State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Yelunin v. Royal Ride Transportation

CASE NO. 5274 CRB-1-07-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 5, 2008

SERGEY YELUNIN

CLAIMANT-APPELLEE

v.

ROYAL RIDE TRANSPORTATION

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Eric Polinsky, Esq., Polinsky, Santos, Siegel & Polinsky, 890 West Boulevard, Hartford, CT 06105-4139. However, as the issues on appeal did not affect the claimant, counsel did not file a brief or appear at oral argument.

The respondent Royal Ride Transportation did not appear at oral argument.

The respondent Travelers Property & Casualty was represented by Jennifer Katz, Esq., Conway & Stoughton, LLP, 818 Farmington Avenue, West Hartford, CT 06119.

The Second Injury Fund was represented by Lawrence G. Widem, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the September 10, 2007 Findings and Orders and October 22, 2007 Amended Findings and Orders of the Commissioner acting for the First District was heard April 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal in this matter challenges the trial commissioner’s determination that the workers’ compensation insurance covering the respondent Royal Ride Transportation (“Royal Ride”) had been canceled prior to the claimant’s date of injury. The respondent Second Injury Fund (“the Fund”) has appealed this decision, claiming the trial commissioner’s decision was inconsistent with our decision in Velez v. LSP Enterprises, Inc. d/b/a Domino’s Pizza, 5105 CRB-1-06-6 (September 26, 2007). Upon review, we do not find that the Fund presented sufficient factual grounds demonstrating the insurer failed to comply with the relevant statutes governing cancellation of a workers’ compensation policy. We affirm the trial commissioner’s Findings and Orders and dismiss the appeal.

There is no dispute that the claimant, Sergey Yelunin, suffered a compensable injury while in the employ of the respondent Royal Ride on July 7, 2005. The issue in dispute is whether Royal Ride’s workers’ compensation insurance was in force on the date of injury. Royal Ride maintained a policy with Hartford Underwriters (#6S6OUB-7670B55-4-05) which the carrier decided to cancel on May 20, 2005. Respondent’s Exhibit 1. The cancellation notice had an effective date of June 24, 2005. Hartford’s administrator, Travelers Property & Casualty, (“Travelers”) submitted a Certificate of Mailing at the formal hearing. This certificate, bearing a postal service stamp, represented the notice had been sent to the employer on May 23, 2005. A copy of the cancellation notice was received at the designated agent for the Commission, the National Council on Compensation Insurance, Inc. (“NCCI”), on May 25, 2005. There is no evidence on the record that the insured party, Royal Ride, made any effort to reinstate its insurance coverage.

The Fund has contested this matter, claiming that notwithstanding the receipt of the cancellation notice by the Commission in accordance with § 31-348 C.G.S. and Piscitello v. Boscarello, 113 Conn. 128 (1931) that the notice failed to properly notify the insured party, and thus, was ineffective in canceling the insurance policy. Commissioner Frankl held a formal hearing on this matter on November 8, 2006, including testimony from a witness for Travelers. The parties agreed at a June 27, 2007 formal hearing that Commissioner Mlynarczyk could utilize the evidence on the record to reach a de novo decision on the insurance coverage issue. On September 10, 2007 Commissioner Mlynarczyk issued his Findings and Orders. He found that Royal Ride had been noticed of the formal hearing of June 27, 2007 by certified mail and had not attended.1 He found that Hartford Underwriters had sent cancellation notices to Royal Ride and to the Commission. He concluded that Hartford Underwriters complied with § 31-348 of the Connecticut General Statutes by sending the cancellation notice to the Chairman through NCCI. He also found that written notice to the insured had been mailed and that the policy had been canceled June 24, 2005. Therefore, there was no insurance in place on July 7, 2005.

