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Karnane v. Saks Fifth Avenue

CASE NO. 3947 CRB-07-98-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 7, 2000

NANIK KARNANE

CLAIMANT-APPELLEE

v.

SAKS FIFTH AVENUE

EMPLOYER

and

AIG CLAIM SERVICES, INC.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Lovejoy & Rimer, P.C., 65 East Avenue, P. O. Box 390, Norwalk, CT 06852-0390.

The respondents were represented by Michael Buonopane, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

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

This Petition for Review from the December 14, 1998 Order of the Commissioner acting for the Seventh District was heard November 19, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the December 14, 1998 Order of the Commissioner acting for the Seventh District, which was supplemented by a Revised Finding dated May 19, 1999. In that Revised Finding, the trial commissioner concluded that the respondents filed timely notice of intent to transfer under § 31-349 as amended by P.A. 95-277. In support of its appeal, the Fund argues that the trier erred applying P.A. 95-277, and erred in finding that the claimant was not disabled from July 16, 1993 to March 28, 1994 (the date of his injury through the date of his surgeries). The Fund thus contends that the trial commissioner erred in ruling that the respondents filed timely notice of their intent to transfer liability for the claimant’s injury.

The underlying facts of this case are not in dispute. The claimant fell at work on July 16, 1993, suffering a compensable rotator cuff tear in his right shoulder and a meniscus tear in his right knee. He was unaware of the seriousness of his injuries for about two months, and self-medicated with Tylenol for the pain he was experiencing. He first sought medical attention on September 14, 1993, but continued to work at his job until March 28, 1994, when he underwent surgeries to both of his injured body parts. Afterward, he received temporary total disability benefits through August 26, 1996. He has not since returned to work, having retired upon reaching the age of 65.

The respondents initially filed notice of intent to transfer liability for this claim with the Fund on May 30, 1995, and filed renotification pursuant to § 31-349(e) on September 22, 1995. The trial commissioner applied § 31-349 as amended by P.A. 95-277, and thus concluded that notice was required to be filed within 90 days after the first 104 weeks of disability. The commissioner determined that there was no medically documented period of disability between July 16, 1993 and March 28, 1994. Thus, the trier found that the May 30, 1995 notice was timely, and ordered that liability for the claimant’s injury be transferred to the Fund. That order is now before us on appeal.

Initially, we must determine which version of § 31-349 applies in this case. Public Act 95-277 amended § 31-349 effective July 1, 1995. Subsection (b) sets forth the filing requirements for initial notice of an injury as follows:

“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.”

Additionally, P.A. 95-277 provides in subsection (e) 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.”

In the instant case, the trial commissioner incorrectly applied the more liberal time limitations for initial notice provided by P.A. 95-277 to the May 30, 1995 notice, as P.A. 95-277 did not become effective until July 1, 1995. Moreover, we note that the trial commissioner did not find that said notice fulfilled all of the notice requirements of P.A. 95-277, including the two thousand-dollar notification fee. We have held that the “amended statute cannot be used. . . to somehow rehabilitate a notice that was defective when it was filed in 1994, before P.A. 95-277 took effect.” Crute v. Gilman Corp., 3812 CRB-2-98-5 (June 18, 1999) (emphasis added). We explained as follows:

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.
Crute, supra, (citing Audi, supra) (emphasis added).

In the instant case, as P.A. 95-277 had not yet become effective as of May 30, 1995, we agree with the Fund that we must apply § 31-349 (Rev. to 1993) in determining whether the May 30, 1995 notice was timely. This conclusion is further supported by the fact that the respondents did not include with their notice all of the requirements of § 31-349 as amended by P.A. 95-277 such as the $2,000 filing fee. Therefore, we must determine whether the May 30, 1995 notice constituted timely initial notice under § 31-349 (Rev. to 1993).1 Under the version of § 31-349 in effect at the time of the claimant’s injury, the respondents were required to notify the Fund of the pending case ninety days prior to the expiration of the first 104 weeks of disability.

We now must review the trial commissioner’s determination of the claimant’s period of disability under § 31-349. The commissioner determined that there was no medically documented period of disability between July 16, 1993 (the date of injury) and March 28, 1994 (the claimant’s surgeries), which meant that notice was not due under the 1993 version of § 31-349(a) until December 26, 1995.2 The Fund, however, argues in its appeal that the claimant was medically disabled from the date of his injury, and thus notice was due by April 15, 1995 (90th day before July 14, 1995—the last day of the 104th week assuming unbroken impairment since injury). Moreover, the Fund argues that in making the determination that the claimant was not disabled between July 16, 1993 and March 28, 1994, the trial commissioner erred by relying upon the claimant’s ability to continue working.

