State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Oliveira v. Antonio Braga d/b/a Braga Painting a/k/a Braga Painting & Drywall, Inc.

CASE NO. 5533 CRB-7-10-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 7, 2011

SILVIO OLIVEIRA

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

ANTONIO BRAGA d/b/a BRAGA PAINTING a/k/a BRAGA PAINTING & DRYWALL, INC.

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

TOLL BROTHERS/WILTON HUNT

EMPLOYER

and

ONEBEACON INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

CROSS-APPELLEE

APPEARANCES:

The claimant was represented by Guy L. DePaul, Esq., Jones, Damia, Kaufman, Borofsky & DePaul, 301 Main Street, P.O. Box 157, Danbury, CT 06813.

Respondents Toll Brothers/Wilton Hunt and OneBeacon Insurance Group were represented by Thomas A. Mulligan, Jr., Esq., McNamara & Kenney, 815 Main Street, Bridgeport, CT 06604.

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 061410120.

This Petition for Review from the March 4, 2010 Finding and Award of the Commissioner acting for the Seventh District was heard on August 27, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. Respondent Second Injury Fund has petitioned for review from the March 4, 2010 Finding and Award of the Commissioner acting for the Seventh District. We find error and accordingly affirm in part and reverse in part the decision of the trial commissioner.1

The following procedural background is relevant to our review of this matter. On July 29, 2005, Commissioner James Metro issued a Finding and Award indicating that the claimant had sustained compensable injuries on March 13, 1996 while in the employ of Braga Painting and Braga Painting was therefore liable for any workers’ compensation benefits due and owing the claimant. On March 1, 2007, Commissioner Metro issued a second Finding and Award indicating that at the time of the claimant’s injury Toll Brothers was acting as the principal employer of both Antonio Braga and the claimant. The trial commissioner determined that Braga Painting did not have a workers’ compensation policy in place on the date of injury and stated that in the event Braga Painting did not pay the benefits owed to the claimant associated with the March 1, 2007 Finding and Award, Toll Brothers and/or its insurance carrier, OneBeacon Insurance Group, was to pay the claimant said workers’ compensation benefits.

Respondents Toll Brothers and OneBeacon Insurance Group appealed the March 1, 2007 Finding and Award and paid benefits to the claimant in the amount of $21,956.11 pending the appeal pursuant to § 31-301(f) C.G.S.2 On June 20, 2008, the Compensation Review Board issued an opinion reversing the trial commissioner’s March 1, 2007 decision on the basis that the record did not reasonably support the trier’s determination that Toll Brothers was acting as a principal employer at the time of the claimant’s injury. This opinion was not appealed, and OneBeacon Insurance Group sought reimbursement for the benefits it paid to the claimant.

The trial commissioner who presided over the formal hearing relative to OneBeacon’s reimbursement claim determined, on the basis of the foregoing procedural history, that Braga Painting, as the respondent employer of record pursuant to the terms of the original Finding and Award of July 29, 2005, was once again the party properly responsible for paying workers’ compensation benefits to the claimant. Accordingly, in a Finding and Award dated March 4, 2010, the trial commissioner ordered Braga Painting to pay benefits to the claimant in the amount of $21,956.11 and, in light of the earlier finding that Braga Painting did not have a workers’ compensation insurance policy in place on the date of the claimant’s injury, ordered the Second Injury Fund to pay said sum to the claimant if Braga Painting did not comply within twenty days of the March 4, 2010 Finding and Award. The trial commissioner then directed the claimant, through his attorney, to reimburse OneBeacon Insurance Group the amount of $21,956.11 plus interest at the rate of ten percent per annum pursuant to the provisions of § 31-301(g) C.G.S.3

