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Thibodeau v. Michael Rizzitelli d/b/a M.P.R. Construction Co., a/k/a Michael Rizzitelli d/b/a The Rizzitelli Construction Co. et al.

CASE NO. 3373 CRB-4-96-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 14, 1997

THOMAS THIBODEAU

CLAIMANT-APPELLEE

v.

MICHAEL RIZZITELLI d/b/a M.P.R. CONSTRUCTION CO., a/k/a MICHAEL RIZZITELLI d/b/a THE RIZZITELLI CONSTRUCTION CO.

EMPLOYER

and

GRANITE STATE INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

SALCE CONTRACTING ASSOCIATES

EMPLOYER

and

ROYAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by William Cotter, Esq., Cotter, Cotter & Sohon, P. O. Box 5660, Bayview Station, Bridgeport, CT 06610.

The respondent-appellants were represented by Kevin Maher, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

The respondent Michael Rizzitelli was not represented at oral argument. Notice sent to John Bryk, Esq., 1375 Kings Highway East, Fairfield, CT 06430.

The respondent Granite State Insurance was represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was not represented at oral argument. Notice sent to Richard Hine, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the July 1, 1996 Finding and Award of the Commissioner acting for the Fourth District was heard April 4, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents Salce Contracting Associates and Royal Insurance Company have petitioned for review from the July 1, 1996 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the commissioner erred by finding that the respondent Granite State Insurance Co. did not insure the respondent Michael Rizzitelli for workers’ compensation liability on August 24, 1994, the date of the claimant’s injury. In support of their argument, they have filed a Motion to Submit Additional Evidence in the form of a Writ, Summons and Complaint filed by American International Companies seeking $3,958 in damages from Rizzitelli for unpaid insurance coverage provided “[b]etween September 29, 1993 and September 29, 1994.” We grant the Motion to Submit Additional Evidence, and remand this matter for another formal hearing.

There is no dispute in this case that the claimant suffered a compensable back injury on August 24, 1994, or that he is entitled to temporary total disability benefits through October 5, 1995, along with the payment of medical bills. Rather, the argument here centers on which insurer is responsible for this compensation. On the date of the injury, the claimant was working for Michael Rizzitelli, a subcontractor on a construction site. Rizzitelli had contracted with Salce Contracting Associates, Inc., to perform labor relating to masonry and wall installation. Salce was found to be the claimant’s principal employer pursuant to § 31-291 C.G.S.

The commissioner found that the Granite State Insurance Company had issued a policy for workers’ compensation coverage to Rizzitelli effective from September 29, 1993 to September 29, 1994. However, on March 16, 1994, Granite State mailed to Rizzitelli a notice of termination of coverage due to alleged non-cooperation in obtaining a loss control survey. Termination was to be effective May 15, 1994.

Subsequent to said cancellation, Granite State needed to correct the amount of the commission payable to the agent, and reinstated the policy for the purposes of performing such maintenance only. Granite State sent notice of the reinstatement of this policy to the National Council of Compensation Insurance (NCCI), which administers the workers’ compensation insurance assigned risk pool in Connecticut. Pursuant to § 31-348 C.G.S., the cancellation of a policy is ineffective “until fifteen days after notice of such cancellation has been filed with the chairman.” This Commission has contracted with NCCI to receive such notices on behalf of the Chairman.

On August 8, 1994, NCCI received Granite State’s notice (on magnetic tape) reinstating the policy effective May 15, 1994. The next day, NCCI received a notice of cancellation, also effective May 15, 1994. The underwriting manager for Granite State testified that, in order to make the agent’s commission adjustment, it was necessary to first reinstate the policy on the computer system, and then to cancel the policy again after maintenance was complete. This procedure was done for internal purposes only, and nothing regarding reinstatement was sent to the insured.

The commissioner accepted this explanation, and ruled that there was no workers’ compensation coverage on August 24, 1994, when the claimant was injured in the employ of Rizzitelli. As Rizzitelli had no other workers’ compensation coverage, the commissioner ordered Salce, the principal employer, to pay all compensation to the claimant due under the Workers’ Compensation Act, along with interest and a reasonable attorney’s fee for undue delay of payment. See § 31-300 C.G.S. Salce and its insurer, Royal Insurance, have appealed that decision to this board.

