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Reising v. General Dynamics/Electric Boat Division

CASE NO. 1609 CRB-2-92-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 6, 1994

KENNETH REISING

CLAIMANT-APPELLEE

v.

GENERAL DYNAMICS/ELECTRIC BOAT DIVISION

EMPLOYER

and

NATIONAL EMPLOYERS COMPANY

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument.

Respondents were represented by John W. Greiner, Esq. Murphy & Beane, 2 Union Plaza, P. O. Box 590, New London, CT 06320.

Respondent-Appellant Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, and Taka Iwashita, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 16, 1992 Finding and Award of the Commissioner for the Second District was heard January 28, 1994 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant suffered a myocardial infarction on October 27, 1980. The employer contested the compensability of that injury, but the Second District Commissioner decided in the claimant’s favor on November 7, 1984, finding that the heart attack was caused by stress at work superimposed upon pre-existing heart disease. The employer’s subsequent appeal of that award was denied. See Reising v. Electric Boat Division, 2 Conn. Workers’ Comp. Rev. Op. 123, 361 CRD-2-84 (1985). Meanwhile, the Second Injury Fund was sent notice of the pending contested claim on January 27, 1984, well beyond 104 weeks after the onset of disability. The Fund objected when the respondent employer attempted to transfer the claim pursuant to General Statutes §31-349, claiming that notice was untimely under that section. The commissioner concluded that because the respondents had contested compensability in a timely manner, their obligation to pay compensation did not begin until the November 7, 1984 Finding and Award was entered, and notice was thus timely under §31-349. The Fund appeals from that decision.1

Section 31-349 (b) requires in part that “[a]s a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days before the expiration of the first one hundred four weeks of disability, notify the custodian of the second injury fund of the pending case and shall furnish to the custodian a copy of the agreement or award together with all information supporting his claim as to the liability of the second injury fund, and shall make available to the custodian any medical reports that the custodian requests.” Strict compliance with the notice provisions of the workers’ compensation act is required. Kiernan v. Roadway Express, Inc., 15 Conn. App. 625, 630 (1988), affirming 3 Conn. Workers’ Comp. Rev. Op. 129, 270 CRD-5-83 (1986), cert denied, 210 Conn. 801 (1988). Prior cases interpreting this statute have uniformly held that it is fatal to an attempt to transfer liability under this section if an employer fails to provide timely notice; Plesz v. United Technologies Corp., 174 Conn. 181 (1978); Kiernan v. Roadway Express, Inc., supra; or fails to timely provide a copy of a voluntary agreement or award once compensability of the injury has been admitted. Kramer v.General Electric Co., 37 Conn. Sup. 742 (1981).

The respondent argues that, in contrast to the cases cited above, perfect compliance with §31-349 (b) was impossible in this case because compensability had been properly contested pursuant to §31-294c (b). We agree with the respondent only insofar as the requirement to submit a copy of the voluntary agreement or award is concerned. Assuming that compensability of an employee’s injury is being challenged properly, it would be unreasonable to expect a respondent to deliver a copy of a nonexistent agreement or award to the second injury fund. It would not be impossible, however, for an employer or insurer to comply with the other requirements of §31-349 (b). Both notice of the pending case and other information supporting the potential liability of the second injury fund could still be supplied to the fund’s custodian regardless of the fact that compensability was being contested. Requiring the submission of such information is consistent with the purpose of the notice provision, which is intended to assist the fund in promptly assessing its potential liability, establishing its financial reserves, and securing a reasonable period of time to investigate and address the claim against it. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 392 (1993).

In this case, the employer did not notify the second injury fund of the existence of a pending claim until well after the time provided by §31-349 (b) had lapsed. Thus, the claim was not properly transferable to the fund. We reverse the decision of the trial commissioner.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 The respondent claims that the second injury fund’s appeal should be dismissed because the commissioner improperly granted to the fund an extension of time to file its reasons of appeal. Respondent also argues that the fund’s motion to correct was filed late even with the further extensions allowed by the commissioner. No motion to dismiss was timely filed regarding the latter claim, however, so we decline to review it. As to the granting of the first extension, from the record there appears to be a basis for the commissioner’s decision, and the respondent has not shown any prejudice from the alleged error. As such, we decline to consider the matter further. See McNulty v. Stamford, 12 Conn. Workers’ Comp. Rev. Op. 32, 41-42, 1332 CRD-7-91-10 (1994), currently on appeal to State of Connecticut Appellate Court. BACK TO TEXT

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