Thursday, June 7, 2012

CT Case: Intoxication is NOT a Jurisdictional Issue

Uninsured employers will do almost anything to escape liability and penalties, and some of the stories are truly offensive to the conscience.

In Connecticut an uninsured employer in the landscaping business tried all the way up the appellate chain with various reasons why it could not provide benefits to an injured worker, and my guess spent more trying not to pay than if it had just provided benefits in the first place, regardless of insured status.

The case is Vidal Gamez-Reyes vs. Donald F. Biagi, Jr. et. al, (AC 33459) (Conn.App. 06/12/2012).

In July 2009 when landscaper Vidal Gamez injured his back after falling from the top rung of a ladder while trimming a tree for a business owned by Donald Biagi.

He was provided tools, work assignments and a vehicle under Biagi's company, but of course Gamez worked for cash, never received a W-2 or paid income taxes and Biagi didn't have workers' compensation insurance.

More than two hours after the fall and amid repeated requests from the injured worker, Biagi took Gamez to the hospital. There, Biagi denied the injured man was his employee and told hospital workers he had picked up Gamez on the street.

Gamez, meanwhile, was left with severe back injuries that required two surgeries to treat and left him unable to work since the accident.

Sticking to his argument that the lawn worker wasn't an employee, Biagi refused to pay Gamez's medical bills. And when both he and the Second Injury Fund appeared in the formal hearing before the Workers' Compensation Commission (WCC) a year later, the commission found the injury compensable and slapped Biagi with a sanction for frivolously contesting the claim.

At the hearing, medical evidence was admitted showing Gamez had an elevated blood-alcohol level when the accident occurred. But Biagi never brought forth a witness to interpret the results of the blood test and didn't attempt to show that alcohol caused or played a role in the ladder accident.

Biagi appealed the decision to the review board, arguing the workers' compensation commission had no jurisdiction over the decision and asked for a second hearing to determine if Gamez's blood-alcohol level was elevated. He also argued the commission should not have sanctioned him.

The board denied the request, saying intoxication is a defense for compensability but not for jurisdiction and that the employer had made a "tactical error" in not arguing the intoxication defense in his first hearing.

Biagi then went to the Connecticut Court of Appeals arguing that the WCC lacked subject matter jurisdiction because of a change in the law in 1993 and evidence that Gamez-Reyes was intoxicated. The Court of Appeals called this posturing, "novel."

"As a threshold matter, we address the defendant's subject matter jurisdiction argument. 'In speaking of a court in general, we have said . . . [j]urisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. . . . 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. . . . This concept, however, is not limited to courts. Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.' (Citations omitted)."

Biagi relied on an earlier Connecticut Supreme Court case, Del Toro v. Stamford, 270 Conn. 532, 540--41, 853 A.2d 95 (2004), for his jurisdictional argument.

The Del Toro case involved a police officer with a claim of post-traumatic stress disorder after an on-duty shooting resulting in the death of a civilian. The court noted that the workers' compensation statute had previously allowed for compensation based on "mental or emotional impairments" such as the plaintiff's PTSD-based injury. The legislature, however, amended the statute in 1993 specifically to exclude such "mental or emotional impairment" injuries. After examining the statute as amended, the Supreme Court agreed with the defendants that the compensability of a type of injury implicates the "threshold question of whether an entire category of claims falls under the scope of the act."

Del Toro said, "It is important to note that the issue in the present case does not concern the compensability of an individual claim, in terms of a particular employer's liability to its employee on the merits of a specific claim. A broad casting of the term 'compensability' encompasses issues of causation, which clearly do not implicate the subject matter jurisdiction of the commissioner. . . . Rather, in the present case, we are concerned with the compensability of a type of injury and whether the act authorizes the commissioner to award benefits for that type of injury in the first instance."

The court in Gamez-Reyes said that the Del Toro case did nothing to erase the long held rule that intoxication is an affirmative defense for which the defense must present competent evidence.

"The defendant concedes that § 31-284 (a) provides that intoxication of the employee is an affirmative defense of the employer. Nothing in the 1993 amendments leads this court to believe that the legislature intended that the two statutes regarding intoxication in workers' compensation claims would provide for both a subject matter jurisdictional bar, placing the burden on the claimant to establish lack of intoxication, and an affirmative defense, requiring the employer to prove intoxication. Indeed, such a result would be absurd and unworkable."

"This is clearly a case of unreasonable contest," Robert Carter, the attorney for the plaintiff in the case, told WorkCompCentral in an interview. "The appeal was essentially frivolous. They should have just paid the guy."

I'd have to agree with Carter.

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