’ compensation claims brought by the claimant. There was no consideration identified in the agreement in exchange for the claimant’s waiver of other remedies and the claimant testified he believed he would not be offered the job if he failed to sign.
On January 23, 2002 the claimant filed a Form 30C with the Commission and with the respondent at their East Windsor terminal, seeking benefits as a result of the December 27, 2001 heart attack. The respondent received this Form 30C on January 31, 2002. The respondent claims they discussed this claim with the claimant and was led to believe he would not pursue his Connecticut remedies and would file a claim in Ohio.
No disclaimer of liability was filed by the respondent prior to the expiration of the statutory twenty eight day period to contest whether the claimant’s injury was compensable.
On February 17, 2002 the claimant received an Ohio BWC First Report of injury form which had been mailed to him by the respondent. He filled out the form and mailed it back to the respondent. The respondent then initiated a claim in Ohio on the claimant’s behalf and without his consent on February 28, 2002. The Ohio BWC denied the claim on March 18, 2002. An appeal of the initial denial occurred on August 1, 2002. The claimant did not receive notice of this hearing until after it was mailed on July 16, 2002. The respondent was the only party in attendance at this Ohio hearing and the claim was denied again.
The trial commissioner concluded in her Finding of August 7, 2007 that the primary focus of the respondent’s argument was that the Ohio BWC decision was res judicata on the issue of whether the claimant suffered a compensable injury. She determined however, that the respondent was an employer in Connecticut as defined under § 31-275(10) C.G.S. by virtue of maintaining a place of business at its East Windsor terminal. She concluded the respondent has sufficient contacts with the State of Connecticut to confer jurisdiction over workers’ compensation claims filed with this Commission. She also found the provisions of § 31-290
C.G.S. banned the use of agreements in which an employer and employee attempted to alter the statutory obligations present under Connecticut law.
Looking to the res judicata argument the trial commissioner found the claimant appropriately commenced an action under Chapter 568 by filing the Form 30C on January 23, 2002 and the respondent may have had an affirmative defense to this claim. They failed to advance such a defense within 28 days of receipt of the Form 30C and by operation of law consented to the compensability of the injury on February 28, 2002. She also found the Ohio claim filed by the respondent was filed with knowledge of a previous Connecticut claim. She concluded that as the Connecticut claim was first in time, it was not subject to res judicata
as the exclusivity agreement did not deprive the Connecticut workers’ compensation commission of subject matter jurisdiction.
Based on those findings the trial commissioner granted the claimant’s Motion to Preclude. She ordered the parties to proceed to a hearing in damages on the claim. The respondent filed a Motion to Correct in response. The granted corrections did not materially change the result herein and the respondent has pursued this appeal.
We note that the respondent cites 15 different reasons for appeal. Many of those reasons were addressed in the corrections granted by the trial commissioner, others were not addressed in the 39 page appellate brief presented by the respondent and it appears others are somewhat duplicative of each others. To simplify matters, we believe the issues on appeal are more cogently stated as follows:
a) Did the State of Connecticut have subject matter jurisdiction over the December 27, 2001 injury the claimant sustained in New Jersey?
b) If subject matter jurisdiction existed over the December 27, 2001 injury did the failure of the respondent to file a timely response bar their defenses of contractual exclusivity and res judicata?
We proceed to analyze this appeal in this manner since if the State of Connecticut lacked subject matter jurisdiction over the injury, then the claimant was precluded from receiving any relief in this forum even in the absence of a defense from the respondent. We must answer the question of whether we have jurisdiction prior to considering any other issues. If jurisdiction does not exist, we must sustain the appeal and vacate the Finding. If jurisdiction does exist in this forum, we must then determine whether the trial commissioner’s finding of preclusion properly overcame the respondent’s legal arguments.
In recent weeks, the Connecticut Supreme Court has had occasion to delineate the standard for when Connecticut can assert jurisdiction when an employee is injured during the course of employment and another state also can assert jurisdiction over the injury. In Jaiguay v. Vasquez, 287 Conn. 323 (2008) the Supreme Court considered a wrongful death action brought in Connecticut courts by the estate of a deceased New Yorker, seeking to sue a co-worker who lived in New York who was responsible for a fatal traffic accident in Greenwich. Such a suit was barred by exclusivity provisions in the New York Workers’ Compensation Act, but permitted under Connecticut law. The Supreme Court applied New York law as it related to tort liability, but made clear that on the issue of jurisdiction for workers’ compensation claims that it took an expansive view as to the extent of Connecticut jurisdiction.
