Opinion
CASE NO. 5573 CRB-5-10-7CLAIM NO. 500135165
OCTOBER 19, 2011
This Petition for Review from the June 30, 2010 Finding and Dismissal of the Commissioner acting for the Fifth District was heard April 29, 2011 before a Compensation Review Board panel consisting of Commissioners Scott A. Barton, Christine L. Engel and Ernie R. Walker.
We note that a postponement and extensions of time were granted during the pendency of this appeal.
The claimant was represented by Andrew J. Hern, Esq., Law Offices of Andrew J. Hern, 221 Main Street, Hartford, CT 06106 and Meryl Anne Spat, Esq., P.O. Box 2476, Waterbury, CT 06722 who appeared as co-counsel.
The respondents were represented by Gerald V. Davino, II, Esq., Adelson, Testan, Brundo Jimenez, 2080 Silas Deane Highway, Suite 304, Rocky Hill, CT 06067.
OPINION
This case involves an appeal from the denial of § 31-306 benefits occasioned by the death of a Connecticut resident who was working out-of-state. The decedent, Alex Springer, was an interstate truck driver employed by the respondent J.B. Hunt at a Virginia terminal who died while working for the firm in West Virginia. His dependent spouse, Donna Springer, filed a claim in Connecticut asserting that our state had concurrent jurisdiction over the decedent's fatal injury. She argued the decedent's employment had a significant relationship with Connecticut, which was disputed by the respondents. The trial commissioner denied the claim, finding the decedent's employment relationship with Connecticut was not significant enough to confer subject matter jurisdiction. On appeal, we affirm the trial commissioner's decision. We find she appropriately applied the applicable law to the facts, and her decision was driven in large part by resolving factual issues in a manner adverse to the claimant.
The trial commissioner found the following facts which are pertinent to the issues in this appeal. The parties stipulated that the decedent died in a truck accident on June 12, 2004 which occurred in West Virginia while in the course of the claimant's employment. Mrs. Springer testified that her husband had lived in Connecticut his whole life and was employed as a commercial truck driver. He applied for a job with J.B. Hunt over the Internet and, after receiving a phone call, traveled to their New Jersey facility for training. Mrs. Springer said the decedent filled out all the requisite employment paperwork in New Jersey and did not execute any forms at their Norfolk, CT home. Once hired by J.B. Hunt, Mrs. Springer testified her husband drove for Family Dollar Tree stores. She testified his typical workweek was Monday through Friday and when not home he slept in his truck at the terminal in Front Royal, Virginia. She testified her husband's truck was loaded in Virginia on Fridays and he would drive back to Connecticut by Saturday afternoon. She further testified her husband may have "fudged" his travel records for the employer. She said her husband made a deal with a man named "George" to park the J.B. Hunt truck on his property near their home over the weekend until he started making deliveries on Monday. She testified the claimant paid out-of-pocket for the parking fees and was not reimbursed by the respondent. She also testified her husband did not work while the truck was home on the weekends and was not paid for any work during this time period.
The claimant submitted evidence that J.B. Hunt withheld Connecticut income taxes from the decedent's pay. The decedent worked for J.B. Hunt for about ten weeks prior to his demise. He received $150 gross pay for his three day orientation in New Jersey.
Wesley Griffin, the litigation manager for J.B. Hunt, testified on behalf of the respondents. He testified about the hiring process at J.B. Hunt. The policy was that an initial phone call was made to ascertain if the potential applicant had the minimum qualifications for the job. At that point a background check was ordered. The firm would not made a conditional offer of employment until the background check was completed and had favorable results, the candidate passed medical and drug screening, and the candidate passed a road test. Once all of these steps are successfully completed at the end of the orientation, an applicant is deemed hired dating back to the beginning of orientation.
In the case of the decedent, he was invited to a three day orientation at the firm's New Jersey facility where he filled out an application. He took a road test while in New Jersey and underwent medical and drug screening. Having successfully completed these steps he was deemed hired as of his first day of orientation. At that point the decedent had to choose whether to accept an "over-the-road" position with the firm or a "dedicated contract services accounts" (DCS) position. While "over-the-road" drivers were randomly assigned to driving assignments across the lower 48 states, DCS drivers worked a specific contract with a specific customer at specific locations to provide transportation needs for that location. DCS drivers only made deliveries for that one shipper out of an assigned dispatch facility. The decedent was hired as a DCS driver for Family Dollar Tree operating out of their Front Royal, Virginia facility.
