State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Fresta v. Connecticut Mason Contractors

CASE NO. 1758 CRB-1-93-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 27, 1995

ROSARIO FRESTA

CLAIMANT-APPELLEE

v.

CONNECTICUT MASON CONTRACTORS

EMPLOYER

and

AETNA CASUALTY & SURETY

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by John H. Hanks, Esq., Law Offices of Angelo Cicchiello, Esq., 364 Franklin Avenue, Hartford, CT 06114.

Respondents employer and insurer were represented by Douglas L. Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

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

This Petition for Review from the June 1, 1993 Finding Award and Dismissal of the Commissioner acting for the First 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. Although both employer and employee originally appealed the First District June 1, 1993 decision, only the employer pursued its appeal. The issue raised concerns the Commissioner’s failure to transfer liability to the Second Injury Fund under § 31-349 C.G.S.

Fresta, the employee, suffered a compensable back injury on October 9, 1987. The employer, Mason Contractors, through its insurer, Aetna Casualty & Surety, paid benefits due after that injury, and on February 16, 1988, mailed voluntary agreements accepting compensability to the employee’s attorney. For reasons not fully explained in the record, Fresta did not sign these or any subsequent voluntary agreements sent him until March 15, 1990. The First District approved that agreement April 3, 1990. In the meantime, Aetna, on March 11, 1988, sent notice to the Second Injury Fund that the case qualified for transfer of liability under § 31-349 after 104 weeks of disability. However, it was not able to send the approved voluntary agreement to the Fund until April 4, 1990, despite the fact that Aetna was paying benefits pursuant to an oral understanding.

In order to effectuate transfer of liability, § 31-349 requires the employer or its carrier “ninety days before the expiration of the first one-hundred and four weeks of disability” to give notice to the Fund and furnish “a copy of the agreement or award.” The Commissioner ruled that there existed a medical basis for transfer, but the failure to furnish the voluntary agreement within the first ninety-one weeks of disability barred the shift of the obligation to the Fund.

Appellants argue that there was an oral agreement and they were paying benefits long before the claimant executed the written agreement. Further, they claim, § 31-296a at the time of the injury recognized the validity of such oral agreement and did not permit employers to discontinue payments without following procedures set forth in that statute. Although the oral understanding was a valid agreement, it was impossible for the insurer to send the Fund a copy of a document which did not exist. As the law should not require the performance of impossible acts, then they contend that their March 11, 1988 notice, sent well before the end of the 104 week period required in § 31-349, should have been sufficient to satisfy the statutory requirement for transfer.

Comments in a recent CRB opinion, Reising v. General Dynamics, 13 Conn. Workers’ Comp. Rev. Op. 40, 1609 CRB-2-92-12 (Dec. 6, 1994), although not the holding of the case itself, seem to agree with the appellants’ position. However, Supreme Court and Appellant Court precedents which have not been overruled or distinguished, Plesz v. United Technologies Corporation, 174 Conn. 181 (1978), Kramer v. General Electric Co., 37 Conn. Sup. 742 (1981) affirming 1 Conn. Workers’ Comp. Rev. Op. 12, 17-CRD-4-80 (Nov. 13, 1980), Kiernan v. Roadway Express, Inc., 15 Conn. App. 625 (1988) affirming 3 Conn. Workers’ Comp. Rev. Op. 129, 270 CRD-5-83 (Dec. 23, 1986), hold otherwise.

Kramer, supra, in particular had facts very similar to those in the present case. There, the deadline for notification to the Fund was September 13, 1979. The carrier had accepted liability October 6, 1978 and sent the claimant voluntary agreements memorializing that acceptance. Somehow, those agreements never reached the Fourth District office. In the meantime the carrier notified the Fund on July 25, 1979 that it was claiming transfer under Section 31-349. Another voluntary agreement was prepared, executed by the parties, approved by the Commissioner and filed with the Fund October 9, 1979. The Compensation Review Division reversed the Fourth District Commissioner’s order transferring liability under § 31-349 and the Appellate Division of the Superior Court upheld the denial of transfer.

It is also true that the Supreme Court, Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 392, N. 10 (1993), suggests that the Court might construe the statute differently if it were impossible to give notice within the § 31-349 deadlines, but that same note refrained from making a different interpretation at that time. Therefore, until there actually is a new statutory interpretation, we, as a junior appellate tribunal, are bound by the precedents as they now exist.

The most recent Connecticut Supreme Court decision on § 31-349 transfers, Dos Santos v. F. D. Rich Construction, Inc., 233 Conn. 14 (1995), does not require that a copy of a fully executed and approved voluntary agreement be sent to the Fund. However, it does require that a copy of an agreement be sent, even if not fully executed and approved. But here no copy of any agreement was sent before the statutory deadline.

We therefore affirm the June 1, 1993 First District Finding Award and Dismissal and dismiss the employer’s appeal.

Commissioners Angelo L. dos Santos concurs in this decision.

NANCY A. BROUILLET, COMMISSIONER, concurring. Although I agree with the majority opinion, I write separately to express my disagreement with its mention and characterization of Reising v. General Dynamics, 13 Conn. Workers’ Comp. Rev. Op. 40, 1609 CRB-2-92-12 (Dec. 6, 1994). In Reising, the respondents had contested compensability of the injury from the outset of the pending claim, and the Second Injury Fund did not receive notice of the claim until long after the § 31-349 C.G.S. notice period had expired. Because there was no agreement of any kind between the employer and the claimant, we stated that the requirement of § 31-349 could be waived insofar as a copy of the voluntary agreement or award was required. The other requirements of § 31-349 could have been complied with, however, and we sustained the Fund’s appeal.

In contrast, the employer provided timely notice of the pending claim to the Fund in the instant case, and had quickly accepted the compensability of the injury. The voluntary agreements to that effect were not signed for over two years, however, for reasons not fully clear from the record. Unlike Reising, the respondents have not demonstrated that they were in a situation where it was impossible to comply with the language in § 31-349 requiring a copy of the voluntary agreement to be provided to the Fund within the notice period. Therefore, Reising is inapposite, and need not be discussed in the majority opinion.

Workers’ Compensation Commission

Page last revised: January 21, 2005

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

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