CRB Case Annotations re: Section 31-355(b)

Claimant was found to be employee of uninsured respondent employer, but underlying claim was dismissed. Employer was subsequently ordered to pay for cost of a commissioner’s exam that had been directed by a commissioner. When employer failed to pay, trier entered § 31-355 order against Fund for $557 cost of exam. CRB held that Fund was required to cover this amount, as § 31-294f directs that employer shall be responsible for cost of exam, and the uninsured respondent was found to be the claimant’s employer. Award had been entered against employer, which was not appealed. Board declined to interpret the term “award” as used in § 31-355(b) to exclude dismissal orders. See, Taylor, § 31-301. Appeal procedure; also cited at Taylor, § 31-294f.

Matey v. Dember, 3848 CRB-7-98-6 (July 7, 1999), aff’d in part and rev’d in part, 256 Conn. 456 (2001).

CRB affirmed trial commissioner’s decision, which denied the Fund’s Form 43 contesting an order to pay pursuant to § 31-355. Fund argued that an order of payment against it pursuant to § 31-355 was improper because no order has ever been entered against a living person or against the executors of the employer’s estate. CRB declined to relitigate these issues as they had already been decided in previous board decisions. In addition, the board did not agree with the Fund’s argument that it has a right to a de novo hearing pursuant to § 31-355(b) where, as here, the Fund participated in the hearings below. Supreme Court agreed that Fund had no right to de novo hearing where it had opportunity to participate in prior proceedings concerning liability, but disagreed in n.11 of its opinion with CRB’s assessment that no award had been entered against the employer.

See, Park, § 31-288 and § 31-343.

CRB reversed § 31-349 transfer, and held that commissioner should have applied § 31-355 (which provides that Fund will pay claim where employer unable to pay). Claimant sustained a second injury which qualified for transfer under § 31-349, however, at time of second injury the employer was uninsured. CRB held that employer could not transfer claim to Fund due to lack of insurance. (Santos, C., dissenting) (there is no requirement in § 31-349 that the employer be insured. Majority is adding a penalty for non-insurance, namely disallowing transfers under § 31-349, which is not contained in the statutes). See also, Champlain, § 31-349.

Second Injury Fund claimed that Chapter 7 discharge of employer in bankruptcy rendered workers’ compensation award null and void, thus precluding § 31-355 claim against Fund. Held, because neither bankruptcy petition nor discharge order specifically addressed claim for workers’ compensation benefits, CRB could not determine whether debt was discharged. Moreover, relationship between individual debtor and employer unclear, as presence of separate legal entity could affect status of claim. Also, CRB noted that Fund had not yet paid benefits despite presence of order to pay award; Fund ordered to comply with order. See also, Walton, § 31-290c.

Hebert v. RWA Roofing & Sheet Metal, 13 Conn. Workers’ Comp. Rev. Op. 43, 1759-CRB-2-93-6, 1899-CRB-2-93-11, 2129 CRB-2-94-8 (December 6, 1994).

Where remand was ordered on separate issue regarding principal employer, but finding of compensability against uninsured immediate employer was not appealed, § 31-355 order against Second Injury Fund remains in effect. See also, Hebert, § 31-291 and § 31-301. Appeal procedure.

Phelan v. Soda Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 53, 1583 CRB-3-92-12 (December 20, 1994).

Purpose of § 31-355 is for the Fund to pay compensation when the employer fails or is unable to pay. The Fund is not liable to pay compensation to injured employee of uninsured subcontractor where trial commissioner finds principal employer liability. See also, Phelan, § 31-291. See later Phelan, § 31-310.

Aubertin v. Pacelli Bros., 12 Conn. Workers’ Comp. Rev. Op. 69, 1381 CRB-1-92-2 (February 3, 1994).

Where employer’s insurance policy is canceled, and employer remains uninsured and fails to pay benefits, statute does not authorize trial commissioner to require the second injury fund to repay insurer who mistakenly paid benefits.

Klutz v. Howard, 10 Conn. Workers’ Comp. Rev. Op. 195, 1188 CRD-4-91-3 (November 5, 1992), aff’d, 228 Conn. 401 (1994).

CRB affirmed trier’s factual finding that Connecticut has jurisdiction over out of state truck driver’s claim under principles outlined in Supreme Court’s decision in Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991). Second Injury Fund requested CRB apply interest analysis rule regarding actual working time spent in Connecticut as decided by our appellate court in Cleveland, 21 Conn. App. 610 (1990). Additionally, Second Injury Fund argued inequitability of Supreme Court’s ruling in Cleveland, 218 Conn. 181 (1991) in that, here, the Fund is forced to assume liability for an uninsured out of state employer. CRB while sympathetic to the Fund’s claim, held that the only available method of change is through legislation.

Altieri v. B.K.S. Excavating, Inc., 10 Conn. Workers’ Comp. Rev. Op. 83, 1146 CRD-3-90-12 (April 10, 1992).

Reversed. Trier failed to allow Second Injury Fund the opportunity to litigate whether a potential principal employer liability claim existed pursuant to § 31-291. The fact that the trial commissioner found B.K.S. Excavating the uninsured employer does not eliminate the need to fully litigate and hear evidence regarding a possible § 31-291 principal employer claim. See also, Altieri, § 31-275(10), § 31-291 and § 31-301. Factual findings.

Altieri v. B.K.S. Excavating, Inc., 10 Conn Workers’ Comp. Rev. Op. 83, 1146 CRD-3-90-12 (April 10, 1992).

Bethune v. A & A Seafood, 9 Conn. Workers’ Comp. Rev. Op. 79, 927 CRD-3-89-10 (February 20, 1991).

CRD vacated order against S.I.F. and remanded matter as statute clearly requires award be made against liable employer first.

McGloin v. Gateway Industries, 5 Conn. Workers’ Comp. Rev. Op. 148, 618 CRD-1-87 (July 26, 1988).

Second Injury Fund not liable for awards of interest entered against an employer due to undue delay.

CRB Case Annotations re: Section 31-355(b)

Employer’s failure to comply with award. Second Injury Fund liability.