CASE NO. 1376 CRB-2-92-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 28, 1994
CITY OF NORWICH
SECOND INJURY FUND
The claimant was represented by Lewis C. Maruzo, Esq., Horwitz, Maruzo & Benson, 74 West Main Street, P.O. Box 940, Norwich, CT 06360.
The respondent-employer was represented by Richard S. Bartlett, Esq., McGann, Bartlett and Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.
The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101-0120.
This Petition for Review from the January 22, 1992 Finding and Dismissal, the January 30, 1992 Supplemental Finding and Award and the April 9, 1992 Supplemental Finding and Award of the Commissioner for the Second District was heard January 8, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, George A. Waldron and Donald H. Doyle, Jr.
JOHN A. ARCUDI, COMMISSIONER. Differing interpretations of Sec. 31-349,1 in existence on the August 12, 1983 date of injury, constitute the issues in this appeal. The employer respondent, City of Norwich, argues the statute provides that the employer’s obligation to furnish medical insurance and other Sec. 31-284b fringe benefits should transfer to the Second Injury Fund at the same time that the employer’s obligation to pay indemnity and medical benefits transfers to the Fund.
In Luis v. Frita Lay, Inc., 10 Conn. Workers’ Comp. Rev. Op. 50, 1089 CRD-2-90-8 (1992), rev. in part, No. S.C. 14536 (4/27/93), this tribunal held that the obligation to pay Sec. 31-284b benefits did not transfer to the Fund when the obligation to pay indemnity and medical benefits transferred under Sec. 31-349. In reliance on the U.S. Supreme Court decision, District of Columbia v. Greater Washington Board of Trade, ____U.S .____ , 113 S.Ct. 580, 121 L.Ed.2d 513 (1992), the Connecticut Supreme Court held Sec. 31-284b to be pre-empted and therefore reversed that part of our Luis decision relating to Sec. 31-284b benefits for private employment subject to the Commerce Clause. But the Connecticut Supreme Court ruling did not treat other issues in Luis. Moreover, unlike the Luis private employment, governmental employment Sec. 31-284b benefits involved in this case are not pre-empted. See District of Columbia v. Greater Washington Board of Trade, supra, 584 n. 3.
As we pointed out in Luis, the statutory basis and procedure for transferring medical and indemnity payments under Sec. 31-349 were different from the statutory and procedural requirements for transferring Sec. 31-284b benefits under Sec. 31-349. Most importantly, Sec. 31-349 transfer of medical and indemnity payments may occur after 104 weeks of disability, whether that disability is total or partial. Sec. 31-349 transfer of Sec. 31-284b benefits may only occur after 104 weeks of total incapacity. That part of our Luis ruling is still good law. Therefore, the employer’s request to transfer must be denied, and the commissioner’s holding on that point affirmed.
The second part of the City’s appeal contests the commissioner’s holding that the employer lacked standing to present evidence relative to the employee’s Sec. 31-308a claims as liability for those claims had been transferred from the employer to the Fund. We rule that the employer had standing and should have been permitted to offer evidence to contest the employee’s Sec. 31-308a claims.
After the August 12, 1983 injury, the employer paid total and partial disability benefits for a sufficient number of weeks to transfer liability to the Fund on July 24, 1986. However, as the commissioner ruled, and we affirmed above, the Sec. 31-284b obligation was not transferred. The employer’s 31-284b obligation to maintain fringe benefits continues “while the employee is eligible to receive or is receiving workers’ compensation payments.” Thus, if the employee is found eligible to receive Sec. 31-308a permanent partial disability benefits, the employer’s Sec. 31-284b obligation pertains.
“It is a fundamental concept of judicial administration . . . that no person is entitled to set the machinery of the courts in operation except to obtain redress for an injury he has suffered or to prevent an injury he may suffer . . . .” Belford v. New Haven, 170 Conn. 46, 52-53 (1975). Here, if Sec. 31-308a benefits are found to be payable, the employer will suffer as it will incur a further obligation. Therefore, the employer had standing to contest the employee’s claim. A contrary conclusion is violative of the employer’s due process rights. See Haluschak v. J.F. Barrett & Sons. Inc., 9 Conn. Workers’ Comp. Rev. Op. 93, 925 CRD-3-89-10 (1991).
The commissioner’s decision denying the employer’s request to transfer its Sec. 31-284b obligation to the Fund is affirmed. The decision denying the employer standing to contest the employee’s Sec. 31-308a claim is reversed. The matter is remanded for further proceedings consistent with this opinion.
Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.
1 At the time of the claimant’s compensable injury, General Statutes (Rev. to 1983) Sec. 31-349 provided in pertinent part: “The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability . . . . Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund.” Similar language now appears in General Statutes Sec. 31-349(b).
At the time of the claimant’s compensable injury, General Statutes (Rev. to 1983) Sec. 31-349 also provided in pertinent part: “In any case where workers’ compensation payments to an individual for total incapacity under the provisions of section 31-307 continue for more than one hundred four weeks, the cost of accident and health insurance or life insurance coverage required under section 31-284b, shall be paid out of the second injury fund after the one hundred fourth week.” Similar language also appeared in General Statutes (Rev. to 1983) Sec. 31-284b(d). This language now appears in General Statutes Sec. 31-349(c), as well as Sec. 31-284b(d). BACK TO TEXT