The claimant and respondent Second Injury Fund both filed Motions to Correct which were dismissed in their entirety. The fund also filed a Motion for Articulation which was denied by the trial commissioner, and this appeal/cross-appeal followed. On appeal, the fund describes OneBeacon’s request for reimbursement of the workers’ compensation benefits it paid to the claimant as an “equitable subrogation claim” and contends that the trial commissioner lacked the subject matter jurisdiction to award to OneBeacon repayment of the funds it had expended. The fund argues that equitable subrogation claims are barred by the State of Connecticut’s sovereign immunity and as a result jurisdiction over recoupment claims such as OneBeacon’s lies exclusively with the Claims Commissioner. The fund also maintains that the trier’s decision to deny the fund, allegedly on the basis of the doctrine of collateral estoppel, the opportunity to present new evidence at the formal hearing constituted a deprivation of its due process right to a trial on the merits. On cross-appeal, the claimant argues that the trial commissioner erroneously applied the provisions of § 31-301(g) C.G.S. in arriving at the determination that interest in the amount of ten percent per annum was due and owing from the claimant to OneBeacon Insurance Group.

The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003).

We begin with an analysis of the fund’s contention that OneBeacon’s quest for reimbursement constitutes an equitable subrogation claim subject to the exclusive jurisdiction of the Claims Commissioner. We note at the outset that in its brief, the fund stated that “the trial commissioner granted One Beacon’s equitable subrogation claim and ordered the State of Connecticut’s Second Injury Fund to pay One Beacon $21,956.11 plus ten (10%) percent interest.” Appellant Brief, p. 3. This characterization of the trier’s actions is simply inaccurate. The trial commissioner did not order the Second Injury Fund to reimburse OneBeacon. Rather, the trier ordered Braga Painting, the employer of record, to pay to the claimant the benefits which had been found to be due and owing under the terms of the March 1, 2007 Finding and Award and, if Braga Painting did not pay such benefits within twenty days, ordered the fund to do so, consistent with the provisions of § 31-355 C.G.S.4 The trier then ordered the claimant, via his attorney, to reimburse OneBeacon the benefits, plus interest, OneBeacon had paid to the claimant following the issuance of the March 1, 2007 Finding and Award. The question before us, then, is whether the trier exceeded her statutory authority in the manner in which she ultimately effected a reimbursement to OneBeacon Insurance Group.

It is of course well-settled that a challenge to a workers’ compensation commission’s subject matter jurisdiction must be resolved prior to embarking on an analysis of the underlying merits of the claim. Castro v. Viera, 207 Conn. 420, 429 (1988). Moreover, “[i]t is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Id., at 427-428, quoting Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565 (1963.. As a result, a trial commissioner’s jurisdiction “is confined by the Act and limited by its provisions. Unless the Act gives the Commissioner the right to take jurisdiction over a claim, it cannot be conferred upon [the commissioner] by the parties either by agreement, waiver or conduct.” Id., at 426, quoting Jester v. Thompson, 99 Conn. 236, 238 (1923).

“The primary statutory provision establishing the subject matter jurisdiction of the commission is General Statutes … § 31-278…. A plain reading of this language suggests that the commissioner’s subject matter jurisdiction is limited to adjudicating claims arising under the act, that is, claims by an injured employee seeking compensation from his employer for injuries arising out of and in the course of employment.”5 Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 762 (1999). In addition, consistent with the precepts of § 31-298 C.G.S., the trial commissioner is afforded a wide degree of discretion to conduct hearings in an equitable “manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.”6 However, “[i]t is clear that an administrative body [such as the Workers’ Compensation Commission] must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. It cannot modify, abridge or otherwise change statutory provisions, under which it acquires authority unless the statutes expressly grant it that power.” Castro, supra, at 428, quoting Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230 (1971).

Bearing in mind these principles of subject matter jurisdiction, we turn next to an examination of §§ 31-349 to 31-355 (“Part E”) of the Workers’ Compensation Act, which sets out the reporting requirements and obligations of the Second Injury Fund. From a historical perspective, “[t]he Workers’ Compensation Act (act) initially was interpreted to require an employer to assume total liability for any work related injury suffered by an employee even if the severity of such an injury had been aggravated by a preexisting disability.” Davis v. Norwich, 232 Conn. 311, 319 (1995). In light of the challenges such a stringent interpretation imposed on employers of individuals with pre-existing disabilities, “in 1945, the legislature established the fund, primarily to encourage the employment of persons with an existing disability and, at the same time, to provide adequate workers’ compensation benefits for them…. Additionally, by creating the fund, the legislature intended to ‘relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment.’” (Internal citations omitted.. Id., at 320, quoting Civardi v. Norwich, 231 Conn. 287, 293 (1994). However, over the years, the Supreme Court has “repeatedly cautioned that ‘[p]ayment of an award from a special fund such as the second injury … fund … should be made only in accordance with express statutory authority….” (Citations omitted; internal quotation marks omitted.. Id., at 324, quoting Civardi, supra, at 294.

