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Szedlmayer v. Moore Special Tool Co.

CASE NO. 3764 CRB-04-98-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 25, 1999

ALEX SZEDLMAYER

CLAIMANT-APPELLEE

v.

MOORE SPECIAL TOOL CO.

EMPLOYER

and

AON RISK SERVICES OF CONN.

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Donald C. Cousins, Esq., Cousins & Johnson, 2563 Main Street, Stratford, CT 06615.

The respondents were represented by William Brown, Esq., McGann, Bartlett, & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

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

This Petition for Review from the January 16, 1998 Finding and Dismissal Re: 31-349 C.G.S. of the Commissioner acting for the Fourth District was heard September 18, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the January 16, 1998 Finding and Dismissal Re: 31-349 C.G.S. of the Commissioner acting for the Fourth District. They contend on appeal that the trier erred by finding that the respondents failed to perfect their notice to the Second Injury Fund under § 31-349 C.G.S., and by accordingly dismissing their request for a transfer of liability. We affirm the trial commissioner’s decision.

The claimant suffered a back injury on May 26, 1994, and continued to be totally disabled through at least May 1996. Medically, the injury qualified for transfer to the Second Injury Fund under § 31-349. The only issue contested between the respondents and the Fund is the adequacy of the respondents’ notice, and the parties have stipulated as to the relevant facts.

AON, the insurer of record, sent to the Fund an initial notice letter with attachments dated December 30, 1994. It included a copy of the voluntary agreement and all available medical reports, and noted that the claimant had only been disabled for seven months. Joint Exhibit 1. Indeed, this notice was early under § 31-349(b), which required that the employer give notice “no earlier than one year and no later than ninety days before the expiration of the first one hundred four weeks of disability.”

Section 31-349(e), which was enacted by P.A. 95-277 § 3(e) and took effect on July 1, 1995, requires 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 . . . .” In accordance with this section, AON sent a letter to the Fund dated September 8, 1995 that stated the respondents’ intention to pursue transfer of the instant case, and enclosed a copy of an August 29, 1995 letter from the Assistant Treasurer indicating that, for re-notification purposes, it was unnecessary to reproduce the complete file. AON sent a final letter to the Fund on May 14, 1996 that cited the notices sent on December 30, 1994 and September 8, 1995, both of which the Fund acknowledged, and reported that the claimant would have received 104 weeks of disability benefits as of May 23, 1996. The letter also included copies of medical reports received since December 30, 1994.

The respondents argue that the combination of their 1994 and 1995 letters provides the Fund with sufficient notice, while the Fund argues that the December 1994 letter was not a statutory notice because it was received early, and thus a simple re-notification under P.A. 95-277 was insufficient. There is no dispute that AON did not attempt to notify the Fund of the claim under § 31-349(b) as modified by P.A. 95-277, which details the requirements for initial notice of a claim to the Fund (including a $2000 notification fee and an accounting of all benefits paid). See Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (Aug. 4, 1997) (filing of timely re-notice under § 3(e) did not cure untimely filing of initial notice under previous version of § 31-349, but requirements of initial notice under § 31-349(b) were satisfied separately). The trier concluded that, as the initial notice was defective insofar as it was filed too early, the re-notification under § 31-349(e) with no attachments did not cure that defect. Thus, he dismissed the respondents’ request for transfer. The respondents have appealed that decision.

The respondents argue in their brief that the trier erred by finding that § 31-349(b) as revised by P.A. 95-277 § 3(b) was applicable to this case. Their argument is that the version of § 31-349 in existence on the date of the injury should be used to evaluate the sufficiency of their notice, and that they met the criteria of that statute once they sent their September 8, 1995 letter referring back to the previously sent voluntary agreement and medical reports. At that point, they argue, the Fund had everything it needed. We do not believe that the law reads in the respondents’ favor.

First, the September 8, 1995 letter specifically refers to the requirements for “re-notification” that were discussed by the Assistant Treasurer. It is evident from AON’s choice of language that the insurer viewed its letter as an attempt to comply with the requirements of § 31-349(e) in light of P.A. 95-277. Instead of attempting to comply with the requirements of § 31-349(b) by sending all of the information again along with a check for $2000 and an accounting of benefits paid, AON sought to rely on the notice it had already provided—which, as discussed above, was filed too early under the version of § 31-349 in effect on the date of injury. There is no dispute that P.A. 95-277 had retroactive effect, and by its terms implicated all pending transfer claims regarding the Fund. Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 302-303 (1997); Audi, supra.

Second, even if we accepted the respondents’ argument that its 1995 letter was meant to complete the 1994 notice that was filed too early, we would be left with a Catch-22 situation in which the 1995 letter sent by the respondents constituted neither timely re-notification under § 31-349(e) nor initial notice under § 31-349(b). An argument that the 1994 notice did not require re-notification under § 31-349(e) would necessarily carry with it the assertion that the 1994 notice was not statutory notice at all, as under § 31-349(e), the Fund had to be re-notified on all claims for transfer of injuries for which it had been notified prior to July 1, 1995. If the 1994 letter, complete with voluntary agreement and medical reports, was not statutory notice, then as of July 1, 1995, the respondents would have been subject to the notice requirements of § 31-349(b)—with which they did not comply. Hall, supra. If the 1994 letter did constitute statutory notice, then the re-notification requirement applied to it, but could not be satisfied because the initial notice was defective. No matter which way the 1995 letter is construed, something is missing from the equation.

We do not doubt that, as a practical matter, the Fund had enough information to investigate this claim if it so wished. However, our courts have stated time and again that the liability of the Fund is to be construed very narrowly, and statutory requirements of notice must be specifically met. See, e.g., Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 19 (1995); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395-36 (1993); McNulty v. Stamford, 37 Conn. App. 835, 839-40 (1995). The language of the statute was not satisfied in this case. Therefore, we must affirm the trial commissioner’s decision.

Commissioners Michael S. Miles and Stephen B. Delaney concur.

Workers’ Compensation Commission

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