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Santos v. F.D. Rich Construction Company

CASE NO. 1358 CRD-7-91-12

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 2, 1994

LUIS DOS SANTOS a/k/a LOUIS SANTOS

CLAIMANT-APPELLEE

v.

F.D. RICH CONSTRUCTION COMPANY

EMPLOYER

and

UNITED STATES FIDELITY AND GUARANTY COMPANY

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by John D. Guman, Jr., Esq., Guman & Del Percio, P.O. Box 9437, Bridgeport, Connecticut 06601.

The respondent was represented by Serge G. Mihaly, Esq. and Richard Kascak, Esq., Mihaly, Mihaly & Kascak, 925 White Plains Road, Trumbull, Connecticut 06611.

The Second Injury Fund was represented by Howard Levine, Esq. and Robin L. Wilson, Esq., Assistant Attorneys General, 55 Elm Street, P.O. Box 120, Hartford, Connecticut 06141-0120.

This Petition for Review from the December 18, 1991 Finding of the Commissioner for the Seventh District was heard December 18, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents have petitioned for review from the December 18, 1991 Finding of the Commissioner for the Seventh District. In that Finding the trial commissioner held that respondents, F.D. Rich Construction Co., Inc. and United States Fidelity and Guaranty Company did not comply with the statutory requirements in Sec. 31-349(a) as to the notice requirements for the transfer of liability to the Second Injury Fund. The commissioner found that respondents failed to file with the Second Injury Fund both the notice and the executed and approved voluntary agreement within the time period prescribed in Sec. 31-349(a). Transfer of liability was therefore denied. Additionally the commissioner concluded that the necessary elements of estoppel were not proven by respondents and thus, the statutory requirements as to notice were not excused.

The pertinent facts are as follows. The claimant received a compensable injury while in the employ of his employer. That injury occurred on September 17, 1986 and resulted in “fractured ribs, severe chest contusion and contusions and hematoma of both legs.” The claimant has been continuously totally disabled and has been receiving temporary total disability benefits from his employer pursuant to C.G.S. Sec. 31-307 since September 18, 1986. Additionally, respondents have been paying to or on behalf of the claimant, the medical and hospital bills incurred by claimant as a result of the injury pursuant to C.G.S. Sec. 31-294.

On May 25, 1988, respondents’ attorney sent to claimant’s attorney a voluntary agreement to be signed by the claimant and then returned to respondents’ attorney for processing with the Second Injury Fund. On the same date, respondents’ attorney sent by certified mail a copy of the voluntary agreement, signed by the insurer, to the Second Injury Fund with all the medical reports on hand and all appropriate documentation. However, the voluntary agreement submitted to the Second Injury Fund was not signed by the claimant or approved by the commissioner as respondent did not receive the signed voluntary agreement back from the claimant until June 28, 1988. The Second Injury Fund acknowledged receipt of respondents’ letter and enclosures on May 27, 1988. The Second Injury Fund by form letter on May 31, 1988 to respondents’ attorney acknowledged receipt of respondents attorney’s letter of May 25, 1988 and advised that information sent “... is complete and up to date.”

On July 11, 1988, the respondents’ attorney sent a copy of the signed voluntary agreement complete with claimant’s and respondents’ signature to the Commissioner for the Seventh District. The commissioner approved the voluntary agreement on July 14, 1988. On August 24, 1988, respondents’ attorney sent a copy of the signed and approved voluntary agreement to the Second Injury Fund. Respondents’ attorney sent additional medical reports to the Second Injury Fund on August 31, 1988, September 12, 1988 and November 14, 1988 and in correspondence on June 14, 1990, July 19, 1990 and March 6, 1991 inquired as to the status of the transfer to the Fund.

By letter dated May 13, 1991, the Fund advised respondents’ attorney it would not accept transfer because of late and defective notice to the Fund. Thereafter, a formal hearing was held before the commissioner to determine if the notice requirements set out in C.G.S. 31-349(a) pertaining to the transfer of liability were satisfied. The Second Injury Fund did not receive the prescribed notice and voluntary agreement until August 24, 1988. The trial commissioner concluded that the respondents had failed to satisfy the notice requirements of Sec. 31-349(a) and the transfer of liability was denied.

Sec. 31-349(a) provided in relevant part:

[A]s a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, 90 days prior to the expiration of the 104 week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claims to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. (Emphasis ours)

The trier found, inter alia, that the date by which the above documentation should have been provided to the Second Injury Fund was June 18, 1988. The commissioner concluded that the respondents’ failure to provide a copy of the executed and approved voluntary agreement (emphasis ours) did not satisfy the notice requirements of Sec. 31-349(a) as the requirements are to be strictly construed. Additionally, he concluded that the doctrine of estoppel was not applicable so as to cure the defect in respondents’ notice.

