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McCarthy v. Yellow Freight Systems, Inc.

CASE NO. 4051 CRB-7-99-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 9, 2001

JOHN J. MCCARTHY

CLAIMANT-APPELLEE

v.

YELLOW FREIGHT SYSTEMS, INC.

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to the Law Office of Roger M. Klinger, 244 Bridgeport Avenue, P. O. Box 2233, Milford, CT 06460.

The respondent was represented by James Hughes, Esq., McNamara & Kenney, 375 Bridgeport Avenue, Shelton, CT 06484.

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

This Petition for Review from the May 18, 1999 Finding and Order of the Commissioner acting for the Seventh District was heard August 25, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and George A. Waldron.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the May 18, 1999 Finding and Order of the Commissioner acting for the Seventh District. The Fund contends on appeal that the trier erred by ruling that the respondent provided adequate notice of its intent to transfer the instant case pursuant to § 31-349. We find error, and reverse the trial commissioner’s decision.

The claimant suffered a compensable heart attack on July 24, 1985, and began receiving benefits from his employer beginning two days later. Dr. Kramer, his treating cardiologist, issued a Form 42 indicating that the claimant had sustained no permanent partial impairment from the episode, and returned him to work on March 7, 1986. His maximum medical improvement date was July 24, 1986. In 1992, however, Dr. Kramer opined that the claimant had sustained 10% to 20% permanent impairment of his heart. On January 18, 1993, he confirmed the impairment rate as 20%. In a voluntary agreement approved on January 31, 1995, the parties compromised by agreeing that the claimant had sustained a 15% permanency, entitling him to 117 weeks of benefits. The starting date of his incapacity was listed as July 25, 1985.

The respondent’s attorney sent a letter notifying the Second Injury Fund of this injury on July 12, 1993, which notice the Fund received nine days later. A second notice was provided to the Fund on September 27, 1995, as required by P.A. 95-277 § 3(b) [codified at § 31-349(e)]. Though the parties agree that this case medically qualifies for transfer, the Fund contends that the respondent’s initial notice of its intent to transfer liability was tardy under § 31-349. The trial commissioner was unpersuaded by the Fund’s arguments, ruling that notice “was given within a reasonable time after the Employer was first made aware by a medical report that the Claimant had suffered a medical impairment. See Marano v. Timex Corporation, 14 Conn. Workers’ Comp. Rev. Op. 207, 1774 CRB-5-93-7 (July 27, 1995), and Jaworski v. A.B. Chance Co., 3006 CRB-3-95-2 (January 6, 1997).” Findings, ¶ A. He therefore ordered the Fund to accept responsibility for the administration of this claim, which leads us to the instant appeal.

At the time of the claimant’s injury, § 31-349(a) stated in relevant part: “The employer . . . shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer . . . shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim . . . and . . . all medical reports as the custodian shall desire.” In general, it is customary for our courts to strictly construe those notice provisions that appear in the Workers’ Compensation Act. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395 (1993). This approach applies nicely to the provision regarding Second Injury Fund liability, as our courts have also cautioned that payment of an award from a special fund should be made only in accordance with express statutory authority. Davis v. Norwich, 232 Conn. 311, 324 (1995); Civardi v. Norwich, 231 Conn. 287, 294 (1994).

Despite the prevailing attitude favoring narrow constructions of § 31-349’s notice period, there have been a few instances when this board has opted not to adopt the most restrictive approach possible under the law. See, e.g., Masko v. Wallingford, 4076 CRB-8-99-7 (July 11, 2000) (October 1, 1995 deadline in re-notification provision in § 31-349(e) was met where employer showed that it placed its letter in custody of post office on September 28, 1995, and evidence suggested that State Treasurer’s office did not accept certified mail on September 29 or 30, 1995). The primary circumstance in which we have read some leeway into the one-hundred-four-week notice provision, and the only one of possible relevance here, is the situation where it would have been impossible for the employer or insurer to provide notice during the statutory period. In Vaillancourt, supra, our Supreme Court stated in a footnote, “The defendants argue that theoretically the time period for transferring the claim under § 31-349 could run before the employer ever receives notice of the existence of that claim. . . . We suggest . . . that further construction of the notice provision, when and if it becomes necessary, would not require a type of notice that is impossible to give.” Id., 393 n. 10. In the years since that opinion, this board has twice excused an employer for failing to meet the statutory notice deadline due to such impossibility. Jaworski, supra; Marano, supra. A review of those decisions would be pertinent here, as the Fund challenges the trial commissioner’s legal conclusion that this “impossibility” exception should also have been implemented in the case before us today.