During the decedent's time working for J.B. Hunt, all his routes began and ended at the distribution center in Virginia where his truck was loaded. Regardless of where a subject driver lived, they would make round trips beginning at their distribution center to pick up their merchandise and return to that distribution center with their empty trucks to refill for the next trip. Mr. Griffin testified that the respondent did not require that Mr. Springer live in Connecticut, nor did the Family Dollar Tree account he was assigned to necessitate that he live in Connecticut. He testified that J.B. Hunt had a DCS account within Connecticut, which was at a Staples facility in Dayville, but the decedent never worked out of this facility and the Family Dollar Tree account in Front Royal, Virginia, was completely separate and independent from any other Family Dollar Tree store elsewhere in the country or from other J.B Hunt DCS accounts. At the time of the 2004 accident J.B. Hunt did not maintain any orientation facilities in Connecticut, did not maintain any dispatch facilities for the Family Dollar Tree accounts in Connecticut, and did not have any maintenance or repair facilities in Connecticut.
Mr. Griffin testified as to the decedent's activities for J.B. Hunt. After receiving $150 gross pay for his orientation in New Jersey, the decedent picked up his first trailer for J.B. Hunt on April 9, 2004 in Front Royal, Virginia. He made his first deliveries in Connecticut on April 12 and returned the truck to Virginia that day. The remainder of that week he worked outside Connecticut. Mr. Griffin testified that the claimant would stop at Connecticut stores and make deliveries along a multistate route; but for a three week period commencing May 9 the claimant made no deliveries within Connecticut. On Sunday, May 30 the decedent picked up a load of merchandise in Virginia and made three deliveries to Connecticut on Monday, May 31, 2004 (Norwich, Groton, and New London). He returned to Virginia on June 1, 2004, and spent the rest of the workweek making pickups and deliveries outside of Connecticut. The claimant then performed all his deliveries for J.B. Hunt outside Connecticut until his demise on June 12, 2004. Mr. Griffin summarized the record as follows: the decedent made deliveries in Connecticut on five of the 65 calendar days he worked for J.B. Hunt. Five of the 30 stores that received deliveries from the decedent were within Connecticut. Connecticut stores received 12 deliveries from the decedent of the 72 deliveries in total he made while working for J.B. Hunt.
George Auclair testified as to the circumstances as to the decedent parking his truck while in Connecticut. He said the decedent paid him $100 per month in cash for the right to park his truck on his land for April and May 2004. There was no written agreement as to the relationship and no evidence that J.B. Hunt agreed to the transaction. Mr. Auclair said the decedent would park his truck in an unfenced gravel lot that had no security cameras, and Mr. Auclair said he doubted the decedent could have seen the truck from his house when it was parked there.
Michael Lucente of the Connecticut Department of Labor testified at the formal hearing. He testified that his unit registers employers for unemployment tax in the state of Connecticut, but the records did not go back far enough to cover the 2004 period prior to the accident. He was shown a 2004 Virginia tax form wherein J.B. Hunt paid unemployment compensation tax to the State of Virginia for the decedent. Based on this exhibit, it was Mr. Lucent's belief that similar taxes were not paid to the State of Connecticut in 2004 for Mr. Springer.
The trial commissioner further found that J.B. Hunt maintains its principal place of business in the state of Arkansas and generated less than 1% of its overall revenue from business conducted within the state of Connecticut during 2004. Based on these subordinate facts the trial commissioner concluded the decedent's injury occurred outside the state of Connecticut and therefore, the place of injury cannot be a basis for finding Connecticut has jurisdiction over this claim. She further reviewed the circumstances as to the decedent being hired by J.B. Hunt. She found the place of the employment contract was in New Jersey and that Connecticut jurisdiction could not be found under that approach. The trial commissioner concluded that all of the decedent's delivery routes began and ended in Virginia and the decedent never picked up any merchandise in Connecticut. She found that all of the J.B. Hunt drivers on the account the decedent worked on were managed out of the Virginia facility; which was separate from any other dedicated account operated by the respondent. The trial commissioner did not find the position of the claimant's attorney in regards to his calculation of the decedent's trips and mileage to and from Connecticut persuasive. The trial commissioner also concluded that less than 1% of the respondent's revenue and less than 1% of the mileage driven by the respondent's trucks in 2004 were generated in Connecticut. Based on the totality of the evidence submitted, and applying the appropriate Connecticut appellate precedent the trial commissioner found the claimant/dependent widow failed to meet her burden that a significant relationship existed between her late husband's employment and the State of Connecticut. As a result, the trial commissioner dismissed the claim for lack of jurisdiction.