As previously mentioned herein, the fund has characterized OneBeacon’s reimbursement request as an equitable subrogation claim which falls outside the jurisdiction of the trial commissioner because the claim is barred by the doctrine of sovereign immunity. In its brief, the fund cited a number of cases which essentially stand for the proposition that in order to collect damages from “the public treasury,” a claimant “must show that the governing statute either expressly or by force of necessary implication contains a waiver of the state’s sovereign immunity.” Appellant’s Brief, p. 6. Because we disagree with the fund’s characterization of both the claim and the actions of the trial commissioner, we find the authority cited unavailing and instead predicate our analysis of the instant claim on our Supreme Court’s discussion in Hunnihan v. Mattatuck Mfg. Co., 243 Conn 438 (1997).

In Hunnihan, the court was asked to assess the extent of the Workers’ Compensation Commission’s jurisdiction over the Connecticut Insurance Guaranty Fund (“CIGA”). The trial commissioner had ordered CIGA to reimburse a § 31-299b carrier for the apportionment amount due from the insolvent carrier American Mutual.7 CIGA appealed, and the court identified as “the principal issue … whether the defendant Connecticut Insurance Guaranty Association (association) is obligated to pay a proportionate contribution toward a workers’ compensation award when a former insurer from whom reimbursement otherwise could be sought is insolvent.” Id., at 439440. As grounds for its appeal, CIGA contended that the trial commissioner lacked the subject matter jurisdiction to order CIGA to reimburse the § 31-299b C.G.S. carrier. Specifically, CIGA argued “that the limited subject matter jurisdiction of the commission does not authorize it to order reimbursement by the association because such an order requires a determination by the commission that the claim to be reimbursed is a covered claim within the meaning of § 38-838 (6) [now § 38-838 (5)] of the guaranty act.”8 Id., at 442. Although CIGA conceded that “the commission may interpret other statutory provisions as incidentally necessary to its resolution of claims arising under the Workers’ Compensation Act,” id., at 443, the association maintained that the analysis required by the trial commissioner in the Hunnihan matter “constitute[d] the central issue in the case” id., and as such, interpretation of other statutory provisions was outside the purview of the trial commissioner.9

The court rejected CIGA’s argument, noting that the provisions of § 31-355(e) C.G.S. of the Workers’ Compensation Act specifically require CIGA to step in and provide reimbursement when an employer’s insurer has been deemed insolvent.10 The court observed that,

[t]he insertion in § 31-355(e) delineating the association’s obligations under the Workers’ Compensation Act reflects the legislature’s intent for the commission to have jurisdiction to adjudicate claims against the association originating under that act. Otherwise, it would not have included instruction regarding the association’s responsibilities under the Workers’ Compensation Act at all.

Id., at 445.

The court interpreted CIGA’s argument as suggesting “that at a certain stage in the present litigation, presumably after the commissioner apportioned liability among the prior insurers, resolution of the case ceased to turn upon the provisions of the Workers’ Compensation Act, and became dependent upon an interpretation of the guaranty act.” Id. Noting the negative policy implications of CIGA’s position, the court stated,

it is important to recognize that when a claim originates under the Workers’ Compensation Act and at some point during the proceedings it becomes necessary for the commission to interpret provisions of other enactments in order to resolve the claim, the purposes and public policy concerns underlying the Workers’ Compensation Act nevertheless continue to be implicated until a conclusion is reached. If jurisdiction were found not to exist in such circumstances and the commission was precluded from seeing such claims through to their conclusion, the result would be to thwart the operation of the Workers’ Compensation Act and the public policies underlying it.