The Marano case concerned a claimant who suffered a 1982 knee injury, and was totally disabled from May 14, 1984 through July 31, 1984 and then from September 24, 1984 onward, making notice due to the Fund on or before April 7, 1986. Notice was in fact sent to the Fund on June 19, 1986. In a 2-1 decision, we remanded the case for a finding as to whether notice had been sent “within a reasonable time under the circumstances,” because the respondent was not presented with a formal claim for workers’ compensation benefits until this April 7, 1986 deadline had already passed. The claimant had taken a leave of absence eight months after her knee injury, and had opted for disability retirement eight months subsequent to that. She had not claimed that either of these decisions was related to her knee injury. “Thus, the employer had no way of knowing that the claimant ascribed any disability whatsoever to her knee injury . . . [and] could not have complied with § 31-349 under the facts of this case.” Id., 210. We noted that, where perfect compliance with the statute was impossible, we have required employers to adhere to the notice provision “as much as reasonably can be done. Reising v. General Dynamics/Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 40, 1609 CRB-2-92-12 (Dec. 6, 1994).” Id. Importantly, we also noted that § 31-349 requires the employer or insurer seeking transfer to notify the custodian of the Fund of a “pending case.” Reason strongly suggests that, until a claim is filed, no case is in fact pending. In Marano, no compensation claim of any kind had been filed, nor was the employer aware that the claimant was being treated for her workplace knee injury. Thus, it could not have provided the Fund with any information about a “pending case” before the notice period elapsed.

A similar fact pattern prevailed in Jaworski, where the claimant had waited almost two years after her knee injury to assert a claim for compensation. In another 2-1 decision, the majority cited Marano, and held that its rationale was applicable to the Jaworski facts: as the respondents had not been apprised of a claim until the notice period contemplated by the language of § 31-349 had technically lapsed, a remand was needed to determine the reasonableness of notice under the circumstances. The dissent, meanwhile, argued that the absence of express statutory authority for an extension of the notice deadline required that the employer’s request for transfer be dismissed (an argument that the dissenting commissioner in Marano had also made). Characterizing as dicta the Vaillancourt footnote regarding impossibility, the dissent stressed the importance of protecting the Fund’s ability to quickly ascertain its liability for transferable injuries, establish its financial reserves, and maintain a reasonable amount of time within which to investigate and defend claims for transfer. Id.

Like the employers in Jaworski and Marano, the employer here did not file notice of its transfer claim with the Fund until after the lapsing of the ninetieth day prior to the one hundred fourth week of the claimant’s disability. There is no dispute that said notice is technically more than six years late under § 31-349(a). The questions before us here are whether there were sufficient facts found to support the trier’s implicit conclusion that the respondent had legally satisfied the “impossibility exception” previously articulated by this board, and whether those facts supported his explicit finding that the respondent’s notice was provided within a reasonable time under all the circumstances. As we answer the first question in the negative, we need not address the timeliness of this notice relative to the dates of Dr. Kramer’s 1992 and 1993 medical reports.

The key difference between the instant case and the cases of Marano and Jaworski is that, here, a workers’ compensation claim was pursued by the claimant immediately following his injury. The respondent paid total disability benefits as per an approved voluntary agreement through March 10, 1986, at which point it filed a Form 36 because the claimant had returned to full-duty employment. “Impossibility” in this scenario is thus not premised on the employer’s lack of knowledge that a compensation claim had been filed. This is extremely relevant, as an integral part of the rationale underlying Marano and Jaworski is the fact that, until an employee files a workers’ compensation claim, one cannot say that there is a “pending case” under § 31-349(a) that would trigger the running of the 104-week period. Here, a case was commenced as soon as the instant claim was filed. The unknown bit of information that ostensibly rendered timely notice “impossible” by the April 1987 statutory deadline was actually a latent element of the already-pending matter: the existence of physical damage that would render the claimant permanently partially disabled as a result of his compensable heart attack. Eventually, it was revealed that the claimant was in fact permanently disabled as of July 24, 1986, his stipulated maximum medical improvement date.

As a matter of law, our Supreme and Appellate courts have both recently confirmed that the 104-week period in § 31-349 refers to medical disability. Innocent v. St. Joseph’s Medical Center, 243 Conn. 513, 520-21 (1998); Karutz v. Feinstein & Herman, P.C., 59 Conn. App. 565, 570 (2000). “[T]he determinative factor as to whether the time period is to be included in calculating the 104 week period of disability that triggers the date by which the employer must furnish notice to the fund, is whether the claimant is medically impaired as a result of his or her work-related injury.” Innocent, supra, 518. Even though the calculation of the due date of a transfer notice is a matter to be determined by the trial commissioner based on all the evidence before him; see Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99 (1996); the Karutz court rejected a commissioner’s reasoning that the claimant’s disability period did not begin on the date of injury because she was able to perform her regular job duties at her place of employment, and was paid her regular salary. In holding as such, the court also rejected this board’s earlier resolution that “disability” should not be construed so broadly as to include “any symptoms that have not yet ripened into either a permanent partial impairment or a condition that affects the claimant’s ability to perform her job.” Karutz v. Feinstein & Herman, 3698 CRB-7-97-8 (Dec. 18, 1998). Instead, the court undertook to read the term “disability” in its most precise medical sense, irrespective of external considerations that might impede or thwart an employer’s ability to recognize the existence of a claim for permanent partial disability.

