Thompson v. Ronnie Roach d/b/a Interior Specialists

The claimant was not represented at oral argument. Notice sent to Brendan Canty, Esq., Kerin & Canty, 112-120 Broad Street, Milford, CT 06460.

The respondents were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

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

This Petition for Review from the July 15, 1996 Order of the Commissioner acting for the Seventh District was heard March 14, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners John A. Mastropietro and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the July 15, 1996 Order of the Commissioner acting for the Seventh District. The Fund argues on appeal that the trier erred by allowing liability for this claim to be transferred pursuant to § 31-349 C.G.S. We affirm the trial commissioner’s decision.

The claimant began receiving benefits from the respondent insurer for a compensable injury to his lumbar back on January 30, 1989. Payment of those benefits continued through the date of the hearing. Pre-existing degenerative changes in the claimant’s back made his disability materially and substantially greater that it would have been otherwise, and the insurer sought to transfer liability for this claim to the Second Injury Fund after the 104th week of benefits was paid on January 26, 1991. Timely notice pursuant to § 31-349 normally would have been due by October 28, 1990.

The commissioner found that Pamela Keyes, a claims representative for the insurer, forwarded by certified mail a notice to the Director of Special Funds on September 11, 1989, informing him that the claimant had suffered a low back injury and that the carrier eventually would seek to transfer the claim to the Fund. A Claims Supervisor for the Fund responded that more information was required. On October 22, 1990, Keyes notified the Assistant Treasurer that voluntary agreements had not yet been issued or signed due to difficulty in obtaining the claimant’s wage information from a now-defunct employer. The letter was expressly written to avoid jeopardizing the potential transfer of this case to the Fund with late notice.

The claimant’s attorney finally procured a wage statement from the employer on February 25, 1992, and a voluntary agreement was executed in late July and approved on August 7, 1992. The insurer then sent copies of all medical reports and a copy of the voluntary agreement to the Fund on August 24, 1992. The Fund argued that those documents were received too late, and that they did not have to accept liability for the claim under § 31-349. The commissioner found that the insurer had acted reasonably under the circumstances, however, and had prevented the Fund from being unduly prejudiced or jeopardized by the delay in receiving the voluntary agreement and medical reports. Citing Marano v. Timex Corporation, 14 Conn. Workers’ Comp. Rev. Op. 207, 1774 CRB-5-93-7 (July 27, 1995), the trier ordered that responsibility for the case be transferred to the Fund. An appeal from that decision was soon filed by the Fund.

Initially, we address the trier’s denial of the Fund’s Motion to Correct. It is beyond dispute that the commissioner is the finder of fact in workers’ compensation proceedings, and that this board’s duty on review is simply to ascertain whether the trier’s findings have some basis in the evidence. We cannot retry a case on appeal by drawing our own inferences from the evidence and testimony. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). In his findings, the commissioner is required to include only the ultimate, relevant and material facts essential to the case at hand. Id., 70, citing Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). Excerpts from evidence and merely evidential facts should not be included, and reasons for the commissioner’s conclusions should also be omitted. Id.; see also Admin. Reg. § 31-301-3.

The corrections adduced by the Fund sought to add facts regarding the details of Aetna’s handling of this claim that would support an inference that Aetna’s conduct was dilatory. The commissioner denied those corrections. Clearly, he chose to draw different inferences from the facts presented to him. Adding the facts requested by the Fund either would be inconsistent with his findings, or would add “merely evidential facts” to the decision. That is not necessary under the law of this state. The factual findings in this case are best left undisturbed by this board.

The crux of this appeal is whether the trial commissioner’s order was consistent with the caselaw interpreting § 31-349.1 In Plesz v. United Technologies Corp., 174 Conn. 181 (1978), our Supreme Court explained that the object of the statutory notice provision “is to enable the fund to be apprised promptly of such a claim being made, to obtain a copy of the agreement and award and to have immediate access to all medical reports. Such information is essential to enable the fund to assess promptly its alleged liability and to establish immediately its financial reserves. A further objective is to give the fund a reasonable period of time within which to investigate the claim and to prepare to meet it.” Id., 188. It is clear that compliance with § 31-349 is a prerequisite to a transfer of liability under that section. Kiernan v. Roadway Express, 15 Conn. App. 625, 630 (1988). Whether or not the Fund was prejudiced by late notice is normally irrelevant. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395 (1993).

However, our Supreme Court also noted in Vaillancourt 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., 393 n.10. Such construction has indeed become necessary, beginning with Reising v. Electric Boat, 13 Conn. Workers’ Comp. Rev. Op. 40, 1609 CRB-2-92-12 (Dec. 6, 1994). There, this board stated that “[a]ssuming that compensability of an employee’s injury is being challenged properly, it would be unreasonable to expect a respondent to deliver a copy of a nonexistent agreement or award to the second injury fund. It would not be impossible, however, for an employer or insurer to comply with the other requirements of § 31-349(b). . . . Requiring the submission of such information is consistent with the purpose of the notice provision.” Id., 42. There, we held that the claim for transfer of liability had to be dismissed.

In later cases, notably Marano, supra, and Jaworski v. A.B. Chance Co., 3006 CRB-3-95-2 (decided Jan. 6, 1997), this board was confronted with situations where untimely notice was due to the fact that the respondents were not notified of a workers’ compensation claim until the first 91 weeks of disability had already passed. In both cases, we held that the respondents could be allowed to maintain a § 31-349 claim despite the technically late notice as long as the Fund was notified of the pending claim within a reasonable time, to be determined by the trial commissioner. We noted that it would be unjust to force the employer to accept liability for the claimant’s entire disability through no fault of its own, and would contravene the policy behind the second injury fund legislation to relieve employers from liability for preexisting impairments. Marano, supra, 210-11.

In this case, the commissioner made a determination similar to the one discussed in Marano: that the respondents had provided a copy of the voluntary agreement to the Fund within a reasonable time after it was obtained. Unlike the case in Reising, the respondents notified the Fund shortly after the claimant became disabled that they had acknowledged compensability, and intended to pursue a transfer of liability. Later correspondence explained that it was only the voluntary agreement that would be delayed. The commissioner indicated that the respondents had acted in a manner designed to avoid undue prejudice to the Fund.

Although a lack of prejudice is not relevant as a reason for excusing a late filing of notice where it could have been timely filed, see Vaillancourt, supra, it is relevant to a determination of whether a late submission should be allowed where timely notice was impossible given the facts of the case. The commissioner made findings that, given the circumstances here, the respondents acted reasonably in providing a copy of the voluntary agreement when they did. He did not accept the Fund’s argument that the respondents could have sent in an agreement without obtaining the claimant’s wage information first, and that their conduct was dilatory in this case. These are factual issues, and we will not disturb these findings on appeal. As our law allows for excuses due to “impossibility” where notice to the Second Injury Fund is at issue, we affirm the trier’s decision here.

Commissioners John A. Mastropietro and Stephen B. Delaney concur.

1 Section 31-349(a) states, in relevant part, that an employer or insurer “shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire.” BACK TO TEXT