Marroquin v. Masonry, No. 30692.

121 Conn.App. 400

994 A.2d 727

Dennis MARROQUINv.F. MONARCA MASONRY et al.

No. 30692.

Appellate Court of Connecticut.

Argued Oct. 26, 2009.

Decided June 1, 2010.

COPYRIGHT MATERIAL OMITTED

David A. Kelly, Glastonbury, CT, for the appellant (defendant MRI Construction, Inc.).

Timothy G. Zych, for the appellees (named defendant et al.).

FLYNN, C.J., and ROBINSON and SULLIVAN, Js.^*

FLYNN, C.J.

This workers' compensation appeal arises out of a dispute between two employers, F. Monarca Masonry (Monarca) and MRI Construction, Inc. (MRI), both defendants in this case,¹ as to which of them is responsible for surgical and indemnity benefits arising from two surgical procedures that the nonappearing plaintiff, Dennis Marroquin, (claimant) underwent after experiencing severe pain on September 20, 2004. MRI appeals from the decision of the workers' compensation review board (board) affirming the findings and conclusion of the workers' compensation commissioner (commissioner), in which the commissioner found that the claimant's surgeries on October 15, 2004, and June 10, 2005, were related to an earlier injury he suffered on June 21, 2001, while he was employed by MRI and were not related to an alleged new injury sustained on September 20, 2004, while he was employed by Monarca. In accordance with these findings, the commissioner ordered MRI to reimburse Monarca $51,535 for medical and indemnity benefits that it had paid on behalf of the claimant. On appeal, MRI claims that the board improperly affirmed the decision of the commissioner: (1) ordering MRI to reimburse Monarca for moneys that it had paid to, or on behalf of, the claimant when the commissioner was without statutory authority or subject matter jurisdiction to make such an order and (2) that no second injury had occurred to the claimant on September 20, 2004. We affirm the decision of the board.

The following facts are not in dispute. On June 21, 2001, the claimant suffered an inguinal hernia in his left groin while employed by MRI. He underwent surgery to repair the hernia, wherein surgical mesh was used to reinforce the injured area. This injury was work related, and the claim was administered by Eastern Casualty Insurance Company (Eastern), MRI's workers' compensation insurance carrier. On September 20, 2004, the claimant, while working for Monarca, was standing on scaffolding as he turned his body in an awkward manner while attempting to retrieve some cinder blocks, each weighing approximately thirty-seven pounds, from overhead. When attempting to get the third block, the claimant felt a pop in his groin and experienced sharp pain. Upon investigation of the groin area, the claimant found a large bulge, which he showed to his supervisor who told him to seek immediate medical attention. The claimant went to St. Vincent's Immediate Health Care Clinic and then to St. Vincent's Hospital, where he was admitted and treated nonsurgically. His diagnosis was acute diverticulitis and a possible hernia in the left groin. The claimant was discharged from the hospital three days later and was referred to the surgical clinic for further treatment.

On October 15, 2004, Vincent P. Donnelly, a surgeon at St. Vincent's Medical Center, performed a surgical exploration of the left inguinal area where he discovered marked inflammation and hard scar tissue. He also discovered that the mesh that had been used in the 2001 hernia surgery had migrated out of the inguinal region. Dr. Donnelly, however, did not find a recurrent or a new hernia. After thoroughly exploring the groin area and removing as much of the mesh as he could during this procedure, he ended the surgery, and the claimant was discharged from the hospital later that day. Dr. Donnelly opined that, although the claimant said he first felt the bulge after lifting the cinder block on September 20, 2004, he likely had had the bulge for some time prior to that date.

On October 18, 2004, the claimant returned to St. Vincent's Hospital with an infected wound, which was treated, and antibiotics were prescribed for him. The claimant continued to go to St. Vincent's Surgical Clinic for treatment of pain and for drainage of his infected wound through December, 2004. Dr. Donnelly suggested further surgery to remove the remaining mesh, and, on June 10, 2005, Dr. Donnelly performed a second surgery to remove the remaining mesh, which was infected, and to repair a perforation of the colon, apparently caused by the mesh. Dr. Donnelly testified, and the commissioner found, that “the mesh plug from the first injury caused the fistula from the colon into the mesh in the groin, which caused the chronic infection, and the presence of the diverticulosis was incidental.” As a result of the claimant's surgeries, Monarca and its insurer, Travelers Indemnity Company, paid $51,535 in medical and indemnity benefits associated with the claimant's workers' compensation claim.

