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Walker v. Praxair, Incorporated

CASE NO. 3769 CRB-07-98-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 17, 1999

CLIFF WALKER

CLAIMANT-APPELLEE

v.

PRAXAIR, INCORPORATED

EMPLOYER

and

CNA INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant did not appear at oral argument.

The respondent-appellants were represented by James Sullivan, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

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 January 28, 1998 Finding and Dismissal of the Commissioner acting for the Sixth District was heard January 8, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (hereinafter “respondents”) have petitioned for review from the January 28, 1998 Finding and Dismissal of the Commissioner acting for the Sixth District. In that decision the trial commissioner denied the respondents’ request to transfer liability to the Second Injury Fund pursuant to § 31-349. The respondents argue on appeal that the trier erred by failing to find that it provided timely notice to the Fund pursuant to § 31-349 as amended by P.A. 95-277, § 3(b).

The trial commissioner found the following relevant facts. The claimant suffered a compensable injury on September 20, 1993. The respondent insurer initially provided timely notice to the Fund on January 10, 1995 that it was seeking transfer pursuant to § 31-349. On February 7, 1995 the Fund acknowledged receipt of the notice and acknowledged that an approved voluntary agreement was received with the notice letter, and noted a need for updated medical records. On July 1, 1995, the state legislature enacted P.A. 95-277 which amended § 31-349. The respondent insurer did not renotify the Fund pursuant to P.A. 95-277, § 3(e) prior to October 1, 1995.

On December 28, 1995 the respondent insurer submitted a new notice to the Fund along with the $2,000.00 fee and supporting documentation. On December 29, 1995 the respondent insurer submitted a supplemental notice letter to the Fund with a tendered voluntary agreement with the compensation rate crossed out, signed by both parties, but not approved by a trial commissioner. The respondent insurer attempted to resolve issues surrounding the voluntary agreement and submitted redrafted voluntary agreements for approval from the Sixth District Workers’ Compensation Office in March of 1996. On March 13, 1996, the Sixth District returned said voluntary agreements because of issues regarding the claimant’s benefit rate, and said agreements were not approved until March 19, 1997. The trial commissioner concluded that the insurer initially filed timely and proper notice with the Fund, and thus its failure to renotify the Fund prior to October 1, 1995 constituted a withdrawal of the claim under P.A. 95-277, § 3(e).

Pursuant to § 31-349 as amended by P.A. 95-2771 there are two types of notice that an insurer may give to the Fund regarding transfer of a claim based on an injury prior to July 1, 1995. Specifically, § 3(e) of the Public Act provides for renotification of claims for transfer of injuries “for which the fund has been notified prior to July 1, 1995.” The employer or insurer seeking transfer is required by this section to resubmit notice of its intent to pursue transfer to the Fund by certified mail prior to October 1, 1995. There is no filing fee under § 3(e). The other type of notice under P.A. 95-277 is provided under § 3(b). This section provides a means by which initial notice to the Fund must be given of the intent to pursue transfer of a claim. Under this section, the employer or insurer seeking to transfer liability for a claim must 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.” Section 3(b) also requires other materials to be submitted along with the notice, as well as a $2000 fee to cover the Fund’s costs in evaluating the claim.

In the instant case, the respondents contend that they have complied with the filing requirements of § 3(b), as the notice filed on December 28, 1995 was filed within three years following the date of injury (September 20, 1993). The respondents rely on Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (August 4, 1997). The Fund argues that the claim for transfer was withdrawn with prejudice pursuant to § 3(e) when the respondents failed to resubmit notice prior to October 1, 1995.

In Audi, supra, the insurer’s initial notice to the Fund was late when it was filed on February 8, 1995, prior to the enactment of P.A. 95-277. Subsequently, the insurer filed notice with the Fund on July 5, 1995. The board held that the notice of July 5, 1995 did not constitute renotification pursuant to § 3(e), reasoning that the insurer could not re-notice an initial notice which was untimely. However, the board ruled that the July 5, 1995 notice may have constituted proper notice pursuant to § 3(b), and remanded the case on that issue.

In Audi, supra, the board explained as follows:

We agree that the filing of a timely re-notice under § 3(e) of the Public Act would not cure a prior untimely notice under the previous version of § 31-349, which required that notice be filed at least 90 days before the 104th week of disability had passed. Section 3(e) specifically refers to claims “for which the fund has been notified prior to July 1, 1995.” By “notified,” the legislature meant properly and timely notified, rather than unsuccessfully notified. Section 3(e) clearly deals with pending notice claims that the Fund had been apprised of prior to July 1, 1995, and forces the party seeking transfer to reaffirm its intent to pursue its claim, as all claims were “deemed withdrawn with prejudice” subject to renotification by October 1, 1995. See 38 S. Proc., Pt. 15, 1995 Sess., p. 5487 (remarks of Sen. Kissel). Nowhere in this provision does the legislature evince an intent to allow parties that have missed the filing deadline in the past to resurrect those claims by “re-notifying” the Fund of their intent to seek transfer. 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. Audi, supra, (emphasis added).

In Audi, supra, the board explained that P.A. 95-277 was intended to apply retroactively to injuries that occurred when the previous version of § 31-349 was still in effect. Id., citing Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 302-303 (1997). “No line was specifically drawn between cases that could have transferred under the old law assuming timely notice and cases that were not ripe for transfer until the new law was in effect, however.” Id. The board further explained that “[t]here is simply no language in the amendment to suggest that P.A. 95-277 [specifically the initial notice provision of § 3(b)] is inapplicable to claims in which notice previously filed under the existing version of § 31-349 was untimely.” Id.

In the instant case, unlike Audi, supra, the trial commissioner specifically found that the initial notice filed on January 10, 1995 was both “proper and timely.” (Finding No. A). We do not agree with the Fund’s argument, however, that the insurer’s failure to renotify to the Fund prior to October 1, 1995 extinguished its right under § 3(b) to provide notice to the Fund under the requirements of that section. Rather, these two sections are written as separate provisions, and we would be adding language to § 3(b) if we were to interpret it as allowing notice to be filed only in cases where the respondent had not failed to file renotification under § 3(e). We do not agree with the Fund that the penalty in § 3(e) of “withdrawal with prejudice” would be meaningless if the insurer could provide new notice under § 3(b) after failing to comply with § 3(e). On the contrary, numerous pending claims for transfer have been filed with the Fund which involve injuries more than three years old, such that if they are withdrawn with prejudice under § 3(e) they may not meet the time limitations of § 3(b).

The trial commissioner’s decision is reversed, and this matter is remanded for a finding as to whether the respondent insurer’s notice complied with § 3(b) of P.A. 95-277.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 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

Workers’ Compensation Commission

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