The court in Jaiguay made an extensive review of the previous cases where the question of whether Connecticut had jurisdiction for a workers’ compensation claim was raised, specifically Cleveland v. U.S. Printing Ink, 218 Conn. 182 (1991) and Burse v. American International Airways, Inc., 262 Conn. 31 (2002). The court concluded that on the issue of jurisdiction, Connecticut applied a three-pronged test,
Consequently, 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. Thus, in Cleveland, we concluded that this state’s interest in awarding workers’ compensation benefits to an injured employee is satisfied either when Connecticut is (1) the place of the injury, or (2) the place of the employment contract, or (3) the place of the employment relationship. Cleveland v. U.S. Printing Ink, Inc., supra, 195. Supra, 346.
The Jaiguay decision pointed out that “more than one state may have a legitimate interest in having a worker compensated under the applicable workers’ compensation statutes”. Id. “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., 345.
There is no dispute that the first two prongs of the Cleveland test were not met by the claimant in this case. His injury occurred in New Jersey and based on the trial commissioner’s findings of fact, we can infer that his employment contract was formalized at the respondent’s Ohio headquarters. The trial commissioner however, found jurisdiction as a result of the claimant conducting his work for the respondent out of their East Windsor terminal.
We look to Findings, ¶ 6 in the Finding which determined that facts herein were consistent with the claimant’s employment relationship being in Connecticut. The claimant lived in Torrington, Connecticut and routinely drove to respondent’s East Windsor, Connecticut terminal to receive his trucking instructions and/or pick up his loads to be driven to a location assigned by the respondent.
We have reviewed the Respondent’s Motion to Correct. They did not challenge the trial commissioner’s factual finding that the claimant’s primary employment responsibilities were linked to the respondent’s East Windsor terminal. Instead, they sought a correction to add a finding as to the site of the respondent’s headquarters being located in Ohio. However, in Snyder v. Seldin, 81 Conn. App. 718, 724 (2004), the Appellate Court pointed out “although the location of the headquarters also was one factor to consider [it could not] go as far as to say that this alone [gave] Connecticut the greater interest under the facts presented.” Id., 724. The testimony before the commissioner at the formal hearing was that Cheeseman hired its drivers by representing that they would primarily work out of a terminal within fifty miles of their home. October 2, 2006 Transcript, pp. 78-79. The evidence further suggested the claimant’s routine during the months prior to the time of injury focused on picking up windows from a single Connecticut manufacturer and delivering them to a construction project in Atlantic City. March 28, 2006 Transcript, pp. 24-35. Given this uncontroverted evidence we cannot find the claimant’s employment relationship to the state of Connecticut any less significant than the claimant’s relationship in Cleveland, supra, where the commissioner estimated a New Jersey resident spent “35 to 40 percent of his employment time in Connecticut.” Id., 183.
The respondent places great weight on precedent from Burse, supra, claiming that this case indicates Connecticut lacks jurisdiction when a Connecticut citizen is injured while employed out of state. See Respondent’s Brief, pp. 26-29. We reject this argument as the Connecticut Supreme Court’s decision in Jaiguay, supra, already distinguished Burse on the facts from the present case.
In Burse v. American International Airways, Inc., 262 Conn. 31, 808 A.2d 672 (2002), this court again was required to decide a choice of law issue involving a claim for workers’ compensation benefits in this state. The plaintiff, William J. Burse, resided in Connecticut and was employed as an airline pilot for the named defendant, American International Airways, Inc., a freight carrier based in Michigan that had only minimal contacts with Connecticut. Id., 33, 39-40. After Burse was injured during a flight somewhere over the Midwest, Burse sought workers’ compensation benefits in Connecticut. Id., 34. The workers’ compensation commissioner concluded that Burse was entitled to benefits because Connecticut was Burse’s place of employment and the place of the employment contract. Id., 35. The compensation review board affirmed the commissioner’s decision. Id. On appeal to this court, we reviewed the test set forth in Cleveland and refined it, explaining that a claimant seeking workers’ compensation benefits in this state as the place of the employment contract or the employment relationship must, “at a minimum, [make] a showing of a significant relationship between Connecticut and either the employment contract or the employment relationship.” 11 (Emphasis in original.) Id., 38-39. Upon review of the facts, we concluded that the compensation review board improperly had determined that Burse had established the requisite nexus between Connecticut and the employment contract or relationship to warrant the award of workers’ compensation benefits in this state. Id., 40, 45. Jaiguay, supra, 339-340.
