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Pereira v. Taylor & Fenn Company

CASE NO. 1816 CRB-1-93-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 28, 1995

MANUEL PEREIRA

CLAIMANT-APPELLEE

v.

TAYLOR & FENN COMPANY

EMPLOYER

and

SEDGWICK JAMES OF CONNECTICUT

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Michael Wolf, Esq., 4 Shadbush Lane, South Windsor, CT 06074.

The respondents were represented by Booth M. Kelly, Jr., Esq., Murphy & Beane, Two Union Plaza, P. O. Box 590, New London, CT 06320.

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

This Petition for Review from the July 30, 1993 Finding and Award of the Commissioner acting for the First District was heard August 26, 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 Second Injury Fund has petitioned for review from the July 30, 1993 Finding and Award of the Commissioner for the First District.1 The claimant suffered compensable injuries to his right knee, right wrist and right shoulder on December 18, 1987. This resulted in a 22.5 percent permanent partial disability of the right knee, which injury was worsened by underlying arthritis. The commissioner rejected separate impairment ratings for the shoulder and wrist, stating that a combined rating had to be obtained for the upper extremity. He did note that a preexisting condition also worsened the severity of the shoulder injury.

The commissioner ordered the respondent to pay benefits, with liability for the right leg injury transferring to the Second Injury Fund on March 8, 1990. He noted in his findings that liability for the various injuries would not transfer to the Fund until the requisite payments were made for each body part. He also ruled that the respondents § 31-284b C.G.S. reimbursement claim had to be dismissed for lack of jurisdiction. The Fund appealed from that decision.

In a Memorandum dated March 30, 1994, the commissioner also ordered the appellant Fund to pay all compensation due the claimant under the terms of the award pursuant to § 31-301(f) C.G.S. The Fund has appealed from that ruling as well.2

The Fund raises several issues on appeal. We first address its contention that the respondent employer’s notice of claim for transfer to the Second Injury Fund was untimely under § 31-349 C.G.S., thus invalidating the commissioner’s order to transfer liability to the Fund. Section 31-349 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 first one hundred four weeks of disability, notify the custodian of the second injury fund of the pending case . . . .” Strict compliance with this provision is required in order to transfer liability under this section. Plesz v. United Technologies Corp., 174 Conn. 181, 186-88 (1978); Kiernan v. Roadway Express Inc., 15 Conn. App. 625, 630 (1988); Reising v. General Dynamics/Electric Boat Division, 1609 CRB-2-92-12 (decided Dec. 6, 1994).

Here, the injury occurred on December 18, 1987. The claimant began receiving compensation on the following day, his first day of disability. See § 31-295(b); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 391 (1993). Assuming continuous disability, one hundred four weeks would have elapsed on December 16, 1989; the ninetieth day before that date was September 17, 1989. Notice of this case was not sent to the Fund until November 9, 1989, however. The Fund contends that the claimant was continuously disabled throughout that 104-week period, and that his notice was untimely filed as a result. See Vaillancourt, supra, 392-93. The respondents argue that the claimant was not disabled between June 24, 1988 and September 14, 1988, nor was he disabled between September 23, 1989 and November 21, 1989. Therefore, they maintain that notice was not due until February 3, 1990. This argument is partially correct.

The commissioner found that the claimant was totally disabled from December 19, 1987 until June 23, 1988; partially disabled from June 24, 1988 until September 13, 1988, when his knee reached maximum medical improvement; entitled to permanent partial disability from September 14, 1988 through September 23, 1989; and again totally disabled beginning on November 21, 1989. He specifically found that notice of the claim was timely filed with the Second Injury Fund on November 9, 1989.

Under these facts, it is clear that the claimant was disabled within the meaning of Vaillancourt, supra, from December 19, 1987 until September 23, 1989, followed by a 59-day period where he was not disabled. The fact that the claimant was not entitled to benefits for almost three months during the summer of 1988 does not change the fact that he was disabled. See Six v. Thomas O’Connor & Co., 1621 CRB-1-93-1 (decided Dec. 27, 1994). He simply waived his right to collect compensation by failing to search for light duty employment. See § 31-308(a) C.G.S.

