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Anderson v. W.A. Crosscup, Inc. et al.

CASE NO. 4795 CRB-3-04-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 23, 2005

WILLIAM ANDERSON

CLAIMANT

v.

W.A. CROSSCUP, INC.

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

and

JOSEPH COHN & SONS

EMPLOYER

NO RECORD OF INSURANCE

and

EVERETT JOHNSON AND SONS

EMPLOYER

and

NATIONWIDE INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

KEN WATERWORTH, INC.

EMPLOYER

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Francis P. Cipriano, Esq., 1220 Whitney Avenue, P.O. Box 6503, Hamden, CT 06517, who did not appear at oral argument as the issues on appeal did not involve the claimant.

The respondents, W.A. Crosscup, Inc. and Hartford Insurance Group, were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondents, Everett Johnson and Sons and Wausau Insurance, at the trial level were represented by John Della Jacono, Esq., 639 Research Parkway, Meriden, CT 06450. Respondents did not participate in this appeal or appear at oral argument as the issues did not pertain to them.

The Second Injury Fund was represented by Assistant Attorney General Lisa Weiss, Esq., Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141.

This Petition for Review from the March 12, 2004 Finding and Dismissal of the Commissioner acting for the Third District was heard July 30, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, W.A. Crosscup, Inc. and Hartford Insurance Group, have appealed from the March 12, 2004 Finding and Dismissal of the Commissioner acting for the Third District. We remand the case to the trial commissioner for further proceedings consistent with this opinion.

The issue at the formal hearing was “whether an initially liable employer under C.G.S. 31-299b is barred from recovering reimbursement from the Second Injury Fund for the proportion of liability attributable to uninsured employers.” Findings, ¶ I. The parties have stipulated to the following pertinent facts which the trial commissioner incorporated into his findings. During the period of May 1979 through December 1997 the claimant worked as a painter and wallpaper hanger for several employers. When the claimant last worked on December 4, 1997 the claimant was working for W.A. Crosscup, Inc. who was insured for workers’ compensation purposes with Hartford Insurance Group (hereinafter “Hartford Insurance”). On or about that date the claimant developed problems with his left knee and lower extremities for which he claimed compensation benefits. The claimant also developed a bilateral hand condition that was diagnosed as a carpal tunnel injury. The claimant alleged his injuries were the result of repetitive trauma that developed during the entire period of his employment from May 1979 through December 1997.

The claimant worked for various employers during that time. Two of those employers were uninsured for Workers’ Compensation purposes during certain time periods which the claimant was in their employment. The claimant worked for Joseph Cohn & Sons who were uninsured for Workers’ Compensation from August 1983 through January 1984 and January 1989 through October 1989. Additionally, the claimant worked for Ken Waterworth, Inc. who was uninsured for Workers’ Compensation from November 1989 through January 1990.

Hartford Insurance has expended $119,170.36 associated with the claimant’s left knee injury and $77,330.80 for the claimant’s carpal tunnel claim. The claimant’s treating physician’s report indicated that the claimant’s repetitive trauma work has caused the claimed injuries. Based on this report the Second Injury Fund and Hartford Insurance agree that the period of no insurance with Joseph Cohn & Sons is equivalent to 7.3% of the total liability in the case and the period of no insurance with Ken Waterworth, Inc., equates to 1.5% of the total liability in the case. The parties agree that based on the total payments Hartford Insurance has made the amount of reimbursement claimed against Joseph Cohn & Sons is $14,344.58 and the amount of reimbursement claimed against Ken Wortherworth, Inc. is $2,947.52.

Hartford Insurance has sought reimbursement from Joseph Cohn & Sons and Ken Worthworth, Inc. for the uninsured percentages of liability outlined above pursuant to § 31-299b C.G.S. To date, neither Joseph Cohn & Sons and Ken Worthworth, Inc. have reimbursed Hartford Group Insurance for these claims. Therefore, Hartford Insurance is seeking reimbursement of these amounts from the Second Injury Fund pursuant to §§ 31-299b and 31-355 C.G.S. The Second Injury Fund has conceded that Hartford Insurance has a valid claim for reimbursement on the repetitive trauma claims against all relevant employers from May 1979 through December 1997 under § 31-299b.1

The Second Injury Fund denies liability to Hartford Insurance under §§ 31-299b or 31-355. The Second Injury Fund asserts that neither §§ 31-299b or 31-355 nor any other statutory scheme allows the last carrier to seek reimbursement from the Second Injury Fund for a repetitive trauma claim.

The trial commissioner found that the Second Injury Fund was not liable for reimbursement to the § 31-299b carrier pursuant to §§ 31-299b or 31-355. The trial commissioner found that the § 31-299b carrier is barred from recovering reimbursement from the Second Injury Fund. Therefore, the trial commissioner dismissed Hartford Insurance’s claim for reimbursement.

The respondents, W.A. Crosscup, Inc. and Hartford Insurance, have appealed this decision. Hartford Insurance claims that the trial commissioner erred in failing to allow apportionment of liability by it against the Second Injury Fund pursuant to §§ 31-299b and 31-355 for periods of the claimant’s uninsured coverage. Pursuant to § 31-299b the last employer in a repetitive trauma claim is initially responsible for the payment of compensation with a right of reimbursement against any other liable prior employer or insurers. According to § 31-355 when an award of compensation is made the Second Injury Fund is responsible to pay compensation when an employer fails or is unable to pay such. Hartford Insurance contends that because there were two stipulated periods of uninsured employment the Second Injury Fund should be liable for those periods pursuant to §§ 31-299b and 31-355.