The claimant filed a Motion to Correct seeking 44 separate corrections of the findings. The trial commissioner granted two corrections which did not materially change the terms of the Finding and Dismissal. The claimant has pursued this appeal. Her argument centers around her belief that the decedent's work for J.B. Hunt constituted a significant relationship with the state of Connecticut. She believes the trial commissioner failed to credit that the weight of the evidence supported a finding of jurisdiction. We are not persuaded that the trial commissioner erred in what is essentially a judgment call on her part.
We note there are many similarities in this case with a recent compensation review board case, Zolla v. John Cheeseman Trucking, Inc., 5261 CRB-5-07-8 (August 4, 2008), appeal dismissed, A.C. 30251 (March 5, 2009). In Zolla the trial commissioner found Connecticut had jurisdiction over an injury the claimant suffered in New Jersey while employed by a trucking firm with headquarters in Ohio. We affirmed that decision, finding that under the facts in that case Connecticut had a significant relationship with the claimant's employment. We find our legal analysis in Zolla is applicable herein. We also believe a review of the facts in Zolla explain how the trial commissioner in this case could have reasonably reached a differing result on the issue of Connecticut jurisdiction.
In Zolla we reviewed a number of the cases relied on by the claimant such as Jaiguay v. Vasquez, 287 Conn. 323 (2008) and Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 182 (1991). We cited Jaiguay as establishing a three prong test to determine Connecticut jurisdiction.
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.
Jaiguay, supra, 346.
Both in Zolla and in the present case the first two prongs of the test were not met. Both injuries occurred outside the state of Connecticut and in both cases the place of the employment contract was at a facility the respondent operated outside Connecticut. We determined the third prong of the test was met in Zolla for the following reasons:
For that reason we find the claimant's citation of Healey v. Hawkeye Construction, 124 Conn. App. 215 (2010) inapposite. The Appellate Court in Healey found that the place of the employment contract in that case was within Connecticut, thus conferring jurisdiction on the Commission. Id., 226. The record herein would not have permitted the trial commissioner to have reached that conclusion.
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.
Zolla, supra.
We further discussed in Zolla that the claimant was directed from a Connecticut terminal which served as the claimant's base of operations. This constitutes a material difference from the facts in the present case. The decedent herein commenced and ended all of his assignments for J.B. Hunt at the Front Royal, Virginia facility which was dedicated to the Family Dollar Tree account. While evidence was presented that the decedent parked his truck at George Auclair's lot in Connecticut, there was no evidence presented that the trial commissioner found probative that this was done at the direction of the respondent, or even with their consent. The trial commissioner specifically rejected proposed Correction, ¶ 12 which would have found the respondents consented to this arrangement. Indeed, the respondents presented evidence (Respondent's Exhibit,
¶ 12) that parking a loaded trailer at an unsecured location such as the Auclair lot was a violation of company policy. As a result, we may infer the trial commissioner rejected the argument that Connecticut constituted a base of operations for the decedent's employment with the respondent. See, contra, Owen v. Diversified Hospitality Group, Inc., 4204 CRB-3-00-3 (July 25, 2001), where the decedent's base of operations for the respondent was in Connecticut and we found Connecticut had jurisdiction over the claim.
The parties disputed when the decedent parked the J.B. Hunt truck on the Auclair lot. The trial commissioner concluded, based on the testimony of Mrs. Springer, that the decedent "fudged" his travel logs. Findings, ¶ K. The claimant argues the decedent's truck was parked in Connecticut over the weekends. The respondents presented evidence in the form of computer generated logs (Respondents' Exhibits, ¶¶ 2 3) they claim substantiate their position the decedent's truck was generally loaded on Sundays in Virginia and driven back to Connecticut to commence deliveries during the work week. The trial commissioner rejected a Correction sought by the claimant (Correction, ¶ 10) which would have found the truck was loaded on Fridays in Virginia and parked in Connecticut over the weekends. We may infer the trial commissioner did not find the supportive evidence for this position persuasive. SeeBrockenberry v. Thomas Deegan d/b/a Tom's Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff'd, 126 Conn. App. 902 (2011) (Per Curiam).
