Casey v. Northeast Utilities

The claimant was represented by Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

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

This Petition for Review from the October 18, 1995 Finding and Award of the Commissioner acting for the Sixth District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund (hereinafter “Fund”) has petitioned for review from the October 18, 1995 Finding and Award of the Commissioner acting for the Sixth District. In that decision, the trial commissioner assessed a monetary penalty on the Fund for its failure to pay an award within ten days. The trial commissioner issued the penalty pursuant to § 31-303, as amended by P.A. 93-228, §14, which provides for the imposition of a fine for failure to make payments within ten days following a voluntary agreement or award. In support of its appeal, the Fund contends that the penalty provision of § 31-303 applies only to an “employer” and does not apply to the Fund. Additionally, the Fund contends that pursuant to § 31-303, the Fund is obligated only to pay executed agreements within ten days, but not to pay awards within ten days.

The trial commissioner found the following relevant facts. The trial commissioner took judicial notice that another trial commissioner acting for the Sixth District had issued a Finding and Award on May 24, 1995 in which he ordered the Fund to pay the claimant temporary total disability benefits from the claimant’s May 18, 1988 date of injury. The Fund had assumed liability for the claimant’s injury by accepting transfer of an acknowledgment of physical condition pursuant to § 31-325.1 On July 21, 1995 the Fund mailed the claimant a check in the amount of $21,336.32 to cover temporary total disability benefits through July 22, 1995. The claimant requested penalties for the Fund’s failure to pay the award within ten days following May 24, 1995. The trial commissioner ordered the Fund to pay a twenty percent penalty in the amount of $4,140.70 pursuant to § 31-303 as amended by P.A. 93-228, §14.

At issue in this appeal is whether the twenty percent penalty provision of § 31-303 is applicable to the Fund’s failure to timely pay the award issued on May 24, 1995. Section 31-3032 provides:

In support of its appeal, the Fund contends that the penalty provision of § 31-303 does not apply to the Fund. Specifically, the Fund contends that the only sentence which applies to the Fund is the following: “Payments due from the Second Injury Fund shall be payable on or before the tenth business day after the receipt of a fully executed agreement.” This sentence, the Fund argues, does not contain a penalty provision, and thus although the Fund is obligated to pay an executed agreement within ten days, no penalty may be imposed on the Fund for its failure to do so. Moreover, the Fund argues that the language does not impose upon the Fund the obligation to pay an award within ten days, but only an executed agreement.

We have recently ruled that § 31-303 as amended by Public Act 93-228, §14 applies to voluntary agreements and stipulations approved on or after July 1, 1993. Davis v. The Foreman School, 3026 CRB-5-95-3 (decided Jan. 30, 1998) (Wilson, C., dissenting). In the instant case, the Fund does not contend that this provision may not be applied retroactively. At oral argument, the Fund’s representative specifically stated that the Fund was not making the argument that P.A. 93-228, §14 may not be applied retroactively, and did not raise the issue in its Reasons of Appeal or in its legal brief. Accordingly, the issue before us is whether the language of § 31-303 provides for a penalty against the Fund for failure to pay an award within ten days. A review of the legislative history in this matter does not reveal whether the legislature intended the provision to apply to the Fund.3

We recognize that statutes which impose a penalty must be strictly construed. See Carothers v. Capozziello, 215 Conn. 82, 122 (1990); see also Greglon Industries, Inc. v. Bowman, 21 Conn. App. 131, 134 (1990). Additionally, our Supreme Court has “consistently stated that ‘[if] the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction.’” Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395 (1993) (citations omitted). “That axiom only applies in full force, however, ‘[w]here. . . the language of a statute is. . . absolutely clear’ on its face and where no ambiguity is raised in applying the statute in a particular case.” Cummings v. Twin Mfg., Inc., 29 Conn. App. 249, 254 (1992) (citations omitted) (emphasis in original).

