State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Omachel v. Sunshine Masonry Construction et al.

CASE NO. 5148 CRB-1-06-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 22, 2007

TOMASZ OMACHEL

CLAIMANT-APPELLEE

v.

SUNSHINE MASONRY CONSTRUCTION

EMPLOYER

RESPONDENT-APPELLANT

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

and

O & G INDUSTRIES

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Francis X. Drapeau, Esq., and Scott A. Carta, Esq., Law Offices of Leighton, Katz & Drapeau, 20 East Main Street, P.O. Box 838, Rockville, CT 06066-0838.

The respondent employer Sunshine Masonry Construction was represented by David L. Griffith, Esq., Nassau, Griffith & Kelly, LLC, 66 Cedar Street, Newington, CT 06111-2646.

The respondent insurer Hartford Insurance Group was represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondents O & G Industries and Travelers Property Casualty Company were represented by Sean Nourie, Esq., Conway & Stoughton, LLP, 818 Farmington Avenue, West Hartford, CT 06119.

Iroquois Group was represented by Cheryl A. Green, Esq., Lustig & Brown, LLP, 400 Essjay Road, Suite 200, Williamsville, NY 14221.

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

These Petitions for Review from the October 10, 2006 Finding and Award and from the February 16, 2007 Supplemental Finding and Award were heard June 15, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent-employer has taken this appeal from the October 10, 2006 Finding and Award of the commissioner acting for the First District.1 In that Finding and Award the trial commissioner concluded that he lacked subject matter jurisdiction over the issue of whether the respondent-employer had a workers’ compensation insurance policy in place at the time of the claimant’s injury. Following several subsequent motions and rulings, the Second Injury Fund also filed an appeal.

The pertinent facts giving rise to the claim are as follows. On May 20, 2005, the claimant while working for the respondent sustained a compensable injury. On May 20, 2005 while working as a mason, the claimant fell off scaffolding and fractured his left master arm. In the course of proceedings before the trial commissioner, the State of Connecticut Treasurer’s office investigated the respondent employer, Sunshine Masonry pursuant to § 31-288(c) as to whether it was in compliance with § 31-284(b) and its requirement that all employers in the state of Connecticut insure their workers’ compensation liability. The Treasurer’s investigator, James Eatherton, began testifying as to his findings. After the investigator completed his testimony on direct examination, the trial commissioner concluded that he lacked subject matter jurisdiction over the issue of whether the respondent-employer had insurance at the time of the claimant’s injury. The trial commissioner then advised that the issue of insurance coverage should be addressed by the Superior Court. See Finding, ¶ E.

Following the trial commissioner’s issuing of his October 10, 2006 Finding and Award, the respondent employer filed a Motion to Correct. The trier granted the correction of certain paragraphs and denied others. On October 23, 2006 the claimant filed a Motion for Reconsideration and on December 26, 2006 the trial commissioner granted the Motion for Reconsideration. On February 16, 2007 the trial commissioner issued a Supplemental Finding and Award in which he ordered the Second Injury Fund to pay compensation to the claimant as the respondent-employer “is either unwilling or unable to pay the Award entered by the Commissioner.”2

The original appeal filed by the respondent-employer followed the trial commissioner’s October 10, 2006 Finding and Award. Following the trial commissioner’s February 16, 2007 Supplemental Finding and Award, the Second Injury Fund also appealed. The initial appeal filed by the respondent-employer raises the issue of whether the trial commissioner erred in concluding that he lacked subject matter jurisdiction to decide the issue of whether the respondent-employer’s workers’ compensation liability was insured on the date of claimant’s injury. We agree with the respondent-employer and remand this matter for a determination on this issue.

The commission’s authority to determine whether a workers’ compensation insurance policy was in place on a particular date has long been established and most recently acknowledged by this tribunal in Velez v. Domino’s Pizza, 5105 CRB-1-06-6 (September 26, 2007). See Piscitello v. Boscarello, 113 Conn. 128 (1931). See also, Rossini v. Morganti, 127 Conn. 706 (1940); DiBello v. Barnes Page Wire Products, Inc., 67 Conn App. 361 (2001); Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001); DeGruchy v. Buy, Sell or Hold Co., 4676 CRB-7-03-6 (July 27, 2004); Degnan v. Employee Staffing of America, Inc., 4580 CRB-3-02-10 (October 27, 2003); Thibodeau v. Rizzitelli, 3373 CRB-4-96-7(October 14, 1997); O’Connell v. Indian Neck General Store, 6 Conn. Workers’ Comp. Rev. Op. 42, 530 CRD-3-86 (October 6, 1988). Further, a commissioner’s inquiry is not limited to the records on file with the Workers’ Compensation Commission. See e.g.; Bell v. Lombardo, 4152 CRB-2-99-11, 4065 CRB-2-99-6 (November 27, 2000); Bruce v. Bert Miller Associates, 15 Conn. Workers’ Comp. Rev. Op. 47, 1872 CRB-1-93-10 (December 1, 1995); Vernon v. V.J.R. Builders, 11 Conn. Workers’ Comp. Rev. Op. 237, 1360 CRD-7-91-12 (November 8, 1993).

We therefore reverse the trial commissioner’s ruling in the October 10, 2006 Finding and Award as to the issue of subject matter jurisdiction and the commission’s authority to determine whether a workers’ compensation insurance policy was in existence at the time of the claimant’s date of injury. We suggest that the proceedings on remand be scheduled on an expedited basis. Having concluded as we have we need not consider any other issues raised by any of the parties as a future ruling on the issue of insurance coverage may render the issues moot.

Commissioners Amado J. Vargas and Scott A. Barton concur.

1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 We note the claimant initially filed a petition for review and as a result of the trial commissioner’s February 16, 2007 Supplemental Finding and Award and Order of payment, withdrew his appeal. BACK TO TEXT

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