CASE NO. 3855 CRB-06-98-07
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 25, 1999
UNITED TECHNOLOGIES CORP.
LIBERTY MUTUAL INSURANCE CO.
SECOND INJURY FUND
The claimant did not appear at oral argument.
The respondent employer and its insurer were represented by Nancy Rosenbaum, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.
The Second Injury Fund was represented by Kenneth Kennedy, Esq. at oral argument and was represented at the trial level by Nancy Sussman, Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the July 7, 1998 Finding and Dismissal of the Commissioner acting for the Sixth 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 Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (“respondents”) have petitioned for review from the July 7, 1998 Finding and Dismissal of the Commissioner acting for the Sixth District. In that decision the trial commissioner concluded that the respondents failed to provide re-notification to the Fund on or before October 1, 1995 as required by § 31-349(e), and thus denied the respondents’ request to transfer liability pursuant to § 31-349. In support of their appeal, the respondents contend that re-notice was timely because October 1, 1995 fell on a Sunday and the re-notice was received by the Fund on the next business day. Alternatively, the respondents argue that the respondent insurer complied with § 31-349(e) by mailing the notice prior to October 1, 1995.1
In the instant case, the trial commissioner found that the respondent insurer initially provided timely notice with the Fund pursuant to § 31-349 on July 9, 1986. The parties stipulated that the claim medically qualifies for transfer and that the 104 week disability period was completed on January 30, 1988. Public Act 95-277 was subsequently enacted, which requires re-notification of pending claims for transfer. Specifically, § 31-349(e) requires: “All claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue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.” October 1, 1995 fell on a Sunday.
The trial commissioner found that the respondent insurer mailed the re-notification on September 28, 1995 by certified mail, return receipt requested. Said re-notice was accepted for delivery by the Custodian of the Second Injury Fund on Monday, October 2, 1995. The trial commissioner found Sanders v. GAE Services, 3481 CRB-05-96-11 (April 29, 1998) to be directly on point, and thus concluded that the respondents’ re-notice was untimely. We agree.
In Sanders, the Board addressed similar factual circumstances. Specifically, the insurer in that case sent its re-notice dated September 26, 1995 to the Fund, which was received on Monday, October 2, 1995. The Board addressed Prac. Bk. § 4010:
According to § 4010 of the Connecticut Practice Book’s Rules of Appellate Procedure, when the last day of any time limitation for filing a paper under the rules falls on a day when the office of the trial court or the appellate clerk is not required to be open, the paper may be filed on the next day when the office is open for business. Section 31-301(e) makes the procedure in appealing a commissioner’s decision the same as that used in appealing a Superior Court decision to the Supreme Court (or, inferably, the Appellate Court). See, e.g., Zito v. General Dynamics Corporation, 3478 CRB-8-96-11 (decided July 9, 1997). Thus, we have invoked this Practice Book rule where a § 31-301(a) petition for review was filed with the Workers’ Compensation Commission one day late because the tenth day from the date of the decision fell on a Sunday, when the Commission’s offices were closed. Noga v. Colin Service Systems, Inc., 3361 CRB-6-96-6 (decided Sept. 16, 1997).
The Board in Sanders went on to explain, however, that § 4010 would not apply to the October 1, 1995 deadline under § 31-349(e) because there is no specific legislation which authorizes the use of § 4010 in conjunction with § 31-349(e). Additionally, the Board reasoned in Sanders that § 4010 should not apply because § 31-349(e) provides a specific date, October 1, 1995, rather than a general notice period which could expire on any date.
The Board’s decision in Sanders, supra, is controlling. As the Board explained in Sanders, supra, we must presume that the legislature knew that the date fell on a Sunday when it chose October 1, 1995 as the final day for providing timely re-notice under § 31-349(e). Moreover, our courts have repeatedly stated that payment from the Fund can be made only in accordance with express statutory authority, the absence of which has been held fatal to claims for compensation from the Fund. Civardi v. Norwich, 231 Conn. 287, 294 (1994); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993). If we were to allow insurers one extra day to file re-notice, we would certainly be going beyond the express statutory language of § 31-349(e).
The trial commissioner’s decision is affirmed
Commissioner Michael S. Miles concurs.
ANGELO L. dos SANTOS, COMMISSIONER, DISSENTING. I respectfully dissent. I disagree with the reasoning in Sanders, which the majority adopts in the instant case, specifically that § 4010 does not apply to § 31-349(e). Section 31-349(e) requires re-notification “by certified mail prior to October 1, 1995.” As October 1, 1995 fell on a Sunday2 and state agencies are not open on Sundays, it is reasonable to interpret timely notice to include the next business day. Accordingly, I would find the respondent insurer’s re-notice to be timely as it was received by the Fund on October 2, 1995.
Alternatively, a logical interpretation of § 31-349(e) is that the October 1, 1995 deadline refers to the date on which the certified mail must be sent to the Fund rather than received by the Fund. This reading of the statute is corroborated by the fact that state agencies are not open on Sundays, and thus the Fund could not receive any certified mail on Sunday, October 1, 1995. In Tucker v. Connecticut Ins. Placement Facility, 192 Conn. 653 (1984), the Supreme Court addressed a similar issue. Specifically, in that case the statute at issue, § 49-73d, required that a statement must be “delivered” to the insurance company “in person or by registered or certified mail, within twenty days from the date of receipt by the town clerk of such demand.” Id. at 660. The court opined that “if mailing constitutes delivery within the meaning of the statute, then the statute was satisfied in this respect.” Id. The court held as follows: “When a statute, such as § 49-73d, authorizes delivery by mail then depositing a letter with the post office in the specified manner and within the specified time period constitutes delivery to the defendant.” Id.
In the instant case, as in the case discussed above, the statute indicates that notice to the Fund be provided “by certified mail.” In accordance with the reasoning of the Supreme Court in Tucker, supra, I interpret § 31-349(e) to mean that the posting of re-notice via certified mail prior to October 1, 1995 constitutes timely notice. Accordingly, I would find that the respondents provided timely re-notice to the Fund, as the trial commissioner found that the respondent insurer mailed the re-notification on September 28, 1995 by certified mail, and said re-notice was accepted for delivery by Fund on Monday, October 2, 1995.
For the above reasons, I would reverse the trial commissioner’s decision and remand the matter in order to complete the transfer to the Fund.
1 The respondents also contend that § 31-349(e) is unconstitutional. Although this Board may not address constitutional issues, we note that our Supreme Court has concluded that “the re-notification provision contained in § 31-349, as revised in 1995, has no constitutional flaw that is cognizable either under the contract clause or the due process clause of the United States constitution.” Cece v. Felix Industries, Inc., 248 Conn. 457, 466 (1999). BACK TO TEXT
2 It is not clear whether the legislature realized that October 1, 1995 fell on a Sunday, as it may be presumed that said date was chosen because the legislature generally enacts laws effective October 1st or July 1st of each year. BACK TO TEXT