Id., at 445-446.

We believe the Supreme Court’s analysis of the extent of the Workers’ Compensation Commission’s jurisdiction over CIGA as propounded in Hunnihan provides some guidance in our analysis of the matter before us. The instant trial commissioner, consistent with the provisions of § 31-355 C.G.S., ordered the Second Injury Fund to pay the benefits to the claimant which Braga Painting, as the employer of record, had failed to pay. Findings, ¶¶ G, H. Given that § 31-355 C.G.S. is indisputably a part of the Workers’ Compensation Act, it may be reasonably inferred that “the legislature has thus specifically removed this area of the law from the doctrine of sovereign immunity and this statutory scheme specifically waives the doctrine of sovereign immunity in this situation.” Brief of Appellees Toll Brothers and OneBeacon Insurance Group, p. 14. At no time did the trial commissioner order the fund to directly reimburse OneBeacon Insurance Group and, as such, we reject the fund’s characterization of the claim as sounding in either equitable subrogation or recoupment.11

Moreover, we find the trier’s order to the Second Injury Fund comports with the equitable powers conferred by § 31298 C.G.S. and falls well within the jurisdictional authority afforded by § 31-278 C.G.S. See Marroquin v. Monarca Masonry, 121 Conn. App. 400, 408 (2010). Finally, we note that the provisions of § 31-315 C.G.S. afford the commissioner ongoing “jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.” Thus, given that the actions taken by the trial commissioner are clearly contemplated by the provisions of the Workers’ Compensation Act, we affirm the trier’s order to the Second Injury Fund to issue payment to the claimant for the benefits awarded pursuant to the Finding and Award of March 1, 2007 which were advanced, pursuant to the provisions of § 31-301(f) C.G.S., by OneBeacon Insurance Group pending appeal.

We turn now to the second basis for the fund’s appeal; namely, that the trier, in denying the fund the opportunity to present evidence at the formal hearing of March 10, 2009, precluded the fund from defending against OneBeacon’s equitable subrogation claim and, as such, deprived the fund of its due process right to a trial on the merits. The fund argues that the trier, in refusing to allow the testimony of the fund’s investigator, erroneously relied on the doctrine of collateral estoppel which, the fund maintains, was inapplicable in light of the Compensation Review Board’s reversal of Commissioner Metro’s finding of March 1, 2007 that Toll Brothers was a principal employer. It is the fund’s contention that “[w]here the trial commissioner’s findings are reversed on appeal, they lose all of their preclusive features and the doctrine of collateral estoppel will no longer apply.” Appellant’s Brief, p. 10, citing Laurel, Inc. v. Commissioner of Transportation, 180 Conn. 11, 22-23 (1980). See also Osterlund v. State, 135 Conn. 498, 502 (1949).

Before proceeding, we deem it advisable to briefly discuss the legal principles underlying the doctrines of collateral estoppel and res judicata.

Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum…. The doctrine of res judicata holds that an existing final judgment rendered upon the merits without fraud or collusion, by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated as to the parties and their privies in all other actions in the same or any other judicial tribunal of concurrent jurisdiction…. Res judicata bars not only subsequent relitigation of a claim previously asserted, but subsequent relitigation of any claims relating to the same cause of action …which might have been made…
Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim…. Collateral estoppel means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Citations omitted; internal quotation marks omitted.)

Berzins v. Berzins, 122 Conn. App. 674, 679-680 (2010), quoting Massey v. Branford, 119 Conn. App. 453, 464-65, cert. denied, 295 Conn. 921 (2010).

Because [res judicata and collateral estoppel] are judicially created rules of reason that are enforced on public policy grounds; we have observed that whether to apply either doctrine in any particular case should be made based upon a consideration of the doctrine’s underlying policies, namely, the interests of the defendant and of the courts in bringing litigation to a close … and the competing interest of the plaintiff in the vindication of a just claim…. These [underlying] purposes are generally identified as being (1) to promote judicial economy by minimizing repetitive litigation; (2) to prevent inconsistent judgments which undermine the integrity of the judicial system; and (3) to provide repose by preventing a person from being harassed by vexatious litigation. (Internal citations and quotation marks omitted.)