These holdings are significant in assessing the legal impact of the trier’s finding that the respondent in the instant case was unaware that the claimant had sustained any sort of permanent impairment from his heart attack until 1992. Such cases indicate that the mere existence of medical disability, regardless of the parties’ cognizance of such damage, is enough to trigger the running of the 104-week notice period contemplated by § 31-349. Our analysis also takes into account P.A. 95-277, a legislative act that sought to end the Fund’s role as a subsidizer of employer liability for disabilities due in part to pre-existing injuries by closing the Fund to any transfer of claims for injuries occurring after July 1, 1995, and by quickly providing a means by which the outstanding liability could be both limited and quantified. Cece v. Felix Industries, Inc., 248 Conn. 457, 463-64 (1999) (re-notification provision does not unconstitutionally impair obligation of contracts, as no contract exists between Fund and Connecticut employers and insurers); Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303-304 (1997) (medical panel provision applied retroactively to pending transfer cases). Despite the assertions of the respondent in its brief, if this board were to consider subsequent legislative action as indicative of the intent behind § 31-349, we would take greater note of its overarching desire to limit Fund liability via P.A. 95-277 than we would its more localized intent to prevent premature filings via P.A. 93-249 (by requiring Fund notice to be filed “no earlier than one year . . . before the expiration of the first one hundred four weeks of disability”). See Respondent’s Brief, pp. 7-8. Ultimately, any extension of the “impossibility” exception contemplated in Marano and Jaworski would result in a further increase to the Second Injury Fund’s already overwhelming financial burden. Given the circumstances, a conservative approach to the law is probably warranted here.

We hold that, under the facts found by the trial commissioner in this case, an exception cannot be made to § 31-349(a)’s standard notice requirement. The “impossibility” doctrine set forth in Marano and Jaworski is inapplicable, as there was an action pending as soon as the claimant filed his workers’ compensation claim, and the custodian of the Fund could have been notified of that action. Also, the claimant reached maximum medical improvement in 1986, which in retrospect means that he was then medically disabled under Innocent, supra, and Karutz, supra. The trial commissioner’s legal conclusion was therefore erroneous, and is hereby reversed.1Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Commissioner George A. Waldron concurs.

ROBIN L. WILSON, COMMISSIONER, CONCURRING. I concur with the result reached by the majority, and agree with much of their discussion regarding P.A. 95-277 and the role of medical disability in defining the one-hundred-four-week notice period. However, I also continue to stand by the position I took in my dissenting opinion in Jaworski, supra, where I opposed the concept of an “impossibility” exception to § 31-349. “I do not agree that it is compatible with legislative policy to give the employer extra time to file notice with the Fund where the claimant has not filed a claim until after the notification period has lapsed. The language cited by the majority in Vaillancourt is dicta, and should not be considered persuasive authority. See State v. Ouellette, 190 Conn. 84, 91 (1983) (cases generally resolve only the issues explicitly decided).” Jaworski, supra (Wilson, Commissioner, dissenting.)

Indeed, Vaillancourt remains part of a line of cases that have interpreted § 31-349 strictly and according to the plain meaning of its language. See also Six, supra; Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14 (1995). There is no statutory provision authorizing an “impossibility” exception to § 31-349. I thus take this opportunity to reiterate the importance of stare decisis in American jurisprudence, and my consequent objection to the exception to the § 31-349 notice requirement that this board implemented in Marano and Jaworski.

1 At the conclusion of his written decision, the trier posed the following query: “If the employer had given notice to the Fund of its intention to transfer this case pursuant to C.G.S. 31-349 and such notice was given prior to Dr. Kramer’s report of February 24, 1993, wouldn’t the Fund ha[ve] resisted such transfer attempt on the ground that there was no medical report of the treating physician, or any other medical evidence, to support a claim of medical impairment?” Likely, the answer to that query is “yes.” However, we have held that a party is not required to submit information to the Fund that is not in existence for good reason, so long as the other requirements of § 31-349 are satisfied. Reising, supra (voluntary agreement did not exist, as compensability was being contested). Perhaps the respondent could have waited to pursue the claim further until appropriate medical data was available. Whatever the proper remedy might have been, though, we do not believe that the statute affords sufficient leeway to create an exception to the notice requirement based upon the facts of this case. BACK TO TEXT

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