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Pinto v. CNM Construction et al.

CASE NO. 5565 CRB-4-10-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 22, 2012

MANUEL PINTO

CLAIMANT-APPELLEE

v.

CNM CONSTRUCTION

EMPLOYER

and

UGLY DUCKLING HOME BUYERS

EMPLOYER

and

AMERICAN HOME & FLOOR SERVICES

EMPLOYER

RESPONDENTS-APPELLEES

and

TRAVELERS PROPERTY & CASUALTY SERVICING HARTFORD INSURANCE CO.

INSURER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

At the trial level the claimant was represented by Thomas G. Wolff, Esq., 55 Old Hawleyville Road, Bethel, CT 06801-3112. The claimant did not participate at the appellate level.

The respondent-appellee Travelers Property & Casualty was represented by Jennifer Katz, Esq., Conway & Stoughton, LLP, 643 Prospect Avenue, West Hartford, CT 06105.

At the trial level the respondent-appellee, Ugly Duckling Home Buyers, was represented by John Berchem, Esq., Berchem, Moses & Devlin, Attorneys at Law, 75 Broad Street, Milford, CT 06410. The respondent-appellee did not participate at the appellate level.

At the trial level the respondent-appellee, American Home & Floor Services, was represented by Gladys Nieves, Esq., 59 Elm Street, Suite 200, New Haven, CT 06510. The respondent-appellee did not participate at the appellate level.

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

This Petition for Review1 from the June 3, 2010 Finding and Award of the Commissioner acting for the Fourth District was heard August 26, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Christine L. Engel and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal focuses on the effective termination date of an insurance policy. The trial commissioner concluded after considering the evidence that the policy that insured the respondent-employer had terminated at 12:01 a.m. the day of the claimant’s injury, and therefore the employer was uninsured at the time of the accident. The respondent Second Injury Fund (the “Fund”) has appealed asserting that this conclusion is in error. We are not persuaded the commissioner erred in his interpretation of the contract and the applicable law. We affirm the Finding and Award and dismiss this appeal.

The following facts were found by the trial commissioner and are pertinent to our consideration of this appeal. The claimant testified that he suffered a serious injury to his right eye on October 31, 2007 when a heavy-duty metal staple came from a piece of wood he was cutting and pierced the cornea while he worked as a carpenter on the renovation of a house located at 73 Botsford Avenue, Milford. He was brought by co-workers to Danbury Hospital where he was treated and referred to Dr. Scott Seo. Dr. Seo performed surgery that day to remove the staple from the claimant’s right eye and sutured the corneal perforation. The claimant was prescribed Cipro the day of the accident and the principal of CNM Construction, LLC, Cleidson Nogueira Martins (also referred to as “Mr. Nogueira” in the Finding and Award), took him that night to Walgreen’s Pharmacy and paid $242.59 for the prescription. The claimant continued to receive treatment from Dr. Seo through May 6, 2008, when his stitch was removed.

The claimant was not able to work on a full time basis until after the stitch was removed in May, 2008. Dr. Seo has determined the claimant to be at maximum medical improvement as of April 21, 2009 with an approximate 80 percent permanent loss of his right eye and a reduction of sight to one-tenth or less of normal vision. Dr. Seo advises the claimant has seen cornea specialist Dr. Stephen Zuckerman, who recommends surgery to remove the traumatic cataract that resulted from the injury and to place an intraocular lens implant. The claimant presently owes outstanding medical bills for treatment at Danbury Hospital and Danbury Eye Physicians.

The claimant, Mr. Nogueira and a number of other contractors testified as to the nature of the claimant’s employment relationship. The principals of the premises where the injury occurred, Ugly Duck Home Buyers, LLC, also testified as to the circumstances of the renovation project. After considering this testimony the trial commissioner concluded the claimant was an employee of Mr. Nogueira, who controlled the method of transportation, what work should be done, and how it should be done. The trial commissioner found the evidence was supportive of an employer-employee relationship rather than the status of independent contractor. As a result, the claimant was entitled to temporary total disability benefits from October 31, 2007 through May 1, 2008 when he returned to work, as well as medical treatment for his injury.

