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Izzo v. Meriden-Wallingford Hospital

CASE NO. 1567 CRB-8-92-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 25, 1995

STEPHANIE IZZO

CLAIMANT-APPELLEE

v.

MERIDEN-WALLINGFORD HOSPITAL

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOCIATION

INSURER

RESPONDENTS-APPELLEES

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant did not need to be represented here. The appeal concerned issues between Meriden-Wallingford Hospital and the Second Injury Fund. At the trial level, claimant was represented by Kevin Coombes, Esq., 107 Oak St., Hartford, CT 06106.

Meriden-Wallingford Hospital and Connecticut Hospital Association were represented by John M. Letizia, Esq., Byrne & Letizia, 1764 Litchfield Turnpike, Suite 106, Woodbridge, CT 06525.

Second Injury Fund was represented by Ernie R. Walker, Esq., A.A.G., 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the December 1, 1992 Revised Finding and Award of the Commissioner for the Eighth District was heard January 14, 1994 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JOHN A. ARCUDI, COMMISSIONER. Statutory provisions § 31-3251 and § 31-349,2 designed to promote employment opportunities for the physically disadvantaged are the subject of the appeal. The respondent employer, Meriden Wallingford Hospital (MWH), now merged with the World War II Veterans’ Memorial Hospital (W.W.II) into the Veterans Memorial Medical Center (V.M.M.C.) seeks to transfer liability for claimant’s January 17, 1986 back injury to the Second Injury Fund. This is the Fund’s appeal.

In 1983 this employee due to previous back conditions at the request of MWH, her then employer, signed a § 31-325 acknowledgment of physical defect. However MWH failed to get the acknowledgment approved by the Eighth District Commissioner until September 23, 1991. In the interim, claimant was laid off by MWH November 7, 1983 and began working at WWII where she again signed a § 31-325 acknowledgment relating to her previous back condition December 1, 1983; this was immediately approved by the Commissioner in the Third District. Several months later she again changed employment in February 1984 and returned to a nursing position at MWH, where she continued to be employed until the 1986 injury, the subject of her present claim. MWH and WWII merged into VMMC January 10, 1991.

After ruling November 12, 1992 that the MWH acknowledgment was ineffective as a basis for transferring liability, the Eighth District Commissioner issued a corrected ruling December 1, 1992 reversing the earlier result. The new December decision relied on the December 1, 1983 WWII acknowledgment and on that section of § 31-325 which provided “acknowledgments shall remain in effect between the employee and the successor employer whenever an employer company ... is merged with ... another company, provided the employment relationship otherwise remains substantially the same.”

Also in response to a MWH motion to correct, the Commissioner on December 18, 1992 changed his November 12th decision again and found the MWH acknowledgment itself to be a valid basis for transfer. In the course of the November and December 1992 rulings, the Commissioner also found that there could be no valid transfer of liability under § 31-349 as notice to the Fund was late for that purpose.

The Fund’s appeal argues that neither the MWH acknowledgment or the WWII acknowledgment is effective to permit a transfer or liability. The Fund contends the MWH acknowledgment executed in 1983 but not approved by the Commissioner until September, 1991 is no valid basis for transfer as the Commissioner’s approval did not occur until five years after the 1986 injury. This contention holds essentially that workers’ compensation liability is part of the employment contract between employer and employee and for the acknowledgment to be part of that contract it must be in place, approved by the Commissioner, before the injury occurs.

MWH argues that while Commissioner approval may have been a necessary condition precedent to altering the employment contract in this regard before, it no longer was so after the 1967 amendments. Before 1967 the employee who signed a waiver, as the acknowledgment was then called, actually waived rights to compensation and therefore needed commissioner approval before the waiver could be effective. After the 1967 amendments, although the § 31-325 form was still designated a “waiver” until the 1979 changed it to “acknowledgment,” the employee signing it no longer lost compensation rights. The MWH brief, contends the 1967 statutory change “renders ministerial the findings upon which the commissioner’s approval is now based.”

We do not agree that the commissioner’s approval is merely a ministerial act. The statutory provision requiring commissioner approval remains essentially the same now as it was before the 1967 amendment. Before 1967 the language read, “No such waiver shall become effective ... until the commissioner ... finds that the person who signed ... fully understood the meaning thereof ... nor until such commissioner, in writing approves thereof”. In 1986, at the time of claimant’s injury, and in 1991 the language read, “No such acknowledgment shall become effective ... until one of the compensation commissioners ... finds that the person who signed ... fully understood the meaning thereof ... nor until such commissioner, in writing, approves thereof.” In 1986, at the time of claimant’s injury, and in 1991 the language read, “No such acknowledgment shall become effective ... until one of the compensation commissioners ... finds that the person who signed ... fully understood the meaning thereof ... nor until such commissioner, in writing, approves thereof.”

If the General Assembly after 1967 wanted the approval of the acknowledgment to be merely a ministerial act, it could easily have said so and not left the language essentially unchanged for the last twenty-seven years. Since there was no approved acknowledgment in place on January 17, 1986, the contract of employment between the claimant and MWH had not been altered, and therefore that unaltered employment contract gave no right of transfer to the employer.

As to the Commissioner’s second basis for transferring liability to the Fund in his 1992 rulings, it is unquestioned that the acknowledgment between employer and employee will remain in effect when the employer is merged or purchased by a successor employer, and the employment relationship or contract between the employee and the successor employee remains substantially the same as with the previous employer... But here the merger had not taken effect at the time of the 1986 injury. It occurred five years after the injury. She was not working for the merged VMMC on January 17, 1986 but for MWH, and MWH had no acknowledgment in place on that date. Thus, granted that the merger creation, VMMC, may have been the beneficiary of the WWII December, 1983 acknowledgment with this employee after the January 10, 1991 merger, it could not benefit from that acknowledgment for an injury occurring in 1986.

The Eighth District December, 1992 rulings are therefore vacated, the Fund’s appeal is sustained, and the employer’s request for transfer of liability to the Fund is denied.

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

1 At the time of the acknowledgment, § 31-325 provided in relevant part that “[w]henever any person . . . has a physical defect which imposes upon his employer or prospective employer a further or unusual hazard, it shall be permissible for such person to execute in writing for himself or his dependents, or both, an acknowledgment of physical defect. No such acknowledgment shall become effective unless the defect in question is plainly described therein, nor until one of the compensation commissioners finds that the person who signed such acknowledgment fully understood the meaning thereof . . . nor until such commissioner, in writing, approves thereof, files the same in the district where the employer’s business is located, and furnishes each of the parties thereto with a copy thereof. . . . Such acknowledgments shall remain in effect between the employee and the successor employer whenever an employer company which is a party to such an acknowledgment is merged with, or substantially purchased by, another company, provided the employment relationship otherwise remains substantially the same.” P.A. 91-32 changed the term “physical defects” to “physical conditions.” BACK TO TEXT

2 Section 31-349 (b) requires, in relevant 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.” The commissioner found that notice was first sent to the second injury fund on August 2, 1988, over six months after the January 17, 1988 expiration of the 104-week period. BACK TO TEXT

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