In contrast, there is no finding that the claimant was disabled between September 23, 1989 and November 21, 1989, and this conclusion is not challenged by the Fund. In fact, the claimant returned to his former employer for two days during that period. Thus, the 104-week disability period was tolled on September 23, 1989, and began running again on November 21, 1989. This means that the 104th week of disability did not elapse until February 13, 1989, and notice was due ninety days before that date--November 15, 1989. Having been filed on November 9, 1989, notice was timely in this case by six days.

The Fund next argues that it was deprived of the opportunity to be heard in this matter, that it was prejudiced by the lack of a formal hearing, and that it never consented to a stipulation of facts entered into by the employer and the claimant. In fact, the record shows that a formal hearing was held on February 16, 1993 regarding transfer of this claim to the Second Injury Fund, the Fund was notified of that hearing on December 8, 1992, and an attorney for the Fund did appear. Thus, Levasseur v. General Dynamics, 11 Conn. Workers’ Comp. Rev. Op. 34, 1244 CRD-2-91-6 (Feb. 26, 1993), which the Fund cites as controlling authority, is not directly on point.

The Fund admitted that it was invited by the parties to sign the stipulation of facts or present evidence at the formal hearing regarding any disagreement it might have with the facts as stipulated. No such evidence was offered. Furthermore, the transcript shows that the commissioner sustained the Fund’s objection to the stipulation of facts, and did not expressly rely on that stipulation in his findings. We do not believe that the Fund was prejudiced in any way by these proceedings, nor was it deprived of an opportunity to present its case. Levasseur, supra. Thus, we deny this claim of error as well.

The Fund’s final claim of error relates to the commissioner’s March 30, 1994 Memorandum granting the claimant’s motion for payment of benefits pending appeal pursuant to § 31-301(f) C.G.S. The Fund argues that § 31-301(f) does not require it to pay orders pending appeal when the underlying order is against the Fund itself, rather than an employer or insurer. We note that this claim was raised in the Fund’s Reasons of Appeal, but was not discussed in the Fund’s brief. Although this claim of error technically complies with Administrative Regulation § 31-301-2, an effective review of this claim is somewhat hampered by the parties’ failure to elaborate on this issue. Nevertheless, we will address the matter.

Section 31-301(f) provides that “[d]uring the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid from the second injury fund pursuant to § 31-354.” The Fund is entitled to reimbursement at ten percent interest by the party who loses the appeal under § 31-301(g).

The statute is clearly intended to ensure the payment of workers’ compensation benefits that have been ordered by a commissioner to be paid to a claimant in cases where an employer or insurer have refused to pay the award in anticipation of the resolution of an appeal. The policy behind this statute is apparent: to provide the injured claimant with the benefits he has become entitled to by virtue of an award unless and until it is shown that the award was made in error. The humanitarian spirit of the Workers’ Compensation Act would not be served by forcing a claimant to wait months or years to collect benefits while an employer or insurer undertakes its journey through the courts of appeal.

In that same vein, it would be inconsistent with the policy behind this statute and the Workers’ Compensation Act in general to allow the Second Injury Fund to avoid payment of an award pending the results of an appeal. A claimant is no less entitled to the payment of an award merely because it has been made against the Fund rather than against an employer or an insurer. Although § 31-301(f) does not specifically address awards made against the Fund, we are quite certain that the legislature did not intend to make the Fund responsible for the interim payment of awards against all nonpaying employers and insurers while allowing the Fund to ignore awards made against it specifically. Such an outcome would be ludicrous and inequitable.

The most logical reading of this provision, and the result most consistent with the spirit of the Workers’ Compensation Act, is to apply § 31-301(f) to all unpaid awards. This way, the claimant would not go uncompensated where an award of compensation has been made, and the Fund would be entitled to reimbursement under § 31-301(g) should it prevail on appeal. We decline to read § 31-301(f) so as to strip away some of the protection that the legislature obviously intended to create for claimants.

The trial commissioner’s decision is affirmed.

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

1 A corrected Finding and Award containing minor changes was issued on October 28, 1993. We also note that the parties agreed at oral argument to waive any objection to the presence of Commissioner Santos on this review panel, despite his involvement in certain informal proceedings below. BACK TO TEXT

2 The respondent employer has raised certain claims of error in its appellate brief. As the employer did not file a petition for review nor reasons of appeal, we will not consider its claims. BACK TO TEXT

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