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Stickney v. Sunlight Construction Co.

CASE NO. 1738 CRB-6-93-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 2, 1994

BRIAN STICKNEY

CLAIMANT-APPELLEE

v.

SUNLIGHT CONSTRUCTION CO.

EMPLOYER

and

AETNA CASUALTY & SURETY CO.

INSURER

RESPONDENTS-APPELLANTS

and

COMMERCIAL UNION INSURANCE COMPANY

INSURER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant did not appear before the trial commissioner or the Compensation Review Board.

The respondent Aetna was represented by Margaret E. Corrigan, Esq. and Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, Connecticut 06033-4412.

The respondent Commercial Union was represented by Matthias J. DeAngelo, Esq., Cooney, Scully and Dowling, Hartford Square North, Ten Columbus Boulevard, Hartford, Connecticut 06106-1944.

This Petition for Review from the May 13, 1993 Finding and Award of the Commissioner for the Sixth District was heard March 11, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.

OPINION

JESSE FRANKL, CHAIRMAN. Once again, we must address the issue of the extent to which a commissioner may resolve insurance coverage issues, this time in order to determine which of two insurance carriers is properly liable for an accepted claim. Because the commissioner improperly concluded that he lacked jurisdiction to resolve the dispute presented by the facts of this case, we reverse the trial commissioner and remand for further proceedings.

The following facts are not in dispute. On or about February 7, 1985, the claimant sustained a compensable injury while in the employ of Sunlight Construction, Inc. (Sunlight). Appellant Aetna Casualty and Surety (Aetna) had issued a workers’ compensation insurance policy to Sunlight for the period April 11, 1984 to April 11, 1985. Proof of such insurance coverage was furnished to the Workers’ Compensation Commission pursuant to General Statutes Sec. 31-284(c) and Sec. 31-348.

That policy was cancelled for nonpayment of premium in 1984, prior to the 1985 accident. Notice of that cancellation, however, was never sent to the Commission as required by Sec. 31-348. Because of Aetna’s cancellation, Sunlight’s insurance agent, Blumberg Associates, secured insurance coverage for Sunlight, effective January 17, 1985, through appellee Commercial Union Insurance Company (Commercial Union). It is not disputed that Sunlight paid premiums to Commercial Union for that policy and that the Commercial Union policy was in effect on February 7, 1985, the date of injury. Proof that Commercial Union was on the risk, however, was never furnished to the Commission under Sec. 31-284(c).

The first report of injury filed by the employer concerning the February 7, 1985 accident was made on an Aetna first report of injury form. Blumberg Associates mistakenly sent that form to Aetna. Aetna issued a Voluntary Agreement accepting the claim, which was approved by the Sixth District Commissioner on June 2, 1986.

In the Spring of 1991, the claim was reactivated due to a recurrence of the claimant’s symptomology. It was then that a new Aetna insurance adjuster assigned to the claim discovered, for the first time, that Aetna had cancelled its coverage of Sunlight’s workers’ compensation liability approximately two months before the compensable injury. As of the date of the hearing in this matter, Aetna had paid in excess of $50,000 in benefits to the claimant. At some point, Commercial Union had paid more than $2,600 in benefits to Hartford Hospital as a result of medical treatment for the claimant’s 1985 injury. It is not clear whether that payment was made without prejudice.

Through the proceeding before the commissioner Aetna sought to open the Voluntary Agreement in order to substitute Commercial Union in lieu of itself. Commercial Union claimed prejudice in Aetna’s handling of the claim from the outset, in that a potential third party action was not initiated, and in Aetna’s delay in involving it. Commercial Union also argued that the commissioner lacked subject matter jurisdiction over this dispute.

The trial commissioner agreed with Commercial Union that he lacked jurisdiction to decide the issue raised by this case. He concluded that the issues of the existence of insurance coverage and of which insurer is ultimately liable to pay on the claim are beyond the limited jurisdiction of the Workers’ Compensation Commission. The Commissioner concluded, as well, that his powers of equity did not extend to this type of dispute. Accordingly, the trial commissioner denied the motion to open the Voluntary Agreement “since the Aetna requests a substitution of (Commercial Union) for it on the Voluntary Agreement and in order to accept the Aetna’s request, this Commissioner would need to rule on issues where he does not have subject matter jurisdiction.” Finding and Award, paragraph G. This appeal by Aetna followed.

The Commissioner is empowered to determine whether there was a contract of insurance between the employer and a putative insurer on the date of injury. O’Connell v. Indian Neck General Store, 6 Conn. Workers’ Comp. Rev. Op. 42, 530 CRD-3-86 (1988). Because the commissioner must enter “an award against . . . any insurer which may be found to have issued to the employer a policy covering liability for the injury in question;” Witchekowski v. Falls Co., 105 Conn. 737, 742 (1927); see also General Statutes Sec. 31-342; the commissioner necessarily possesses broad authority to assert jurisdiction to resolve the issue of whether an insurance policy covering workers’ compensation liability was in effect on the date of injury. Vernon v. V. J. R. Builders, Inc., 11 Conn. Workers’ Comp. Rev. Op. 237, 1360 CRD-7-91-12 (1993).

