State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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CRB Case Annotations re: Section 31-288

Additional liability. Penalty for undue delay. Penalty for noncompliance with insurance requirements.

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THESE ANNOTATIONS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY

Full texts of opinions, statutes and court decisions should be consulted and all citations and references fully researched by the reader.

The Annotations to Compensation Review Board Opinions are presented “as is” and the Commission makes no warranties as to the suitability of this information for any given purpose.
Please note also that Annotations change periodically due to several factors including, but not limited to, Appellate and Supreme Court decisions issued in workers’ compensation cases.

Kinsey v. World Pac, 5783 CRB-7-12-10 (September 17, 2013).

Claimant sought sanctions for undue delay in respondent making payments and providing COLA adjustments. Trial commissioner awarded claimant’s counsel award under § 31-300 C.G.S. for time spent prior to informal hearing wherein respondents offered to pay sanctions to settle dispute. Claimant appealed claiming commissioner should have recused herself and demanded trial de novo. Claimant also asserted issue of § 31-288 raised and should have been basis of sanctions. CRB affirmed decision. Trial commissioner has broad latitude under statute to manage proceedings and consider evidence. Hearing notices did not reference § 31-288 and trial commissioner not obligated to award benefits when issue not formally raised prior to hearing. See also, Kinsey, § 31-278; § 31-298; § 31-300; § 31-327.

Lee v. Empire Construction Special Projects, LLC, 5751 CRB-2-12-5 (August 8, 2013);

Michaelson v. Empire Construction Special Projects, LLC, 5752 CRB-2-12-5 (August 8, 2013).

Claimants injured at CT jobsite while working for MA contractor. MA insurance carrier for employer issued insurance certificate and subrogation waiver for compensation insurance for this project. MA carrier then disclaimed legal liability, asserting policy not intended to cover extraterritorial risk and citing Park v. Choi, 46 Conn. App. 596 (1997). Carrier argued that employer should be treated as an uninsured employer. CRB found this case inapplicable when carrier accepts added premium and knowingly accepts additional risk. Situation of promissory estoppel present. Carrier also argued issues of insurance coverage beyond scope of Workers’ Compensation Commission. CRB cited DiBello v. Barnes Page Wire Products, 3970 CRB-7-99-2 (March 2, 2000), aff’d, 67 Conn. App. 361 (2001) as authority to contrary. See also, Lee/Michaelson, § 31-278; § 31-286; § 31-275(9); § 31-342; § 31-343.

Mancini v. Masonicare, 5729 CRB-2-12-2 (January 29, 2013).

See also, Mancini, § 31-300; § 31-301 Factual findings; § 31-307.

Falkowski v. W. E. Bassett Company, 5711 CRB-4-11-12 (December 3, 2012).

Trial commissioner issued sanctions against counsel for failing to deliver medical reports on time, therefore delaying commissioner’s examination. Counsel appealed order, CRB affirmed factual findings and restated purpose of sanctions to prevent delays in examinations, but remanded on legal basis sanctions could only be levied against parties in a case, not attorneys.

Montenegro v. Palmieri Food Products, 5701 CRB-3-11-11 (November 15, 2012).

Claimant suffered serious work injuries which included near amputation of thumb. After injury, claimant said he could not use hand. Surveillance video showed claimant using injured hand at gas station, holding hands et al. Trial commissioner relied on expert opinions claimant had work capacity and granted Form 36’s. Claimant argued respondent should be sanctioned for delays in hearing process. CRB upheld trial commissioner’s denial of sanctions, question is one of discretion on trial commissioner’s part Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008). See also, Montenegro, § 31-294d; § 31-300; § 31-301 Factual findings; § 31-307.

Gendron v. Griffin Health Services Corporation, 5686 CRB-4-11-10 (October 11, 2012).

