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Goubourn v. The United Illuminating Company

CASE NO. 3594 CRB-03-97-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 17, 1998

PIERRE GOUBOURN

CLAIMANT-APPELLEE

v.

THE UNITED ILLUMINATING COMPANY

EMPLOYER

SELF INSURED

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Leonard Reizfeld, Esq., 139 Orange Street, Suite 202, P. O. Box 1797, New Haven, CT 06507.

The respondent employer United Illuminating was represented by Neil Ambrose, Esq., Letizia & Ambrose, 1764 Litchfield Turnpike, Woodbridge, CT 06525.

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

This Petition for Review from the April 18, 1997 Finding of Transfer Pursuant to C.G.S. 31-349 of the Commissioner acting for the Third District was heard December 19, 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 Second Injury Fund has petitioned for review from the April 18, 1997 Finding of Transfer Pursuant to C.G.S. 31-349 of the Commissioner acting for the Third District. The Fund argues on appeal that the respondent did not provide timely notice of this claim under § 31-349, and that it was error for the commissioner to order transfer. The respondent has filed a Motion to Submit Additional Evidence and a Motion to Dismiss in conjunction with this appeal. We deny the Motion to Dismiss,1 and grant the Motion to Submit Additional Evidence. However, despite our granting of the latter motion, we reverse the trial commissioner’s decision.

The trier found that the claimant sustained a compensable lumbar spine injury on June 5, 1992. The claimant missed three weeks of work in June 1992, two more weeks in late October of 1993, and the six-month period between August 11, 1994 and February 14, 1995. The claimant’s treating physician issued a February 1, 1995 report identifying February 15, 1995 as the date of the claimant’s maximum medical improvement. The claimant has been receiving permanent partial disability benefits for a 25% impairment of his lumbar spine since February 15, 1995.

On April 6, 1995, the respondent sent a letter to the Second Injury Fund indicating that it would be seeking to transfer liability for this claim under § 31-349. This letter did not include a voluntary agreement. Such an agreement was approved on October 30, 1995 by a Commissioner acting for the Third District, and a copy of that agreement was sent to the Fund the next day. The respondent again notified the Fund that it would be seeking transfer for the June 5, 1992 injury on December 29, 1995, and included a $2000 check for notification and a copy of the approved voluntary agreement. Although the Fund stipulated that the case qualifies for transfer medically, it contended that the respondent’s notice was untimely under § 31-349. The trial commissioner found otherwise, and the Second Injury Fund has appealed that decision.

In order to frame the context of our review more clearly, we begin by discussing our decision in Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (Aug. 4, 1997). The respondent insurer there filed its initial notice with the Second Injury Fund on February 8, 1995, approximately one month too late under the version of § 31-349 in effect at that time. Upon the passage of P.A. 95-277,2 which took effect on July 1, 1995 (and forbade the § 31-349 transfer of injuries to the Fund occurring on or after that date), the respondent provided a second notice to the Fund notifying it of its intent to pursue transfer under the amended § 31-349. The trial commissioner dismissed the claim for transfer on the ground that initial notice was untimely, and could not be cured by filing a timely renotice.

We explained in Audi that P.A. 95-277 created two separate types of notice that an insurer could give to the Fund regarding transfer of a claim based on an injury occurring before July 1, 1995. One type is the renotice required by § 3(e) of the Public Act (now codified at § 31-349(e)), which required any party who had notified the Fund of a claim prior to July 1, 1995 to file by October 1, 1995 a notice of its intention to pursue its claim for transfer. We agreed with the trier’s decision that the respondent’s initially untimely notice could not be resurrected by the “renotice” provision, as “one can not reaffirm one’s intent to pursue a claim that has already lapsed due to improper observance of § 31-349’s procedural rules.” Id.

The second type of notice was available under P.A. 95-277 § 3(b) (now § 31-349(b)), and concerned a separate means of providing initial notice to the Fund. This provision simply stated that any party seeking to transfer liability was required to notify the Fund “no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier.” We noted that this statute did not distinguish between parties who could have, but failed to, file timely notice under the old law, and parties whose cases were not ripe for transfer until after July 1, 1995. We held that the respondent’s notice, which was provided on July 5, 1995, less than three years after the initial date of injury, would suffice under § 3(b) assuming that all the elements required by the statute had been included. Thus, notice under § 31-349(b) could be filed by any party who was able to satisfy its enumerated requirements, including a respondent whose previous notice under the prior version of § 31-349 was defective.

