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Taylor v. Ron Fournier Builders

CASE NO. 4257 CRB-5-00-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 30, 2001

ERIC TAYLOR

CLAIMANT-APPELLANT

v.

RON FOURNIER BUILDERS

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The pro se claimant was not represented at oral argument.

The respondent employer was not represented at oral argument. Notice sent to Charles Basil, Esq., Reiner, Reiner & Bendett, P.C., 160 Farmington Avenue, Farmington, CT 06032.

The Second Injury Fund waived oral argument and requested matter be considered on the papers. Notice sent to Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the June 19, 2000 Finding and Dismissal and the December 12, 2000 Order of the Commissioner acting for the Fifth District were considered on March 30, 2001 by a Compensation Review Board panel consisting of Commissioners George A. Waldron, Ernie R. Walker and Stephen B. Delaney.

OPINION

GEORGE A. WALDRON, COMMISSIONER. The claimant, who is without counsel on appeal, and the Second Injury Fund have both filed petitions for review from orders made by the trial commissioner acting for the Fifth District. We will discuss each of these petitions separately.

The claimant’s petition for review was filed from a Finding and Dismissal dated June 19, 2000. To date, he has filed none of the required supporting documents such as Reasons of Appeal or an appellate brief. See Admin. Reg. § 31-301-2. The claimant also failed to file a Motion to Correct with the trial commissioner; see Admin. Reg. § 31-301-4; and did not appear at oral argument before this board. Accordingly, we are unable to determine the basis of the claimant’s appeal. Though the claimant telephoned this commission on March 13, 2001 and stated that he was trying to find counsel to handle his appeal, he has made no further communication with this board to date. This case cannot be allowed to remain open indefinitely, for all parties are entitled to a speedy resolution of their liabilities and their rights. Shahid v. AAA Nursing Care, 4227 CRB-4-00-4 (March 8, 2001). Therefore, we dismiss the claimant’s appeal pursuant to Practice Book § 85-1, as he has neglected to actively pursue it. Shahid, supra; Christman v. State/Dept. of Corrections, 4134 CRB-1-99-10 (Oct. 16, 2000); Draughn v. Yale-New Haven Hospital, 4055 CRB-8-99-6 (Aug. 29, 2000).

The Second Injury Fund, meanwhile, filed its petition for review from a December 12, 2000 Order that directed it to make payments in accordance with § 31-355 C.G.S. This order followed a November 22, 2000 Order that had directed the uninsured employer to pay $557.00 to Timothy McLaughlin, M.D., as payment for a § 31-294f commissioner’s examination that had been ordered on June 4, 1999. In his June 19, 2000 Finding and Dismissal, the trial commissioner concluded that, although the claimant was indeed an employee of the respondent Ron Fournier Builders at the approximate time of his alleged March 5, 1998 injury, he did not perform work for that employer on March 5, 1998. The claimant merely borrowed a ladder from the respondent’s job site for reasons unconnected to their employment relationship. Thus, the trier concluded that the claimant had not met his burden of proving that he sustained an injury arising out of and in the course of that employment, and dismissed the case. He also ordered the respondent to pay a $1,500 civil penalty to the Second Injury Fund for failure to maintain workers’ compensation insurance pursuant to § 31-284, § 31-288 and § 31-289.

The Second Injury Fund now contends that the trial commissioner erred by ordering it to pay the outstanding bill for the commissioner’s examination, as § 31-355(b) only requires the Fund to cover unpaid “medical and surgical aid or hospital and nursing service required under this chapter or any type of compensation for disability, or both, . . . [and] death benefits, funeral expense, or any adjustment in compensation required by this chapter . . . ,” in the event that an award of compensation has been made. Because the trial commissioner dismissed the claimant’s request for benefits, the Fund argues that there was no award of compensation, which is a necessary condition precedent to its liability. Further, the Fund contends that, as the injury was not compensable, the employer was not liable for medical treatment. “If a commissioner’s examination is not considered medical treatment but an evaluation for purposes of litigation to determine compensability, then the respondent who prevails should not be required to pay absent specific statutory authority.” Brief, p. 2.

In the June 19, 2000 Finding and Dismissal, the trial commissioner found that the claimant was an employee of the respondent Ron Fournier Builders. Subsequently, his injury was not found to have occurred in the course of that employment. Section 31-294f(a) states, “An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. . . . The physician or surgeon shall be selected by the employer from an approved list of physicians or surgeons prepared by the Chairman of the Workers’ Compensation Commission and shall be paid by the employer.” (Emphasis added.) Clearly, the claimant was employed by Ron Fournier Builders; in fact, a $1,500 fine was levied against that entity for failure to carry workers’ compensation insurance.

Section 31-294f(a) does not provide the claimant with an option to attend an examination, nor is it designed to primarily benefit the claimant. Under the statute, the employer, insurer or commissioner directs the claimant to submit to such an examination, and failure to do so may result in the dismissal of his claim. Harris v. UTC/Pratt & Whitney, 3762 CRB-1-98-1 (Feb. 23, 1999), aff’d, 56 Conn. App. 912 (2000) (per curiam), cert. denied, 253 Conn. 907 (2000). Such examinations are usually expected to provide the trier with strong guidance. See Gillis v. White Oak Corp., 49 Conn. App. 630, 636-37 (1998), cert. denied, 247 Conn. 919 (1998). It is only fitting, therefore, that the claimant is not expected to bear the burden of paying for such an examination. Instead, the statute specifically mandates that responsibility for payment lies with the employer. It would follow that, if the employer does not pay, and has no insurer, the Second Injury Fund would be summoned to settle the doctor’s bill.

Here, the trial commissioner made an award against the employer in the form of the November 22, 2000 order to pay Dr. McLaughlin $557.00. Apparently, the employer failed to remit that sum. Therefore, on December 12, 2000, the trier entered a supplementary award against the Fund as contemplated by § 31-355. See Matey v. Dember, 256 Conn. 456, 487 (2001) (award must first be made against employer before Fund can be ordered to pay pursuant to § 31-355). The Fund’s insistence that the dismissal of the claimant’s claim somehow absolves it from liability is to no avail. First, there is an award in place against the employer, which has not been appealed. Second, we would be reluctant to read the phrase “award of compensation” in § 31-355(b) as excluding incidental sums ordered to be paid if the underlying claim itself were dismissed. In Murray v. Black Tie Limousine, 3306 CRB-3-96-3 (Aug. 21, 1997), we stated that a common-sense reading of the term “award” in statutes such as § 31-301(a) and § 31-315 must construe the term as encompassing dismissal orders. Otherwise, claimants would either have no rights of appeal from cases that had been dismissed, or indefinite amounts of time to file such appeals. Though § 31-355 is a different type of statute, there is little sense in reading its use of the term “award” more narrowly. Therefore, we deny the Fund’s challenge to the trial commissioner’s § 31-355 order, and instruct the Fund to pay Dr. McLaughlin, assuming that he still remains unpaid.

The trial commissioner’s order is hereby affirmed.

Commissioners Ernie R. Walker and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

Page URL: http://wcc.state.ct.us/crb/2001/4257crb.htm

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