In Karutz v. Feinstein and Herman, P.C., 59 Conn. App. 565 (2000), our Appellate Court recently addressed a similar case as the one now before us, and held that this board improperly accepted a trial commissioner’s conclusion that the claimant’s disability did not commence until she became unable to work. The court explained that the issue of timeliness of notice centered on the meaning of the word “disabled” in § 31-349. The court reviewed Williams v. Best Cleaners, Inc., 237 Conn. 490 (1996) and Innocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998), and stated that “a person can be disabled for the purposes of § 31-349 even though he or she can carry on all the facets of his or her employment. The test is whether a claimant is physically impaired, not whether there exists a de facto inability to earn a wage.” Karutz, supra, at 570. In Karutz, supra, the trial commissioner found that the claimant’s disability period did not begin on the date of injury, even though she was suffering from persistent pain and was treating with a physician, as she was able to perform her regular job duties, was paid her regular salary, and lost no time from work. The court held that the trial commissioner incorrectly applied the law by basing his finding of periods of disability on the claimant’s ability to perform her job duties rather than on the date of “medical impairment.” Id. at 572.

Similarly, in the instant case, the trial commissioner found that the claimant continued to work at his job from July 16, 1993 to March 28, 1994, even though he had suffered a rotator cuff tear to his shoulder and a meniscus tear in his right knee. The trial commissioner further found that for the first eight-and-one-half weeks the claimant “was unaware of the seriousness of his injuries and self-medicated with Tylenol for pain.” (Revised Findings ¶ 2 and 3) (emphasis added). He first sought medical treatment for increasing pain on September 14, 1993, and underwent surgery on both his shoulder and his knee on March 28, 1994. The trial commissioner concluded that there was “no medically documented period of disability of the Claimant between July 17, 1993, and March 28, 1994.”

We agree with the Fund that the trial commissioner erroneously relied upon the fact that the claimant was able to continue his employment as evidence that he was not disabled for purposes of the § 31-349 notice period. In its appeal brief, the Fund cites numerous medical documents in the record, including a deposition of the claimant’s treating physician, which indicate that the claimant sustained serious injuries which caused a medical disability as of the date of injury. (Fund’s Brief at p. 7). In the instant case the findings of fact, in and of themselves, based upon the court’s reasoning in Karutz, supra, indicate that the claimant was physically impaired (and thus disabled under § 31-349) from the date of his injury. Specifically, the trial commissioner found that he suffered serious injuries on July 16, 1993 (a rotator cuff tear and a meniscus tear) which both required surgery. Moreover, the trial commissioner found that although the claimant “was unaware of the seriousness of his injuries” he self-medicated for pain, and eventually sought treatment for his increasing pain. (Finding ¶ 3). Accordingly, we must reverse the trial commissioner’s decision that the claimant was not disabled between July 17, 1993, and March 28, 1994.

The trial commissioner’s decision is reversed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 In his Finding, the commissioner stated that the final day of the respondents’ notice period was June 28, 1996, pursuant to P.A. 95-277. Technically, this is inaccurate. As we discussed in Anastasio v. Mail Contractors of America, 3910 CRB-3-98-10 (Aug. 31, 1999), and Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (Aug. 4, 1997), there are two different categories of notice that the respondents could have given to the fund regarding transfer of a claim stemming from a July 16, 1993 injury with disability commencing on March 28, 1994 (which we presume arguendo for the purpose of this footnote). First, it is possible that the respondents satisfied the version of § 31-349 that was in effect prior to July 1, 1995, by providing notice to the Fund sometime before that date (as, in fact, they did here). Assuming that such notice was timely under the statute—i.e., filed at least 90 days prior to the end of the 104th week of disability—and that renotification was properly filed pursuant to § 31-349(e) (as it was here), the respondents would be entitled to pursue their claim for transfer. Audi, supra; see also, Cece v. Felix Industries, Inc., 248 Conn. 457 (1999) (renotification provision ruled constitutional).

The second category of notice was created by the revision of P.A. 95-277 that took effect on July 1, 1995. Under this version of § 31-349(a), the respondents had to file their notice “no later than three 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.” This means that the respondents’ notice would have been due on or about June 23, 1996 (again assuming a March 28, 1994 onset of disability). However, in order to avail themselves of the “new” § 31-349(a), the respondents would have had to submit the other materials required by the statute, such as an accounting of benefits paid and a $2,000 notification fee payable to the custodian of the fund. See, e.g., Crute v. Gilman Corp., 3812 CRB-2-98-5 (June 18, 1999). The respondents have not indicated that they sent, or attempted to send, these items, nor would one logically infer that they would have tried to do so, as their May 30, 1995 notice of intent to transfer predated the enactment of P.A. 95-277. Thus, contrary to the respondents’ argument in their brief, the revised notice provision of § 31-349(a) does not apply in this case. BACK TO TEXT

2 Although, given the passage of subsequent legislation, it would have had to have been filed by June 30, 1995 to avert the impact of P.A. 95-277 which became effective July 1, 1995. BACK TO TEXT

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