The case before us is also one in which the filing of notice has been attempted under both § 31-349(b) and § 31-349(e). We are a bit bewildered by the polemical strategy adopted by both parties in their appellate briefs, as it is the Fund that has argued that the respondent’s initial notice was sufficient under § 31-349 (with renotification not being timely filed under § 31-349(e)), while the respondent maintains that said notice was insufficient due to its failure to provide a copy of a voluntary agreement by July 1, 1995 (thereby not triggering the renotification requirement of § 31-349(e)). These arguments are especially surprising in light of the fact that the respondent has moved to submit as additional evidence a September 26, 1995 renotification letter and an accompanying certified mail receipt that indicates the Fund received that renotification letter on September 28, 1995, which precedes the October 1, 1995 filing deadline for such notices.3 We reiterate that the satisfaction of the notice requirements under § 31-349(b) and § 31-349(e) (as it applies to the version of § 31-349(b) in effect before July 1, 1995) is not necessarily mutually exclusive, even though only one of the two notice methods need be fully observed to constitute adequate notification to the Fund.

The argument that the respondent appears to place the most weight upon is the legal sufficiency of its December 29, 1995 notice, as found by the trial commissioner. According to § 31-349(b), this notice would have had to be filed no later than three calendar years after the June 5, 1992 date of injury in order to be timely. Patently, this was not done. The respondent argues that an exception is warranted here because proper notice to the Fund would have been impossible if the terms of the statute were applied literally, as the claimant’s injury occurred more than three years prior to the statute’s effective date. Although this accurately describes the effect of the statutory language, we disagree that a qualification of the meaning of those express terms is implied as a result.

As we recently discussed in Sanders v. GAE Services, 3481 CRB-5-96-11 (April 29, 1998), the statutory notice periods pertaining to the Fund are substantively integral to § 31-349, and must be strictly construed. “Moreover, our Supreme Court recently explained that P.A. 95-277 . . . was adopted in the face of serious financial problems at the Fund, and was intended to reduce its financial burden. As such, that legislation must be construed in a manner consistent with that goal.” Id., citing Coley v. Camden Associates, Inc., 243 Conn. 311, 319-20 (1997). It is hardly inconsistent with that legislative intent to read § 31-349(e) as imposing an absolute three-year cutoff date for transferable injuries from the moment of its enactment. Indeed, it would be less consistent with both the express language of the statute, and the intent behind it, to imply an exception for injuries occurring before July 1, 1992 on the ground that employers and insurers have some sort of vested right to transfer certain claims to the Second Injury Fund. We decline to follow such a path here. As such, we hold that the respondent’s December 29, 1995 notice purporting to transfer liability for the claimant’s June 5, 1992 injury was untimely as a matter of law.

We also conclude that the respondent’s April 6, 1995 letter to the Second Injury Fund, combined with its renotification letter of September 26, 1995 and its October 31, 1995 submission of a voluntary agreement, do not constitute adequate notice under § 31-349 as it existed at the time of the claimant’s injury. As noted by the Fund (ironically) in its brief, the respondent’s April 6, 1995 letter was timely filed insofar as it was received at least 90 days before the 104th week of disability. However, § 31-349 also required the party seeking transfer to furnish “a copy of the agreement or award” to the custodian of the Fund within that statutory notice period. See Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14 (1995); Soares v. Max Services, 42 Conn. App. 147 (1996), cert. denied, Sept. 19, 1996. Although the respondent did not have to submit a signed voluntary agreement, some “document or agreement . . . regarding the nature of the financial agreement” between the respondent and the claimant had to be submitted before notice could be deemed completed under § 31-349. Fresta v. Connecticut Mason Contractors, Inc., 43 Conn. App. 732, 736 (1996). We also observe that no suggestion of impossibility was raised regarding the submission of the voluntary agreement. See Thompson v. Roach, 3382 CRB-7-96-7 (Dec. 29, 1997).

Here, a voluntary agreement was supplied on October 31, 1995—prior to 90 days before the 104th week of disability had lapsed, but after § 31-349 had been completely revised by P.A. 95-277, and the new notice requirement of § 31-349(b) had taken effect (which, as discussed above, the respondent did not satisfy). Assuming that the documents admitted pursuant to the respondent’s Motion to Submit Additional Evidence establish that a re-notification letter was timely filed under § 31-349(e), it would still be necessary for the respondent to establish that proper notice was given prior to July 1, 1995 in order to trigger the re-notification requirement in the first place. Audi, supra; Cece v. Felix Industries, Inc., 3505 CRB-7-96-12 (April 24, 1998). That was not accomplished here. Therefore, the respondent’s apparently timely re-notification is of no avail, as the Fund was not properly “notified” of this claim before July 1, 1995.