Weiss v. Weiss, 297 Conn. 446, 460 (2010), quoting Powell v. Infinity Ins. Co., 282 Conn. 594, 601 (2007).

With these precepts in mind, we turn to the matter at bar. The fund alleges the trier erred in refusing to allow the testimony of the fund’s witness, a fund investigator, at the formal hearing of March 10, 2009. Our review of the file indicates that at this formal hearing, the commissioner opined that the issue of whether Toll Brothers was a principal employer had already been litigated before Commissioner Metro and the Compensation Review Board and both tribunals had concluded that Toll Brothers was not a principal employer. March 10, 2009 Transcript, p. 26. The fund argues that this determination by the instant commissioner constituted a deprivation of due process and compromised its right to a trial on the merits.

As best as can be inferred, the fund appears to be laboring under the misapprehension that the Compensation Review Board Opinion of June 20, 2008 not only reversed the trier’s finding that Toll Brothers was acting as a principal employer but also essentially nullified all prior proceedings such that the issue of the principal employer was once again ripe for litigation. The fund cites as authority for its position the following statement by our Supreme Court in Laurel, Inc. v. Commissioner of Transportation of Conn., 180 Conn. 11 (1980) [“Laurel II”]. “It is well established that the decision of this court ‘does not make res [ad]judicata any issue of fact involved in it; it is the judgment of the tribunal from which an appeal is taken which, if affirmed by us or rendered in conformity to a decision we make, conclusively determines any such issues.’” Id., at 23, quoting Osterlund v. State, 135 Conn. 498, 502 (1949). We are not persuaded by the fund’s analysis in this regard.

It bears noting that the above-referenced remark by the Supreme Court in Osterlund was prompted by its dismissal of a finding by the trial commissioner below, who was hearing the matter on remand, that the Supreme Court’s prior decision in the matter had rendered res judicata a previous factual finding relative to thenprevailing average weekly wage for carpenters. The court determined that the trier’s conclusion in that regard constituted error and indicated that “[t]he commissioner should have determined whether the plaintiff was entitled to an increase of compensation, in accordance with the considerations we have stated and regardless of the decision on the former motion.” Id., at 504-505. Similarly, in Laurel II, supra, the Supreme Court observed that because “[t]he first judgment in [the claimant’s] favor was set aside and the case was remanded with direction to enter judgment for the defendants [and to reinstate the condemnation proceedings]… the first trial court’s finding in the action … was not binding on the parties in the condemnation proceeding brought by the commissioner.” Id., at 23. See also Laurel, Inc. v. Connecticut, 169 Conn. 195, 207 (1975) [“Laurel I”]. In addition, the court noted that because the first judgment had been set aside, it could no longer be considered a full and final judgment and, as such, could not be invoked for the purposes of res judicata or collateral estoppel because both doctrines “depend on the existence of a valid final judgment by a court of competent jurisdiction.” Laurel II, supra, at 23.

We therefore find both matters on which the fund relies procedurally distinguishable from the instant claim because they both involved remands in which the reviewing court clearly contemplated the execution of additional proceedings. In contrast, our review of the language contained in the June 20, 2008 CRB decision does not lend itself to such an interpretation. We stated that, “[h]aving concluded the trier’s finding that the respondent Toll Brothers is a principal employer cannot stand, we reverse the March 1, 2007 Finding and Award of the Commissioner Acting for the Seventh District.” We did not remand the matter for additional proceedings. Rather, the intended legal effect of our decision was to convert the matter to its status prior to the March 1, 2007 Finding and Award when Braga Painting was deemed the employer of record. At no point was it contemplated that additional proceedings relative to the issue of principal employer would be either necessary or appropriate.12