In a wide-ranging appeal, claimant challenged trial commissioner’s failure to find respondents unduly delayed indemnity payments and denial of interest, penalties and attorney’s fees. Claimant appealed trier’s determination that hands-free telephone device, IPad and aquatic therapy did not constitute reasonable or necessary medical care such that claimant was entitled to reimbursement for out-of-pocket costs. CRB affirmed findings relative to indemnity payments and medical care, noting that record supported trier’s inferences regarding claimant’s credibility and trier reasonably relied upon evidence in support of respondents’ assertion that indemnity payments were timely. CRB also held that trier reasonably inferred that claimant did not meet burden of proof necessary to establish that medical treatment for which she sought reimbursement satisfied standard for curative care as articulated in Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (June 19, 1984). CRB remanded on issue of whether respondents unduly delayed mileage reimbursements as findings suggested trier may not have reviewed all of claimant’s exhibits in support of that claim of error. CRB denied claimant’s two motions to file additional evidence. See also, Gendron, § 31-294d; § 31-300; § 31-301 Factual findings; § 31 301-4; § 31-301-9; § 31-308(a).

Lewis v. State/Department of Correction, 5677 CRB-4-11-8 (August 15, 2012).

Claimant injured as prison guard and resigned prior to being deemed totally disabled. Parties later executed voluntary agreement accepting case under § 5-142(a) C.G.S. After claimant had received 5 years of full disability benefits, he noticed he had not received annual increments and claimed same. Trial commissioner awarded increments and found unreasonable contest and undue delay. Respondents appealed, arguing members of “inactive payroll” not entitled to annual increments. CRB affirmed trial commissioner. Plain meaning of statute made it mandatory obligation to compensate disabled hazardous duty workers at same rate as active employees for 260 weeks. Legislative history and principles of statutory construction were unsupportive of respondent’s argument. Respondent failed to perform statutory obligation. Respondent’s laches argument that claimant waited too long unmeritorious on appeal, trial commissioner resolved facts in adverse manner to respondent. Failure to perform statutory obligation creates factual predicate to levy sanctions, see Wikander, et al v. Asbury Automotive Group/David McDavid Acura, 5586 CRB-4-10-9 (September 8, 2011). See also, Lewis, § 5-142(a); § 31-300.

Bass v. AT & T, 5621 CRB-7-11-1/5634 CRB-7-11-3 (May 3, 2012).

Claimant challenged multiple rulings by trier associated with the issuance of a “form” fine letter imposing sanctions pursuant to § 31-288(b)(2) C.G.S. arising from counsel’s failure to appear at informal hearing. Trier initially denied claimant’s Motions to Correct and Articulate and, following penalty hearing in which trier determined no grounds existed to vacate sanctions, denied claimant’s Motions to Vacate, Recuse, and Reargue and Open Hearing. On appeal, claimant’s counsel asserted that entry of order for sanctions prior to evidentiary hearing constituted due process violation and also alleged that trier erroneously: denied Motions to Correct, Articulate, Vacate, and Reargue and Open Hearing; scheduled “moot” evidentiary hearing after penalty was assessed; refused to allow counsel to present legal argument at penalty hearing; failed to disqualify herself or allow herself to be called as a witness; and found facts not in evidence. Consistent with Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280 (2011), CRB reversed, noting that because neither fine letter nor trier’s ruling on Motion to Vacate contained specific findings relative to circumstances surrounding claimant’s counsel’s failure to appear at penalty hearing, record did not substantiate trier’s conclusion that counsel’s failure was unreasonable or without good cause. See also, Bass, § 31-301 Factual findings; § 31-301-04.

Flamenco v. Independent Refuse Service, 5600 CRB-7-10-10 (November 2, 2011).

Claimant challenged trier’s imposition of sanctions due to counsel’s failure to appear at informal hearing. Claimant initially appealed sanctions letter on basis that trier had taken no evidence which would substantiate findings of undue delay; CRB remanded citing lack of formal record. Claimant next appealed order arising from penalty hearing in which trier determined no grounds existed to vacate sanctions. Claimant alleged multiple due process violations, citing as error trier’s failure to disqualify herself, scheduling of evidentiary hearing after penalty was assessed, issuance of sanctions letter prior to evidentiary hearing, and inadequate notice of penalty hearing. Claimant also appealed trier’s failure to grant Motion to Correct. Following parties’ appearance before CRB at oral argument but prior to release of CRB opinion, Appellate Court handed down Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280 (2011) holding that original CRB remand was in error as sufficient record existed for CRB to rule on the matter. Appellate Court also found record failed to substantiate trier’s findings of undue delay and remanded matter with directive to vacate sanction. See also, Flamenco, § 31 300; § 31-301 Factual findings; § 31-301-04.

Diaz v. Capital Improvement & Management, LLC, 5616 CRB-1-11-01 (January 12, 2012).