The respondents appealed and present the following issues for review; (1) whether the trial commissioner erred in finding respondents notice to the Second Injury Fund on May 25, 1988 and acknowledged by the Second Injury Fund was not timely filed, (2) whether the trial commissioner erred in finding that the elements of estoppel were lacking in view of the Second Injury Fund’s acknowledgment letter stating that the information was complete and up to date. We note at the outset that our courts have strictly interpreted C.G.S. Sec. 31-349(a). Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993); Plesz v. United Technologies Corporation, 174 Conn. 181 (1978); Kiernan v. Roadway Express, Inc., 15 Conn. App. 625 (1988); Kramer v. General Electric Co., 37 Conn. Sup. 742 (1981).

In this case, the 104 week period of disability would have ended on September 15, 1988. Ninety days prior to that date was June 18, 1988. The respondents, in order to have complied within that time frame would have had to give notice and a copy of the signed voluntary agreement to the Second Injury Fund by June 18, 1988. The respondents, however, only sent a copy of the voluntary agreement unsigned by the claimant and not approved by the commissioner prior to that date.

In the instant case, we must construe what is meant by the phrase “agreement or award” in Sec. 31-349(a). Under the principles controlling statutory construction, when confronted with an issue as to the meaning of a particular term contained within a statute one should refer “to the use of that phrase in other parts of the same statute.” Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 438 (1985). Sec. 31-296 provides in pertinent part, “A copy of the agreement with a statement of the commissioner’s approval thereof, shall be delivered to each of the parties and thereafter it shall be as binding upon both parties as an award by the commissioner.” (Emphasis ours)

This tribunal in Richardson v. H.B. Sanson, Inc., 6 Conn. Workers’ Comp. Rev. Op. 107, 108, 590 CRD-1-87 (1989) stated that:

See. 31-296, C.G.S., clearly contemplates that a Voluntary Agreement is a consensual undertaking requiring the approval of both parties before it becomes the type of document described in the statute. Such agreements under Connecticut law are in the nature of contracts. Without the consent of both participants, no contract can exist.

Reading Sec. 31-296 together with Sec. 31-349(a) we can only conclude that the agreement which is to be furnished to the Second Injury Fund is an agreement which is both signed and approved by a commissioner.

Therefore, the notice and the copy of the agreement were not timely filed and the trial commissioner’s finding is sustained.

As to the second issue raised on appeal, the respondents essentially ask this panel to decide whether the trial commissioner erred in not finding that the elements of estoppel were met.

The essential elements of estoppel are that the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury. Hanover Inc. Co. v. Fireman’s Fund Ins. Co., 217 Conn. 340, 351 (1991). Because the claim of estoppel is against a government agency, the respondent must show that the government agent who induced the detrimental reliance had authority to act in such matters and that special circumstances exist which make it highly inequitable or oppressive to enforce the applicable law. West Hartford v. Rachel, 190 Conn. 114, 121 (1983). Furthermore, the Court in Greenwich v. Kristoff, 2 Conn. App. 515, 522 (1984), stated, “Estoppel against a government agency may be invoked only in limited instances and with great caution.”

On appeal, the respondents assert that they were justified in relying on the Fund’s acknowledgment letter of May 31, 1988. They cite Kimberly-Clark Corporation v. Dubro, 204 Conn. 137 (1987), as supportive of their contention. We think Kimberly-Clark is readily distinguishable from the instant matter. In Kimberly-Clark, the plaintiff requested a declaratory ruling from the Commissioner of Revenue Services as to the assessment of sales and use taxes for its (the plaintiff’s) anticipated purchase of machinery for its production lines. The commissioner assessed that most of the items plaintiff planned to purchase would be tax exempt and on that basis the plaintiff purchased the equipment. The commissioner later changed his position and concluded that the plaintiff owed over $100,000 in taxes. We note that in Kimberly-Clark the court found that the commissioner “had express statutory authorization to give ... declaratory rulings.” Id. at 146. We think no such comparable cloaking of authority can be found in the government agent who signed the May 31, 1988 form letter.

Moreover, in the case at hand, the respondents never requested that the unexecuted and unapproved copy of the voluntary agreement they sent to the Second Injury Fund be accepted as fulfilling the requirement of C.G.S. Sec. 31-349(a) prior to the denial of the liability transfer. Respondents’ cover letter of May 25, 1988 to the Second Injury Fund, even asserted that respondents’ counsel would send the signed and approved Voluntary Agreement “as soon as I have fully executed copy back.” Again, a misstatement on a form letter can hardly be held equivalent to a commissioner’s declaratory ruling. Thus, the Second Injury Fund should not be estopped from asserting that respondents’ notice and copy of the agreement were untimely and defective.

We, therefore, affirm the December 18, 1991 Finding of the trial commissioner.

Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr. concur.

Workers’ Compensation Commission

Page last revised: November 19, 2015

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