State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Coley v. Camden Associates, Inc. et al.

CASE NO. 3432 CRB-02-96-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 6, 1998

ORVILLE COLEY

CLAIMANT-APPELLEE

v.

CAMDEN ASSOCIATES, INC.

EMPLOYER

RESPONDENT-APPELLANT

and

COASTAL ENERGY , INC.

EMPLOYER

RESPONDENT-APPELLANT

and

EASTERN CASUALTY INSURANCE CO.

INSURER

RESPONDENT-APPELLANT

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Albert Harper, Esq., 21 Oak St., Suite 301, Hartford, CT 06106.

The respondent employers were represented by Thomas J. Hagarty, Jr., Esq., Halloran & Sage, One Goodwin Square, Hartford, CT 06103.

The respondent Eastern Casualty Insurance Co. was represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

The respondent Liberty Mutual Insurance Co. was not represented at oral argument. Notice sent to Nancy Rosenbaum, Esq., 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

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

This Petition for Review from the September 18, 1996 Finding and Award of the Commissioner acting for the Second District was heard March 14, 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 respondent insurer Eastern Casualty Insurance and, in a separate petition for review, the respondent employers Camden Associates and Coastal Energy, have appealed from the September 18, 1996 Finding and Award of the Commissioner acting for the Second District. They both argue that the trial commissioner erred by failing to grant their respective Motions to Correct with respect to the claimant’s physical condition. Eastern Casualty Insurance also argues that the commissioner erred by finding that it had issued a workers’ compensation insurance policy that operated to extend coverage to the claimant, and seeks to submit additional evidence on that issue. We affirm the trial commissioner’s decision in part, and reverse in part.1

Initially, we will review the findings regarding the extent of the claimant’s disability. The trial commissioner found that the claimant was employed by the respondent Camden Associates on June 30, 1995, when he was working on an asbestos removal project at a school in the town of Killingly. Camden Associates is a Massachusetts company that was working under a contract with another Massachusetts corporation, Coastal Energy, which was the general contractor on the job site. The claimant was exposed to toxic carbon monoxide fumes while power washing a boiler, and was taken to a hospital. After being transferred to Norwalk Hospital and then discharged, he continued to treat for carbon monoxide poisoning on an outpatient basis at several Connecticut hospitals. Although the respondents admit that the claimant was poisoned on June 30, 1995, they deny the extent of the claimant’s disability.

The trial commissioner found that the claimant suffers from physical and physiological disabilities as a result of the compensable injury, and was disabled from performing his regular work as soon as the injury occurred. His symptoms include significant attention deficits, organizational problems, motor dysfunction, difficulties with word finding, memory, and fine motor coordination. In addition, he suffers from Post-Traumatic Stress Disorder, anxiety, and depression. According to the medical evidence, the claimant needs further treatment, testing and training that were not available to him because of a lack of medical coverage.

Both appellants filed nearly identical2 Motions to Correct the commissioner’s findings. These motions were not ruled upon by the trial commissioner, and are therefore presumed denied for the purposes of this appeal. See Spatafore v. Yale University, 14 Conn. Workers’ Comp. Rev. Op. 310, 312-13, 2011 CRB-3-94-4 (Aug. 25, 1995), affirmed, 239 Conn. 408, 417 n.9 (1996). On review, our task is to determine if the challenged factual findings are supported by the evidence, and if they include all admitted and undisputed material facts. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). As long as these criteria have been met, we cannot disturb those findings on appeal. Id., citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994).

Many of the corrections that were jointly requested by the appellants are in direct conflict with the actual testimony of the claimant and the medical reports in evidence. For example, the appellants alleged that the claimant never testified that he takes medication which affects his functioning capability. Yet, such a finding was a perfectly reasonable inference from the claimant’s statement that he hadn’t been working because he had psychological problems, and was taking medication that led to a lot of depression and confusion. (Transcript, 28). The appellants also sought to correct the trier’s finding that Dr. Novelly “was doubtful of Claimant’s ability to return to work without the neuropsychological examination,” alleging that the doctor never made such a statement. Yet, the doctor specifically stated that the claimant was not cleared to return to his prior employment, and would have to be reexamined “with a complete neurological and neuropsychological examination to determine his capacity to return to his employment and not be a danger to himself or others.” Claimant’s Exhibit C.

