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Soares v. Max Services

CASE NO. 1718 CRB-1-93-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 21, 1995

PAULO SOARES

CLAIMANT-APPELLEE

v.

MAX SERVICES

EMPLOYER

and

COMMERCIAL UNION INSURANCE COMPANIES

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument.

At the trial level, claimant was represented by Mark Blakeman, Esq. and Joseph LaBella, Esq., 93 Oak Street, Hartford, CT 06106-1944.

The respondents were represented by James T. Scully, Esq., Cooney, Scully & Dowling, Hartford Square North, 10 Columbus Blvd., Hartford, CT 06106-1944.

The Second Injury Fund was represented by Loida D. John-Nicholson, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120

This Petition for Review from the April 27, 1993 Memorandum of Decision of the Commissioner acting for the First 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 Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the April 27, 1993 decision of the Commissioner for the First District denying the insurer’s request to transfer liability for the claimant’s injury to the Second Injury Fund. On appeal, the respondents contend that the commissioner 1) improperly interpreted § 31-349 C.G.S. in finding that the respondents had failed to comply with the requirements of that statute and 2) improperly failed to find that the Fund had either waived its right to contest liability or had become estopped from denying liability. We affirm the trial commissioner’s decision.1

The claimant suffered an employment-related injury to his back on October 3, 1989. As a preexisting condition resulted in the claimant’s disability being substantially greater than it would have been from the compensable injury alone, the respondents sent notice to the Second Injury Fund on November 29, 1990 requesting transfer of the claim. The Fund acknowledged receipt of the claim, but informed the respondents that more information was needed before the claim would be accepted, including a “necessary approved voluntary agreement or award.” A voluntary agreement was approved on November 28, 1991, and a copy had been provided to the Fund by February 10, 1992.

On March 17, 1992, a representative of the Fund wrote a letter to respondents’ counsel informing him that the claimant’s injury “qualifies for transfer to the Fund.” A representative of the Fund confirmed the agreement to accept the case at an informal hearing held on June 5, 1992. The Fund soon changed its position on the acceptance of liability, however, arguing that the insurer had failed to perfect its notice to the Fund in accordance with § 31-349. The trial commissioner agreed with the Fund, holding that the insurer’s failure to provide the Fund with a copy of the voluntary agreement prior to 90 days before the expiration of the 104th week of disability rendered the attempted transfer of the claim ineffective. The respondents have appealed from that decision.

The relevant language of § 31-349 (a) (now § 31-349 (b)) provides 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 one-hundred-four-week period, 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 purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. . . .” The respondents argue that under the plain language of the statute the ninety-day time limit applies only to the provision of notice of the pending case to the Fund’s custodian, and not to the furnishing of a copy of the voluntary agreement. They contend that the remedial purpose of the statute is frustrated by a contrary construction such as the one set forth in Kramer v. General Electric Co., 1 Conn. Workers’ Comp. Rev. Op. 12, 14, 17 CRD-4-80 (1980), affirmed, 37 Conn. Sup. 742, 744-45 (1981).

In Kramer, the Appellate Session of our Superior Court partially relied on Plesz v. United Technologies Corporation, 174 Conn. 181, 185-86 (1978), in determining that an employer was obliged to give the custodian of the Fund notice of the pending action and a copy of the agreement or award before the ninetieth day prior to the expiration of the 104-week period. The court also stated that the policy behind the ninety-day notice period is “to enable the fund to assess its alleged liability quickly and thereby immediately establish its financial reserves, with a further objective being to give the fund reasonable time to investigate the claim and prepare to meet it.” Kramer v. General Electric Co., supra, 37 Conn. Sup. 745. In accordance with Kramer, two recent decisions of this Board have held that a voluntary agreement must be provided within the time limit set forth in § 31-349 (a) once compensability of the injury has been admitted. Reising v. Electric Boat, 1609 CRB-2-92-12 (decided Dec. 6, 1994); Dos Santos v. F.D. Rich Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 64, 1358 CRD-7-91-12 (Feb. 2, 1994).

Despite the well-drafted argument of the respondents centering around the placement of the phrase “ninety days before the expiration of the one-hundred-four-week period” between “shall” and “notify,” we are unpersuaded that Kramer and its progeny were decided wrongly. Although the respondents are correct in noting that the legislature did change the relevant wording of § 31-349 in 1969 and again in 1971, neither Plesz nor Kramer had been decided at that time, and we cannot assume that the change in wording was made in response to either of those decisions. Indeed, in the thirteen years since the Kramer opinion was issued, there have been no further changes in the relevant statutory language. From the respondents’ point of view, the language of the statute is at best ambiguous regarding the applicability of the 90-day provision to the requirement that a copy of the agreement or award be furnished to the custodian of the Fund.