Moreover, our review of the file indicates that the fund has been an active participant in the various stages of litigation attendant on this matter practically from its inception. The fund appeared at the formal hearings before Commissioner Metro which led to the July 25, 2005 Finding and Award as well as that of March 1, 2007. The Reasons of Appeal filed by OneBeacon Insurance Group following issuance of the March 1, 2007. Finding and Award, on which the fund was copied, state quite plainly that the grounds for its appeal from the March 1, 2007 Finding and Award, was, inter alia, the commissioner’s determination that Toll Brothers was a principal employer. See Reasons of Appeal, March 19, 2007, ¶¶ 1, 2. The fund also participated in oral argument when the matter came before the Compensation Review Board but did not take an appeal from the decision reversing the trier’s determination that Toll Brothers was a principal employer.13 In addition, we note that the fund was a signatory to a Stipulation of Facts dated October 8, 2008 which states that “the Second Injury Fund has now become responsible for paying Connecticut Workers’ Compensation Benefits to the Claimant, Silvio Oliveira.” Claimant’s Exhibit A, ¶ 5. In light of the foregoing procedural history, we can conceive of no useful purpose that would be served by allowing the fund to pursue additional litigation relative to the issue of principal employer at this juncture. “It would be a violation of the fundamental principles and purposes of collateral estoppel for this court to reexamine the identical factual situation to redetermine a matter of law that has already once been fully litigated by the same parties and finally decided.” State v. Wilson, 180 Conn. 481, 487 (1980).

Moreover, the fund has failed to provide a compelling explanation for why the testimony it sought to adduce at the formal hearing of March 10, 2009 could not have been introduced at the earlier proceedings before Commissioner Metro. “A party to a compensation case is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing.” Kearns v. Torrington, 119 Conn. 522, 529 (1935). We therefore affirm the trier’s decision to deny the fund’s investigator the opportunity to testify at the formal proceedings held on March 10, 2009.

We now turn our analysis to the claimant’s cross-appeal. The claimant asserts that the trial commissioner erred in ordering the claimant, pursuant to the provisions of § 31-301(g) C.G.S., to reimburse OneBeacon Insurance Group interest at an annual rate of ten percent in addition to a payment equivalent to the amount of benefits the claimant had received.14 Findings, ¶ I. Our review of the provisions of this statute indicates that a claimant is obligated to reimburse any benefits paid plus interest at ten percent per annum only “[i]f the final adjudication results in the denial of compensation to the claimant….”15 As the claimant correctly observes, such was not the case in the instant action. Commissioner Metro’s findings as to the compensability of the claimant’s injuries were neither challenged nor vacated in subsequent proceedings. As such, we concur with the claimant that the trier’s findings in this regard constituted error and hereby reverse the trier’s order to the claimant for an interest reimbursement to OneBeacon Insurance Group.16

Finally, we note that both parties to this appeal filed Motions to Correct which were denied in their entirety. Insofar as we have determined the trier’s conclusions relative to the interest reimbursement portion of the Finding and Award constituted error, the trier’s denial of the claimant’s proposed corrections in this regard also constituted error. However, given that our review of the fund’s proposed corrections indicates that the fund was primarily seeking to substitute facts more favorable to its position in place of the facts found by the trial commissioner, the trier was under no compunction to grant such corrections and we therefore find no error in her refusal to do so. As this board has previously observed, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).

Having found error, this matter is accordingly affirmed in part and reversed in part.

Commissioners Nancy E. Salerno and Jack R. Goldberg concur in this opinion.

1 We note that a motion for extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 Section 31-301(f) C.G.S. (Rev. to 1995) states. “During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid from the Second Injury Fund pursuant to section 31-354.”. [Note. P.A. 95-277 amended Subsec. (f) to provide that the compensation and medical treatment of the injured employee be paid by the employer or its insurer rather than Second Injury Fund, effective July 1, 1995.] BACK TO TEXT

