CASE NO. 2216 CRB-1-94-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 3, 1996
KYE JA CHOI d/b/a KESCO MANPOWER CO.
NEW YORK STATE INSURANCE FUND
SECOND INJURY FUND
The claimant was represented by Kathleen Nastri, Esq., Carmody & Torrance, P.O. Box 1110, 50 Leavenworth St., Waterbury, CT 06721-1110, who did not appear at oral argument.
The claimant was also represented by George Kramer, Esq., Kramer & Southworth, 920 Farmington Ave., Suite 205 West Hartford, CT 06107, who did not appear at oral argument.
The respondent New York State Insurance Fund was represented by Scott Williams, Esq. and James Moran, Esq., Maher & Williams, 1300 Post Rd., Fairfield, CT 06430.
The respondent employer was represented by John Quinn, Esq., Furniss & Quinn, 248 Hudson St., Hartford, CT 06106.
The Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the November 16, 1994 Finding and Award of the Commissioner acting for the First District was heard November 17, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The respondent New York State Insurance Fund (“New York Fund”) has filed a petition for review from the First District Commissioner’s November 16, 1994 Finding and Award. In that decision, the trial commissioner found that the claimant was employed by the respondent employer when he sustained a compensable injury to his eye on June 3, 1994 while removing asbestos at a job site in Hartford, Connecticut. The employer was insured for workers’ compensation liability by the New York Fund at the time of the injury. Accordingly, the trial commissioner ordered the employer and its insurer to pay the workers’ compensation award. In addition, the trial commissioner stated that if the employer and its insurer failed to pay the award within ten days, the Second Injury Fund must pay the award pursuant to § 31-355. In support of its appeal, the New York Fund contends that the insurance policy only covered injuries which occurred in New York, and that it is legally inconsistent for the trial commissioner to impose a penalty on the employer for failure to carry insurance pursuant to § 31-288(c) while ordering the New York Fund to pay the claim.1
We will first address the motion to submit additional evidence which was filed by the New York Fund on January 20, 1995 requesting an investigation of “whether there was a policy of insurance in Connecticut” for the employer. In support of the motion, the New York Fund cites pages 5-7 of the November 4, 1994 formal hearing transcript. This transcript section merely indicates that the representative of the Second Injury Fund did not have any information regarding whether the claimant had suffered a compensable injury, and therefore left the claimant to his proof. There is no indication that either the respondent employer or the New York Fund requested a continuance or an investigation regarding the issue of insurance coverage at any time during the formal hearing process. Moreover, the employer has not contended that it had any workers’ compensation insurance other than its policy from the New York Fund.
The New York Fund has provided no reason for the failure to provide, prior to the close of the formal hearing, the evidence or testimony which it now seeks to submit in the Motion to Submit Additional Evidence. Section 31-301-9 of the Agency Regulations provides, in pertinent part:
If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner.
It is a party’s burden to recognize and resolve inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant at the time of the hearing. See Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (Dec. 2, 1992). In the instant case, the formal hearing was held on November 4, 1994. The New York Fund has not alleged that evidence regarding whether the employer had any other workers’ compensation insurance policies was unavailable during the formal hearing process, nor does it allege any good reason for the failure to present such evidence. Moreover, the respondents do not contend that the employer had another workers’ compensation insurance policy. Accordingly, we deny the motion to submit additional evidence. See Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (March 18, 1993).
We will now address the merits of the New York Fund’s appeal, specifically whether it was proper for the trial commissioner to enter an order for the New York Fund to pay the claim. As stated above, the parties do not dispute that the New York Fund was the only insurer of the employer at the time of the claimant’s accident on June 3, 1994. The New York Fund contends, however, that its insurance policy limited coverage of the employer to accidents which occurred within New York state boundaries. During the formal hearings, neither the New York Fund nor the employer presented any testimony regarding whether the insurance policy covered the claimant’s accident in Connecticut. In fact, the transcript of the formal hearing reveals that the representative of the New York Fund acknowledged that the issue of whether the employer’s insurance policy covered injuries which occurred in Connecticut, including the claimant’s injury, was an issue which would have to be resolved in another forum.2
Section 31-343 provides that as between an employee and insurer, an insurance contract is conclusively presumed to cover the entire liability of the insured, and “no question as to breach of warranty, coverage or misrepresentation by the insured shall be raised by the insurer in any proceeding before the compensation commissioner or on appeal therefrom.” (Emphasis added). This board has held that a trial commissioner may determine whether an insurance policy was in existence at the time of an injury. Bruce v. Bert Miller Assoc., Case No. 1872 CRB-1-93-10 (decided Dec. 1, 1995) (citing O’Connell v. Indian Neck General Store, 6 Conn. Workers’ Comp. Rev. Op. 42, 530 CRD-3-86 (Oct. 6, 1988)). However, a trial commissioner “has no authority to interpret the insurance contract or policy provision.” Vernon v. V.J.R. Builders, Inc., 11 Conn. Workers’ Comp. Rev. Op. 237, 242, 1360 CRD-7-91-12 (Nov. 8, 1993). In addition, this board has stated:
The Commissioner is empowered to determine whether there was a contract of insurance between the employer and a putative insurer on the date of injury.... (T)he commissioner must enter ‘an award against.... any insurer which may be found to have issued to the employer a policy covering liability for the injury in question.’....Our case law, however, limits an insurer’s ability to deny the existence of a workers’ compensation policy effective on the date of injury....