Uninsured respondent challenged fine levied by state treasurer’s office. CRB upheld fine as supported by evidence and amount was authorized by statute. See also, Diaz, § 31-275(9); § 31-275(10); § 31-291; § 31-294c.

Ghazal v. Cumberland Farms, Inc., 5397 CRB-8-08-11 (November 17, 2009).

Claimant suffered compensable back and psychiatric injuries. After receiving authorization for back surgery in the U.S. from trial commissioner, claimant decided against back surgery and relocated to home nation of Jordan to obtain psychiatric treatment. Respondents challenged reasonableness of treatment. Trial commissioner found for claimant, and ordered sanctions levied against the respondents for undue delay. CRB reversed commissioner on issue of sanctions. Subordinate facts on the record did not permit an inference the respondents had taken actions to “unduly” delay payments; medical evidence was not undisputed and proximate cause of delays was claimant’s unilateral decision to relocate to foreign country. See also, Ghazal, § 31-294d, § 31-301. Appeal procedure, § 31-301. Factual findings, § 31-301-9. Additional evidence, § 31-307.

Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008).

Claimant sought medical treatment which CIGA, successor to respondent’s insurance carrier, approved at informal hearing, and then failed to pay provider. Trial commissioner levied sanctions against CIGA for undue delay. CIGA appealed, arguing state statutes made them immune to sanction by commissioner. CRB upheld trial commissioner. Power to levy sanctions among core powers of trial commissioner; CIGA statute requires them to administer claims as if they were solvent insurer. See also, Potvin, § 31-300, § 31-301. Appeal procedure.

Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008).

Claimant sought attorney’s fees and interest as a result of receiving fewer than ten benefit checks each less than two weeks late. Trial Commissioner determined delay was excusable. On appeal, CRB upheld decision. Whether to sanction respondent under these facts was clearly a judgment call for trial commissioner, whose decision did not vitiate logic. See also Kuhar, § 31-300, § 31-301. Appeal procedure.

McFarland v. State/Dept. of Developmental Services, 5176 CRB-5-06-12 (December 21, 2007), aff’d in part; rev’d in part, 115 Conn. App. 306 (2009).

See also, McFarland, § 31-301. Appeal procedure, § 31-307, § 31-300, § 31-310.

Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007).

Trial commissioner found employer had no worker’s compensation insurance but declined to impose statutory penalty on employer. Claimant appealed asserting such penalty is mandatory. CRB upheld trial commissioner. Claimant lacked standing to raise issue and entire text of statute makes the Second Injury Fund the sole entity empowered to demand such a penalty. See also, Hernandez, § 31-295(c), § 31-301. Factual findings, § 31-307, § 31-308(b), § 31-294d.

Hummel v. Marten Transport, LTD., 5080 CRB-5-06-4 (April 19, 2007), aff’d, 114 Conn. App. 822 (2009), cert. denied, Conn. (2009).

CRB reviewed appeal taken from commissioner’s ruling following board’s remand order in Hummel v. Marten Transport, LTD., 4760 CRB-5-03-12 (November 19, 2004). Trier found respondents willfully failed to make payments pursuant to § 31-301(f) and imposed sanctions pursuant to § 31-288(a). Trier also found respondents unduly delayed payments and imposed penalties in accordance with 31-288(b). See also, Hummel, § 31-300, § 31-301(f), § 31-303, § 31-306, § 31-307(e).

Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006).

Claimant injured falling on ice. Respondents did not schedule medical examination for nearly ten months. Results of medical examination corroborated treating physician’s opinion claimant suffered compensable injury. Respondent did not execute a Voluntary Agreement, rather they continued to contest claim. See also, Duffy, § 31-275(1), § 31-294b, § 31-300, § 31-301. Factual findings, § 31-307, § 31-308a.

Barnes v. Waterbury Hospital, 4941 CRB-5-05-5 (April 7, 2006).

See, Barnes, § 31-298.

Audi v. Blakeslee Arpaia Chapman, 4624 CRB-3-03-12, 4311 CRB-3-00-10 (February 10, 2004).

See, Audi, § 31-278, § 31-284(b)(self-insured employer is responsible for fines associated with undue delay in administering claims, even if delay was attributable to allegedly unauthorized acts of agent), § 31-300. See prior decisions Audi, 3418 CRB-3-96-9 (August 4, 1997), § 31-349 and Audi, 4151 CRB-3-99-11, 4234 CRB-3-00-5 (June 26, 2001), § 31-296, § 31-298, § 31-301-9, § 31-307, § 31-315.