The trial commissioner’s decision is reversed.

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

1 The November 6, 1997 Motion to Dismiss is predicated on the Second Injury Fund’s failure to file its brief in a timely manner. The Fund’s brief was originally due on October 17, 1997, but was not filed until November 19, 1997. The Fund successfully obtained an extension of time to file its brief until November 18, 1997. Thus, it was ultimately filed one day late. This board does have the discretion to dismiss an appeal for a party’s failure to file a timely brief. See Norton v. James Fleming Trucking, Inc., 15 Conn. Workers’ Comp. Rev. Op. 472, 474, 2119 CRB-1-94-8 (Sept. 16, 1996). However, the respondent has not demonstrated that any prejudice resulted from this one-day delay. We decline to dismiss the Second Injury Fund’s appeal on that ground. See Evans v. Shelton, 16 Conn. Workers’ Comp. Rev. Op. 155, 158, 3108 CRB-4-95-6 (May 2, 1997). BACK TO TEXT

2 P.A. 95-277 went into effect on July 1, 1995. Among its provisions is § 3(b), which amends § 31-349 to provide that “[a]s a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) notify the custodian of the fund by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification (A) copies of all medical reports, (B) an accounting of all benefits paid, (C) copies of all findings, awards, and approved voluntary agreements, (D) the employer’s or insurer’s estimate of the reserve amount to ultimate value for the claim, (E) a two-thousand-dollar notification fee payable to the custodian to cover the fund’s costs in evaluating the claim proposed to be transferred and (F) such other material as the custodian may require. The employer by whom the employee is employed at the time of the second injury, or its insurer, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. Failure on the part of the employer or an insurer to comply does not relieve the employer or insurer of its obligation to continue furnishing compensation under the provisions of this chapter. The custodian of the fund shall, by certified mail, notify a self-insured employer or an insurer, as applicable, of the rejection of the claim within ninety days after receiving the completed notification. Any claim which is not rejected pursuant to this section shall be deemed accepted, unless the custodian notifies the self-insured employer or the insurer within the ninety-day period that up to an additional ninety days is necessary to determine if the claim for transfer will be accepted. If the claim is accepted for transfer, the custodian shall file with the workers’ compensation commissioner for the district in which the claim was filed, a form indicating that the claim has been transferred to the Second Injury Fund and the date that such claim was transferred and shall refund fifteen hundred dollars of the notification fee to the self-insured employer or the insurer, as applicable. A copy of the form shall be mailed to the self-insured employer or the insurer and to the claimant. No further action by the commissioner shall be required to transfer said claim. If the custodian rejects the claim of the employer or its insurer, the question shall be submitted by certified mail within thirty days of the receipt of the notice of rejection by the employer or its insurer to the commissioner having jurisdiction, and the employer or insurer shall continue furnishing compensation until the outcome is finally decided. Claims not submitted to the commissioner within said time period shall be deemed withdrawn with prejudice. If the employer or insurer prevails, or if the custodian accepts the claim all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or insurer by the Second Injury Fund.”

Also among the provisions of P.A. 95-277 is § 3(e), which states that “[a]ll claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995 of its intention to pursue transfer pursuant to the provisions of this section. No notification fee shall be required for notices submitted pursuant to this subsection. This subsection shall not apply to notices submitted prior to July 1, 1995, in response to the custodian’s request, issued on March 15, 1995, for voluntary resubmission of notices.” BACK TO TEXT

3 We note that the Fund has objected to this Motion to Submit Additional Evidence. Under Admin. Reg. § 31-301-9, we believe that the documents offered by the respondent could be material depending on the resolution of certain legal issues surrounding the adequacy of the respondents’ initial notice, and that the simple, documentary nature of this evidence combined with the apparent misapprehension of all parties at the formal hearing concerning the relevance of the renotification issue counsels in favor of its admission. Thus, we grant the respondent’s motion to admit as additional evidence the September 26, 1995 renotification letter, the accompanying certified mail receipt, and an affidavit by the person who mailed the renotification letter. BACK TO TEXT

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