State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Jaworski v. A.B. Chance Co.

CASE NO. 3006 CRB-3-95-2



JANUARY 6, 1997
















The claimant was represented by Christopher Carveth, Esq., Stevens, Carroll & Carveth, 26 Cherry Street, P. O. Box 432, Milford, CT 06460.

The respondents were represented by Scott W. Williams, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.

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

These Petitions for Review from the February 15, 1995 Finding and Denial of the Commissioner acting for the Third District were heard April 19, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Michael S. Miles.


JESSE M. FRANKL, CHAIRMAN. The claimant and respondents have both petitioned for review from the February 15, 1995 Finding and Denial of the Commissioner acting for the Third District. The respondents appeal the commissioner’s denial of transfer of liability for their claim to the Second Injury Fund, while the claimant appeals the commissioner’s denial of his claim for a specially equipped motor vehicle that can carry his motorized wheelchair. We sustain both the respondents’ and the claimant’s appeals, and remand this matter for further proceedings.

The claimant’s right knee was injured on October 27, 1987. A voluntary agreement accepting that injury was approved on July 10, 1991. Several months later, a commissioner approved a stipulation to date reciting that the claimant asserted a claim for total disability benefits from October 27, 1987 onward, and that the respondents had contested that claim on jurisdictional grounds. The respondents also maintained that the claimant’s failure to assert his claim until October 20, 1989 prejudiced their potential right to transfer the claim under § 31-349 C.G.S., and that this should be taken into account in any award of total disability payments.

The trial commissioner indeed found that the claimant was suffering from rheumatoid arthritis prior to his injury, and that the combination of that condition and his compensable injury left him totally disabled. He specified in his findings that the 1987 injury alone would not have caused total disability. Regarding notice to the Fund, the commissioner found that a request for transfer was first made on March 27, 1990, and that the approved voluntary agreement was sent to the Fund on June 25, 1991. Because § 31-349 C.G.S. requires notice to be sent to the Fund during what amounts to the first ninety-one weeks of disability, and that time deadline was not met here, the commissioner ruled that the respondents’ request for transfer had to be denied pursuant to precedential decisions such as Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993), even though he believed that their argument had merit.

Although decisions such as Vaillancourt, supra, and Davis v. Norwich, 232 Conn. 311 (1995), have required strict compliance with § 31-349 in other factual scenarios, our Supreme Court has noted that “further construction of the notice provision, when and if it becomes necessary, would not require a type of notice that is impossible to give.” Vaillancourt, supra, 392-93 n. 10. This board was faced with such a situation in the recent case of Marano v. Timex Corporation, 14 Conn. Workers’ Comp. Rev. Op. 207, 1774 CRB-5-93-7 (July 27, 1995). There, the claimant did not present the respondent with a claim for workers’ compensation benefits until after the § 31-349 filing deadline had passed, thus preventing the respondent from ever having an opportunity to file a timely claim with the Fund. The respondent did file notice with the Fund within two months after finding out about the claim. The trial commissioner dismissed the claim because notice was late.

This board reversed the trial commissioner’s dismissal of the claim for transfer on two grounds. First, § 31-349(b) contemplates a “pending case” as the subject of notification to the Fund; if the claimant has not yet filed a claim, there would appear to be no case pending. Second, it would have been an unreasonable interpretation of the statute to require perfect compliance in light of the policy of the Second Injury Fund legislation to relieve employers of the hardship of liability for injuries unrelated to a claimant’s employment. Instead, we held that in cases where a compensation claim is not filed until after the Fund notification period lapses, “the solution most compatible with [legislative policy] is to give the employer a reasonable time, to be determined by the commissioner, within which to notify the Fund of the pending case.” Id., 210.

Similarly, the respondents in this case were not apprised of a Connecticut workers’ compensation claim until after the claimant had been disabled for virtually the entire 104-week period contemplated in § 31-349. Thus, the respondents never had an opportunity to file timely notice with the Fund. The trial commissioner believed that he was constrained by prior decisions to deny the transfer of liability in this instance; however, our decision in Marano had not yet been issued at the time of the Finding and Denial. As we did in Marano, we reverse the trier’s decision and remand this case to the Third District in order to determine if the respondents notified the Fund of the claimant’s pending claim within a reasonable time.

Turning to the claimant’s cross-appeal, we note certain additional facts. The commissioner found that the claimant’s condition has deteriorated to the point where he requires a motorized wheelchair to move about independently. The respondents have already paid for modifications to the claimant’s home creating wheelchair access between the claimant’s residence and his driveway. The commissioner concluded that the claimant had not met his burden of proving that a specially equipped motor vehicle should be purchased for him by the respondents, however, finding that no estimate of the price of such a vehicle had been introduced into evidence. The claimant argues on appeal that his total disability and handicapped status are uncontradicted, and that under these facts, a motor vehicle capable of transporting the motorized wheelchair should be provided as a matter of law. The claimant did not file a Motion to Correct, so the subordinate factual findings are presumed to be accurate. See Krajewski v. Atlantic Aerospace Textron, 15 Conn. Workers’ Comp. Rev. Op. 44, 2120 CRB-6-94-8 (Nov. 28, 1995).

The claimant’s argument that he needs a special van is premised on his contention that he cannot lift his admittedly necessary motorized wheelchair into his regular vehicle. Without the ability to transport his wheelchair, he would obviously be unable to move around effectively away from home. We recognize that it is the province of the trial commissioner to accept or reject the testimony of witnesses, and to draw inferences from the evidence in making factual findings. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Thus, the commissioner was not required to accept Dr. Goler’s testimony that the claimant is unable to assemble or lift his wheelchair. Id.; see October 20, 1994 Tr., p. 26. We certainly cannot order a finding that the claimant requires a motorized wheelchair as a matter of law, especially in a case where no Motion to Correct was filed.