The nature of the contacts in Burse were quite limited; the respondent had no physical presence and only one mechanic in the state and the claimant (a pilot) had worked out of Bradley Airport only twelve times in a four year period. As a result, Justice Katz wrote in her opinion “these contacts indicate that Connecticut had, at most, a peripheral relationship to the employment between the plaintiff and American.” Burse, supra, 40. (Emphasis in original). This board exercised similar reasoning in finding a lack of jurisdiction for an injury suffered by a interstate truck driver in Kelley v. Venezia Transport Services, 4184 CRB-2-00-2 (March 8, 2001), as the respondent had no office in Connecticut and transacted all business with the claimant in Pennsylvania.
The level of contacts within Connecticut between the claimant and the respondent in this case were significantly and materially greater than the contacts in Burse, supra, and Kelley, supra. John Cheeseman Trucking maintained a permanent physical presence in the State of Connecticut by virtue of locating one of its major terminals in East Windsor. The respondent also appears to have transacted significant business with firms within Connecticut. The claimant’s uncontroverted testimony was that his business relationship with Cheeseman revolved around obtaining his truck at the East Windsor terminal and traveling to a Bloomfield window manufacturer to pick up loads. We find the precedent in Owen v.Diversified Hospitality Group, Inc., 4204 CRB-3-00-3 (July 25, 2001) directly on point. In Owen the claimant died in a motor vehicle accident in Virginia. While the claimant’s job duties took him to many states, the trial commissioner found the respondent’s Connecticut office “served as the decedent’s base of operations when he was not traveling;” id., thus conferring jurisdiction in Connecticut. The facts found by the trial commissioner and essentially uncontroverted by the respondent in this case are that the East Windsor terminal was the claimant’s base of operations while employed by Cheeseman, which is materially different from the facts in Burse, supra, and Kelley, supra.
The respondent makes a lengthy argument that the exercise of Connecticut jurisdiction amounts to an inherent denial of their due process rights. With all due respect, we find this argument completely unmeritorious. The uncontroverted facts in this case, including the physical presence of Cheeseman’s terminal in Connecticut and its solicitation of Connecticut residents to work as its drivers, unquestionably satisfies the “minimal contacts” standards delineated by the U.S. Supreme Court in International Shoe v. Washington, 326 U.S. 310
(1945) and World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) to enable Connecticut to exercise jurisdiction over Cheeseman. See also Thomason v. Chemical Bank, 234 Conn. 281 (1995) (New York bank subject to Connecticut jurisdiction when it solicited business from Connecticut residents).
The aforementioned U.S. Supreme Court cases go to the issue o personal jurisdiction over an out-of-state firm conducting business in Connecticut, which means we must still ascertain if this Commission ha subject matter jurisdiction. The presence of subject matter jurisdiction is essential to determine herein to ascertain if the respondent’s other legal arguments concerning contractual exclusivity and the subsequent Ohio proceedings were time barred by operation of § 31-294c(b) C.G.S.
In Connor v. Statewide Grievance Committee, 260 Conn. 435, 442-443
(2002) the Supreme Court defined the nature of “subject matter jurisdiction,”
Subject matter jurisdiction involves the authority of a court to adjudicate the type of controversy presented by the action before it. 1 Restatement (Second), Judgments § 11 . A court does not truly lack subject matter jurisdiction if it has competence to entertain the action before it. Monroe v. Monroe, 177 Conn. 173, 185, 413 A.2d 819, cert. denied, 444 U.S. 801, 100 S. Ct. 20, 62 L. Ed. 2d 14
(1979). Once it is determined that a tribunal has authority or competence to decide the class of cases to which the action belongs, the issue of subject matter jurisdiction is resolved in favor of entertaining the action. Craig v. Bronson, 202 Conn. 93, 101, 520 A.2d 155 (1987).
