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Borici v. State of Connecticut/Southbury Training School

CASE NO. 3718 CRB-06-97-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 14, 2000

ANN MARIE BORICI

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/SOUTHBURY TRAINING SCHOOL

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent employer was represented by Philip M. Schulz, Esq., Assistant Attorney General, 55 Elm Street,P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 5, 1997 Finding and Award and the November 20, 1997 Denial of the State of Connecticut’s Motion to Open Record, both issued by the Commissioner acting for the Sixth District, were heard June 12, 1998 before a Compensation Review Board panel consisting of then Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Amado J. Vargas.

OPINION

JESSE M. FRANKL, COMMISSIONER. The respondent employer (hereinafter “respondent”) has petitioned for review from the November 5, 1997 Finding and Award and the November 20, 1997 Denial of the State of Connecticut’s Motion to Open Record, both issued by the Commissioner acting for the Sixth District. In the Finding and Award, the trial commissioner assessed a seven thousand dollar penalty on the respondent for its failure to pay an approved stipulation within ten days. The trial commissioner issued the penalty pursuant to § 31-303.1 In support of its appeal, the respondent contends that the language of § 31-303 does not apply to the instant case. In addition, the respondent contends that it did not receive notice of the formal hearing and that the notice of the hearing was inadequate.

In the Finding and Award, the trial commissioner found the following relevant facts. On February 10, 1997, the Commissioner acting for the Sixth District approved a stipulation settling the claimant’s January 5, 1986 workers’ compensation claim in the amount of $35,000.00. On February 10, 1997, the approved stipulations were faxed by the claimant’s counsel to the Assistant Attorney General who had negotiated and signed the stipulations on behalf of the respondent State of Connecticut. The fax transmittal cover sheet contained a warning of the penalties for late payment pursuant to § 31-303. On numerous occasions the claimant’s counsel attempted to contact the Attorney General’s Office regarding payment of the approved stipulation and did not receive a return call until March 7, 1997 from a representative of Alexsis (the Administrator for the State at that time). On March 14, 1997, the claimant’s counsel received a check dated March 11, 1997 for $35,000.00. The claimant requested penalties for the respondent’s failure to pay within ten days. As a result of the respondent’s failure to pay the stipulation within ten days, the trial commissioner ordered the respondent to pay a twenty percent penalty pursuant to § 31-303.

On November 20, 1997, the respondent filed a “Motion to Open Record, Take Additional Evidence, and Modify Finding and Award.” In that motion, the respondent contended that the Workers’ Compensation Department at the Attorney General’s Office had not received notice of the November 4,1997 formal hearing. Secondly, the respondent contended that the notice was inadequate because it referenced § 31-300 rather than § 31-303. Thirdly, the respondent sought to offer evidence that the delay in the payment of the settlement proceeds to the claimant resulted in no prejudice to her and did not justify the entry of a $7,000 penalty.

In his Ruling dated November 20, 1997, the trial commissioner denied the respondent’s motion. In that Ruling, the trial commissioner denied the respondent’s request to submit additional evidence regarding lack of prejudice suffered by the claimant on the basis that § 31-303 does not excuse late payment due to lack of prejudice. Additionally, the trial commissioner found that notice of the November 4, 1997 hearing was sent on October 10, 1997 to the Office of the Attorney General, to the respondent employer Southbury Training School, to Berkley Administrators, and to the Second Injury Fund. The trial commissioner thus denied the respondent’s request to open the record.

In support of its appeal, the respondent contends that the language of § 31-303 does not apply to the instant case; that it did not receive notice of the formal hearing; and that the notice of the hearing was inadequate. We will address each of these issues. First, we will address the respondent’s argument that § 31-303 does not apply to a stipulation for a full and final settlement because § 31-303 refers only to a voluntary agreement or an award. This issue has recently been considered in Davis v. Forman School, 54 Conn. App. 841 (1999), where the Appellate Court held that § 31-303 applies to stipulations as well as voluntary agreements and awards. In the Davis case, the court affirmed the twenty percent penalty for the late payment of a $25,000.00 lump sum under an approved stipulation. Id. at 843, fn. 3. We thus find no merit to the respondent’s argument that § 31-303 does not apply to the $35,000.00 payment due under the approved stipulation in the instant case.

We next turn to the respondent’s contention that it did not receive notice of the formal hearing which was held on November 4, 1997, which the respondent did not attend. We have stated:

This Board recognizes the due process right of a party to be notified of workers’ compensation proceedings. See Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). ‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.... The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.’
Proto v. Grant, 3030 CRB-8-95-3 (Nov. 26, 1996), quoting Jimenez v. Montero, 14 Conn. Workers’ Comp. Rev. Op. 40, 42, 1826 CRB-4-93-8 (May 4, 1995) (citation omitted).