3 Section 31-301(g) C.G.S. (Rev. to 1995) states. “If, upon completion of the appeal process, the claimant is found to have a compensable injury, the employer or insurer shall be responsible for payment of the compensation and shall reimburse the Second Injury Fund for all sums previously expended, if any, on the claim pursuant to subsection (f) and this subsection, plus interest at the rate of ten per cent per annum. If the final adjudication results in the denial of compensation to the claimant, and he has previously received compensation on the claim pursuant to subsection (f) and this subsection, the claimant shall reimburse the Second Injury Fund for all sums previously expended, plus interest at the rate of ten per cent per annum. Upon any such denial of compensation, the commissioner who originally heard the case or his successor shall conduct a hearing to determine the repayment schedule for the claimant.”. [Note. P.A. 95-277 amended Subsec. (g) by substituting references to “Second Injury Fund” with “employer or insurer” to reflect the closing of the Second Injury Fund and deleting provision re reimbursement of Second Injury Fund by employer, effective July 1, 1995.] BACK TO TEXT

4 Section 31-355(b) C.G.S. (Rev. to 1995) states, in pertinent part. “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, or both … and whose insurer fails or is unable to pay the compensation, such compensation shall be paid from the Second Injury Fund. The commissioner, on a finding of failure or inability to pay compensation, shall give notice to the treasurer of the award, directing the treasurer to make payment from the fund.” BACK TO TEXT

5 Section 31-278 C.G.S. (Rev. to 1995) states, in pertinent part, that the trial commissioner “shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of this chapter. Each commissioner shall hear all claims and questions arising under this chapter...” BACK TO TEXT

6 Section 31-298 C.G.S. (Rev. to 1995) states, in pertinent part. “In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” BACK TO TEXT

7 Section 31-299b C.G.S. (Rev. to 1995) states, in pertinent part. “If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability.” BACK TO TEXT

8 The guaranty act excludes from its definition of covered claims “any claim by or for the benefit of any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise...”. § 38a-838(5) C.G.S. The act is codified at §§ 38a-836 to 38a-853 C.G.S., inclusive. [Note. Changes to the statute effected by P.A. 03-49 resulted in a re-numbering of the definitions post-Hunnihan.] BACK TO TEXT

9 CIGA also appealed on the basis that the § 31-299b apportionment reimbursement fell outside the guaranty act’s definition of covered claims. The Supreme Court was persuaded by CIGA’s arguments in this regard and reversed this board’s affirmance of the trial commissioner on the grounds that “all claims by insurers are excluded from the definition of a covered claim.”. Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 451 (1997). BACK TO TEXT

10 Section 31-355(e) C.G.S. (Rev. to 1997, the year Hunnihan was decided) states. “Notwithstanding the provisions of subsections (a) to (d), inclusive, of this section, whenever the employer’s insurer has been determined to be insolvent, as defined in section 38a-838, payments required under this section shall be the obligation of the Connecticut Insurance Guaranty Association pursuant to the provisions of sections 38a 836 to 38a-853, inclusive.” BACK TO TEXT

11 Although the instant matter is obviously not an apportionment claim, we recognize that the provisions of § 31-299b C.G.S. do specifically exempt the Second Injury Fund from apportionment liability. BACK TO TEXT

12 We do recognize that the reversion of liability contemplated herein would present a different set of challenges in a factual situation encompassing multiple employers. BACK TO TEXT

13 The fund also did not take an appeal from the first Finding and Award of July 29, 2005 wherein the commissioner found that the claimant was an employee of Braga Painting and his injuries arose out of and in the course of his employment with Braga Painting. BACK TO TEXT

14 We note that ¶ I of the March 4, 2010 Finding and Award instructs the claimant to reimburse OneBeacon “the amount of $21,956.11 with interest calculated at 10% per annum according to C.G.S. 31-101(f).”. As it may be reasonably inferred that the trial commissioner was in fact referring to the provisions of § 31-301(g) C.G.S., we regard the erroneous citation as harmless error. D’Amico v. State/Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

15 See footnote 3, supra, for the full text of the statute. BACK TO TEXT

16 § 31-301 C.G.S. (Rev. to 1995) makes no provision for interest payments when, as in the instant matter, another entity is deemed responsible for benefits previously paid by a payor pursuant to § 31-301(f) C.G.S. However, given that counsel for OneBeacon indicated at oral argument that his client was waiving any claim for interest, we will leave the resolution of this aspect of the claim to the discretion of the parties. BACK TO TEXT

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