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Wells-Tavalozzi v. Bickford’s Restaurant

CASE NO. 3736 CRB-06-97-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 22, 1998

PATRICIA WELLS-TAVALOZZI

CLAIMANT-APPELLEE

v.

BICKFORD’S RESTAURANT

EMPLOYER

and

GAB BUSINESS SERVICES

INSURER

RESPONDENTS- APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Anthony Famiglietti, Esq., Famiglietti, Thompson, Vollono & Mastrianni, 49 Broad Street, Plainville, CT 06062.

The respondent employer and its insurer were represented by David Kelly, Esq., and Joseph Passaretti, Esq., Montstream & May, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

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

This Petition for Review from the November 24, 1997 Finding and Award of the Commissioner acting for the Sixth District was heard June 12, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (“respondents”) have petitioned for review from the November 24, 1997 Finding and Award of the Commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the respondents failed to provide a copy of a voluntary agreement to the Fund in a timely manner, and thus failed to provide proper notice of intent to transfer pursuant to § 31-349. In support of their appeal, the respondents contend that the failure to include a voluntary agreement with their notice was excused because they were contesting the claimant’s weekly benefit rate. We find no error on the part of the trial commissioner.

Section 31-349 (Rev. to 1987) provides in relevant part:

As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim.... Sec. 31-349.

In Plesz v. United Technologies Corp., 174 Conn. 181 (1978), our Supreme Court explained that the object of the statutory notice provision “is to enable the fund to be apprised promptly of such a claim being made, to obtain a copy of the agreement and award and to have immediate access to all medical reports. Such information is essential to enable the fund to assess promptly its alleged liability and to establish immediately its financial reserves. A further objective is to give the fund a reasonable period of time within which to investigate the claim and to prepare to meet it.” Id., 188. Compliance with § 31-349 is a prerequisite to a transfer of liability under that section. Kiernan v. Roadway Express, 15 Conn. App. 625, 630 (1988).

In the instant case, the trial commissioner found that in order to be timely, notice of intent to transfer pursuant to § 31-349 had to be filed with the Fund on or before June 26, 1989. The trial commissioner further found that the respondents filed a timely notice with the Fund on January 26, 1989, but that said notice was not proper pursuant to § 31-349 because it lacked an agreement or award as required by § 31-349. Specifically, the trial commissioner found as follows: “At no time prior to June 26, 1989 did the respondent employer provide the Second Injury Fund with an agreement or award or supply to the Second Injury Fund any information with regard to the claimant’s wage information and compensation rate computations.” (Finding E). Furthermore, the trial commissioner found that the Fund was not apprised of a contest with respect to the compensation rate until October 15, 1990.

Decisions such as Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993) and Davis v. Norwich, 232 Conn. 311 (1995) have required strict compliance with the notice provisions of § 31-349. However, our Supreme Court has noted that “further construction of the notice provision, when and if it becomes necessary, would not require a type of notice that is impossible to give.” Vaillancourt, supra, 392-93 n. 10. In Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14 (1995), the court held that an unsigned, unapproved voluntary agreement may be sufficient. In Reising v. Electric Boat, 13 Conn. Workers’ Comp. Rev. Op. 40, 1609 CRB-2-92-12 (Dec. 6, 1994), the board explained as follows: “Assuming that compensability of an employee’s injury is being challenged properly, it would be unreasonable to expect a respondent to deliver a copy of a nonexistent agreement or award to the second injury fund. It would not be impossible, however, for an employer or insurer to comply with the other requirements of § 31-349(b)....” Id. at 42 (emphasis added).

In the instant case, the respondents contend that it was impossible for them to obtain a voluntary agreement with the claimant because they were contesting her weekly benefit rate. Unlike the facts in Reising, supra, in the instant case the respondents do not contend that they had been challenging the compensability of the claimant’s injury. Rather, the respondents admit that they had paid 104 weeks benefits to the claimant through September 23, 1989. (Respondents’ Brief at p. 1). The trial commissioner found that the respondents failed to notify the Fund that they were contesting the benefit rate until October 15, 1990, which was well after the date notice was due on June 26, 1989. Moreover, the trial commissioner found that the first informal hearing which included the Fund and addressed the issue of the claimant’s benefit rate was held on February 14, 1991. An approved voluntary agreement was not provided to the Fund until April 8, 1993. Under these circumstances, the trial commissioner concluded that the respondents failed to provide proper notice under § 31-349. It was within the discretion of the trial commissioner, as the trier of fact, to reach this conclusion.1

Finally, we note that even if the trial commissioner had found that the respondents were excused from providing a voluntary agreement due to impossibility and that a voluntary agreement was forwarded to the Fund in a reasonable amount of time, nevertheless the respondents’ request to transfer would fail under § 31-349(e). Under that provision, “All 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.” In the instant case, the respondents filed their notice on October 2, 1995, which we have held to be untimely. Sanders v. GAE Services, 3481 CRB-05-96-11 (April 29, 1998).

The trial commissioner’s decision is affirmed.

Commissioners George Waldron and Amado J. Vargas concur.

1 In contrast, in Thompson v. Roach, 3382 CRB-7-96-7 (Dec. 29, 1997), the trial commissioner found proper notice under § 31-349 where a voluntary agreement was delayed due to the difficulty in obtaining the claimant’s wage information from a defunct employer. In that case, the trial commissioner found that the respondents provided a copy of the voluntary agreement in a reasonable time, and “acted in a manner designed to avoid undue prejudice to the Fund.” Id. BACK TO TEXT

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