Audi v. Blakeslee Arpaia Chapman

The claimant did not appear at oral argument, and proceeded pro se in this appeal.

The respondent-appellants were represented by James D. Moran, Jr., Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

The respondent employer was separately represented by Neil Ambrose, Esq., Letizia & Ambrose, 1764 Litchfield Turnpike, Woodbridge, CT 06525.

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

This Petition for Review from the September 9, 1996 Finding and Denial of Transfer Under C.G.S. 31-349 of the Commissioner acting for the Third District was heard May 9, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent insurer Liberty Mutual Insurance Co. has petitioned for review from the September 9, 1996 Finding and Denial of Transfer Under C.G.S. 31-349 of the Commissioner acting for the Third District. The insurer argues on appeal that the trier erred by failing to find that it provided timely notice to the Second Injury Fund pursuant to § 31-349 as amended by P.A. 95-277, § 3(b). We agree, and reverse the trial commissioner’s decision.

The facts of this case have been stipulated to by the parties. The claimant suffered a right knee injury on April 8, 1993, and was totally disabled from April 12, 1993 through February 19, 1995, for a total of 97 weeks. The respondent insurer notified the Second Injury Fund on February 8, 1995 that it was seeking transfer to the Fund pursuant to § 31-349. Notice would have been due on or about January 8, 1995, pursuant to the version of § 31-349 in effect at that time. Thus, the initial notice to the Fund was late. However, upon the passage of P.A. 95-2771, the respondent provided statutory notice to the Fund notifying it of the respondent’s intention to pursue transfer of the injury under § 31-349 as amended by P.A. 95-277. Based on these stipulated facts, the trial commissioner ruled that the respondent initially failed to file timely notice with the Fund, and that the filing of a re-notice to the Fund under P.A. 95-277 does not constitute timely notice of this claim. The respondent insurer has appealed from the trier’s dismissal of its claim.

Pursuant to P.A. 95-277, there are two types of notice that an insurer may give to the Fund regarding transfer of a claim based on an injury prior to July 1, 1995. (No injuries on or after that date may be the basis of a claim for transfer of liability to the Fund.) One of those types of notice is the re-notice required by § 3(e) of the Public Act, which concerned all claims for transfer of injuries “for which the fund has been notified prior to July 1, 1995.” The employer or insurer seeking transfer was required by the amendment to resubmit notice of its intent to pursue transfer to the Fund by certified mail prior to October 1, 1995. No filing fee was charged. The appellant alleges that it provided such notice in this case; the trier concluded, however, that the filing of re-notice did not constitute timely notice for this claim under P.A. 95-277.

We agree that the filing of a timely re-notice under § 3(e) of the Public Act would not cure a prior untimely notice under the previous version of § 31-349, which required that notice be filed at least 90 days before the 104th week of disability had passed. Section 3(e) specifically refers to claims “for which the fund has been notified prior to July 1, 1995.” By “notified,” the legislature meant properly and timely notified, rather than unsuccessfully notified. Section 3(e) clearly deals with pending notice claims that the Fund had been apprised of prior to July 1, 1995, and forces the party seeking transfer to reaffirm its intent to pursue its claim, as all claims were “deemed withdrawn with prejudice” subject to renotification by October 1, 1995. See 38 S. Proc., Pt. 15, 1995 Sess., p. 5487 (remarks of Sen. Kissel). Nowhere in this provision does the legislature evince an intent to allow parties that have missed the filing deadline in the past to resurrect those claims by “re-notifying” the Fund of their intent to seek transfer. One can not reaffirm one’s intent to pursue a claim that has already lapsed due to improper observance of § 31-349’s procedural rules.

The second type of notice contemplated by P.A. 95-277 is of a different nature than that in § 3(e). It does not deal with the resubmission of previous notices that were timely filed in order to reaffirm the pursuit of pending claims. Instead, § 3(b) provides a means by which initial notice to the Fund must be given of the intent to pursue transfer of a claim. The statute states in a very straightforward manner that the employer or insurer seeking to transfer liability for a claim must notify the Fund “no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier.” Section 3(b) also requires other materials to be submitted along with the notice, as well as a $2000 fee to cover the Fund’s costs in evaluating the claim ($1500 of which is refunded if the claim is accepted). The statute’s language does not imply that issues regarding untimely notice under the previous version of § 31-349 have any bearing on the notice requirements included in this amendment.