On January 9, 2006, Monarca filed a request for an informal hearing before the commissioner seeking reimbursement from MRI for moneys it had expended on behalf of the claimant; a preformal hearing request and a formal hearing request followed on January 9, 2006, and July 9, 2007, respectively. The issue, as set forth by the commissioner in her November 26, 2007 finding and award, was “[w]hether Eastern ... is obligated to reimburse ... Travelers for medical and indemnity benefits arising from the October 15, 2004 and June 10, 2005 surgeries under General Statutes § 31-299b.”

In her written decision, the commissioner found that “the claimant did not sustain a new inguinal hernia as a result of the September 20, 2004 lifting incident” and that the cause of the bulge or mass found in the claimant's groin was due to the mesh put in place during the claimant's prior hernia surgery on June 21, 2001. Specifically, she explained that “the mesh plug from the 2001 surgery caused the fistula from the colon into the mesh in the groin which caused the chronic infection, and that the presence of the diverticulosis was incidental. Thus ... the mesh plug from the 2001 hernia surgery caused the fistula from the colon into the mesh in the groin which caused the infection and the subsequent need for the October 15, 2004 surgery.” She concluded that this also caused the need for the additional surgery on June 10, 2005. The commissioner did not find persuasive Dr. Donnelly's opinion that the claimant's infection arose out of the September 20, 2004 lifting incident. Rather, she found that the infection, the fistula and the mass, which resulted in the need for the surgeries performed by Dr. Donnelly, were caused by the mesh put in place during the 2001 surgery and, thus, that the claim for benefits was the responsibility of MRI and its insurer, Eastern. The commissioner then ordered MRI and Eastern to reimburse to Monarca and its insurer, Travelers Indemnity Company, the sum of $51,535, which they had paid on the claimant's behalf. MRI thereafter filed a motion to correct the finding and award, which the commissioner denied.

MRI appealed to the board from the commissioner's denial of the motion to correct and from her finding and award. On December 19, 2008, the board affirmed the decisions of the commissioner. This appeal followed.

I

MRI claims that “there exists no subject matter jurisdiction or statutory authority under General Statutes § 31-299b, or any other provision of the Connecticut Workers' Compensation Act [act], General Statutes § 31-275 et seq., permitting a [c]ommissioner to order one employer/carrier to reimburse another employer/carrier for benefits that the later employer/carrier has already accepted as compensable and paid to the [c]laimant in connection with a recurrent injury.” We conclude that the commissioner had both subject matter jurisdiction over the case and the authority to order MRI to reimburse Monarca for moneys it expended on the claimant's behalf.²

“Jurisdiction of the subject-matter is the power ... 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.... 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.... As our Supreme Court has explained, certain jurisdictional facts are essential to establish the statutory jurisdiction of tribunals of limited authority. The existence of these facts is fundamental to the power to entertain and adjudicate a proceeding on the merits. In short, such facts condition the power to act.” (Citation omitted; internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, 103 Conn.App. 571, 576-77, 930 A.2d 739, cert. denied 284 Conn. 930, 934 A.2d 245 (2007). Furthermore, once subject matter jurisdiction is questioned, the jurisdictional question generally must be resolved before the substantive issues of the appeal are addressed. See Conboy v. State, 292 Conn. 642, 652-53, 974 A.2d 669 (2009). “[A] determination regarding [an agency's] subject matter jurisdiction is a question of law....” (Internal quotation marks omitted.) Dept. of Public Safety v. Freedom of Information Commission, supra, at 576, 930 A.2d 739.

In the present case, MRI contends that the commissioner did not have subject matter jurisdiction to order MRI to reimburse Monarca. MRI does not argue that the commissioner could not hear the case, only that she could not enter the order that she entered. We conclude that such a claim relates to the authority of the commissioner, not to the jurisdiction of the commissioner, and we further conclude that the commissioner had subject matter jurisdiction over the case.

“The primary statutory provision establishing the subject matter jurisdiction of the commissioner...