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Crute v. Gilman Corp.

CASE NO. 3812 CRB-02-98-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 18, 1999

DAVID E. CRUTE

CLAIMANT-APPELLEE

v.

GILMAN CORP.

EMPLOYER

and

HARTFORD ITT INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Gerald A. Field, Esq., 11 Asylum Street, Hartford, CT 06103.

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 Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the May 5, 1998 Finding and Dismissal of the Commissioner acting for the Second District was heard November 6, 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 and the Second Injury Fund have both petitioned for review from the May 5, 1998 Finding and Dismissal of the Commissioner acting for the Second District. The respondents argue on appeal that the trier improperly denied their request to transfer liability for their claim to the Fund on account of insufficient statutory notice, while the Fund argues that it should not have been ordered to reimburse the respondents for the $2,000 notification fee they paid. We affirm the trial commissioner’s decision.

The trier found that the claimant suffered a compensable spinal injury on September 2, 1993 while working for the respondent employer Gilman Corp. Its insurer, the respondent Hartford Insurance Group, accepted liability for the injury, and sent the Second Injury Fund notice of its intent to transfer that liability on June 16, 1994. The Fund responded on July 11, 1994, by sending the carrier a receipt that included the disclaimer: “nothing in this letter is to be construed as an acceptance of the claim by the Fund on the merits or as a concession that notice is timely.” Findings, ¶ 4. At that time, § 31-349 C.G.S. required a party seeking transfer to notify the Second Injury Fund of the pending case “no earlier than one year and no later than ninety days before the expiration of the first one hundred four weeks of disability.”

Public Act 95-277 amended § 31-349 effective July 1, 1995. Subsection (e) of the revised statute provides 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.” No additional fees were due along with this “renotification.” The amended law also sets forth in subsection (b) a different set of filing requirements for initial notice of an injury.

“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 . . . and (F) such other material as the custodian may require.”

The respondents sent another notice letter to the Fund on August 7, 1995 containing medical reports, an accounting, copies of agreements and/or findings, and the reserve information. The letter did not include the $2000 notification fee. Eleven days later, the respondents also sent a renotification letter to the Fund. Apparently assuming that, by dint of these mailings, the statutory notice requirements had been met, the respondents then forwarded a proposed transfer agreement to the Fund on September 28, 1995.

On November 9, 1995, a representative for the Fund informed the attorneys for the respondent insurer that “the letter of August 7, 1995 could arguably serve as a ‘notice’ letter rather than ‘renotice,’ however, the $2,000 fee was not enclosed. To protect your client’s rights, I would suggest that you resubmit the entire package, including the $2,000 fee, as a new notice to the Second Injury Fund within the statutory time period.” The 90th day following the expiration of 104 weeks of disability was November 29, 1995. See Findings, ¶ 11. The respondents sent the notice fee of $2,000 to the custodian of the Fund on February 12, 1996.

The respondents argued before the trial commissioner that their first notice of intent to transfer should be deemed timely because the Fund failed to warn them that it was too early, and that their renotice was timely under § 31-349(e). They also argued that that their second notice should be deemed satisfactory because it substantially complied with § 31-349(b), and the Fund did not inform them in a timely fashion that it was deficient in any way. Despite these arguments, the trier ruled that the respondents did not meet the jurisdictional requirements of § 31-349, and denied their request for a transfer of liability. She also ordered the Fund to reimburse the respondents for their $2,000 notification fee. The respondents have appealed the denial of transfer to this board, while the Fund appealed the reimbursement order.

As discussed in Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997), P.A. 95-277 indeed applies retroactively to cases in which the claimant’s second injury occurred prior to the statute’s July 1, 1995 effective date. This retrospective operation means that (1) renotification is necessary for notices properly and timely filed prior to July 1, 1995, and (2) that initial notice to the Fund may be given pursuant to the provisions of P.A. 95-277 § 3(b) if the criteria of the statute can be met at the time notice is attempted. Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (August 4, 1997). The amended statute cannot be used, however, to somehow rehabilitate a notice that was defective when it was filed in 1994, before P.A. 95-277 took effect. See Szedlmayer v. Moore Special Tool Co., 3764 CRB-4-98-1 (March 25, 1999). Under the version of § 31-349 in effect at that time, and at the time of the claimant’s injury, the respondents’ 1994 notice was submitted too early. When P.A. 95-277 took effect, it not only redefined the time period within which notices could be filed; it also made a host of new documents (and a $2,000 check) integral to a complete notice for transfer. The respondents cannot somehow append the time frame of P.A. 95-277 § 3(b) to the version of § 31-349 that was enacted by P.A. 93-429. Thus, the renotification provision of § 31-349(e) is inapplicable to this case, and the respondents’ filing of a renotice on August 18, 1995 is of no legal import. Audi, supra.