There is no question that this statute was intended to apply retroactively to injuries that occurred when the previous version of § 31-349 was still in effect, as injuries occurring on or after the effective date of the amended statute are not transferable to the Fund. See Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 302-303 (1997). “We presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” Id., 303. Notably, although the statute provides “three calendar years” from the date of injury within which to notify the Fund of intent to transfer liability, the legislature also created an alternate time requirement by providing that a claim must be filed within ninety days after the first 104 weeks of disability if that date occurs before the three-year period has expired. Thus, a step was taken toward shortening the time period for filing notice in certain cases.2 No line was specifically drawn between cases that could have transferred under the old law assuming timely notice and cases that were not ripe for transfer until the new law was in effect, however.

As the parties stipulated that the claimant was only totally disabled for 97 weeks, the 104-week provision in § 3(b) is inapplicable to the notice provided by the insurer in this case. Thus, the three-calendar-year time limitation is plainly apposite to this case. Here, the date of the injury was April 8, 1993, and notice was provided to the Fund on July 5, 1995, about two years and three months later. These facts, again, were stipulated by the parties. Assuming that all of the necessary elements were included with the notice provided by the insurer on July 5, 1995, including the $2000 notification fee, this claim for transfer was timely filed with the Second Injury Fund. There is simply no language in the amendment to suggest that P.A. 95-277 is inapplicable to claims in which notice previously filed under the existing version of § 31-349 was untimely.

The trial commissioner’s decision is therefore reversed, and the case remanded to him for a finding as to whether the respondent insurer’s notice otherwise complied with § 31-349, beyond the issue of timeliness. Further findings, as needed, may also follow. Of course, any contested issue regarding medical qualification for transfer would have to be referred to the three-doctor medical panel as per § 4(a) of P.A. 95-277, which is also retroactively applicable to all pending cases pursuant to Hall, supra.

Commissioners James J. Metro and John A. Mastropietro concur.

1 P.A. 95-277 went into effect on July 1, 1995. Among its provisions is § 3(b), which amends § 31-349 to provide that “[a]s a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) notify the custodian of the fund by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification (A) copies of all medical reports, (B) an accounting of all benefits paid, (C) copies of all findings, awards, and approved voluntary agreements, (D) the employer’s or insurer’s estimate of the reserve amount to ultimate value for the claim, (E) a two-thousand-dollar notification fee payable to the custodian to cover the fund’s costs in evaluating the claim proposed to be transferred and (F) such other material as the custodian may require. The employer by whom the employee is employed at the time of the second injury, or its insurer, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. Failure on the part of the employer or an insurer to comply does not relieve the employer or insurer of its obligation to continue furnishing compensation under the provisions of this chapter. The custodian of the fund shall, by certified mail, notify a self-insured employer or an insurer, as applicable, of the rejection of the claim within ninety days after receiving the completed notification. Any claim which is not rejected pursuant to this section shall be deemed accepted, unless the custodian notifies the self-insured employer or the insurer within the ninety-day period that up to an additional ninety days is necessary to determine if the claim for transfer will be accepted. If the claim is accepted for transfer, the custodian shall file with the workers’ compensation commissioner for the district in which the claim was filed, a form indicating that the claim has been transferred to the Second Injury Fund and the date that such claim was transferred and shall refund fifteen hundred dollars of the notification fee to the self-insured employer or the insurer, as applicable. A copy of the form shall be mailed to the self-insured employer or the insurer and to the claimant. No further action by the commissioner shall be required to transfer said claim. If the custodian rejects the claim of the employer or its insurer, the question shall be submitted by certified mail within thirty days of the receipt of the notice of rejection by the employer or its insurer to the commissioner having jurisdiction, and the employer or insurer shall continue furnishing compensation until the outcome is finally decided. Claims not submitted to the commissioner within said time period shall be deemed withdrawn with prejudice. If the employer or insurer prevails, or if the custodian accepts the claim all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or insurer by the Second Injury Fund.”

Also among the provisions of P.A. 95-277 is § 3(e), which states that “[a]ll claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995 of its intention to pursue transfer pursuant to the provisions of this section. No notification fee shall be required for notices submitted pursuant to this subsection. This subsection shall not apply to notices submitted prior to July 1, 1995, in response to the custodian’s request, issued on March 15, 1995, for voluntary resubmission of notices.” BACK TO TEXT

2 An additional enactment by the legislature, Public Act 96-242, § 1, sets further time limits by providing that no claim may transfer to the Fund unless all requirements have been completed prior to July 1, 1999. BACK TO TEXT