Stickney v. Sunlight Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 364, 366, 1738 CRB-6-93-5 (Aug. 2, 1994) (citations omitted).
In addition, the Supreme Court of Connecticut has stated that the purpose of § 31-343 (formerly § 5406) is “to make certain that an employer shall at all times be in a position to fulfill all his obligations to his employees under the Act.” Witchekowski v. Falls Co., 105 Conn. 737, 739 (1927). Furthermore, the court stated that the trial commissioner may make his award against the insurer, the employer, or both, but that an award against both the employer and the insurer is favored. Id. at 740-41. In the instant case, the trial commissioner’s order against both the employer and its insurer is supported by the language of § 31-343, the court’s opinion in Witchekowski, supra, and the decision of Stickney, supra. Accordingly, we find no error in the trial commissioner’s order against both the employer and its insurer. The legal issue regarding the interpretation of the insurance policy issued by the New York Fund may now be litigated in another forum, such as a federal court, in order to determine whether the Second Injury Fund, pursuant to § 31-355, may recover any amounts it has paid to the claimant due to the failure of the employer and its insurer to pay.
Finally, we will address the contention that it was improper for the trial commissioner to issue a penalty against the employer pursuant to § 31-288(c) for failure to carry workers’ compensation insurance. As explained above, the trial commissioner properly ordered the employer and its insurer to pay the compensable claim by presuming coverage under the existing policy. A penalty for failure to carry insurance pursuant to § 31-288(c) by definition requires a finding of no insurance. In the instant case, the imposition of a penalty for failure to carry insurance conflicts with the statutorily mandated presumption of coverage. We conclude that a penalty pursuant to § 31-288(c) is premature at this time, and should not be issued until and unless another tribunal has interpreted the insurance policy issued by the New York Fund to exclude coverage of the claimant’s Connecticut injury.
We find it is necessary to comment regarding the conduct of the respondents. In the instant case, the parties do not dispute that the claimant sustained a compensable injury during the course of his employment in Connecticut on June 3, 1994. However, it appears3 that the respondents have failed to pay any benefits to the claimant under the Workers’ Compensation Act, including payment of his medical bills. Of concern here is that while the employer, its insurer, and the Second Injury Fund have not disputed compensability, they have each apparently refused to pay benefits for an extended period of time. To delay payments for a compensable claim is unconscionable, as it defeats the humanitarian purpose of the Workers’ Compensation Act.
Moreover, the employer’s decision to obtain a workers’ compensation insurance policy which purports on its face to deny coverage of injuries which occur in Connecticut where the employer sent its employees, including the claimant, to perform the intrinsically dangerous work of asbestos removal, demonstrates a remarkable lack of respect for the laws of this state as well as an indifference to the humanitarian purpose of the Workers’ Compensation Act. See Jimenez v. Montero, 14 Conn. Workers’ Comp. Rev. Op. 40, 43, 1826 CRB-4-93-8 (May 4, 1995).
The § 31-288(c) penalty is reversed. In all other respects, the decision of the trial commissioner is affirmed.
Commissioners Roberta Smith Tracy and Michael S. Miles concur.
1 We note that the New York Fund filed a motion to dismiss the brief filed by the Second Injury Fund due to its lateness, as it was not filed until June 13, 1995. The brief filed by the Second Injury Fund does not address the merits of the New York Fund’s appeal, but rather discusses the history of case law regarding jurisdiction over workers’ compensation claims in Connecticut. No party contends that this state lacks jurisdiction over the claimant’s injury. Accordingly, we find the brief filed by the Second Injury Fund to be harmless, and therefore deny the motion to dismiss. BACK TO TEXT
2 Attorney Williams: “...I think your determination is is there a compensable injury, and a finding against the employer. If the employer can’t get the insurance carrier to pay, then that is a battle for another forum.”
Commissioner: “I think that is-- I agree with that. Let’s move on...” (11/4/94 Transcript at pp. 48-49). BACK TO TEXT
3 The record does not indicate when, or if, the claimant has been paid any benefits under the Connecticut Workers’ Compensation Act. BACK TO TEXT