We believe based on the facts herein that the trial commissioner properly found the claimant was an “employee” as defined in § 31-275(9) C.G.S. and that the respondent was an “employer” as defined in § 31-275(10) C.G.S. As the circumstances of this claim meet the third prong of the test promulgated in Cleveland, supra, making Connecticut “the place of the employment relationship,” this matter falls within “the class of cases” we may adjudicate. Thus we find the Commission possessed subject matter jurisdiction over the claimant’s December 17, 2001 injury.
This determination is largely dispositive of the other defenses raised by the respondent pertaining to contractual waiver and the subsequent Ohio proceedings. The Connecticut Supreme Court in Harpaz, supra, outlined the serious consequences when a respondent fails to file a disclaimer of liability within the statutory time period allowed under § 31-294c(b) C.G.S. The Court construed the “plain meaning” of this statute pursuant to § 1-2z C.G.S.
(b) Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commission 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. The employer shall send a copy of the notice to the employee in accordance with section 31-321. If the employer or his legal representative fails to file the notice contesting liability on or before the twenty-eighth day after he has received the written notice of claim, the employer shall commence payment of compensation for such injury or death on or before the twenty-eighth day after he has received the written notice of claim, but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim, provided the employer shall not be required to commence payment of compensation when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that (1) the employer, if he has commenced payment for the alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim, shall be precluded from contesting liability unless a notice contesting liability is filed within one year from the receipt of the written notice of claim, and (2) the employer shall be conclusively presumed to have accepted the compensability of the alleged injury or death unless the employer either files a notice contesting liability on or before the twenty-eighth day after receiving a written notice of claim or commences payment for the alleged injury or death on or before such twenty-eighth day. An employer shall be entitled, if he prevails, to reimbursement from the claimant of any compensation paid by the employer on and after the date the commissioner receives written notice from the employer or his legal representative, in accordance with the form prescribed by the chairman of the Workers’ Compensation Commission, stating that the right to compensation is contested. Notwithstanding the provisions of this subsection, an employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death. (Emphasis added).
In Harpaz, as in the present case, a claim for benefits was properly commenced by an employee against his employer and the respondent failed to either accept the compensability of the claim, pay the claimant without prejudice, or disclaim liability for the injury in a timely fashion. The respondent in Harpaz later offered evidence contesting medical treatment for the claimant, which the Connecticut Supreme Court found was legally impermissible based on the terms of the statute.
We therefore conclude that, under § 31-294c(b), if an employer neither timely pays nor timely contests liability, the conclusive presumption of compensability attaches and the employer is barred from contesting the employee’s right to receive compensation on any ground or the extent of the employee’s disability. Such a penalty is harsh, but it reflects a just and rational result. Id., 130.
In a footnote to Harpaz, Justice Katz noted initially that while the Appellate Court in LaVogue v. Cincinnati, 9 Conn. App. 91 (1986) had determined the statutory effect of the conclusive presumption of compensability would bar any defense, courts have later construed this provision to permit challenges only as to subject matter jurisdiction. Harpaz, supra, n. 11. The scope of such a permissible challenge after a finding of statutory preclusion has been established in Del Toro v. Stamford, 270 Conn. 532 (2004). The respondent does not advance an argument that any of the grounds stated in Del Toro to challenge subject matter jurisdiction (failure to properly commence a claim, absence of an employer-employee relationship, or statutory exclusion of the injury from the definition of “personal injury.” Id., 543-545.) are present in this case.
In reviewing the various defenses advanced by the respondent, we agree with the trial commissioner that such defenses were affirmative defenses which needed to be advanced prior to statutory preclusion attaching to this claim pursuant to the precedent in Harpaz, supra. The defenses of contractual preclusion and res judicata in the Ohio proceeding do not go to the subject matter of this Commission to consider this claim based on the timeline herein.
