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Langham: Definitions, Due Process and Waiver

  • State: Florida
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The Connecticut Appellate Court decision in Melendez v. Fresh Start General Remodeling and Contracting illustrates some interesting aspects of workers' compensation.

Judge David Langham

Judge David Langham

Fresh Start appealed after the Connecticut Workers' Compensation Review Board affirmed a commissioner's decision that ordered benefits be provided to an injured worker. Several issues in the case make it worthy of discussion. 

The injured worker was working for a contracting and remodeling company, but the work was performed at the home of the owner of Fresh Start. Thus, at first blush, the case appears to be a homeowner case. The Fresh Start owner, Michael Gramegna, had elected to do business without purchasing workers' compensation coverage. Gramegna's girlfriend was driving the worker to the home when they were involved in a vehicle accident that resulted in injury. 

The first point is worthy of notice. The employer was ordered to provide workers' compensation benefits. Fresh Start did not have workers' compensation insurance but was ordered to pay nonetheless. Too often, there is a perception that if there is no insurance, benefits under various state programs are not due. That is not generally the case. 

In Florida, "every employer and employee ... shall be governed by" the workers' compensation law. If there is an accident, "the employer must pay compensation or furnish benefits required by" the law. Further, "the employer shall furnish to the employee such medically necessary remedial treatment, care and attendance."

Employers are supposed to "secure the payment of compensation" — that is, obtain insurance or be approved to "self-insure." And there are penalties for employers that do not. But in the end it is the employer that is responsible for providing the employee benefits. 

Gramegna contended that the injured worker was not "an employee" as the term is defined by Connecticut law. That is a pertinent point in itself. Whether a particular person is or is not entitled to benefits under a particular state's laws will depend on that state's laws.

One of the points raised by Gramegna was a factual one, essentially regarding a state law exception under which people who work (1) at "a private dwelling" but not (2) "regularly employed by the owner" and (3) "over 26 hours per week." Using this statutory exception, Gramegna argued that the injured worker was not an employee. 

The commissioner disagreed, concluding that the injured worker had performed work for "approximately 11 weeks." The commissioner did not consider the worker's efforts over a year, or 52 weeks, but only over the 11 weeks of actual work.

The court acknowledged that for a long-term relationship, the amount of time worked should be considered in the window of a 52-week period. But it affirmed the 11-week analysis in this case, noting that when the relationship is shorter than 52 weeks, the appropriate period for analysis is the actual period of the relationship. That analysis revealed a "consistent schedule" that was "four to five days per week" and averaged over "38 hours per week." 

A pertinent lesson from this analysis is that technical arguments may be difficult in workers' compensation cases. A 52-week analysis, when the parties did not have a 52-week relationship, would likely work to bar many claims that otherwise exhibit some merit. The court's analysis essentially acknowledges that equity concern and resolved it in favor of a process that allows the case to be determined on its merits.

The Florida courts have described such as a "public policy favoring disposition of litigation on the merits, rather than upon technical matters of procedure."

The Connecticut Appellate Court noted a second argument raised by Gramegna: that the injured worker "was a casual laborer" and therefore not entitled to benefits. But the court did not consider the substance of that defense. It noted instead that Gramegna had raised the issue and that the commissioner had disagreed. The court held that Gramegna should have filed "a motion to correct the challenged finding," but did not. And because he did not, and did not demonstrate a good reason, he could not raise that issue for appellate consideration. 

In Florida, the parties are required to effectively litigate their issues at trial. They must "preserve" their issues by litigating them fully. That includes the process of seeking rehearing, moving to vacate an erroneous order or otherwise seeking to alleviate any trial court error without the need for an appeal. The decision in a situation such as this would therefore presumably be similar in Florida.

Failing to raise an issue or defense, or failure to alert the trial judge by seeking rehearing regarding a failure to address such, may result in the appellate court concluding the issue or defense is waived. 

Interestingly, this accident occurred during the commute to work. Gramegna's girlfriend, presumably not a coworker at Fresh Start, was driving the injured worker to the home. Often, accidents that are suffered in the process of commuting — while "going and coming" to work — are not covered by workers' compensation. They are excluded by what is referred to as the "going and coming rule." There are exceptions in various states for various employees.

One of particular interest is for police officers, discussed in Police Officers and Course and Scope. But the parties in Fresh Start did not make this commuting situation a primary issue in their dispute. 

Finally, it is notable that the employment relationship between the injured worker and Gramegna began "in the fall of 2011." The motor vehicle accident occurred Jan. 13, 2012. And the appellate decision that finalized the litigation was rendered in 2018, over six years later. Litigation and disputes can require a great deal of time. That is a point worthy of persistently reminding ourselves. 

Of that time, the court noted one point that is worthy of mention: The trial concluded on Nov. 26, 2012. The commissioner issued the "award determination," which in Florida would be a "compensation order" on March 26, 2013 (120 days). In Florida, such an order would have been entered within 30 days, often more quickly than that. It is not clear why a simple trial order would take four months to draft and issue. 

The next fall, Fresh Start complained about the form of the notice provided for the trial, and alleged that Gramegna was therefore deprived of due process. The matter was then essentially retried. On April 30, 2015, about 18 months after that due process issue was raised, the commissioner concluded the record was closed and issued a new "award on June 2, 2015." Thus, the trial determination ultimately required more than four years following the accident. That delay is troubling. 

Though the litigation itself thus required significant time, it is notable that the appellate process thereafter required almost three additional years. The point is that litigation does not move rapidly sometimes.

Consideration of the requirements for due process, for everyone involved to be informed of the process, claims and defenses, can be time-consuming. For the evidence to be developed, documented and presented can take time. To hold a trial, consider the evidence and prepare an order can take time.

However, everyone involved should remain focused on expediting the resolution of the dispute. Everyone should remember that it is not a case, but a person who is being affected. 

David Langham is deputy chief judge of the Florida Office of Judges of Compensation Claims. This column is reprinted, with his permission, from his Florida Workers' Comp Adjudication blog.

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