Chung v. Wal-Mart, 4474 CRB-2-02-1 (November 13, 2002).

Respondents appealed from trier’s imposition of fine for failure to appear at formal hearing as per § 31-288(b)(2). Respondents argued that hearing notice did not comply with § 31-297, as it did not provide ten days notice. Also, they claimed notice was received after hearing took place. As fine was imposed at an informal hearing, CRB remanded matter in order to provide parties opportunity for a formal hearing. However, CRB noted that § 31-297 vests commissioners with the authority to waive the 10-day notice requirement when emergency circumstances exist. See also, Chung, § 31-301. Appeal procedure, § 31-297.

McCurrey v. Nutmeg Express, 4342 CRB-5-01-1 (January 3, 2002).

Respondent Nutmeg Express was a sole proprietorship through May 3, 2000, at which time it became incorporated. Claimant was injured in June 2000, and employer had no insurance for workers’ compensation liability. Commission notified “Nutmeg Express” of pending action and upcoming hearing on sanctions, but did not separately notify the sole proprietor of the unincorporated incarnation of Nutmeg Express. At formal hearing, trier indicated to respondents’ counsel that he would allow another hearing at which testimony could be taken regarding employer’s understanding of coverage requirements. No hearing had yet been held when trier issued order individually fining both sole proprietor and Nutmeg Express, Inc. for failure to maintain required insurance coverage for a total of six employees from January 1, 2000 forward. CRB reversed imposition of sanctions under § 31-288(b) and (c), and ordered that another hearing be held for which sole proprietor must be individually notified. See also, McCurrey, § 31-300, § 31-310.

Riebe v. Ralph Silvestro, Jr., 3886 CRB-4-98-9 (November 30, 1999).

CRB noted that the facts indicated the respondent did not have workers’ compensation insurance. Board thus remanded the case for findings pursuant to § 31-288(c), which requires a trial commissioner to assess a civil penalty against an employer who has failed to comply with the insurance requirements of § 31-284(b). See also, Riebe, § 31-275(1).

Melendez v. Warner’s, 3772 CRB-4-98-2 (April 23, 1999).

Respondents appealed § 31-288(b) fine for delay of proceedings, arguing that there was no delay, and trier had improperly ordered them to begin cross-examination of the claimant. Because final adjudication of underlying proceedings had not been reached, CRB ruled that practical review was impossible, and consideration of the appeal was premature. See also, Melendez, § 31-301. Appeal procedure.

Duntz v. Ales Roofing & Caulking Co., 3771 CRB-6-98-2 (December 22, 1998).

Trier found that claimant was employee of respondent, who appears to have had no workers’ compensation insurance. Appeal was dismissed, but case remanded for hearing on penalties under § 31-288, which are mandatory. See also, Duntz, § 31-301. Appeal procedure.

Baribault v. Harben Flooring Co, Inc., 3579 CRB-7-97-3 (June 4, 1998).

Trial commissioner imposed $15,000 fine against employer for failure to carry workers’ compensation insurance. CRB explained why regulations regarding fines had not been published, and enumerated the factors that were included in guidelines that chairman distributed to commissioners. No findings had been made regarding basis for fine, so CRB remanded matter for new hearing as to amount of fine. See also, Baribault, § 31-278, § 31-301-4. Correction of finding.

Potts v. Stamford, 3539 CRB-7-97-2 (May 4, 1998).

CRB reversed commissioner’s order fining claimant’s counsel $100 for failing to appear at hearings without a request for postponement. Counsel in fact sent a fax to the Commissioner the day before the hearings. Further, no hearing was held on the issue of the fine, thus making a meaningful appeal impossible.

State v. Champagne, 16 Conn. Workers’ Comp. Rev. Op. 245, 3269 CRB-8-96-1 (June 24, 1997).