While the base of operations for the decedent may have been at the respondent's out-of-state facility we do believe the claimant's attorney correctly cites Cleveland, supra, and Jaiguay, supra, that the appropriate standard to determine whether Connecticut has jurisdiction over these types of claims is not whether Connecticut had the most significant relationship to the claimant's employment, but whether it was "sufficiently significant" enough to confer jurisdiction. Even had the decedent worked for an out-of-state firm and sustained injuries out-of-state, a trial commissioner may find based on the evidence presented, that Connecticut is the "place of the employment relationship." It is clear the relationship between the decedent's employment and Connecticut in this case was substantially less significant than the relationship the claimant's employment had with our state in the Zolla case. On the other hand, it appears the relationship could reasonably have been found to be greater than what Justice Katz termed " at most, a peripheral relationship to the employment . . ." in her opinion in Burse v. American International Airways, Inc., 262 Conn. 31, 40 (2002). Considering the totality of the evidence, the trial commissioner concluded the decedent's employment relationship with
In Burse v. American International Airways, Inc., 262 Conn. 31 (2002) the Supreme Court overturned this Commission's finding it had jurisdiction over an out-of-state injury suffered by a Connecticut resident. The Supreme Court concluded the respondent had no physical presence in Connecticut 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. The Supreme Court held these contacts were not significant enough to cause Connecticut jurisdiction to affix to the claim.
We believe the clamant raises a valid concern that applying the percentage of revenue a firm earns in Connecticut to ascertain whether jurisdiction is present, as was done in Burse v. American International Airways, Inc., 262 Conn. 31 (2002), could yield untenable results in certain circumstances. In Burse it appeared the respondent was not one of the leading firms in the airline industry, and such a calculation as to Connecticut's relative importance to the firm's revenue was a sound approach to determining whether the claimant's employment in Connecticut was sufficient to create jurisdiction. While respondents herein assert they derive only 1% of their revenue from Connecticut, similar to the respondent in Burse, we question whether this standard is appropriate for very large national or multinational firms. We take administrative notice that as of the 2010 census Connecticut had 3,574,097 residents out of a national population of 308 million; about 1.2% of the nation's population. (www.2010census.gov) We also note that for the purposes of a nationwide trucking firm, Connecticut is not one of the states with the largest amount of highway miles; as only 346 miles of the 46,726 miles Interstate Highway system is located within Connecticut (0.7%) (www.fhwa.dot.gov/reports/routefinder). In the present case, however, we find any reliance on J.B. Hunt's overall corporate revenue to be at most harmless error. Peters v. Corporate Air, Inc, 14 Conn. Workers' Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995). The trial commissioner clearly had other evidence relevant to the relative significance of Connecticut to the claimant's employment to support her factual findings. Numerous findings focused on the claimant's level of activity within the state of Connecticut, which we believe is more probative as to whether we possess jurisdiction.
Connecticut was not significant enough to confer jurisdiction.
The claimant and the respondent utilized different methodologies to calculate the amount of time the decedent spent working in Connecticut for the respondent. The claimant suggests that we apply the number of times the decedent's truck route crossed through Connecticut on the way to other states, and the amount of mileage accumulated in other states to arrive at Connecticut locations in order to determine the level of activity the decedent had within the state of Connecticut. See Claimant's Brief, pp. 12 and 23, and Claimant's Motion to Correct, Corrections, ¶¶ 3-5. The respondents persuaded the trial commissioner the more relevant standard was the actual number of deliveries the decedent made to Connecticut stores and the number of days he spent in Connecticut making those deliveries. See Conclusion, ¶ J. These standards indicate that the decedent's work activity within Connecticut constituted between 7.7% and 16.67% of his total activity on behalf of the respondent.
