CASE NO. 4085 CRB-02-99-07
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 20, 2000
THAMES VALLEY STEEL CORP.
HARTFORD INSURANCE GROUP
SECOND INJURY FUND
The claimant was not represented and did not appear at oral argument.
The respondents Thames Valley Steel and Hartford Insurance Group were represented by David Kelly, Esq., Montstream & May, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
The respondents Electric Boat and CIGNA were represented at the trial level by Richard Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033, who did not appear at oral argument.
The respondents Electric Boat and Liberty Mutual were represented by David Schoolcraft, Esq., Duhamel & Schoolcraft, 131 New London Turnpike, Suite 317, Glastonbury, CT 06033, who did not appear at oral argument.
The Second Injury Fund was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the June 30, 1999 Finding and Dismissal of the Commissioner acting for the Second District was heard April 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents Thames Valley Steel and the Hartford Insurance Group (hereinafter “respondents”) have petitioned for review from the June 30, 1999 Finding and Dismissal of the Commissioner acting for the Second District. In that decision the trial commissioner concluded that the respondents had never accepted the claimant’s claim under the Workers’ Compensation Act and had never paid any benefits under the Act, and thus denied the respondents’ request to transfer the claim to the Fund pursuant to § 31-349. Additionally, the trial commissioner found, as alternative grounds for dismissal, that the respondents failed to provide timely notice to the Fund under § 31-349. In support of their appeal, the respondents contend that the transfer provision of § 31-349 should apply even in the absence of an accepted workers’ compensation claim because recent case law has interpreted the 104-week provision in § 31-349 to refer to weeks of disability rather than weeks of actual benefits paid. Additionally, the respondents contest the trier’s determination that their notice to the Fund was untimely, arguing that their notice should be deemed sufficient due to impossibility of compliance under § 31-349 as amended by P.A. 95-277.
The trial commissioner found the following relevant facts, after stating that the only issue to be decided was whether or not the respondents’ notice qualified the claimant’s March 1986 injury at Thames Valley Steel for transfer to the Fund. The Fund stipulated that the claim medically qualified for transfer pursuant to § 31-349. The claimant filed a Notice of Claim (Form 30C) on March 18, 1987, and the respondent Hartford Insurance Group responded on April 10, 1987, by filing a Form 43 denying said claim. No voluntary agreement was ever entered into by the parties, and no payments were ever made to the claimant under the Workers’ Compensation Act (Chapter 568). Moreover, the respondents never requested a hearing and thus there was never a Finding and Award concerning the compensability of the claimant’s claim under the Act.
The claimant also pursued a claim under the Federal Longshore and Harbor Workers’ Compensation Act for his injury, and was awarded benefits under that law by an Administrative Law Judge in 1991. The respondents apparently paid these federal benefits under the 1991 award. (Finding ¶ 9). The respondents filed notices on November 26, 1991 and January 6, 1992 requesting transfer to the Fund under § 31-349. The Fund denied the request to transfer on January 15, 1992, noting that several requirements for transfer were missing, including an approved voluntary agreement or award. (Finding 11; Respondents’ Exh. 3). The trial commissioner concluded that the respondents’ notice was defective and was never corrected. The respondents also attempted to renotice the Fund under § 31-349 as revised by Public Act § 95-277.
The trial commissioner denied the respondents’ request to transfer, explaining that there is no language in § 31-349 which allows credit for non-state benefits paid, such as benefits paid under the Federal Longshore and Harbor Workers’ Compensation Act, so as to permit such benefits to qualify toward the 104 weeks of disability provision under §31-349. We agree. Section 31-349 (Rev. to 1985)1 provides, in pertinent part, as follows:
The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has a permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred and four weeks of disability .... After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation and medical benefits have been paid for the one-hundred-four-week period, and indicating thereon the date the custodian was notified of the pending case. Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. Sec. 31-349 (emphasis added).
The language in § 31-349, including the language italicized above, indicates that the legislature contemplated the transfer of claims paid under the Workers’ Compensation Act. Notably, the statute provides that the employer or its insurer must first “pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred and four weeks of disability.” Furthermore, “after the employer or its insurer has completed the payment for the one-hundred-four-week period” it may file notice requesting transfer. There is no indication in § 31-349 that the legislature intended transfers to the Fund of claims which were paid under other laws in other jurisdictions, such as the Federal Longshore and Harbor Workers’ Compensation Act. Indeed, it has repeatedly been held that the Fund is a creature of statute, and as such, payment from the Fund “should be made only in accordance with express statutory authority. . . .” Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 27 (1995).
In support of their appeal, the respondents rely upon Innocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998) in which the court held that in determining the 104-week period in § 31-349, a claimant’s medical impairment, rather than actual benefits paid, is determinative. The respondents thus argue that Innocent supports the transfer of a case where no state workers’ compensation benefits have been made. We disagree. In Innocent, supra, the claimant sustained “a compensable injury” and “received workers’ compensation benefits.” Id. at 515. Indeed, the respondents have failed to cite any case involving a § 31-349 transfer to the Fund in which there was no Connecticut workers’ compensation claim paid, awarded, or otherwise agreed to by the parties. We are not surprised that the respondents were unable to cite such a case, as the language of § 31-349 “is clear that, in addition to providing the fund with notice ‘of the pending case,’ the employer or insurer must provide the fund with a copy of either the agreement or the award.” Dos Santos, supra, at 21 (emphasis in original).
We further note that “by creating the fund, the legislature intended to relieve employers from the hardship of liability for those consequences of [a] compensable injury not attributable to their employment .” Id. at 25, (citations omitted) (emphasis added). Here, in contrast, there has been no compensable injury as determined by a trial commissioner, and neither have the parties entered into a voluntary agreement. Indeed, the trial commissioner specifically found that the respondents contested the compensability of the claim under the Act, and have not paid any workers’ compensation benefits to the claimant. Thus, no liability under the Workers’ Compensation Act has been accepted by the respondents or ordered by a trial commissioner. Based upon the above, we conclude that the trial commissioner properly denied the respondents’ request to transfer.
Because the trial commissioner’s denial of the request for transfer was proper as indicated above, we will only briefly address the respondents’ contention that timely notice pursuant to § 31-349 as amended by P.A. 95-277 was an impossibility. Specifically, the respondents argue that § 31-349 as amended by P.A. 95-277 allows for the filing of a notice requesting transfer within three years from the date of injury. The respondents suggest that the date of injury here is March 18, 19872, the date the claimant filed his Notice of Claim. According to the respondents, the three-year period would thus end on March 18, 1990, prior to the enactment of P.A. 95-277, which became effective July 1, 1995. Thus, the respondents claim impossibility.
In the instant case, the respondents’ argument regarding impossibility is a red herring, as the respondents do not contend that it was impossible to file a timely notice under the version of § 31-349 in effect at that time of the date of injury. See fn. 1, supra. In Rucker v. Pace Motor Lines, Inc., 3879 CRB-4-98-8 (Sept. 17, 1999), 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).
The trial commissioner’s decision is affirmed.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
1 Regarding revisions to § 31-349, the date of injury rule is normally applied. Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 636, f.n. 1 (1999); Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 16, fn. 1 (1995), compare Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997). BACK TO TEXT
2 The respondents ignore Finding ¶ 1, which indicates that the claimant’s injury occurred in March of 1986. BACK TO TEXT