We do believe the issue of whether the Ohio proceedings were res judicata on the issue of causation should be addressed. We agree there are circumstances when a prior decision in another forum can be binding on this Commission, see Lafayette v. General Dynamics Corp., 255 Conn. 762
(2001). The flaw in respondent’s argument herein is that all the Ohio proceedings were subsequent to the statutory determination of preclusion in the Connecticut forum, and clearly not a prior decision. By operation of law Mr. Zolla’s claim was conclusively determined to be compensable under Connecticut statutes on February 28, 2002, prior to any action being taken by the Ohio BWC. We do not find that Lafayette stands for the proposition that a subsequent determination in a forum having concurrent jurisdiction can expunge or overrule a legal determination already reached in a Connecticut proceeding. We also note that the Connecticut Supreme Court noted that the defense of res judicata must be advanced as a special defense; Beccia v. City of Waterbury 185 Conn. 445, 451 (1981), unlike a challenge to subject matter jurisdiction, which may be considered sua sponte. Rayhall v. Akin Co. 263 Conn. 328, 336-337
This rationale also governs the Full Faith and Credit argument presented by the respondent. The respondent argues that the final decision of the Ohio BWC denying the claim must be given Full Faith and Credit in Connecticut, based on Article IV of the U.S. Constitution. However, at the time when statutorily the respondent became liable to honor Mr. Zolla’s claim here in Connecticut, there was no judgment in effect in a foreign forum for which Connecticut was constitutionally obligated to defer to. More importantly, the case cited by the respondent as standing for this proposition, Thomas v. Washington Gas Light Co., 448 U.S. 261
(1980) was cited by the Connecticut Supreme Court in Jaiguay, supra, for an entirely different proposition, that the Commonwealth of Virginia could not use the Full Faith and Credit clause to prevent the District of Columbia from awarding supplemental benefits to one of its injured residents, notwithstanding the law in effect in Virginia. Jaiguay, supra, 333-334.
Our research indicates that a U.S. Supreme Court case predating Thomas, supra, Crider v. Zurich Ins. Co., 380 U.S. 39 (1965) is more congruent legally and factually with the issues herein. The claimant in Crider was an Alabama resident working for a Georgia company who was injured in Alabama. He obtained a default judgment in an Alabama court seeking an award under Georgia law. The Georgia defendants argued Crider’s exclusive remedies were before the Georgia Workers’ Compensation Commission and refused to honor the Alabama default judgment. The U.S. Supreme Court held Alabama had a sufficient interest in protecting its injured citizens and this interest overcame Georgia’s interest in its workers’ compensation procedures. Georgia could not require the claimant to utilize its procedures regarding workers’ compensation, and bar the claimant from seeking redress in his home state.
In the present case the claimant, a resident of Connecticut, has obtained the functional equivalent of a default judgment based on Connecticut’s statutory procedures. The respondent argues that his exclusive remedy was via the Ohio BWC, and that he was obligated to file his claim pursuant to Ohio law and Ohio procedures, notwithstanding his judgment in his home state. We find this result inconsistent with Crider, supra.
The final argument we must address is essentially an effort to retry the facts. The respondent argues that on equitable grounds it would be unfair to apply § 31-294c(2) C.G.S. against them, claiming they were misled by the claimant into believing he was going to withdraw his Connecticut claim and solely pursue his remedies in Ohio, and therefore they should be absolved of their failure to file a disclaimer. While we do not condone the use of misrepresentation or artifice by either claimants or respondent before this Commission, Mankus v. Mankus, 4968 CRB 1-05-6 (August 22, 2006), aff’d, 107 Conn. App. 585 (2008), cert. denied . . . Conn. . . .(2008), the trial commissioner did not believe the respondent was misled by the claimant. She denied requested corrections to find such facts (see, esp. Proposed Finding, ¶ 19), and we are bound by her determination. We find the respondent’s argument that they should be excused from not knowing Connecticut law, Respondent’s Brief, pp. 7-8, unmeritorious and incompatible with Connecticut precedent. Atlas Realty Corp. v. House, 123 Conn. 94, 101 (1937). Respondent correctly cites Verrinder v. Matthew’s Tru Colors Painting
Restoration, 4936 CRB-4-05-4 (December 6, 2006) that a trial commissioner has no choice other than to grant a Motion to Preclude when a claim is properly served and the respondent fails to file a disclaimer within the statutory time period. Her decision in this matter was consistent with her finding of the facts presented and must be upheld.
The trial commissioner’s conclusions herein were supported by facts on the record and consistent with the most recent appellate precedent governing the jurisdiction of this Commission and the impact of failing to disclaim liability to a duly filed claim. We herein affirm her Finding and Ruling on the Motion to Preclude, and dismiss this appeal. This matter shall be referred to the Fifth District for further proceedings consistent with the standards delineated in Harpaz, supra.
Commissioners Charles F. Senich and Stephen B. Delaney concur in this opinion.