The Fund filed a number of motions to correct and a motion for reconsideration of the decision. The trial commissioner denied the motion to correct but granted the motion for reconsideration. He issued Amended Findings and Orders dated October 22, 2007 which added five additional findings of fact. He specifically found that the May 23, 2005 cancellation notice had been received by the Postal Service in Norcross, GA., but the method of mailing did not provide documentary evidence it had been received by the intended recipient. He did, however, reach findings that Royal Ride’s principal, Roman Egerov, had been present for prior hearings on the claim and had signed for certified mail issued by the Commission.

The amended conclusions issued October 22, 2007 included the conclusion that Royal Ride had notice of the pending claim for compensation and had failed to allege that the cancellation notice had been defective. Royal Ride made no representation that it did have workers’ compensation insurance on the date of injury. The trial commissioner concluded “[g]iven the totality of the circumstances, Royal Ride had actual notice of the cancellation mailed by Hartford Underwriters on May 23, 2005.” The Amended Findings and Orders did not result in the Fund withdrawing their appeal.

The Fund rests their appeal primarily on the position that the trial commissioner’s conclusions were legally inconsistent with the precedent in Velez, supra. We find that these conclusions were primarily based on the trial commissioner’s effort to ascertain the facts in this matter. When a fact finder’s determination is considered on appeal, the appellate body must provide every reasonable level of deference to the result.

Questions of fact are subject to the clearly erroneous standard of review…. A finding of fact is clearly erroneous when there is no evidence in the record to support it … or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed…. Because it is the trial court’s function to weigh the evidence … we give great deference to its findings. Reiner, Reiner & Bendett. P.C. v. Cadle Co., 278 Conn. 92, 107 (2006). (citation omitted; quotation marks omitted)

In Reiner, the Supreme Court had occasion to consider whether an out-of-state party defendant had received actual notice of the pendency of a legal action. The defendant argued it was the plaintiff’s burden, not to prove the notice had been mailed to the adverse party, but to prove the notice had been received. The Supreme Court rejected this argument.

When the evidence gives rise to a reasonable presumption of receipt, as it does in the present case, the fact finder may rely upon that presumption to establish receipt unless the defendant gives the fact finder a reasonable basis to question its truthfulness…. The defendant in the present case has not proffered any basis for questioning the presumption of receipt on the facts of this case. Id., 113.

We note that the Fund made a similar argument in Velez, supra, that the notice of cancellation was legally improper. We rejected that argument since the cases cited by the Fund, Piscitello, supra, and Bepko v. St. Paul Fire & Marine Insurance Co., 2006 WL 2331076 (D. Conn. 2006) (Dorsey, J.), were “inapposite to the facts herein.” Velez, supra. We reach a similar conclusion based on the facts in this case. As we pointed out in Velez, those cases stand for the ability of a fact-finder to determine, notwithstanding evidence that a notice was properly mailed, that the notice was not received by its intended recipient.

“… the plaintiff in Bepko offered a rather detailed factual argument that he was not in the country to sign for the cancellation notice, his employees were instructed not to sign for him, and the signature on the receipt was not his. He argued successfully, using parol evidence, that the presumption of receipt under Connecticut law in Echavarria v. National Grange Mutual Insurance Co., 275 Conn. 408 (2005) should not be upheld since he had not received the notice.”

Id.

The record herein provides no evidence offered by either the employer-respondent or by the Fund that challenges the presumption of receipt of a properly mailed notice. The record provides the unchallenged testimony of Laura Holman of Travelers who identified the certificate of mailing for the cancellation notice. Ms. Holman further testified that had the notice been returned as undeliverable, it would have been returned to the Travelers and been retained in the firm’s file. She testified that the notice had not been returned to the file as undeliverable. November 8, 2006 Transcript, p. 37-46.

In Velez the Fund made the same argument that Bepko applied to the facts in that case. In neither that case or the present case was evidence proffered—as was presented in Bepko—to contest the trial commissioner’s finding the cancellation notice was received. We find Bepko equally inapposite to the facts herein.