The claimant relies on Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 182 (1991) as supporting a finding of Connecticut jurisdiction. However, in Cleveland the trial commissioner found the claimant in that case spent "35 to 40%" of his work time in Connecticut. In addition, the claimant's injury in Cleveland occurred in Connecticut. Even applying the claimant's methodology, it appears the decedent spent appreciably less of his work time that the claimant in Cleveland making deliveries to Connecticut locations for the respondent. See Claimant's Brief, p. 12, where it was estimated 25% of the miles amassed by the decedent working for J.B. Hunt could be allocated to deliveries at Connecticut locations.
There is no precedent on the issue of how a trial commissioner may best ascertain what activities on an employee's part should be considered in determining whether his or her work in Connecticut was a substantial part of their overall employment. While the methodology submitted by the claimant would provide a reasonable means to reach such a determination, we find the respondent's methodology was also a reasonable means to make such a determination. The trial commissioner found the respondent's approach more persuasive and that was her prerogative. We must extend deference to this decision. Daniels v. Alander, 268 Conn. 320, 330 (2004). We also must extend deference to her decision that the level of activity the decedent engaged in for J.B. Hunt within Connecticut was not sufficiently significant to confer jurisdiction. We find a case on point that evaluated what would constitute a "substantial factor" in the realm of medical causation.
In Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008), the claimant presented evidence that a work-related injury was among three factors that necessitated surgery. He argued the trial commissioner erred in not determining the work-related injury was a "substantial factor" when the commissioner's examiner opined it was a 15% factor in the need for surgery. Our decision in Weir, relying on O'Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999), delineates the latitude a trier of fact has when determining whether a factor is substantial.
It is clear that the commissioner's examiner attributed the least weight to the September 2004 injury of the three factors at hand. We also note that claimant's counsel may have inadvertently defined the issue before this panel when, at Dr. Langeland's deposition, counsel explained the "substantial factor" test to the witness.
And there's no percentage. You know, it's not that it has to be more than 50 percent to be a substantial factor. It just needs to be substantial and it's really for the Workers' Comp. Commissioner to determine what is or is not substantial. Joint Exhibit, p. 22. (Emphasis added.)
Counsel herein was entirely correct. Whether or not a factor behind the need for surgery is "substantial" is a matter left to the discretion of the trial commissioner, as "it is the trial commissioner's function to assess the weight and credibility of medical reports and testimony. . . ." O'Reilly, supra, 818.
Weir, supra.
We find the facts in this case establish the decedent worked for a firm based outside of Connecticut. The decedent's center of operation with that firm was at a facility outside Connecticut. Connecticut was but one of a number of states in which the decedent performed work for the respondent. The decedent had not made a delivery to a Connecticut location or picked up any merchandise in Connecticut in the week prior to his demise. We cannot find as a matter of law that the level of activity the decedent had in Connecticut was inherently "sufficiently significant" to confer jurisdiction under Chapter 568. The trial commissioner determined it was not, and pursuant to the precedent inWeir, we must respect that decision.
Compare with Zolla v. John Cheeseman Trucking, Inc., 5261 CRB-5-07-8 (August 4, 2008), appeal dismissed, A.C. 30251 (March 5, 2009) where the claimant had picked up a load of merchandise in Connecticut immediately prior to his injury in New Jersey.
In the Finding and Dismissal, the trial commissioner found the respondents had represented that they had accepted responsibility for the claim pursuant to Virginia jurisdiction and had been advancing widow benefits subsequent to the accident in accordance with Virginia law.
This case was dependent on evaluating and weighing the facts presented. We may intercede only if the conclusion reached by the trial commissioner was "clearly erroneous" by lacking evidence, misapplying the law or reaching an improper inference. Berube v. Tim's Painting, 5068 CRB-3-06-3 (March 13, 2007). We believe the trial commissioner reached a reasonable conclusion herein consistent with the law. The Finding and Dismissal is herein affirmed. The appeal is dismissed. Commissioners Christine L. Engel and Ernie R. Walker concur in this opinion.
The claimant argues it was error to have credited the testimony of Michael Lucente. We are not persuaded this constitutes error as this witness testified subsequent to the claimant originally attempting to seek information as to where taxes were paid on the decedent's behalf by the respondent. We note that even if this testimony was immaterial, there is no error, as the trial commissioner relied on other evidence in her Finding and Dismissal.
We uphold the trial commissioner's denial of the corrections in the claimant's Motion to Correct which she denied. Those corrections sought to interpose the claimant's conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D'Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002).