All of the requested corrections concerning the claimant’s status are of this ilk, as they either attempt to counter reasonable inferences drawn by the commissioner from the evidence, or attempt to add into the findings cumulative and/or immaterial facts. See Webb, supra, 71; Kolomiets v. Syncor International Corp., 16 Conn. Workers’ comp. Rev. Op. 234. 3251 CRB-7-96-1 (June 23, 1997) (commissioner need not grant corrections based on recitals of testimony, requests to add cumulative and immaterial facts, or suggested inferences from the evidence that contradict permissible inferences drawn by the trier). Ultimately, there is both testimony from the claimant himself and a collection of medical reports from Drs. Novelly, Cassens, Bilchik and Wenkert that support the inference that the claimant was totally disabled from the date of the injury through the date of the last formal hearing. We will not disturb that conclusion on appeal.

We now turn to the issue of insurance. The commissioner found that there was no workers’ compensation insurance noted for either Camden Associates or Coastal Energy Company in the records of the Workers’ Compensation Commission effective on June 30, 1995, as required by § 31-284 and § 31-348 C.G.S. Nonetheless, Camden contended that it was insured on the date in question by Eastern Casualty, and Coastal contended that it was insured by the respondent Liberty Mutual Insurance Company. Both employers offered contracts of insurance into evidence, which were accepted as full exhibits by the trial commissioner over the objection of the insurers. They contended that, under § 31-348,3 the commissioner had to limit his inquiry to the records of the Chairman’s office, and was barred from considering outside documents in deciding if there was coverage.

The trier considered the cases of Bruce v. Bert Miller Associates, 15 Conn. Workers’ Comp. Rev. Op. 47, 1872 CRB-1-93-10 (Dec. 1, 1995), and Vernon v. V.H.R. Builders, Inc., 11 Conn. Workers’ Comp. Rev. Op. 237, 1360 CRD-7-91-12 (Nov. 8, 1993), which in his view both stood for the proposition that the commissioner is not limited to Commission records in determining whether workers’ compensation coverage exists. However, the commissioner ruled that he could not go beyond the initial question of whether a workers’ compensation policy was in force on the date of the accident, and declined to interpret the policies any further. See § 31-343 C.G.S.4 As the policies in evidence were in force on June 30, 1995, the commissioner ruled that the respondent employers were both insured for workers’ compensation purposes on that date. He ordered the respondents Eastern Casualty and Camden Associates (the immediate employer) to pay the claimant all due compensation, along with interest and an attorney’s fee of $2500.

As the trial commissioner observed, it is well-settled that 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 pursuant to § 31-348 in cases where the employer is attempting to prove the existence of coverage (as opposed to the insurer trying to disprove it). Vernon v. V.J.R. Builders, Inc., 11 Conn. Workers’ Comp. Rev. Op. 237, 241, 1360 CRD-7-91-12 (Nov. 8, 1993); see also Bruce v. Bert Miller Associates, 15 Conn. Workers’ Comp. Rev. Op. 47, 1872 CRB-1-93-10 (Dec. 1,, 1995). The “conclusive presumption of coverage” prescribed by § 31-343 does not come into play unless there is an insurance contract in effect on the date of injury. O’Connell, supra. Of course, under § 31-348, if an insurer fails to report the cancellation of a policy to this Commission, such cancellation will not be effective against an employee claiming compensation. Piscitello, supra, 130-31; Rossini, supra, 708; see also Witchekowski v. Falls Co., 105 Conn. 737 (1927); Stickney v. Sunlight Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 364, 366-68, 1738 CRB-6-93-5 (Aug. 2, 1994).