The fact that this Commission failed to include the version of § 31-349 as revised by P.A. 93-429 in Supplement No. 1 to Workers’ Compensation Commission Bulletin No. 40 cannot be said to absolve the respondents of responsibility for knowing about the change in the law. The bulletins issued by this Commission are not the only reference source for Connecticut’s workers’ compensation statutes, and they do not purport to be the exclusive official publication of all statutory updates that concern workers’ compensation. The respondents also do not contend that they were affirmatively told by an employee of this Commission that the correct method of filing their notice to the Second Injury Fund as of June 16, 1994 was pursuant to the version of the statute printed in said bulletin. There is no reasonable equitable argument for estoppel or reliance here.

Furthermore, even if there were grounds for invoking equitable principles, it is debatable whether this board would have the authority to suspend the operation of the statute. We have often noted that, even where the Fund in actuality has enough information to investigate a claim, its liability must be construed narrowly, and the statutory requirements of notice must be explicitly met. Szedlmayer, supra, citing, inter alia, Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395-96 (1993). The few cases in which we have invoked less stringent interpretations of § 31-349’s notice provisions are cases in which the respondents’ adherence to one of the statute’s time constraints was literally impossible under the circumstances. See, e.g., Marano v. Timex Corp., 14 Conn. Workers’ Comp. Rev. Op. 207, 1774 CRB-5-93-7 (July 27, 1995). This is not such a case, and we would be reluctant to read § 31-349 broadly given the legal precedent on this subject.

The facts also demonstrate that the respondents did not timely provide the Fund with all of the elements of notice listed in § 31-349(b), as amended by P.A. 95-277, because it did not submit the $2,000 filing fee within the interval specified by the statute. The legislature has included the payment of that fee as one of the essential elements of notice under § 31-349(b), and it is not within this board’s authority to discount any of those elements as secondary or unimportant. The respondents stress that they substantially complied with the statute insofar as they provided with the Fund with enough information to begin investigating the claim. Though the latter fact may be true, the concept of “substantial compliance” does not extend so far as to excuse the complete omission of one of § 31-349’s notice criteria. Failing to seasonably pay a notification fee is not, for example, thematically equivalent to submitting an unsigned but otherwise completed voluntary agreement. See Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14 (1995). We cannot waive the timely payment of that fee on the Fund’s behalf.

The respondents contend that, upon receipt of the respondents’ incomplete notice of intent to transfer liability, the Fund had an obligation to inform them that, without the filing fee, they would be precluded from perfecting that notice. Although such instances of courtesy might be societally desirable, the statute does not specifically require the Fund to act in a less adversarial manner. Section § 31-349(b) merely states that “[t]he custodian of the fund shall, by certified mail, notify . . . an insurer . . . of the rejection of the claim within ninety days after receiving the completed notification.” As the respondents did not complete their notification in a timely fashion, the Fund was not required to issue a formal rejection of their claim. In fact, since notice was incomplete, and the Fund did not have to investigate this claim or evaluate it in any detail, the trial commissioner correctly ruled that it should provide the respondents with a refund of their $2,000 notification fee. There is no authority to support the Fund’s contention that it is entitled to keep this sum.

We also point out the trier’s finding that a Fund representative recommended that the respondents resubmit their claim, along with the $2,000 fee, on November 9, 1995. At that time, several weeks still remained before the lapse of the 90th day following the 104th week of the claimant’s disability. This is not a tremendous amount of time, but it did provide the respondents with some opportunity to act. Had they heeded the Fund’s advice immediately, their notice would have been timely filed, and they would not be unsuccessfully arguing the denial of their transfer request before us here.

The trial commissioner’s decision is affirmed.

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

Workers’ Compensation Commission

Page last revised: April 8, 2005

Page URL: http://wcc.state.ct.us/crb/1999/3812crb.htm

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