The Second Injury Fund argues that it is not responsible for reimbursement to Hartford Insurance under §§ 31-299b or 31-355. It contends that § 31-299b applies to employers or insurers and not the Second Injury Fund. Similarly, it contends that § 31-355 creates a duty for the Second Injury Fund to pay compensation to a claimant who was employed by an uninsured employer, but does not mandate payment to a § 31-299 carrier.

We initially look at the relevant language of § 31-355(b).

When an award of compensation has been made under the provisions of this chapter against an employer who fails or is unable to pay medical and surgical aid or hospital and nursing service required under this chapter or any type of compensation for disability, . . . and whose insurer fails or is unable to pay the compensation, such compensation shall be paid from the Second Injury Fund. (emphasis added)

“The statute clearly requires first that an award be made against the liable employer; only after it is found that the employer has failed to pay, may an order enter against the Fund.” Bethune v. A & A Seaford, 9 Conn. Workers’ Comp. Rev. Op. 79, 927 CRD-3-89-10 (February 20, 1991) citing Kramer v. General Electric Co., 37 Conn. Sup. 742 (1981). In this case there was never a § 31-355 order, therefore, the case must be remanded to the trial commissioner for consideration of a § 31-355 order. Technically, until there is a § 31-355 order we cannot consider whether Hartford Insurance can seek reimbursement from the Second Injury Fund under § 31-299b.

However, we note that there is nothing in § 31-355 that restricts to whom the Second Injury Fund makes payments after the § 31-355 order is in place. We have previously found that there are instances where the Second Injury Fund steps into the shoes of the employer regarding liability. Taylor v. Ron Fournier Builders, 4257 CRB-5-00-6 (July 30, 2001).2 Section 31-355 mandates in cases where the employer fails or is unable to pay a compensation award that the unpaid compensation be paid by the Second Injury Fund.

The Second Injury Fund argues that Hartford Insurance is making payments under a stipulation which does not equate to “an award of compensation” under § 31-355. Section 31-275(4) provides a definition of compensation used for Chapter 568 cases and states that compensation

means benefits or payments mandated by the provisions of this chapter, including, but not limited to, indemnity, medical and surgical aid or hospital and nursing service required under section 31-294d and any type of payment for disability, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, payments made under the provisions of section 31-284b, 31-293a or 31-310, or any adjustment in benefits or payments required by this chapter. (emphasis added)

This definition appears to be broad enough to include a full and final stipulation. However as we stated previously, a determination regarding the § 31-355 order is a prerequisite to any further conclusions regarding apportionment being made.

The parties devote much discussion in their briefs to the case of Konovaluk v. Graphite Die Mold, Inc., 4437 CRB-3-01-9 (August 8, 2002), which dealt with a § 31-299b apportionment situation involving a number of insurers, including an insurer that had been declared insolvent. Potential liability on the part of the Second Injury Fund was implicated in that case, as a portion of the claimant’s exposure to metallic dust while working for one of his former employers was during a period when the employer carried no workers’ compensation insurance. However, none of the parties to that appeal raised the issue of the Fund’s involvement separately from that of the remaining solvent insurers. The thrust of this board’s decision in Konovaluk was on the effect of Hunnihan v. Mattatuck Manufacturing, Inc, 243 Conn. 438 (1997), where our Supreme Court held that the Connecticut Insurance Guaranty Association (CIGA), which had assumed liability for an insolvent insurer’s covered claims under § 38a-838(6) C.G.S., was not responsible for reimbursing a workers’ compensation insurer for a proportionate share of the insolvent insurer’s liability under § 31-299b. That definition of “covered claim” excepts claims made by insurers “as subrogation recoveries or otherwise.” The Hunnihan Court held that, given the express meaning of “otherwise” and the legislative purpose underlying the guaranty act (which was to protect policyholders and claimants, not other insurers), a claim by an insurer under § 31-299b was not a “covered claim” under the Connecticut Insurance Guaranty Act.

In Konovaluk, this board determined that the period of liability attributable to an insolvent insurer under § 31-299b should be apportioned among the remaining solvent insurers, based upon their proportionate shares of liability for the rest of the exposure period. No attempt was made to delve into possible complications involving the Second Injury Fund as a potential § 31-299b payor on behalf of an uninsured employer. The Fund’s general liability for claims against uninsured employers under § 31-355 does not stand on the same statutory footing as CIGA’s liability for the claims of insolvent insurers, as § 31-355(e) specifically accepts claims against insolvent insurers from the responsibility of the Fund, and assigns them to CIGA under §§ 38a-836 - 38a-853 C.G.S. There is no language in chapter 568 similar to that of the “covered claim” exception in § 38a-838(6) that would exempt the Fund from being liable to an insurer pursuant to a § 31-299b reimbursement claim. Thus, our holding in Konovaluk is not directly on point to the instant case.

For these reasons, the case is remanded for further findings and/or proceedings in accordance with this opinion.

Commissioners Leonard S. Paoletta and Howard H. Belkin concur.

1 Finding, ¶ 10 states in relevant part, “The Second Injury Fund has conceded that Hartford Insurance has a valid claim for reimbursement on a repetitive theory under C.G.S. 1-299b . . . (emphasis added). Based on the parties’ June 13, 2003 Stipulation of Facts, ¶ 10, the finding should have read § 31-299b. BACK TO TEXT

2 In Taylor this board affirmed the trial commissioner’s order making the Second Injury Fund liable for the payment of a Commissioner’s Examination despite the fact that the claimant’s claim for benefits had been dismissed. BACK TO TEXT

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