However, Connecticut case law does say that when a commissioner’s legal conclusion results from an incorrect application of the law to the facts, or from an inference unreasonably or illegally drawn from them, this board should intervene. Crochiere v. Board of Education, 227 Conn. 333, 347 (1993). We may order a remand in cases where the facts found are inconsistent with the commissioner’s conclusion. Lourenco v. Cammisa, 13 Conn. Workers’ Comp. Rev. Op. 118, 119, 1661 CRB-1-93-3 (Jan. 31, 1995). Here, there is no dispute that the claimant needs a motorized wheelchair, and modifications have been made to his residence. It is certainly plausible that he would need a special vehicle to transport that wheelchair as well; in such a case, that vehicle would qualify as a reasonable medical necessity under § 31-294d C.G.S.

In reaching his conclusion that the claimant had not met his burden of proof on this issue, the commissioner did not expressly consider the claimant’s ability or inability to lift his wheelchair into his existing vehicle. Instead, he appears to have solely relied on the fact that the claimant had not shown the cost of a special van. Given the potential importance of this decision to the claimant’s ability to resume activity in society, we do not believe that all of the necessary factors were considered in this decision. The real issue, as anticipated by the claimant, is whether or not the claimant is able to function without a special motorized van. Thus, we vacate the commissioner’s denial of the claimant’s request for a special van, and order that the medical necessity of such a vehicle be considered on remand.

The trial commissioner’s decision is reversed, and the case is remanded to the Third District for further proceedings consistent with this opinion.

Commissioner Michael S. Miles concurs.

ROBIN L. WILSON, COMMISSIONER, DISSENTING IN PART. I concur with the other members of this review panel in the opinion regarding the claimant’s cross-appeal. I disagree, however, with their decision in the initial appeal reversing the commissioner’s denial of transfer to the Second Injury Fund. An administrative body like the Workers’ Compensation Commission must act strictly within its statutory authority, and cannot abridge or modify the provisions that empower it to act. Figueroa v. C&S Ball Bearing, 237 Conn. 1, 4 (1996). Where a cause of action such as the right to transfer liability to the Second Injury Fund is statutorily created, strict compliance with the notice procedures of the enabling statutes is essential. Fresta v. Connecticut Mason Contractors, Inc., 43 Conn. App. 732, 737 (1996); Misiurka v. Maple Hill Farms, Inc., 15 Conn. App. 381, 384 (1988). Our courts have repeatedly stated that payment from the Fund can be made only in accordance with express statutory authority, the absence of which has been held fatal to claims for compensation from the Fund. Civardi v. Norwich, 231 Conn. 287, 294 (1994); Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993); see also Going v. Cromwell Fire District, 159 Conn. 53, 61 (1970).

In this case, it is manifest that notice was not provided to the Fund within the period prescribed by § 31-349. The majority creates an exception to the strict compliance rule, however, relying in part on language in the Vaillancourt decision, supra, suggesting that “further construction of the notice provision, when and if it becomes necessary, would not require a type of notice that is impossible to give.” Id., 392-93 n.10. I do not agree that it is compatible with legislative policy to give the employer extra time to file notice with the Fund where the claimant has not filed a claim until after the notification period has lapsed. The language cited by the majority in Vaillancourt is dicta, and should not be considered persuasive authority. See State v. Ouellette, 190 Conn. 84, 91 (1983) (cases generally resolve only the issues explicitly decided).

There is no exception in § 31-294c C.G.S. from the one-year filing deadline for notices of claim based on accidental injuries. See, e.g., Keegan v. Aetna Life & Casualty, 13 Conn. Workers’ Comp. Rev. Op. 340, 1793 CRB-1-93-8 (April 27, 1995) (claimant’s lack of awareness of relationship of hip injury to chondromatosis did not excuse late filing of claim). Furthermore, both our Appellate Court and this board have recently reaffirmed the absence of a “lack of knowledge” exception to the one-year notice period for filing a claim based on a repetitive trauma injury. Discuillo v. Stone & Webster, 43 Conn. App. 224, 226-27 (1996); Dorsey v. UTC/Norden Systems, 2268 CRB-7-95-1 (Sept. 6, 1996). We noted in Dorsey that the legislature had not changed the statute of limitations regarding repetitive trauma claims when it created that class of claims in 1947, and declined to read an exception into the statute for cases where the claimant was unaware of the connection between his injury and his employment until the notice period had passed. Similarly, the language of § 31-349 contains no exception to the notice period based on a claimant’s failure to file a claim before that time has lapsed. It would be the legislature’s prerogative to create an exception in either of those situations, rather than this board’s.

In Vaillancourt, our Supreme Court expressly cited the need for the Fund to be able to ascertain its liability, to establish its financial reserves, and to have a reasonable time within which to investigate and defend the claim. Id., 392. Vaillancourt is part of a line of cases in which § 31-349 has been interpreted strictly and according to the plain meaning of its language. See also Six v. Thomas O’Connor & Co., 235 Conn. 790 (1996); Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14 (1995). Stare decisis is an important principle in American jurisprudence, particularly where the interpretation of a statute is involved. Santopietro v. New Haven, 239 Conn. 207, 211 (1996). I believe that the creation by this board of an exception to the § 31-349 notice requirement would be inconsistent with that doctrine, as well as being unfounded in our law. Accordingly, I dissent from the majority’s resolution of the respondent’s appeal.

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