Opinion
CASE NO. 1196 CRD-7-91-3
SEPTEMBER 14, 1992
The claimant was represented by Judith Rosenberg, Esq., Wolsey, Rosen, Kweskin and Kuriansky.
The respondent Daw's Critical Care Registry was represented by Markus Penzel, Esq., Garrison and Aterton, P.C.
The respondents Darien Convalescent Center and Employers Insurance of Wausau were represented by David C. Davis, Esq., McGann, Bartlett and Brown.
The Second Injury Fund represented at the trial level by Brewster Blackall, Esq., Assistant Attorney General, filed no brief and did not appear at oral argument.
This Petition for Review from the March 4, 1991 Finding and Order of the Commissioner for the Seventh District was heard February 21, 1992 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Jesse Frankl and George Waldron.
OPINION
This matter was the subject of our previous April 27, 1990 ruling, Halliday v. Daw's critical Care Registry, 8 Conn. Workers' Comp. Rev. Op. 74, 797 CRD-7-88-12 (1990). We ordered remand because of inconsistent factual findings and conclusions. In his original December 6, 1988 Finding and Award, the trial commissioner found claimant was a nurse who sustained injuries to her neck, back and right shoulder on March 17, 1988 at the respondent Darien Convalescent Center (hereinafter Darien). She was regularly employed elsewhere but also registered for extra nursing assignments with the respondent Daw's Critical Care Registry (hereinafter Daw's). Daw's was in the business of furnishing nurses to hospitals and nursing homes from its roster of nurses. Upon receipt of client's request to fill a vacancy, Daw's contacted a nurse on its registry who was then free to accept or reject the work assignment. If the nurse accepted the assignment, Daw's exercised no control over the nurse but did pay her and thereafter billed the medical care facility at a rate in excess of that which was paid to the nurse. The respondent Darien was a Daw's client, and it was through Daw's registry that Darien obtained the services of the claimant.
The original 1988 Finding and Award concluded claimant was not an employee of the respondent Daw's but was an independent contractor. The trier also found that claimant was not an employee of the respondent Darien. He then concluded that the respondent Darien was a principal employer and found Darien and its insurer liable for Chapter 568 benefits. This tribunal remanded holding that there must be an employer-employee relationship with one of the entities or else jurisdiction under the Workers' Compensation Act did not exist.
On remand the commissioner held further proceedings and rendered a Finding and Order March 4, 1991. In the 1991 ruling the commissioner found claimant was an employee of the respondent Darien at the time of her March 17, 1988 injury. He also found claimant filed a proper written notice of claim and as neither of the respondents filed a timely disclaimer pursuant to Sec. 31-297(b), the claimant's Motion to Preclude defenses should be granted. He awarded claimant ten percent (10%) interest on the sums due her.
Darien's appeal raises the following issues: (1) the trial commissioner lacked subject matter jurisdiction, (2) the granting of preclusion violated substantive and procedural due process, (3) granting the Motion to Preclude was without an evidentiary basis and (4) it was error to grant interest at ten percent under Sec. 31-300.
At the outset we note that the respondent, Daw's Critical Care Registry, Inc. filed a Motion to Dismiss from Appeal dated April 15, 1991. At oral argument, the panel granted the respondent's Motion.
Respondents' subject matter jurisdiction attacks the trial commissioner's finding that claimant was an employee of Darien. In our prior decision directing further proceedings at the district level we referred to Kaliszewski v. Weathermaster Alsco Corp., 148 Conn. 624 (1961) and its analysis of the principles involved in the determination of whether an employer-employee relationship existed. Following this directive, the commissioner after further proceedings articulated his factual findings and concluded that claimant was an employee of the respondent Darien. See Paragraph 18 and 19C of the March 4, 1991 Finding and Order.
Whether an employer/employee relationship existed is a factual determination. Castro v. Viera, 207 Conn. 420 (1988). An appellate tribunal cannot disturb such a factual conclusion unless without evidence, based on unreasonable or impermissible factual inferences, or contrary to law. Id. at 434-35.
The trier found that claimant was under the exclusive direction and supervision of Darien while engaged in her work activities at that facility. He also found that Darien supplied the claimant with all materials, equipment, etc. needed by her the performance of her duties. (The claimant did supply her own uniform). See Paragraph 18 of the March 4, 1991 Finding and Order. There was evidence which supported the trial commissioner's factual findings. See October 27, 1988 TR at 14-23, 21-23, 35, 40, 65, 66, 87-91.
Consequently it cannot be said that it was error to conclude that claimant was an employee of the respondent Darien. Once the employer/employee relationship is established, the existence of subject matter jurisdiction a fortiorari, follows. See Halliday I citing Castro v. Viera 207 Conn. 420 (1988).
Respondents' next two points concern granting claimant's Motion to Preclude. In paragraphs 16 17 of his March 4, 1991 Finding and Order the trial commissioner found the following:
"The claimant, by notice dated May 10, 1988, proper in form and content and served in a manner prescribed by statute, made claim for workers' compensation benefits against both DAW's and DCC.
Neither Daw's nor DCC filed, within the time allowed by statute, a written notice of intent to contest liability to pay compensation herein, and claimant filed a Motion to Preclude against each of them."
Respondents contend that the commissioner's factual findings supporting the granting of the Motion to Preclude are wholly without a basis in evidence. But the legislature in 1967 when it enacted Sec. 31-297(b) establishing an irrebuttable presumption of compensability if the employer failed to file specific defenses within the statutory period was creating a summary proceeding, a judgment by default. A motion for preclusion of defenses under that statute is similar to motions for summary judgments in the courts. For this reason the Commission in 1987 adopted its Administrative Regulation, Sec. 31-297(b)-1 governing the procedure for the filing of such motions together with accompanying documentation. That same Regulation provides that "The adverse party prior to the date set for hearing on such motion shall file opposing affidavits and any further documentation and memoranda of law." It is true that Castro v. Viera, does require an evidentiary hearing, but that is only when jurisdiction is at issue. Otherwise Sec. 31-297(b) only contemplated summary proceedings on the basis of filing the documents listed in the Administrative Regulation.
So it was not error for the commissioner to grant preclusion without an evidentiary hearing. But the problem is that our search of the record and the district file does not reveal that a Motion to Preclude was actually filed by claimant. Claimant's counsel in the 1987 hearings did state that she planned to file such a pleading. The district file does contain a photostatic copy of such a motion, and the copy does refer to the fact that respondents were served with notices of claim which they failed to contest, but it does not appear that the motion was actually filed in compliance with Administrative Regulation Sec. 31-297(b)-1. Had one been filed, the respondents would have been permitted the opportunity to file a responsive pleading and documentation. Absent that, we most agree that administrative due process was not observed, but not because no evidentiary hearing was held.
The last point concerns the rate of interest awarded by the commissioner pursuant to Sec. 31-300 as amended by Public Act 89-316, Sec. 1. Respondent's argument is that the increased rate should not be applied retroactively. Annechiarico v. Friendly Ice Cream Co., 6 Conn. Workers' Comp. Rev. Op. 18, 640 CRD-7-87 (1988) would seem to indicate otherwise. The award of interest seems a procedural matter. If the matter comes before this tribunal on further appeal, the respondent should support its argument with a more extensive brief.
Because it appears that the procedure specified in Administrative Regulation Sec. 31-297(b)-1 was not followed prior granting preclusion of defenses, the matter is remanded for further proceedings consistent with this opinion
Commissioners Jesse Frankl and George Waldron concur.