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IN RE: Employee Staffing of America

CASE NO. 1395 CRB-3-92-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 21, 1995

IN RE: EMPLOYEE STAFFING OF AMERICA

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

APPEARANCES:

The respondent-appellant was represented by Michael Parizo, Esq., Friedman & Ahern, P.C., 202 Cherry St., Milford, CT 06460.

The respondent-appellee State of Connecticut was not represented at oral argument.

This Petition for Review from the March 10, 1992 Finding of Non-Compliance With Section 31-284 (b) C.G.S. of the Commissioner acting for the Third District was heard May 20, 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 respondent has petitioned for review from the Third District Commissioner’s March 10, 1992 Finding of Non-Compliance with Section 31-284 (b). In that finding, the commissioner noted that “The Employee Staffing of America Company of 202 Cherry Street, Milford, CT 06460 was notified of the noncompliance hearing and did not appear.” The commissioner went on to find that a special investigator for the Second Injury Fund had testified and filed affidavits indicating that the respondent had been notified that it was not in compliance with § 31-284 (b) and that it could be subject to a $1,000 civil penalty as a result. The investigator visited the respondent’s Cherry Street office three times in November-December 1991, each time determining that the respondent was not in compliance with § 31-284 (b). On the basis of these findings, the commissioner found that the respondent was “wilfully in noncompliance with Section 31-284 (b)” and therefore ordered it to pay a $1,000 civil penalty pursuant to § 31-288 (c).

The respondent essentially sets forth two arguments in support of its appeal. First, it claims that service upon it of notification of the noncompliance hearing was defective. Second, the respondent claims that the commissioner improperly concluded that it was in violation of § 31-284 (b) because it had an ERISA plan in effect at the time of the alleged noncompliance and because it was prevented from obtaining workers’ compensation coverage by a third party’s wrongful actions, which allegation was the subject of pending litigation in the United States District Court. As the former claim implicates the jurisdiction of the Workers’ Compensation Commission, we will discuss it first.

Section 31-288 (c) provides that a commissioner who has reason to believe that an employer is not in compliance with the insurance requirements of § 31-284 (b) “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.” A finding of noncompliance may result in a fine of up to $1000. Section 31-321, in turn, provides that “any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business.” The respondent, which was not present at the noncompliance hearing at issue in this case, argues that § 31-321 was not complied with, as there was no mention in the record of whether personal service or service by registered or certified mail was attempted.

The noncompliance hearing consisted of a brief examination of the Second Injury Fund’s investigator, after which the commissioner noted that the respondent did not appear and imposed a fine against the respondent based on its failure to submit evidence that it was in compliance with statutory insurance requirements. A written finding was issued accordingly. Neither the testimony nor the hearing notices in the file reveal, however, whether personal service or service by registered or certified mail was even attempted on the respondent. The respondent correctly notes that there is no evidence anywhere in the record to support the commissioner’s finding that notification actually took place.

Where, as here, a fine was imposed against the respondent without its being present to defend itself, it becomes important to ensure that proper procedural safeguards were followed in notifying the respondent of the proceedings. “The law cannot favor such a forfeiture or default without a strict compliance with all the technical requirements preceding it.” Timothy v. Upjohn Company, 2 Conn. Workers’ Comp. Rev. Op. 1, 2, 150 CRD-3-82 (Feb. 25, 1983), appeal dismissed, 3 Conn. App. 162 (1985). “Procedural due process is a requirement of adjudicative administrative hearings, including those held before workmen’s compensation commissioners.” Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). Because the respondent was not present to defend itself on the merits at the noncompliance hearing, and there was no evidence to support the commissioner’s conclusion that the respondent was notified of the proceedings, we must remand the matter back to the Third District for another hearing. Compare Secor v. C.A. Parshall, Inc., 4 Conn. Workers’ Comp. Rev. Op. 158, 340 CRD-7-84 (March 8, 1988).

Our resolution of the first issue eliminates the need for any discussion of the appellant’s remaining claims.

The trial commissioner is reversed, and the case is remanded for further proceedings.

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

Workers’ Compensation Commission

Page last revised: January 21, 2005

Page URL: http://wcc.state.ct.us/crb/1995/1395crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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