CASE NO. 3848 CRB-07-98-06
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 7, 1999
MARY LOU MATEY
ESTATE OF SARAH DEMBER
NO RECORD OF INSURANCE
JEROME and MICHAEL SCHWEITZER
CO-EXECUTORS OF THE DEMBER ESTATE
SECOND INJURY FUND
APPEARANCES: The claimant was represented by Laurence Parnoff, Esq., 1566 Park Avenue, Bridgeport, CT 06604.
The respondent employer and her estate were not represented at oral argument. Notice sent to Gary Ginsberg, Esq., 377 Main Street, West Haven, CT 06516.
The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the June 18, 1998 Finding and Order of the Commissioner acting for the Seventh District was heard January 22, 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.
JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the June 18, 1998 Finding and Order of the Commissioner acting for the Seventh District. In support of its appeal, the Fund contends that an order of payment against the Fund pursuant to § 31-355 is not proper because “no order has ever been entered against a living person or against the executors of Sarah Dembers (sic) estate.” In addition, the Fund argues that it has a right to a de novo hearing pursuant to § 31-355(b).
We have previously reviewed the history of this case in Matey v. Dember, Case No. 3153 CRB-5-95-8 (Jan. 10, 1997) as follows:
The claimant suffered a compensable injury on August 9, 1984, when she was involved in an automobile accident while running an errand for her employer, Sarah Dember. Dember, who was not insured for workers’ compensation liability, died on October 13, 1984. The claimant filed a notice of claim for compensation with the Fifth District and with the attorney representing Dember’s estate on July 8, 1985. The claimant did not file a claim with the probate court during the appropriate period, however. The Fund argued that this prevented the claimant from pursuing her workers’ compensation claim. The trial commissioner did not agree, and ordered the estate (which was represented at an informal hearing, but not at the formal hearings) to pay benefits. The Fund appealed that decision to this board, which ruled that the claimant gave proper notice of her claim for workers’ compensation purposes, and declined to address the probate court issues as a court of limited jurisdiction. Matey v. Dember, 5 Conn. Workers’ Comp. Rev. Op. 104, 105-106, 516 CRD-5-86 (June 14, 1988). The CRD also remanded the case for further findings regarding the claimant’s compensation rate.
Meanwhile, the case was appealed to the Supreme Court in an attempt to raise the jurisdictional issue there. Because the remand had not yet occurred and further evidentiary proceedings were necessary, the Court ruled that the appeal was premature and had to be dismissed. Matey v. Estate of Dember, 210 Conn. 626, 631 (1989). Subsequently, the commissioner issued an order as to the claimant’s compensation rate. When that award was neither appealed nor paid, the trial commissioner issued a payment order against the Fund. The commissioner then granted a motion by the Fund to set aside that order and reopen proceedings, which entailed several more hearings and culminated in a Finding and Award dated July 26, 1995. There, the commissioner acknowledged the findings in the prior Finding and Award, and extended the period of the claimant’s total disability to August 23, 1994.1 He also ruled that the 1988 CRD decision and the prior awards had determined the jurisdictional issue concerning the absence of a probate claim against the employer’s estate, and that the doctrine of res judicata applied.
Instead of appealing that decision, the Fund again moved to reopen on August 11, 1995, on the ground, inter alia, that no order had been entered against a legal entity prior to the entry of the order against the Fund. Most of that motion was denied, and the Fund filed a petition for review. It also filed a supplemental motion to reopen, again alleging insufficient factual findings to support the exercise of jurisdiction over the Fund .
The Board in its decision of January 10, 1997, held that the commissioner did not have authority under § 31-355(a) to order payment from the Fund until an award was first made against the employer, and that employer failed to pay the compensation. The Board held that said flaw “can be remedied simply by remanding this case to the trial commissioner, however, for entry of an order against the decedent employer and/or her estate.” Id. Furthermore, the Board explained:
[A]s the co-executors of the claimant’s estate both appeared at formal hearings and were excused by the trial commissioner, we have no qualms about saying that they have been apprised of these proceedings and have consented to the jurisdiction of the Workers’ Compensation Commission, and that an award may be entered against the estate. Any difficulty that the Fund has due to the lack of a notice of claim in the probate court is, as we decided in the earlier appeal, not an issue that we will address in this forum. Once an award has been entered against the decedent employer or her estate, if it remains unpaid, an order to pay that award may then be entered against the Second Injury Fund.
