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Correnti v. Grossman’s Inc.

CASE NO. 3858 CRB-08-98-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 31, 1999

GLENN CORRENTI

CLAIMANT-APPELLEE

v.

GROSSMAN’S INC.

EMPLOYER

and

KEMPER INSURANCE GROUP

INSURER

RESPONDENTS- APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant did not appear at oral argument.

The respondent employer and its insurer were represented by Polly L. Orenstein, Esq., 2750 Dixwell Avenue, P.O. Box 187289, Hamden, CT 06518.

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

This Petition for Review from the July 6, 1998 Finding and Award of the Commissioner acting for the Eighth 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.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the July 6, 1998 Finding and Award of the Commissioner acting for the Eighth District. In that decision the trial commissioner concluded that the respondents substantially complied with the re-notification requirements of § 31-349(e) by attempting personal delivery of the re-notice prior to October 1, 1995, and when that delivery was rejected by immediately sending said re-notice to the Fund via certified mail which was received by the Fund on October 2, 1995. In support of its appeal, the Fund contends that § 31-349(e) requires that notice be provided to the Fund prior to October 1, 1995 by certified mail only. We find no error.

Section 31-349(e) requires re-notification of pending claims for transfer.1 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“All claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue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.

In the instant case, the parties stipulated that the claim medically qualifies for transfer and that the claimant has received over 104 weeks of benefits. The trial commissioner found that on September 29, 1995, Ed Berch, a representative of the respondent insurer, personally delivered the re-notice of the claim to Kevin Saba, the head of the Second Injury Fund. The trial commissioner found that Saba “refused to accept delivery although in the past he had accepted personal delivery.” (Finding ¶ 8). On September 29, 1995 Berch sent the re-notice by certified mail to the Fund. As the Fund was closed on Sunday, October 1, 1995, it did not receive the certified re-notice until Monday, October 2, 1995.

The trial commissioner noted the Board’s decision in Sanders v. GAE Services, 3481 CRB-05-96-11 (April 29, 1998) which held that § 31-349(e) requires re-notice to be received by the Fund prior to October 1, 1995. However, the trial commissioner found that Sanders was not controlling because here the respondents’ representative presented re-notice on September 29, 1995 in person. The trial commissioner found that the respondents’ attempt to provide timely notice was “frustrated by representatives of the Second Injury Fund” and concluded that said in-person delivery “substantially complied” with § 31-349(e). (Finding ¶ 11).

In support of its appeal, the Fund contends that the “attempt to serve the Fund by personal service prior to October 1, 1995 does not meet the statutory requirement of renotice by certified mail.” (Fund’s Brief at p. 3). Moreover, the Fund argues that “it is irrelevant whether or not Mr. Saba accepted personal service of renotice before Mr. Berch’s attempt to do so on September 29, 1995.” Id. We agree with the trial commissioner that the attempted personal delivery of the re-notice on September 29, 1995 substantially complied with the re-notice requirements of § 31-349(e). It is undisputed that the respondents’ representative attempted delivery of the re-notice in a timely manner on September 29, 1995. The Fund has not alleged, either at the trial level or in its appeal, that any prejudice would have resulted by accepting the respondents’ personal delivery in the instant case.

Moreover, we do not agree with the Fund’s contention that it is “irrelevant whether or not Mr. Saba accepted personal service of renotice before Mr. Berch’s attempt to do so on September 29, 1995.” The trial commissioner specifically found that “Mr. Saba refused to accept delivery although in the past he had accepted personal delivery.” (Finding ¶ 8) (emphasis added). This finding is supported by the testimony of Ed Berch (see 4/15/98 TR. at p. 6) and the Fund did not introduce any contrary evidence. Indeed, the Fund chose not to present testimony from Kevin Saba even though the trial commissioner allowed the Fund a continuance in order to do so. (See 6/22/98 TR. at p. 1).

This Board is “obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts.” Ricigliano v. J. J. Ryan Corp., 53 Conn. App. 158, 160 (1999). “The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Id. at 160-61 (quoting Castro v. Viera, 207 Conn. 420, 435 (1988). In the instant case, the trial commissioner found that the respondents’ representative personally brought the re-notice to Kevin Saba at the Fund on September 29, 1995, and that Saba “refused delivery although in the past he had accepted personal delivery.” (Finding ¶ 8). The trial commissioner’s conclusion that the respondents’ attempt to provide timely notice was “frustrated by representatives of the Second Injury Fund” is fully supported by the record. Moreover, the trial commissioner’s conclusion that said in-person delivery substantially complied with § 31-349(e) is not contrary to law and must be upheld.

The trial commissioner’s decision is affirmed.

Commissioners Stephen B. Delaney concurs.

ANGELO L. dos SANTOS, COMMISSIONER, CONCURRING. I concur with the majority opinion in the instant case affirming the trial commissioner’s decision on the basis that the respondents’ in-person presentation of notice to the Fund substantially complied with § 31-349(e). Additionally, as an alternative ground for affirming the trial commissioner’s decision, I would find that the respondents complied with § 31-349(e) by sending the re-notice via certified mail on September 29, 1995 which was received by the Fund on October 2, 1995. See Raynor v. United Technologies Corp., 3855 CRB-06-98-07 (Aug. 25, 1999) (Santos, Commissioner, dissenting).

1 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

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