Business owner did not have workers’ compensation insurance in effect when Second Injury Fund investigator visited construction site, even though owner said he had three employees. Investigator issued citation for failure to comply with § 31-284(b). At hearing, respondent testified that he had no insurance currently, but also had no employees. He admitted that there had been people working for him the day he was cited, but said he thought they had their own insurance. The trial commissioner issued no written findings, but made oral findings that he believed that the respondent did not willfully ignore the law, and that he had no jurisdiction over the case because the respondent currently had no employees, and there was no alleged injury. Held: § 31-288(c) provides that a commissioner shall assess a civil penalty whenever he finds an employer is not in compliance with § 31-284(b)’s insurance requirements. The element of knowledge and willful noncompliance is only relevant to the question of whether the employer has committed a class D felony under § 31-288(b). As there are no written findings or conclusions here, this board cannot determine whether there is a factual basis for a civil penalty. CRB cannot make its own findings based on testimony in the record. Remanded so that findings can be made and law applied as discussed. See also, Champagne, § 31-300.

Dowling v. Slotnik, 3062 CRB-4-95-5, 3277 CRB-4-96-2 (February 5, 1997), aff’d, rev’d and remanded, 244 Conn. 781 (1998)(with dissenting opinion).

Unawareness of law requiring workers’ compensation insurance is not a valid reason for failure to obtain it, and does not prevent trial commissioner from imposing maximum fine. Supreme Court reversed the trial commissioner’s imposition of a $10,000 fine for failure to carry insurance, as evidence did not support the imposition of the maximum fine, and remanded for determination of a lesser fine. See also, Dowling, § 31-275(9), § 31-288, § 31-301. Appeal procedure, and § 31-307. Subsequent decision at Dowling, 3468 CRB-4-96-11 (May 6, 1998), § 31-290, § 31-296, § 31-301. Appeal procedure, § 31-301(f).

Proto v. Kenneth Grant d/b/a Kenney G’s Irish Pub, 16 Conn. Workers’ Comp. Rev. Op. 129, 3030 CRB-8-95-3 (November 26, 1996).

The employer contended that the fine imposed by the trial commissioner of $3,407.35 for failure to have insurance was excessive, as the employer is a small family-run business, and its failure to carry insurance was due to ignorance. CRB affirmed the trial commissioner’s fine which was within the statutory limits of § 31-288(c). See also, Proto, § 31-297.

Park v. New York State Insurance Fund, 16 Conn. Workers’ Comp. Rev. Op. 8, 2216 CRB-1-94-11 (October 3, 1996), rev’d, 46 Conn. App. 596 (1997).

Claimant sustained a compensable injury to his eye while removing asbestos at a job site in Connecticut. The employer was insured for workers’ compensation liability by the New York Fund at the time of the injury. Accordingly, the trial commissioner ordered the employer and its insurer to pay the workers’ compensation award. In addition, the trial commissioner stated that if the employer and its insurer failed to pay the award within ten days, the Second Injury Fund must pay the award pursuant to § 31-355(b). In support of its appeal, the New York Fund contends that the insurance policy only covered injuries which occurred in New York, and that it is legally inconsistent for the trial commissioner to impose a penalty on the employer for failure to carry insurance pursuant to § 31-288(c) while ordering the New York Fund to pay the claim. CRB held that trial commissioner’s order against both the employer and its insurer was supported by the language of § 31-343. CRB further ruled that § 31-288(c) penalty should be held in abeyance until another forum decides whether the employer’s insurance policy provides proper coverage. Reversed and remanded by Appellate Court, which held that the insurance policy clearly limited coverage to injuries which occurred in New York, and thus § 31-343 does not apply. See also, Park, § 31-343, § 31-355(b).

Simeone v. Pace Motor Lines, Inc., 12 Conn. Workers’ Comp. Rev. Op. 149, 1518 CRB-4-92-9 (April 13, 1994).

Penalty imposed under § 31-288(b) where trier found employer failed to pay compensation and had delayed hearing process. Additionally, matter remanded with direction to provide notice and conduct a hearing wherein employer will be allowed the opportunity to be heard on issue of noncompliance where penalty imposed by trier pursuant to § 31-284c was misapplied. Applicable statute for imposing this type of penalty is § 31-288(c). See also, Simeone, § 31-284c.

Conrad v. Herbert Fuel, 11 Conn. Workers’ Comp. Rev. Op. 119, 1486 CRB-7-92-8 (June 11, 1993).

CRB considered and granted claimant’s motion pursuant to § 31-288 as respondents failed to comply with previous CRB order issued pursuant to § 31-301(a).

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