Hall v. Bilow Builders, Inc.

The claimant was not represented at oral argument. Notice sent to Kevin Coombes, Esq., 107 Oak St., Hartford, CT 06106.

The respondent-employer was represented by Bernard Poliner, Esq., 221 Main St., Hartford, CT 06106.

The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 26, 1995 Finding and Award of the Commissioner acting for the First District was heard January 12, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent Second Injury Fund has petitioned for review from the January 26, 1995 Finding and Award of the Commissioner acting for the First District. This appeal presents the issue of whether an uninsured employer can transfer liability for a claim to the Second Injury Fund pursuant to § 31-349 C.G.S. We reverse the trial commissioner’s decision allowing transfer.

The trial commissioner made the following findings of fact, which are not disputed by the parties. The claimant suffered a compensable back injury on October 11, 1991. The respondent employer, who was uninsured on the date of injury, paid 104 weeks of benefits and notified the Second Injury Fund of its intent to transfer liability. The Fund acknowledged timely receipt of the notice, but refused to accept a transfer of liability, alleging that the employer’s failure to carry workers’ compensation insurance on the date of injury now deprives it of the benefit of transfer.

The Fund contends that the commissioner improperly transferred liability to it pursuant to § 31-349 C.G.S. The Fund points to Champlain v. Parnes, 14 Conn. Workers’ Comp. Rev. Op. 113, 1860 CRB-2-93-9 (June 2, 1995), as governing precedent in this case. Champlain established that an employer will not receive the benefits of a § 31-349 transfer if, at the time of the injury, it is not in compliance with §§ 31-284 and 31-354 C.G.S. The employer asks that this board reconsider the Champlain decision and adopt a conclusion that allows employers to receive the benefits of a § 31-349 transfer, whether or not they fail to comply with the requirements of §§ 31-284 or 31-354.

The purpose of § 31-349 was1 to prevent discrimination against handicapped workers while providing workers’ compensation benefits to such workers, and “to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment.” Hernandez v. Gerber Group, 222 Conn. 78, 82 (1992). In Champlain, this board concluded that the legislature did not intend for uninsured employers to have access to such relief. Section 31-284 C.G.S. requires all employers with one or more employees to procure workers’ compensation insurance or to obtain a certificate of self-insurance as a condition of doing business in Connecticut. Section 31-354 provides that an employer’s failure to pay the Second Injury Fund’s assessment when due will “. . . result in the denial of the privilege of doing business in this state . . . .” Allowing uninsured employers to take advantage of § 31-349 would have weakened employers’ incentive to obtain insurance, which is an important goal in our workers’ compensation system. Champlain, supra, 116. Such action would also unfairly force employers who comply with § 31-354 by paying their assessments to fund the full burden for second injuries, while employers who are operating outside the system reap the benefit of the Second Injury Fund.

The employer points out that there is no evidence that it did not comply with § 31-354, and that the only testimony toward that issue indicated that Bilow Builders had not received a notice of assessment from the Fund. This may very well be true; however, we also note that assessments under § 31-354 are not to be greater than “five percent of the total amount of money expended by the employer, by a private insurance carrier on his behalf, by an interlocal risk management agency on his behalf or by the Fund pursuant to section 31-355 in payment of his liability under this chapter for the preceding calendar year.” If an employer is not in compliance with § 31-284, and has no recent claim history with the Fund, it would be impossible for the Fund to calculate the amount of the employer’s assessment in the first place. Thus, the defense that the employer in this case did not receive a statement is not an appropriate ground to distinguish this case from Champlain.

The respondent has not set forth any arguments persuasive enough to warrant a reversal of our decision in Champlain. Therefore, we reaffirm that decision, and apply its rationale here.

The trial commissioner’s decision is reversed.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 P.A. 95-277, § 3 amended § 31-349 to prevent an employer from transferring any claim based on an injury occurring on or after July 1, 1995 to the Second Injury Fund under that section of the Workers’ Compensation Act. We note that our interpretation of the meaning of the statute in this case is not affected by this subsequent change in the law, as our duty is to determine the meaning of § 31-349 as it existed on the October 11, 1991 date of injury. Thus, policy considerations that are less relevant in light of the 1995 amendment will still be considered in determining the legislature’s intent behind § 31-349 circa 1991. BACK TO TEXT