In accordance with the above, a Supplemental Finding and Award was issued by the Commissioner acting for the Seventh District on May 23, 1997 ordering Sarah Dember (deceased) and the estate of Sarah Dember to pay the claimant. As no payments were made to the claimant, the trial commissioner issued an order on June 2, 1997 to the Fund to pay the claimant in accordance with § 31-355. The Fund has not complied with that order. The Fund did not file a timely appeal from the June 2, 1997 order.2 Instead, the Fund filed a Form 43 (Notice of Intention to Contest Liability) on June 6, 1997. The trial commissioner’s June 18, 1998 Finding and Order, in which he denied the Fund’s Form 43, is the subject of the present appeal.
In support of its appeal to this Board, the Fund contends that the order of payment against the Fund pursuant to § 31-355 is not proper because “no order has ever been entered against a living person or against the executors of Sara Dembers (sic) estate.” (Fund’s Brief at p. 4). This issue was addressed in Matey v. Dember, Case No. 3153 CRB-5-95-8 (Jan. 10, 1997), where the Board held that “the commissioner did not err in refusing to reopen the case yet again to consider the claims that the Fund was entitled to a credit pursuant to § 31-293, or that the employer’s executors have not been properly served with the various awards.” Id. (Emphasis added). This Board will not again address the issues raised by the Fund that the claimant did not file a proper notice of claim with the probate court or that the employer’s executors were not properly served with the award. Pursuant to § 31-355, the Fund must now pay the claimant as the estate has failed to do so.
We now repeat the Board’s January 10, 1997 decision as follows: “Any difficulty that the Fund has due to the lack of a notice of claim in the probate court is, as we decided in the earlier appeal, not an issue that we will address in this forum. Once an award has been entered against the decedent employer or her estate, if it remains unpaid, an order to pay that award may then be entered against the Second Injury Fund.” In accordance with the Board’s January 10, 1997 decision, an award has been entered against Sarah Dember’s estate, and pursuant to § 31-355 the Fund has been ordered to pay said award. We conclude that the trial commissioner did not err in denying the Fund’s Form 43 in which it contested the order to pay pursuant to § 31-355, and thus affirm the trial commissioner’s decision.
Finally, we will address the Fund’s contention that the express language of § 31-355(b) requires the trial commissioner to grant it a de novo hearing after the June 2, 1997 order to pay had been issued against the Fund. The Fund then seeks to contest the compensability of the claimant’s injury under the “coming and going” rule; the claimant’s compensation rate; and issues regarding the claimant’s third party recovery. (Fund’s Brief at p. 6-8). We do not agree that § 31-355(b) allows the Fund to relitigate these issues.
Section 31-355 provides that the Fund is liable for any award of compensation that remains unpaid by an employer or insurer, and requires the commissioner to specifically direct the Treasurer to pay such an award. The statute then continues:
Whenever liability to pay compensation is contested by the Treasurer, the Treasurer shall file with the commissioner, on or before the twenty-eighth day after he has received an order of payment from the commissioner, a notice in accordance with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. A copy of the notice shall be sent to the employee. The commissioner shall hold a hearing on such contested liability at the request of the Treasurer or the employee in accordance with the provisions of this chapter. If the Treasurer fails to file the notice contesting liability within the time prescribed in this section, the Treasurer shall be conclusively presumed to have accepted the compensability of such alleged injury or death from the Second Injury Fund and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or contest the extent of the employee’s disability.
We believe that several considerations militate against our adopting the interpretation of this statute advanced by the Fund here.
The Fund is attempting to obviate any argument regarding the equity and efficiency of holding multiple formal hearings on the same issue by relying on what it claims is the unambiguous language of the statute. It appears to us, however, that this language is ambiguous, and must be read in conjunction with other statutes and with the spirit of the Workers’ Compensation Act as a whole.
Section 31-355(a) states that the commissioner shall notify the Treasurer “of all hearing of matters which may involve payment from the Second Injury Fund, and may make an award directing the Treasurer to make payment from the Fund.” (Emphasis added.) Read in conjunction with § 31-355(b), this subsection must contemplate that the Fund can participate in hearings before an award is entered against an employer. In fact, that is commonly the case, and was done here. The existence of § 31-355(a) suggests that § 31-355(b) was directed at situations where the Fund was not involved in proceedings prior to the entry of an award against the employer or insurer, and has thus not had an opportunity to contest the compensability of an injury.