Generally, a workers’ compensation commissioner has the authority to determine whether a contract for insurance coverage is in effect at the time of an injury. O’Connell v. Indian Neck General Store, 6 Conn. Workers’ Comp. Rev. Op. 42, 44, 530 CRD-3-86 (Oct. 6, 1988), citing Rossini v. Morganti, 127 Conn. 706 (1940); Piscitello v. Boscarello, 113 Conn. 128 (1931). This includes the authority to consider evidence extraneous to the records maintained by the Chairman, as long as the evidence is not offered by an insurer attempting to disprove the existence of coverage in a situation that would diminish the protections afforded to the injured employee if the insurer were successful. Stickney v. Sunlight Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 364, 366-68, 1738 CRB-6-93-5 (Aug. 2, 1994); Vernon v. V.J.R. Builders, Inc., 11 Conn. Workers’ Comp. Rev. Op. 237, 241, 1360 CRD-7-91-12 (Nov. 8, 1993). The “conclusive presumption of coverage” prescribed by § 31-343 C.G.S. does not come into play unless there is an insurance contract in effect on the date of injury. Park v. Choi, 46 Conn. App. 596, 599 (1997); O’Connell, supra. Of course, if an insurer has failed to report the cancellation of a policy to this Commission, such cancellation is not effective against an employee claiming compensation. Piscitello, supra, 130-31; Rossini, supra, 708; see also Witchekowski v. Falls Co., 105 Conn. 737 (1927).

The commissioner found that Granite State had canceled Rizzitelli’s policy effective May 16, 1994. That is not disputed. The question raised by the appellants is whether the commissioner was legally bound to regard the reinstatement of the policy on Granite State’s computer system that NCCI received on August 8, 1994, as effectively reinstating insurance coverage until over fifteen days had elapsed from the notice of cancellation that NCCI received record of on August 9, 1994. We do not believe that the trier of fact was required to do so.

Unlike a case where a policy is clearly in effect and an insurer is attempting to prove that it has been canceled by resorting to outside evidence, the issue in this case concerns whether the reinstatement of the policy on Granite State’s computer system operated to create coverage in the first place. Raymond Anderson, the underwriting manager for the insurer, testified that this “reinstatement” was performed on August 2, 1994, for the purpose of reactivating the policy in the computer system so that the agent’s commission could be adjusted. February 16, 1995 Transcript, 85-88. The policy was then recanceled the same day. As Granite State reports policy coverage to NCCI by sending them the magnetic tapes made by their mainframe computer, NCCI received record of this reactivation and recancellation. Anderson explained that the records of the maintenance itself were not picked up by NCCI because that portion of Granite State’s operations is irrelevant to NCCI’s function. Id., 87.

It is evident from the nature of the issue in this case that we would be ignoring the reality of how computerized records are kept, altered and transmitted if we were to prevent the trial commissioner from examining the evidence offered by Granite State to explain the meaning of the magnetic tapes sent to NCCI. Common sense dictates that there was good reason to doubt that the insurance policy in question had really been reinstated to provide workers’ compensation insurance coverage for the employer. The question here, like the question in Park, supra, and in O’Connell, supra, was whether an insurance policy was in effect on the date of the injury. That is a question that may be addressed by a workers’ compensation commissioner under the Act.

We agree with the appellants, however, that they should be allowed to present to the trial commissioner the additional evidence submitted pursuant to Admin. Reg. § 31-301-9. A civil complaint seeking damages against Rizzitelli for unpaid premiums due to insurance coverage provided to him between September 29, 1993 and September 29, 1994 indeed provides noteworthy evidence that coverage was in effect on that date. Granite State has attempted to explain that the complaint was inartfully drawn, and is being amended to reflect the true nature of its claim, which is for unpaid premium between September 29, 1993 and May 15, 1994. As that is an issue that involves the credibility of the parties’ testimony and evidence, we must present it to the trial commissioner for his consideration.

We disagree with the objection of the respondent-appellees that the information in the civil complaint was available to the appellants at the time of the formal hearing because the attorneys had mentioned the suit. Two very cursory references to civil litigation by Rizzitelli against Granite State (October 5, 1995 Transcript, pp. 8, 67) can hardly be said to have placed Salce and its insurer on notice that Granite State was alleging the existence of insurance coverage through September 1994 in an outside legal proceeding. We would be stretching the boundaries of fairness if we were to hold otherwise. Thus, we grant the appellants’ Motion to Submit Additional Evidence.

This case is hereby remanded to the trial commissioner for further proceedings in accordance with this opinion.

Commissioners James J. Metro and John A. Mastropietro concur.

Workers’ Compensation Commission

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