State of Connecticut Second Injury Fund v. J & R Champagne Construction

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

The respondent employer Jean Champagne was not represented at oral argument, and represented himself in the proceedings below. Notice sent to Jean Champagne, 380 Hitchcock Road, Apt. 202, Waterbury, CT 06705.

This Petition for Review from the February 8, 1996 Order of the Commissioner acting for the Seventh District was heard November 1, 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. In this case, a Second Injury Fund investigator visited a construction site on November 8, 1995, and was told upon inquiry that the business owner did not have workers’ compensation insurance in effect. The owner, Jean Champagne, said that he had three employees under his control working on the job site. The investigator issued the respondent a citation notifying him to appear at a hearing for failure to comply with the insurance requirements of § 31-284(b) C.G.S.

The respondent appeared at the hearing and testified that he currently had neither workers’ compensation insurance nor employees, but that he would get such insurance as soon as he started his next framing job. He admitted that he had people working with him on the date of the citation, but said that he thought they were subcontractors who had their own insurance policies. He acknowledged that these men had been working under his control, and had been paid by the hour and provided with some tools. He also testified that he provided them with W2 forms for part of the work, and that he would give them 1099 forms for the remainder of the time period. (Transcript, p. 6-7, 10-14).

The commissioner issued no written findings, but made two oral ones. First, he found that the respondent believed that his alleged employees were subcontractors on November 8, 1995, and that there was no willful noncompliance with the law. Second, he found that he had no jurisdiction over the case because the respondent no longer had employees, and there was no alleged injury. Thus, he declined to issue any fines for noncompliance. Id., 17-18. The Second Injury Fund has appealed that ruling.

Public Act 95-277 took effect on June 29, 1995. That act amended § 31-288(c) C.G.S. to provide that whenever the commissioner finds that an employer is not in compliance with the insurance and self-insurance requirements of § 31-284(b), he “shall assess a civil penalty” between $500 per employee (up to ten employees) and a maximum total of $50,000 against the employer. (Emphasis added.) The commissioner is also required to assess an additional $100 fine for each day after the finding of noncompliance that the employer fails to comply with insurance requirements. Section 31-288(d). 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(f), or whether a civil penalty is appropriate for undue delay under § 31-288(b). It would therefore appear from the transcript that the commissioner misapplied the law in this case.

Normally, it is difficult for this board to review an unwritten decision because of the lack of a suitable record. Lee v. ABB Combustion Engineering, 14 Conn. Workers’ Comp. Rev. Op. 157, 158, 2134 CRB-1-94-8 (June 27, 1995); see also Coles v. Star, Inc., 16 Conn. Workers’ Comp. Rev. Op. 67, 68, 3239 CRB-7-95-12 (Oct. 25, 1996); § 31-301(a) C.G.S. Although there is a transcript available here, which is helpful, the trial commissioner made no written factual findings or conclusions. Thus, we are unable to determine whether there is a factual basis for imposing a civil penalty, as this board cannot make findings of its own based on the testimony in the record. See Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). We therefore reverse the commissioner’s decision, and remand this case to the Seventh District so that factual findings may be made and conclusions reached in accordance with the law as discussed above.