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Simeone v. Pace Motor Lines, Inc.

CASE NO. 1518 CRB-4-92-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 13, 1994

DOMINICK SIMEONE

CLAIMANT-APPELLEE

v.

PACE MOTOR LINES, INC.

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by James F. Rogers, Esq., Law Offices of Richard Volo, 126 Derby Avenue, Derby, CT 06418 who neither filed a brief nor appeared at oral argument.

The respondent-employer was represented by Duncan M. Schmitt, Esq., Zeldes, Needle & Cooper, P.C.,, 1000 Lafayette Boulevard, P.O. Box 1740, Bridgeport, CT 06601-1740.

The Second Injury Fund was represented by Edward F. Osswalt, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who did not file a brief but did appear at oral argument.

This Petition for Review from the September 21, 1992 Finding and Award of the Commissioner At Large acting for the Fourth District was heard September 10, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The respondent-employer has petitioned for review of the September 21, 1992 Finding and Award of the Commissioner at Large Acting for the Fourth District. At issue in this appeal are (1) the commissioner’s order that the employer pay a penalty in the amount of $1000 under General Statutes 31-284c for its failure to abide by General Statutes Sec. 31-284 and (2) the commissioner’s order that the employer pay a civil penalty of $500 pursuant to General Statutes Sec. 31-288(b) for its failure to pay compensation to the claimant and delaying of the compensation process. We affirm the commissioner with respect to the $500 penalty for failure to pay compensation and delay of the compensation process; we vacate the $1000 penalty, however, and remand for further proceedings with respect to the issue of the employer’s alleged lack of workers’ compensation insurance coverage.

At issue before the commissioner was the compensability of the claimant’s injury. Formal hearings were held before the commissioner on April 20 and July 23, 1992. The Fourth District notified the employer by certified mail of the April 20, 1992 hearing. The claimant’s attorney also subpoenaed the employer to appear at the July 23, 1992 hearing. Notwithstanding the employer’s failure to appear at either hearing, the commissioner found that due notice of the pendency of the hearings was given to the employer. In addition to finding the claimant’s injury to be compensable, the trial commissioner ordered the employer to pay $3500 in attorney’s fees and to pay the two penalties which are the subject of his appeal.1

The trial commissioner imposed a $500 penalty under Sec. 31-288(b). That provision authorizes such a penalty “[w]henever (1) through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due under [Chapter 568] is unduly delayed, or (2) either party to a claim under [Chapter 568] has unreasonably, and without good cause, delayed the completion of the hearings on such claim . . . .” The respondent-employer claims that the penalty was improper in this case because the commissioner made neither a finding of fault, neglect or undue delay nor a finding of unreasonably delaying, without good cause, the completion of the hearing process. We disagree.

The commissioner specifically found that the employer had failed to pay compensation and had delayed the compensation process. This finding, along with the commissioner’s findings that the claim was compensable and that the respondent-employer failed to appear at formal hearings notwithstanding (1) a formal hearing notice stating on its face that the employer must appear at the April 20, 1990 hearing; see Finding and Award, paragraph 1 and Transcript of April 20, 1992, p. 4; and (2) a subpoena duces tecum directing the employer’s payroll supervisor and personnel supervisor to appear at the July 23, 1992 hearing; see Finding and Award, paragraph 1 and Claimant’s Exhibit 3; amply support the commissioner’s decision to assess a civil penalty pursuant to Sec. 31-288(b). While the commissioner did not invoke the specific terms of the statute in assessing the penalty, we conclude that the commissioner’s Finding and Award, read in light of the evidence, contains all of the necessary subordinate findings to support the conclusion either that payment of compensation had been unduly delayed through the fault or neglect of the employer or that the employer had unreasonably delayed, without good cause, the completion of the hearing process. Cf. Pullman, Comley, Bradley & Reeves v. Tuck-it-away, Bridgeport, Inc., 28 Conn, App. 460, 464, cert. denied, 223 Conn. 926 (1992). Because the commissioner’s conclusion did not result from an incorrect application of law or from inferences illegally or unreasonably drawn from the facts found, it must stand. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The trial commissioner imposed a $1000 penalty under Sec. 31-284c based on the employer’s failure to insure its workers’ compensation liability.2 Section 31-284c, however, pertains to a “complaint alleging violation of the provisions of section 31-284b . . .,” which requires an employer to continue accident, health and life insurance coverage or welfare plan payments for employees eligible to receive workers’ compensation. Section 31-284c, therefore, was not the appropriate basis for a penalty for an employer’s alleged failure to maintain workers’ compensation liability insurance. For this reason, the $1000 penalty must be vacated.

General Statutes Sec. 31-288(c), however, provides, in pertinent part, that when “a commissioner has reason to believe that an employer is not in compliance with the insurance and self-insurance requirements of [Sec. 31-284(b)], the commissioner shall conduct a hearing, after sufficient notice to the employer, wherein the employer shall be required to present sufficient evidence of his compliance with said requirements. Whenever the commissioner finds that the employer is not in compliance with said requirements he may access a civil penalty of not more than one thousand dollars against the employer.” Accordingly, on remand, the commissioner shall proceed in accordance with Sec. 31-288(c) by providing the respondent-employer with notice and an opportunity to be heard on the issue of its compliance with the insurance requirements of Sec. 31-284(b) and by considering an appropriate penalty if the employer is found to be not in compliance with said requirements.

Accordingly, we affirm the $500 penalty imposed by the commissioner pursuant to General Statutes Sec. 31-288(b); we vacate the $1000 penalty imposed by the commissioner pursuant to General Statutes Sec. 31-284c and remand for further proceedings consistent with this opinion pursuant to General Statutes Sec. 31-288(c) with respect to the employer’s alleged failure to maintain workers’ compensation liability insurance.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 At oral argument, the respondent-employer withdrew its challenge to the award of attorney’s fees. BACK TO TEXT

2 We note that the commissioner’s Finding and Award does not explicitly state that the respondent had failed to insure its workers’ compensation liability. That fact, however, appears to be implicit in the commissioner’s imposition of a penalty for the respondent’s “failure to abide by Section 31-284.” BACK TO TEXT

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