Grimme v. Railroad Stores, Inc.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

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

This Petition for Review from the November 3, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 29, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the November 3, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District. They argue on appeal that the trier erred by finding that the notice they filed with the Second Injury Fund1 on November 22, 19962 was both insufficient and untimely under § 31-349 C.G.S. We agree, and reverse the trial commissioner’s decision.

The claimant suffered a compensable injury on November 23, 1993. He reached maximum medical improvement on June 20, 1995, with a 23% permanent partial impairment rating of the cervical spine. The respondent insurer (The Hartford) sent a certified letter to the Fund on November 19, 1996, tendering notice of its intent to transfer liability for this injury pursuant to § 31-349(b)3. The parties agree that this letter was received on November 22, 1996. The commissioner found that it contained copies of all medical reports, copies of all findings, awards, and approved voluntary agreements, an estimate of the reserve amount, and a $2,000 notification fee. However, the Fund contends that the notice did not contain an accounting of benefits paid, as required by § 31-349(b)(2)(B). The Fund stated that the notice letter itself failed to include a separate and distinct listing on the enclosed checklist for an accounting of paid benefits. Findings, ¶ 7. The Fund sent a letter to The Hartford on March 5, 1997, informing it that notice was incomplete due to the absence of this accounting.

The trier cited the testimony of Cathy McHugh, a claims manager for the Fund, who testified that the notice letter filed by The Hartford in this case differs from the other notice letters she has received from it insofar as the letter did not include a separate and specific listing of benefits paid. Findings, ¶ 8. The trier also observed that The Hartford had not kept a copy of the notice packet it sent. The commissioner concluded that the Fund had no obligation to notify The Hartford of its rejection of the respondents’ claim for transfer within 90 days, as notice to the Fund was never completed. Findings, ¶¶ A-B. She also found that, even if the Fund had responded within 90 days, “notice would still have been untimely as it was due on March 23, 1996.” The respondents have appealed this decision, along with the denial of their Motion to Correct.

Whenever this board reviews a trial commissioner’s decision, we do so with the understanding that she is the trier of fact. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). This fact-finding authority entitles the commissioner to evaluate the weight of the evidence presented and the credibility of the testimony offered by both lay and expert witnesses. Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). These findings can be altered on review only if they are without basis in the evidence, or if they omit undisputed material facts. Id., 71. As for the legal conclusions drawn by the trier, they also must stand on review unless they result from an incorrect application of the law to the subordinate facts, or from an inference illegally or unreasonably drawn from them. Id., citing Fair, supra.

The “finding” in ¶ 12 that notice was due the Fund on March 23, 1996 is in fact such a legal conclusion, and it must be supported by subordinate factual findings in order to withstand scrutiny on appeal. In this case, the claimant’s injury occurred on November 23, 1993. Under § 31-349(b), the only way that notice could have been due before November 23, 1996, is if one hundred four weeks of benefits had already been paid to the claimant. There are no findings regarding the benefits paid here,4 and the basis of the trial commissioner’s apparent reasoning that payment of 104 weeks of benefits was completed 90 days before March 23, 1996, is not readily apparent from the evidence. Where the facts found are inconsistent with a commissioner’s conclusion, or there are no facts found to support that conclusion at all, this board cannot affirm that legal conclusion. See Jaworski v. A.B. Chance Co., 3006 CRB-3-95-2 (Jan. 6, 1997); Lourenco v. Cammisa, 13 Conn. Workers’ Comp. Rev. Op. 118, 119, 1661 CRB-1-93-3 (Jan. 31, 1995). Thus, the bare finding in ¶ 12 that notice was due on March 23, 1996 cannot be used to support the trier’s dismissal of this claim. Further proceedings would be necessary to determine if notice was actually due before November 23, 1996, as this board cannot make its own findings regarding the benefits paid by the respondents.

The primary basis for the commissioner’s ruling is her conclusion that the respondents did not provide complete notice to the Fund due to their omission of an accounting of benefits paid. As suggested above, we cannot disturb the trier’s decision to ignore the testimony of Monique Lanman, the respondents’ witness, in favor of the statements of Cathy McHugh. Such is an issue solely for the trier of fact. Webb, supra, 70. There is sufficient evidence in the record to establish that the respondents did not, in fact, provide a separate accounting of benefits paid to the Fund such as the one marked as Claimant’s Exhibit F. The question we must answer here, instead, is whether the information that the commissioner found the respondents provided, including the data regarding the reserve estimate, contained enough information concerning the benefits already paid to constitute sufficient notice under § 31-349(b).