In the recent case of Park v. Choi, the New York State Insurance Fund appealed a trial commissioner’s decision ordering it to pay a workers’ compensation award arising out of a Connecticut compensable injury, on the ground that the insurance policy the Fund had issued to the employer only covered injuries occurring in the state of New York. This board affirmed the commissioner’s ruling, reasoning that § 31-343 prevents any question of coverage from being raised by the insurer in a workers’ compensation proceeding, which includes any legal issue regarding the interpretation of the insurance policy once such a policy is determined to exist. Park v. Choi, 16 Conn. Workers’ Comp. Rev. Op. 8, 11-12, 2216 CRB-1-94-11 (Oct. 3, 1996). On review, however, the Appellate Court reversed that decision. Park, 46 Conn. App. 596 (1997). The Court held that § 31-343 is not implicated unless the policy issued to the employer provides coverage for job-related injuries in Connecticut. “The Connecticut courts cannot attempt to rewrite a New York insurance policy that clearly excludes extra-territorial coverage. The practical effect of such an attempt would be to reach over the state line and improperly assert jurisdiction over the fund.” Id., 599.

The Park decision makes the appropriate course of action very clear in this case. There is no record of insurance for either Coastal Energy or Camden Associates in the Chairman’s office effective as of June 30, 1995, so coverage must be proved via other evidence. See Vernon, supra. Although extraneous evidence may be allowed in proving such coverage, before liability may be imposed against either insurer, the relevant insurance contracts that the commissioner allowed into evidence must be examined to ascertain whether they apply to job-related injuries occurring in Connecticut. To that end, we agree with Eastern Casualty Insurance that it should be allowed to submit additional evidence regarding the applicability of its insurance policy to Connecticut injuries. A similar opportunity should be accorded to Liberty Mutual Insurance, if such is sought.

Therefore, we remand this matter to the trial commissioner to consider whether the proffered insurance policies provided workers’ compensation coverage in Connecticut on the date in question. The findings and conclusions concerning the amount of compensation awarded to the claimant are affirmed.5

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

1 An appeal was also filed in this matter from an October 22, 1996 Finding and Award that made the Second Injury Fund responsible for the payment of benefits in this case pending the outcome of this appeal. That issue was separately argued before this board on January 24, 1997, and a decision was issued on February 28, 1997 affirming the trier’s assessment of liability against the Fund. Coley v. Camden Associates, Inc., 3432 CRB-2-96-9. That decision was reversed by the state Supreme Court, which held that § 31-301(f) was procedural in nature and applied retrospectively to this case. 243 Conn. 311 (1997) BACK TO TEXT

2 The Motion to Correct filed by Eastern Casualty Insurance Company incorporated all of the corrections suggested by the two employers, and added three more requested corrections concerning the existence of a workers’ compensation insurance policy. BACK TO TEXT

3 Section 31-348 provides that “Every insurance company writing compensation insurance or its duly appointed agent shall report in writing or by other means to the chairman of the Workers’ Compensation Commission, in accordance with rules prescribed by the chairman, the name of the person or corporation insured, including the state, the day on which the policy becomes effective and the date of its expiration, which report shall be made within fifteen days from the date of the policy. The cancellation of any policy so written and reported shall not become effective until fifteen days after notice of such cancellation has been filed with the chairman. Any insurance company violating any provision of this section shall be fined not less than one hundred nor more than one thousand dollars for each offense.” BACK TO TEXT

4 Section 31-343 C.G.S. provides that “As between any such injured employee or his dependent and the insurer, every such contract of insurance shall be 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.” BACK TO TEXT

5 This includes the $2500 attorney’s fee, which is hardly an unreasonable amount given the claimant’s award of over one year of (contested) temporary total disability benefits and the considerable complexity of this case. The Chairman’s guidelines regarding maximum attorney’s fees appear to have been considered here. See Grillo v. Prestige Enterprises, Inc., 13 Conn. Workers’ Comp. Rev. Op. 311, 315, 1704 CRB-1-93-5 (April 25, 1995). We also affirm the commissioner’s finding that the respondents unreasonably delayed the payment of compensation benefits. There is little evidence in the record contradicting the fact that the claimant was seriously injured by carbon monoxide poisoning while on the job, and it was well within the commissioner’s discretion to award interest and a reasonable attorney’s fee under § 31-300 C.G.S. The fact that the parties could not agree whether there was an insurance policy covering this incident does not excuse the injustice of the claimant’s remaining uncompensated through at least the January 24, 1997 oral argument on the first Coley appeal to this board. See note 1, supra. The only caveat we add to this penalty is that the trial commissioner assign responsibility for making such payment to the properly liable parties after considering further evidence on remand. BACK TO TEXT

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