Therefore, we do not find the trial commissioner’s factual finding that the cancellation notice had been received by Royal Ride to be “clearly erroneous.” The evidence herein “gives rise to a reasonable presumption of receipt.” Reiner, supra, and unlike Bepko, supra, the fact-finder was provided with no evidence whatsoever challenging this presumption. The trial commissioner in his Amended Findings and Orders, noted that Royal Ride’s principal had received other notices and participated in hearings. It is not unreasonable to infer based on these facts Royal Ride had also received the insurance cancellation notice. It also argues that the Fund failed to effectively raise the factual issue of whether the cancellation notice was received in a seasonable manner. To revisit this issue at this point would amount to piecemeal litigation. See Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005)2; Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).

We also find the other arguments proffered by the Fund unpersuasive. They argue the “mailbox rule” applied in Echavarria, supra, was repealed by Public Act 2005-3. Appellant’s Brief, p. 7. Our review of this Public Act discloses it did not incorporate such a modification.3 They also criticize the trial commissioner for issuing the Amended Findings and Orders. Appellant’s Brief, pp. 13-15. We find this curious as the trial commissioner was responding to the Fund’s Motion for Reconsideration. They finally argue we should look to other similar statutes in trying to ascertain the intent of the notice statutes under Chapter 568. Appellant’s Brief, pp. 11-12. The enactment of § 1-2z C.G.S. limits us to the “plain meaning” of the statutes, and precludes such a broader approach to statutory interpretation.4

The Fund also does not address precedent in Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440 (2001) which suggests the key issue for a trial commissioner to consider in determining whether a workers’ compensation insurance policy has been canceled is whether the insurance carrier complied with the terms of § 31-348 C.G.S. “Special Attention’s understanding of when its policy was canceled is not persuasive evidence of when the cancellation legally occurred. . . . § 31-348 has been interpreted as protecting employees or anyone examining coverage records in the commissioner’s office.” Id., 461.

The only evidence before the trial commissioner herein was consistent with a conclusion that a cancellation notice was mailed by Travelers and received by the employer. The insurer also complied with its statutory obligation to send notice to the Commission of cancellation. As the Fund failed to provide a factual basis on the record to challenge these findings, we cannot find the trial commissioner’s decision that the policy had been properly canceled to be unreasonable. Even reviewing our holding in Velez, supra, in the most favorable light possible for the Fund, we can identify no error.5

We affirm the Findings and Orders of the trial commissioner as amended and dismiss this appeal.

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 The record reflects Royal Ride was also notified of the 2006 formal hearing via certified mail and did not attend. Joint Exhibit 1. BACK TO TEXT

2 Parties should not proceed under the belief this appellate body will remedy an unfavorable result resulting from an advocate’s ineffective factual presentation. As the Appellate Court held in McGuire v. McGuire, 102 Conn. App. 79, 83 (2007), “[w]e have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” When evidence before the trial commissioner is uncontested, we must respect the permissible inferences he or she reaches from such evidence. Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). BACK TO TEXT

3 In any event, the Fund argues the General Assembly removed the “mailbox rule” for motor vehicle liability policies under § 38-343(a) C.G.S. The rules of statutory construction, however, lead one to conclude that had the General Assembly intended to impose new notice requirements upon this Commission, it would have modified Chapter 568. See Russell v. State/Dept. of Developmental Services/Southbury Training School, 5212 CRB-5-07-3 (March 18, 2008). BACK TO TEXT

4 As we pointed out in Velez v. LSP Enterprises, Inc. d/b/a Domino’s Pizza, 5105 CRB-1-06-6 (September 26, 2007), the text of § 31-321 C.G.S. “provides discretion to the trial commissioner” to determine whether hand delivery; certified or registered mail, or a more lenient delivery standard is required to perfect notice required under Chapter 568. Id., fn.8. BACK TO TEXT

5 We decline to consider the statutory interpretation arguments raised by the appellee, Hartford Underwriters as they are unnecessary for determination of this appeal. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: September 10, 2008

Page URL: http://wcc.state.ct.us/crb/2008/5274crb.htm

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