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Davis v. City of Norwich

CASE NO. 1563 CRB-2-92-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 2, 1994

LUCY DAVIS, Dependent Widow of LEO DAVIS (Deceased)

CLAIMANT-APPELLEE

v.

CITY OF NORWICH

EMPLOYER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Kristin Dorney Foley, Esq., Stevens, Carroll & Carveth, 31 Cherry Street, P.O. Box 432, Milford, CT 06460-0432.

The respondent-employer was represented by Richard S. Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The Second Injury Fund was represented by Lisa C. Khan, Esq., Philip M. Schulz, Esq. and William J. McCullough, Esq., Assistant Attorneys General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 12, 1992 Finding and Award of the Commissioner for the Second District was heard November 19, 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. This appeal requires us to determine whether the respondent’s notice to the Second Injury Fund pursuant to General Statutes Sec. 31-349 was timely to permit the respondent to transfer liability to the Second Injury Fund for a death claim under that provision. The respondent did not provide a notice of transfer with respect to the decedent’s underlying disability claim which involved more than 104 weeks of disability; instead, the respondent issued a notice seeking to transfer the dependent widow’s claim for death benefits more than ninety days prior to the expiration of the 104th week of death benefits. We reverse the trial commissioner’s order directing the Second Injury Fund to assume liability for compensation benefits to the claimant widow.

The parties stipulated to the following facts. On March 24, 1984, the decedent, Leo Davis, was employed by the respondent-employer, City of Norwich. On that date, Leo Davis sustained a myocardial infarction which arose during and out of the course of his employment with the respondent-employer. As a result of disability attributable to that infarction, Leo Davis retired from his employment with the City of Norwich on May 2, 1985. The respondent paid compensation to Leo Davis on a continuous basis from May 2, 1985 until February 25, 1988, as well as for various time periods between March 24, 1984 and May 2, 1985.

On February 28, 1988, Leo Davis died with the certificate of death listing the immediate cause of death as follows: acute myocardial infarction; arteriosclerotic heart disease; hypertension. According to the decedent’s treating physician, the 1984 heart attack had a strong probability of leading to the claimant’s death in 1988. By Finding and Award dated May 16, 1989, the claimant, Lucy Davis, the decedent’s widow, was awarded dependent’s benefits pursuant to General Statutes Sec. 31-306.

Following the 1984 myocardial infarction sustained by Leo Davis, the City of Norwich did not present a claim against the Second Injury Fund pursuant to Sec. 31-349. On May 22, 1989, however, the respondent filed a notice with the Second Injury Fund indicating its intention to seek relief under Sec. 31-349 with respect to the claimant-widow’s claim for benefits. The Second Injury Fund agrees that the respondent’s claim to transfer liability meets the medical qualifications for transfer under Sec. 31-349 and that all portions of the notice, with the exception of the date it was filed, comply with the requirements of Sec. 31-349.

The respondent contends that its Sec. 31-349 notice was timely served on the Second Injury Fund because it was served more than ninety days prior to the expiration of the 104th week of death benefits. The Second Injury Fund contends that the respondent’s notice was not timely served because benefits were payable continuously since May 2, 1985 and because Sec. 31-349 contemplates a single 104-week period for disability and death, not two distinct and separate periods. The trial commissioner concluded that the respondent could transfer liability to the Second Injury Fund with respect to the claim for Sec. 31-306 benefits by filing a claim for relief pursuant to Sec. 31-349 more than ninety days prior to the expiration of the 104th week after the death of the decedent. This appeal by the Second Injury Fund followed.

The respondent correctly points out that we have recognized that a dependent’s claim for death benefits presents a compensation claim which is separate and distinct from a claim for compensation by the injured worker for purposes of providing timely notice of the claim to the respondent-employer. See, e.g., Sellew v. Northeast Utilities, 1422 CRB-8-92-5 (decided April 7, 1994); Capen v. Electric Boat Division, 11 Conn. Workers’ Comp. Rev. Op. 326, 328-29, 1394 CRB-2-92-3 (1993); Mingrone v. Burndy Corporation, 9 Conn. Workers’ Comp. Rev. Op. 252, 254, 1109 CRD-7-90-9 (1991); Maher v. State, 5 Conn. Workers’ Comp. Rev. Op. 19, 374 CRD-4-85 (1988). Yet, in the context of a claim to transfer liability to the Second Injury Fund pursuant to Sec. 31-349, we have held that “Sec. 31-349 contemplates only a single one hundred and four week waiting period for death and disability benefits and not two distinct and separate such periods.” Funaro v. Town of Hamden, 7 Conn. Workers’ Comp. Rev. Op. 40, 45, 649 CRD-3-87 (1989); see also Rossomondo v. Ridgewood Nurseries, 7 Conn. Workers’ Comp. Rev. Op. 89, 846 CRD-3-89-4 (1989). We believe that the Funaro decision guides our decision in this case.

In Funaro, liability for the injured workers’ claim was transferred to the Second Injury Fund after 104 weeks pursuant to Sec. 31-349. When the injured worker died as a result of his compensable injury and his widow became entitled to dependent’s benefits under Sec. 31-306, the Second Injury Fund argued that another 104 week waiting period must intervene under Sec. 31-349 and that the primarily liable employer must pay the dependent’s benefits for that number of weeks before liability could again be transferred to the Fund. We rejected that argument and the premise of the separation of death and disability claims for purposes of Sec. 31-349 on which the argument was based. Instead, we relied on the fact that Sec. 31-349 treats death benefits and the preceding disability benefits paid during the decedent’s life as one continuum. Funaro v. Town of Hamden, supra, 42-43. Furthermore, we noted that “the legislature was well aware of this benefits continuum, the linkage between disability compensation to the employee and survivors’ compensation to dependents, in 1967” when it added death benefits to the Fund’s liability under Sec. 31-349. Id., 43. Thus, in light of both the plain language of Sec. 31-349 and its public policy, we concluded that Sec. 31-349 does not contemplate two distinct and separate 104-week periods, one for disability and another for death subsequent to the disability, but instead establishes a single 104-week period after which all responsibility for compensation can be transferred to the Second Injury Fund. Id., 43-45.

In light of the Funaro holding that there is only one 104-week period for purposes of Sec. 31-349, it would be incongruous to interpret the statutory language regarding notice of transfer relative to the payment of death benefits to create a second 104-week period for purposes of notifying the Second Injury Fund of the transfer of a claim for death benefits. This is especially true when the significance of timely notice in the statutory scheme which provides for apportionment of liability between the employer and the Second Injury Fund is taken into consideration. See generally Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391-96 (1993).

We, therefore, conclude that the trial commissioner improperly determined that the respondents’ notice of transfer to the Second Injury Fund was timely. Since the respondent failed to notify the Second Injury Fund more than ninety days prior to the expiration of the 104th week of its liability for compensation, whether for disability or death benefits, arising out of the decedent’s compensable injury and subsequent death, the respondent did not comply with the statutory condition precedent to effectuate transfer of liability to the Second Injury Fund pursuant to Sec. 31-349.

Accordingly, we reverse the trial commissioner and remand the case to the Second District with direction to dismiss the respondent-employer’s claim to transfer liability to the Second Injury Fund and with direction to order the respondent-employer to continue to make payments to the claimant pursuant to Sec. 31-306.

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

Workers’ Compensation Commission

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