The trial commissioner correctly observed that § 31-349(b) enumerates six separate categories of documents to be included with notice to the Fund, two of which are “an accounting of all benefits paid” and “the employer’s or insurer’s estimate of the reserve amount to ultimate value for the claim.” Our courts have often noted that, while interpreting statutes, we must presume “that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303 (1997). At the same time, however, we must construe statutes in a manner that promotes the policy the legislature sought to implement, and attains a rational and sensible result. Id., 302-303.

In the case of P.A. 95-277, the legislature’s primary goal was to salvage the financially troubled Fund by prohibiting the transfer of claims arising from injuries occurring on or after July 1, 1995, and by requiring other pending claims to be filed no later than three years after the injury date (effectively preventing any claims from being filed after July 1, 1998). See Coley v. Camden Associates, Inc., 243 Conn. 311, 319 (1997). Notably, the legislature also enacted § 31-349(f) in 1996, which precludes the transfer of any claim to the Fund “unless all requirements for transfer, including payment of the one hundred and four weeks of benefits by the employer or its insurer, have been completed prior to July 1, 1999.” The motive behind these laws is evident: to ascertain the current and future liability of the Fund for § 31-325 and § 31-349 transfers, and to minimize that amount as much as possible.

In discussing the proposed Second Injury Fund legislation, Kevin Saba, the Assistant Treasurer in charge of the Fund, stressed the importance of getting “every single pending and active case reserved” and “working to crunch down the numbers for the active and pending cases.” 1995 Joint Committee Hearings, Labor & Public Employees, pt. 4, p. 1040-41 (March 16, 1995). The implementation of “comprehensive notification and fee requirements” was expected to “aid our ability at the fund to expeditiously evaluate whether or not the claim should be accepted, as well as its potential liability.” Id., 1041. Although Saba specifically mentioned both the “accounting of all benefits paid” and the “reserve to ultimate value,” there was no discussion of a particular form that should be used to convey this information. Rather, the bottom line of determining the scope of pending liability was the paramount concern. Id., 1042.

We grant that it is probably easier for the Fund to organize its information when the accounting of benefits already paid and the estimate of the future cost of the claim are kept separate. However, § 31-349(b) does not require such a separation of documents to be maintained; it simply requires the employer or insurer to provide the stated information. The statute does not expressly prohibit the combination of these two items into one document. As long as the necessary figures are contained in that document, the Fund would still be able to calculate the amount of liability pending on the case. See Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 26 (1995).

We can see from Respondent’s Exhibit B that the reserve estimate lists the amount of each type of benefit that has been paid to date as well as the amount in reserve for that benefit type. Although the information is slightly disorganized, it is certainly sufficient to inform the Second Injury Fund as to what has been paid to date on each portion of the instant claim. The trial commissioner does not appear to have considered the possibility that the information therein sufficed as an accounting of benefits paid. In fact, the substance of an accounting of benefits is present within the reserve information. The trier therefore erred by ruling that the respondents did not provide an accounting of benefits to the Fund within the meaning of § 31-349. Accordingly, she should not have dismissed the instant claim on the ground that the respondents’ notice was insufficient.5

The trial commissioner’s decision is reversed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 The Second Injury Fund did not file a brief as an appellee in this case until May 28, 1998, the day before oral argument. As the Fund had not been given permission to file a late brief, this board ruled at oral argument that the Fund’s brief would not be considered during the resolution of this appeal. BACK TO TEXT

2 In ¶ 12 of her Findings, the trial commissioner stated that notice was received on November 22, 1991. She failed to change the date of this finding to November 22, 1996, even though the respondents requested such a change in their Motion to Correct. It is manifest that the use of the 1991 date is a simple scrivener’s error, as the claimant’s injury itself did not occur until 1993. We will not perpetuate that error here. BACK TO TEXT

3 The relevant portions of § 31-349(b) provide: “As 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 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.” BACK TO TEXT

4 There is a finding in ¶2 that the claimant was assessed with a 23% permanent partial disability rating of the cervical spine, but that would have entitled him to only 26.91 weeks of benefits under § 31-308(b). BACK TO TEXT

5 Assuming that notice was due on November 23, 1996, we would also note that it appears that the Fund did not properly file a disclaimer within 90 days, as required by § 31-349(b). The failure to file such a disclaimer would require that the respondents’ request for transfer be deemed accepted. BACK TO TEXT