We also observe that the language of § 31-355(b) states that “[w]henever liability to pay compensation is contested by the Treasurer, the Treasurer shall file with the commissioner, on or before the twenty-eighth day after he has received an order of payment from the commissioner, a notice . . . stating that the right to compensation is contested . . . and the specific grounds upon which the right to compensation is contested.” (Emphasis added.) This language is virtually identical to the terms of § 31-294c(b), which concerns an employer’s right to contest the initial compensability of a claimant’s injury. Failure to protest or to begin making payment without prejudice within 28 days subjects the employer to the presumption that the compensability of the injury has been accepted. See, e.g., Menzies v. Fisher, 165 Conn. 338 (1973). Notably, the extent of disability, including entitlement to temporary total disability and temporary partial disability benefits, may still be challenged. This also implies that § 31-355(b) is geared toward the Fund’s right to obtain a hearing on the compensability of an injury.
This notion is borne out by the legislative history of P.A. 91-207, which added to § 31-355 the language in both subsections (a) and (b) concerning notice to the Fund and the right of the Fund to contest compensability. Rep. Adamo stated before the House of Representatives that “[p]rior to this, only the employer was given notice in the 28 days opportunity to disclaim. This would give the Second Injury Fund an opportunity to do the same thing. The Treasurer’s office has indicated to us that this could in fact save the fund millions of dollars because of some of the particular claims that have come before them that were clearly not compensable, but they were stuck because of a preclusion of law.” 34 H. Rep. Proc., Pt. 11, 1991 Sess., pp. 3993-94. The comments of Sen. Maloney before the Senate indicated that, where the compensability of a claim has been defended by an insurer, “it is not the intention of the bill to allow it to be relitigated in effect. It is where it has not been contested, the Treasurer, under this legislation, would have the right to then make that contest.” 34 S. Proc., Pt. 6, 1991 Sess., pp. 2004-05. Further, Paul R. Vitarelli, a Second Injury Fund representative, stated before the Appropriations Committee that the proposed changes in § 31-355 concerned cases in which the issue of compensability was not clear cut, and the employer had failed to contest the claim. Conn. Joint Standing Committee Hearings, Appropriations, Pt. 1, 1991 Sess., p. 66.
In light of the statutory language and the legislative history of P.A. 91-207, we do not believe that the Fund is entitled to a new hearing in cases such as the instant matter where it has received notice of the prior formal hearings, and participated fully in them. Under § 31-355(a), the Fund may be notified of matters in which it may become liable. It follows that the Fund is entitled to attend such proceedings, and offer defenses in the event that the employer or insurer is not contesting the claim. See Kluttz v. Howard, 8 Conn. Workers’ Comp. Rev. Op. 51, 53, 664 CRD-4-87 (March 8, 1990). However, once the Fund participates in that manner, it waives any right it might arguably have to a de novo formal hearing on the same issue in the event the employer does not pay and an order is entered against the Fund. To hold otherwise would force claimants to try their cases twice, which is hardly the purpose of remedial legislation such as the Workers’ Compensation Act.
The trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
1 Corrected from May 30, 1995, as the last evidentiary hearing was held on August 23, 1994. BACK TO TEXT
2 The Board noted in Matey v. Dember, Case No. 3153 CRB-5-95-8 (Jan. 10, 1997), that in two instances in this case, the Fund failed to appeal from a commissioner’s Finding and Award, and instead filed a motion to reopen. The Board explained that because the Fund failed to file a timely appeal from a final judgment, “[c]laimed errors which might have been assigned on such an appeal are no longer open to review upon an appeal from a denial of a motion to open that judgment.” Id. (quoting Crozier v. Zaboori, 14 Conn. App. 457, 462 (1988) (internal quotations omitted)). The Board further explained that “a party is not entitled to raise questions which were or could have been answered in a prior appeal, even if they concern subject matter jurisdiction.” Id. (citing Peters v. State of Connecticut/Southern Connecticut State University, 13 Conn. Workers’ Comp. Rev. Op. 131, 134, 1616 CRB-5-92-12 (Feb. 1, 1995)). BACK TO TEXT