“When the language of a statute is unclear, we may ascertain the intent of the legislature by looking beyond the language to the statute’s legislative history and the purpose that the statute was intended to serve.” Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391 (1993), quoting Weinberg v. ARA Vending Co., 223 Conn. 336, 341 (1992). Here, the legislature intended to assure that the Second Injury Fund would have time to investigate claims, assess its potential liability and establish financial reserves. Plesz v. United Technologies Corporation, supra, 174 Conn. 188. It is more consistent with that purpose to require an employer to provide a copy of an agreement to the custodian before the ninety days preceding the 104th week of disability than it is to allow the employer to reach such an agreement at its leisure, thus leaving the Fund unsure as to the extent of liability it is being asked to assume. As long as compensability is not being contested, there is no reason why an agreement cannot be reached within the first year and nine months of disability. Such a requirement is also consistent with the overall remedial purpose of the Workers’ Compensation Act, and does not preclude employers from being able to relieve themselves of liability for injuries unrelated to their employment. See Id., 185. We hold that the commissioner did not misinterpret the ninety-day provision of § 31-349 (a) in requiring a copy of the voluntary agreement to be supplied to the custodian of the Fund within that time limit.

The respondents next claim that the Fund waived its right to refuse to accept liability for the instant claim by virtue of the letter of March 17, 1992 stating that the injury “qualifies for transfer to the Fund,” as well as the Fund’s affirmation of that agreement at a subsequent informal hearing. We do not think such a waiver was possible in this case. Section 31-349 (a) expressly states that compliance with its provisions is a condition precedent to the liability of the Second Injury Fund, and it is well-established that strict compliance with the notice provisions of the workers’ compensation act, including § 31-349, is required. Vaillancourt v. New Britain Machine/Litton, supra, 224 Conn. 395; 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). We have already determined that the conditions of the statute invoking the liability of the Fund were not satisfied in this case.

It is important to recognize that the Fund is a creature of statute, the powers of which are defined and limited by the laws creating it. As a necessary corollary of that fact, the Fund’s representatives do not have the power to waive the jurisdictional requirements of the very statutes that define the Fund’s duties and liabilities. The case cited by the respondents regarding the ability of a party to waive a statutory requirement, Hatch v. Merigold, 119 Conn. 339 (1935), is inapposite, as it dealt with an individual plaintiff who, by affirmatively pleading that her decedent was not contributorily negligent, had waived her right to claim the benefit of a statute allocating the burden of proof on contributory negligence to the defendant. We thus conclude that the Fund did not and could not waive the requirements of § 31-349 in this case.

Similarly, we reject the respondents’ contention that the Fund should be estopped from denying acceptance of the case. We do not find the respondents’ argument that the Fund is not a government agency for the purposes of estoppel persuasive. Rather, we think the contrary position taken in Dos Santos v. F.D. Rich Construction Co., supra, 12 Conn. Workers’ Comp. Rev. Op. 67-68, is the correct one given the aforementioned limits on the authority of Fund representatives to circumvent statutory requirements. As such, the respondents are required to show that the Fund representative whom the respondents detrimentally relied on had the authority to deem the claim accepted. West Hartford v. Rechel, 190 Conn. 114, 121 (1983). Again, given the above discussion regarding the inability of Fund representatives to waive jurisdictional requirements, it is clear that the Fund representatives whose actions underpin the respondents’ claim were not cloaked with the authority to accept liability for the claim from the insurer. See Dos Santos v. F.D. Rich Construction Co., supra, 12 Conn. Workers’ Comp. Rev. Op. 68.

We also note that the statements by the Fund representatives regarding acceptance of the claim were both made in 1992, long after the statutory time limit for producing a copy of the agreement or award had already expired. Thus, we question the relevance of the “detrimental reliance” alleged by the respondents, as § 31-349 (a) would not have been satisfied regardless of the statements of the Fund’s representatives.

We affirm the trial commissioner’s decision.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

1 We note that Commissioner Angelo L. dos Santos presided over this case at the informal hearing stage. At oral argument, both parties waived any objection to his sitting on the Compensation Review Board panel for this case. BACK TO TEXT

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