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Proto v. Kenneth Grant d/b/a Kenney G’s Irish Pub

CASE NO. 3030 CRB-8-95-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 26, 1996

PETER PROTO

CLAIMANT-APPELLEE

v.

KENNETH GRANT d/b/a KENNEY G’S IRISH PUB

EMPLOYER

(UNINSURED)

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was neither represented at oral argument nor at the formal hearing on this issue.

The respondent employer was represented by Frank M. Grazioso, Esq., Grazioso & Hosen, 746 Chapel St., New Haven, CT 06510.

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

This Petition for Review from the March 28, 1995 Finding and Award of the Commissioner acting for the Eighth District was heard January 26, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the March 28, 1995 Finding and Award of the Commissioner acting for the Eighth District. In that decision, the trial commissioner found that the claimant sustained a compensable injury on October 28, 1993 while working for the employer, and awarded medical costs, temporary total disability benefits, and a permanent partial award. In addition, the trial commissioner issued a penalty against the employer for its failure to carry workers’ compensation insurance. The trial commissioner noted that the employer did not attend the formal hearing which was held on March 24, 1995. In support of its appeal, the employer contends that it relied on its insurer, Travelers Insurance Co., to represent its interests.

Specifically, the employer contends that it was insured by Travelers commencing sometime in December of 1993; that prior to the March 24, 1995 formal hearing Travelers had filed a Form 43 contesting liability on the employer’s behalf; and that Travelers had represented the employer regarding the instant claim at an informal hearing. The employer contends that it therefore relied upon Travelers to appear on its behalf at the hearing on March 24, 1995, and that the failure of anyone to appear on the employer’s behalf caused the employer to be denied due process rights.

We have stated:

This Board recognizes the due process right of a party to be notified of workers’ compensation proceedings. See Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.... The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.’
Jimenez v. Montero, 14 Conn. Workers’ Comp. Rev. Op. 40, 42, 1826 CRB-4-93-8 (May 4, 1995) (citation omitted).

In the case at hand, the employer does not deny that it received proper notice of the formal hearing, which was mailed via certified mail to the employer on February 1, 1995. The notice references the October 28, 1993 date of injury; the issue of causal connection; the issue of outstanding medical bills; and the issue of § 31-355 C.G.S. The notice, which states the names of the parties notified, does not list Travelers as a party. Under these circumstances, we cannot find that the employer was denied due process, as it was properly sent timely notice of the formal hearing.

However, we are troubled by the employer’s allegation that Travelers, after appearing at an informal hearing on the employer’s behalf, failed to inform the employer that it no longer represented the employer on the claim. We agree with the employer that such behavior on the part of an insurance carrier may indeed be misleading. We would expect an insurance carrier to act with appropriate concern regarding such an employer’s assumption of representation, and therefore to inform the employer in writing regarding its withdrawal from the proceedings.

We now turn to the merits of the employer’s appeal. The employer contends that the claimant’s injury occurred prior to his first date of employment, and that the award of a fifteen percent permanent partial disability is not supported by the record. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of fact. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Where, as here, the commissioner’s determination is based upon the weight and credibility that she has accorded the evidence, we will not disturb such a determination. The findings specifically reference a medical report by Dr. Solomon which assesses a fifteen percent permanent partial disability. Moreover, as the employer did not file a motion to correct, we are consequently limited to the findings of fact as found by the trial commissioner. Bell v. U.S. Home Care, 13 Conn. Workers’ Comp. Rev. Op. 294, 295, 1792 CRB-1-93-8 (April 21, 1995).

Finally, the employer contends that the fine of $3,407.35 for failure to have insurance is excessive. The employer further contends that the employer is a small family-run business, and that its failure to carry insurance was due to ignorance. Section 31-288(c)1 provides that when an employer fails to have workers’ compensation insurance as required by § 31-284, the trial commissioner may assess a civil penalty of not more than ten thousand dollars. The trial commissioner assessed a fine which was within the statutory limits of § 31-288(c). The employer has not disputed the trial commissioner’s finding that it failed to carry workers’ compensation insurance at the time of the claimant’s injury. We find no error on the part of the trial commissioner.

The trial commissioner’s decision is affirmed.

Commissioners Michael S. Miles and Robin L. Wilson concur.

1 Section 31-288(c) has subsequently been amended by P.A. 95-277 to state that a commissioner “shall assess a civil penalty of not less than five hundred dollars per employee or five thousand dollars, whichever is less and not more than fifty thousand dollars against the employer.” BACK TO TEXT

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