The commissioner found CNM Construction, LLC had a workers’ compensation policy with Hartford Insurance Co., and its servicing carrier Travelers Property & Casualty effective from August 21, 2007 to August 10, 2008; but the carrier had cancelled the policy due to the respondent-employer’s failure to cooperate on a final audit. The chairman’s office was notified on October 11, 2007 that the cancellation was to be effective on October 31, 2007. The policy states on page 5 of 5, “D.3. Cancellation: that the policy period will end on the day and hour stated in the cancellation notice.” The cancellation notice states the policy cancellation is effective at the hour on which the policy became effective. The page following page 5 of 5, item 2 lists “the policy period is from 8-21-07 to 8-10-08 12:01 a.m.”

Based on those facts the trial commissioner found a timely notice of cancellation for CNM Construction, LLC’s policy was filed October 11, 2007 with the chairman of the Workers’ Compensation Commission pursuant to § 31-348 C.G.S. As a result, the cancellation was effective on October 31, 2007 at 12:01 a.m. and the company had no workers’ compensation insurance policy in effect when the claimant was injured late in the morning on October 31, 2007. CNM Construction, LLC was ordered to pay the disability award to the claimant as well as to pay for his medical treatment. The claim against the Hartford Insurance Co., and its servicing carrier Travelers Property & Casualty was dismissed. In the event CNM Construction, LLC failed to pay the award the Second Injury Fund was subject to an order to pay the award pursuant to § 31-355 C.G.S.

The Fund filed a Motion to Correct after the issuance of the Finding and Award. It was denied in its entirety. The Fund has pursued this appeal based on its belief the record does not support the trial commissioner’s conclusion that the respondent-employer was uninsured at the time of the claimant’s accident. The Fund admits that “we have no Connecticut case law which precisely addresses the facts of this case.” Second Injury Fund Brief, p. 9. However, the Fund suggests that the trial commissioner’s decision was somehow at odds with the precedent in National Grange Mutual Ins., Co., v. Santaniello, 290 Conn. 81 (2009).

The National Grange case dealt with whether an insurance policy offered coverage to a certain vehicle operated with “dealer plates.” The Fund finds this case relevant, although it has nothing to do with Chapter 568, as the case deals with ambiguities in insurance policies. As the Fund views the record, the notices provided canceling the insurance policy were ambiguous, and pursuant to National Grange, any ambiguity in an insurance document must be construed against the insurance carrier. Since the Fund deems the cancellation notice ambiguous, they claim the National Grange case requires the carrier to maintain coverage. We are not persuaded by this argument.

We note that in National Grange the Supreme Court upheld the decision of the lower court that there was no policy coverage in force for the claim which had been filed. It did so as it concluded the terms of the policy in question were unambiguous. “In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity…” Id., at 89. “Finally, a trial court’s resolution of factual disputes that underlie coverage issues is reviewable on appeal subject to the clearly erroneous standard.” Id., at 90. To prevail on appeal, the Fund must present a persuasive argument that the trial commissioner’s factual finding herein was clearly erroneous.

The cancellation notice states that it is effective as of October 31, 2007 “at the hour on which the policy became effective.” The policy in question states that the policy becomes effective at 12:01 a.m. It further states under Part Six, D 3, that when the policy is cancelled the policy period ends “on the date and time stated in the cancellation notice.” The trial commissioner did not find the policy or the cancellation notice ambiguous. He concluded that the policy coverage was cancelled at 12:01 a.m. on October 31, 2007. We do not find this conclusion clearly erroneous and we believe it is consistent with the reasonable expectation of the contracting parties.

We believe this is dispositive of the appeal. For the reasons stated in Atkinson v. United Illuminating Company, 5064 CRB-4-06-3 (April 19, 2007) we decline the Fund’s entreaty to consider the precedent in State Compensation Insurance Fund v. Builders Systems, Inc., 713 P.2nd 940 (Colo. App. 1985). The more recent case of Yelunin v. Royal Ride Transportation, 121 Conn. App. 144 (2010) stands for the proposition that pursuant to § 31-348 C.G.S. a worker’s compensation insurance policy may be deemed terminated pursuant to the records available at the Commission’s offices. The parties do not dispute the insurance carrier sent a cancellation notice to the Commission more than 15 days prior to the effective date of policy cancellation. We concur with the carrier’s counsel that there has been statutory compliance and the Commission records would advise a reasonable person that no insurance coverage was in place as of October 31, 2007.

The trial commissioner did not find the terms of the insurance policy or the cancellation notice ambiguous. He concluded the policy was not in force as of the hour of the claimant’s injury. The evidence and documentation support this conclusion. We find no error. We affirm the Finding and Award and dismiss this appeal.

Commissioners Christine L. Engel and Ernie R. Walker concur in this opinion.

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

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