The trial commissioner considered the lack of notice argument made by the respondent in its Motion to Open Record, Take Additional Evidence, and Modify Finding and Award. In his denial of that motion, the trial commissioner found that notice of the November 4, 1997 hearing was sent on October 10, 1997 to the Office of the Attorney General, to the respondent employer Southbury Training School, to Berkley Administrators, and to the Second Injury Fund. Significantly, the respondent does not allege that the Office of the Attorney General did not receive the notice, but only that the Workers’ Compensation Department of the Attorney General’s Office did not receive the notice. Indeed, we note that the notice of the pre-formal hearing was sent to the same parties and same addresses and the respondent’s representative (the Assistant Attorney General) did appear at that pre-formal hearing; and that the respondent does not allege that he objected at that time to the parties and addresses listed on the notice. We find no error in the trial commissioner’s ruling, where, as here, notice was sent to the correct addresses of the Office of the Attorney General, to the employer, and to the Administrator of the self-insured employer.

Moreover, we find no merit to the respondent 2’s argument that it was denied due process because the notice listed § 31-300 rather than § 31-303. The notice of the formal hearing states “Issues: 31-300- Undue delay of Benefits- Interest & Attorney’s fees” and further states “20% Penalty as a result of late pa[y]ment.” Such notice was “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections....” Proto, supra; see also § 31-297.2 Moreover, we note that the Assistant Attorney General appeared on behalf of the respondent at the pre-formal hearing on October 7, 1997, and the notice for that hearing listed § 31-300 rather than 31-303, and the respondent does not allege that he objected at that time to the statement of the issue listed on the notice.

Next, we will address the respondent’s argument that “any penalty imposed due to a delay in payment must bear a reasonable relationship to the prejudice, damage or inconvenience that is visited upon the party…” (Respondent’s Brief at p. 10). In its Motion to Open Record, Take Additional Evidence, and Modify Finding and Award, the respondent sought to “offer evidence that the delay in payment of the settlement proceeds to the claimant resulted in no prejudice to her or, in the alternative, that any inconvenience she may have experienced did not justify the entry of a $7,000 award in her favor.” The trial commissioner denied the respondent’s motion, stating: “With respect to the basis upon which the respondent seeks to submit additional evidence. . . it is the undersigned’s opinion that there is no provision in the law which excuses the penalty imposed by Section 31-303 C.G.S. because the delay resulted in no prejudice to the claimant.” We agree.

Section 31-303 does not provide that the claimant must demonstrate prejudice. “When the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.” Davis, supra, at 844 (citations omitted). Section 31-303 provides claimants with a “legal right to receive timely payment” (Davis, supra, at 851) and imposes a twenty percent penalty for a late payment. As the statute does not require prejudice, and indeed does not even mention prejudice, we find no merit to the respondent’s argument that prejudice must be demonstrated by the claimant under § 31-303.

Finally, we will address the respondent’s Motion to Submit Additional Evidence to this board. In its motion, the respondent seeks to present evidence that the claimant did not suffer any prejudice as a result of the late payment. As discussed above, prejudice is not a factor in § 31-303 and thus such evidence is not material. Also in its motion, the respondent seeks to present evidence that counsel for the respondent did not receive “actual notice that a formal hearing was scheduled. . . on November 4, 1997.” The respondent’s argument regarding lack of notice was decided by the trial commissioner in his denial of the respondent’s Motion to Open Record, Take Additional Evidence, and Modify Finding and Award. As stated above, this Board finds no error in the trial commissioner’s ruling, where, as here, notice was sent to the correct addresses of the Office of the Attorney General, to the employer, and to the Administrator of the self-insured employer.3 The respondent’s Motion to Submit Additional Evidence is thus denied.

We affirm the penalty imposed by the trial commissioner pursuant to § 31-303; and we affirm the trial commissioner’s denial of the respondent’s Motion to Open Record, Take Additional Evidence, and Modify Finding and Award.

The trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Amado J. Vargas concur.

1 Section 31-303 provides:

Payments agreed to under a voluntary agreement shall commence on or before the tenth day from the date of agreement. Payments due under an award shall commence on or before the tenth day from the date of such award.... Any employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of this chapter. BACK TO TEXT

2 Section 31-297 provides in pertinent part: “Sufficient notice of the hearing may be given to the parties in interest by a brief written statement in ordinary terms of the date, place and nature of the injury upon which the claim for compensation is based.” BACK TO TEXT

3 As stated above, the respondent does not allege that the Office of the Attorney General did not receive the notice, but only that the Workers’ Compensation Department of the Attorney General’s Office did not receive the notice. See also fn. 2. BACK TO TEXT

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