Our case law, however, limits an insurer’s ability to deny the existence of a workers’ compensation policy effective on the date of injury when the records created and maintained by the Commission pursuant to General Statutes Sec. 31-348 show otherwise. In Piscitello v. Boscarello, 113 Conn. 128 (1931), our Supreme Court concluded that the record of insurance policies in existence maintained pursuant to the predecessor to Sec. 31-348 “cannot be open to attack [by an insurer] upon the ground that a policy which it has reported to be in effect is not in fact so . . . .” Id., 131. At first blush, the conclusion in Piscitello would seem to preclude the relief sought by Aetna in this case. We believe, however, that the estoppel rule arising out of Sec. 31-348 must be limited to the circumstances present in Piscitello. In Piscitello, the insurer’s efforts to escape liability by contradicting the official records maintained by the Board of Compensation Commissioners would have had the effect of leaving the employer without any insurance coverage for the claimant’s compensable injury. Thus, the Piscitello court noted that the purpose of the official insurance records is to allow “any employee or prospective employee [to] ascertain whether the employer is insured and if so in what company” and declared that “[a]s regards employees, the insurer is estopped to deny the truth of the formal record so made by it . . . .” (Emphasis added.) Id. Consequently, the rule of Piscitello is that the official records maintained pursuant to Sec. 31-348 may not be contradicted when the result will be to diminish a claimant’s right of recovery by leaving the claimant without recourse to a compensation insurer.

This reading of Piscitello is consistent with our most recent application of the preclusive effect of Sec. 31-348. In Vernon v. V.J.R. Builders, Inc., supra, we concluded that an employer may contradict the official records maintained pursuant to Sec. 31-348 in order to prove the existence of a policy which was shown in those records to have been cancelled. Obviously, the Vernon decision allows the records to be contradicted in order to increase the protections afforded to an injured employee by converting an otherwise “no insurance” case into one where the commissioner’s award could properly enter against an employer and an insurer.

In the present case, Aetna seeks to substitute Commercial Union for itself as the legally responsible insurer. This request, while based on facts which contradict the records established pursuant to Sec. 31-348, will not run afoul of the Piscitello prohibition. Unlike Piscitello, the proof of facts at variance from the Sec. 31-348 records in this case will not diminish the protections afforded to the injured employee. In this case, the result will simply substitute one liable insurance company for another. In all other respects, the rights, remedies and benefits afforded to the claimant will remain unchanged.1

Such a substitution of responsible insurance carriers is also consistent with the equity jurisdiction of compensation commissioners. “General Statutes Sec. 31-278 provides that the commissioner has ‘all powers necessary to enable him to perform the duties imposed upon him by the provisions of the chapter.’ Furthermore, it is well settled that the commission[er] possesses power similar to a court of equity.” Latham v. Jim & Joe General Contractors, 16 Conn. App. 138, 140-41 n.3 (1988), citing Gonirenki v. American Steel & Wire Co., 106 Conn. 1, 5 (1927).

The undisputed facts, which are set forth in the commissioner’s findings, clearly establish that Commercial Union, and not Aetna, was Sunlight’s workers’ compensation insurer at the time of the claimant’s injury. Whether the Voluntary Agreement should be opened for the purpose of substituting Commercial Union for Aetna and the validity of any equitable defenses raised by Commercial Union, however, are matters which the trial commissioner did not address because of his conclusion that he lacked jurisdiction to consider the dispute as to insurance coverage. Since the commissioner ruled only on the jurisdictional issue, we are limited to considering that issue and may not address the merits of Aetna’s Sec. 31-315 claim or Commercial Union’s equitable defenses. See Latham v. Jim & Joe General Contractors, supra, 141-42.

We, therefore, reverse the trial commissioner and remand the case for further proceedings.

Commissioners Nancy A. Brouillet and Michael S. Miles concur.

1 In light of our analysis in this case, it is apparent that certain dicta in Vernon v. V. J. R. Builders, Inc., 11 Conn. Workers’ Comp. Rev. Op. 237, 1360 CRD-7-91-12 (1993), did not accurately state our law. In Vernon, we declared, somewhat too broadly, based on Piscitello v. Boscarello, 113 Conn. 128 (1931), that “an insurer may not resort to evidence extraneous to the records created and maintained pursuant to Sec. 31-348 in order to deny the existence of a [workers’ compensation insurance] policy shown by the records to be effective on the date of injury. . . .” Id., 241. Today, we limit that statement to the situation (present in Piscitello) where the denial of insurance leaves the claimant without resort to a legally responsible insurer, in light of our holding in the present case that an insurer may resort to evidence extraneous to the records created and maintained pursuant to Sec. 31-348 to deny the existence of a policy shown by those records to be effective on the date of injury when the commissioner is presented with facts showing that a different insurance policy was then effective. BACK TO TEXT

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