Regarding the principles of statutory interpretation, our Supreme Court has stated:

Furthermore, the Supreme Court explained as follows:

In the instant case, the language of § 31-303 is not “clear or unambiguous.” Vaillancourt, supra, at 395. Specifically, it is not clear, as argued by the Fund, that only one sentence applies to the Fund. The legislative history indicates that the legislature implemented the twenty percent penalty on late payments in order to assist claimants in receiving prompt payment of benefits. (See f.n. 3, supra). There is no apparent reason for the legislature to exempt the Fund from this important policy of ensuring that claimants are paid in a timely manner. Indeed, the Appellate Court, in explaining the purpose of the Workers’ Compensation Act, recently emphasized the need for prompt payment. Specifically, the court explained, “In a word, these statutes compromise an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.” Stickney v. Sunlight Construction, Inc. 48 Conn. App. 609, 617 (1998) (citations omitted) (emphasis added).

The Fund conveniently ignores the fact that the Fund routinely utilizes numerous provisions of the Workers’ Compensation Act which refer only to the “employer” or “insurer.” For instance, the Fund routinely requests4 independent medical examinations pursuant to § 31-294f(a), even though the language of that statute provides for an examination “upon the reasonable request of the employer or at the direction of the commissioner.” § 31-294f(a) (emphasis added). Similarly, the Fund routinely enters into voluntary agreements pursuant to § 31-296, even though the language of that section specifically refers only to “an employer and an injured employee.”

Yet another example is the language in § 31-296 regarding the Form 36 procedure which specifically refers only to the “employer” and has routinely been applied to the Fund. Section 31-296 provides, “Before discontinuing or reducing payment. . . the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance. . . .” Reported cases where the Fund was obligated to file, and did file, a Form 36, include Stefenski v. C. Raimondo & Sons, 3081 CRB-2-95-6 (decided Jan. 8, 1997); Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995), appeal dismissed, A.C. 14694 (10/25/95). Additionally, the Fund routinely requests that medical reports be provided to it within thirty days pursuant to § 31-294f(b), which provides that medical reports “shall be furnished within thirty days. . . to the employer and the employee or his attorney.” § 31-294f(b) (emphasis added).

As is readily apparent from the above examples, the Fund routinely “steps into the shoes” of the employer, and in doing so the provisions of the Workers’ Compensation Act which refer solely to “employer” have been construed so as it include the Fund. See also Fimiani v. Star Gallo Distributors, Inc., 48 Conn. App. 474 (1998). Contrary to the Fund’s argument, the legislature’s decision to specifically reference the Fund in the language of § 31-303 indicates its intent to require the Fund, along with employers and insurers, to pay claimants in a timely fashion. There is no apparent reason why the legislature would espouse a policy which provides that claimants paid by the Fund have less of a right to timely payments than those claimants paid by an employer or insurer. Indeed, in the instant case the Fund did not pay the claimant until fifty-nine days following the trial commissioner’s award of benefits. With no threat of penalty, the Fund could conceivably delay payments to all claimants, leaving them with no convenient recourse.

For the above reasons, we do not agree with the Fund’s argument that the only sentence applicable to the Fund is, “Payments due from the Second Injury Fund shall be payable on or before the tenth business day after the receipt of a fully executed agreement.” Rather, we conclude that the intent of the legislature was to ensure that all claimants would be paid in a timely fashion, and thus that the Fund, like the employer, must pay awards and voluntary agreements5 within ten days or be subject to a twenty percent penalty.

We thus affirm the penalty imposed by the trial commissioner against the Fund.

The trial commissioner’s decision is affirmed.

Commissioner Michael S. Miles concurs.

ROBIN L. WILSON, COMMISSIONER, DISSENTING. I disagree with the majority decision affirming the penalty on the Fund. In my opinion, the language of § 31-303 does not permit the imposition of a monetary penalty to be levied against the Fund.

The majority correctly recognizes that our Supreme Court has “consistently stated that ‘[if] the language of the statute is clear and unambiguous, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction.’” Vaillancourt, supra, at 395 (citations omitted). Furthermore, “We are not permitted to supply statutory language that the legislature may have chosen to omit.” Id. at 396.6 Significantly, it has repeatedly been stated that payment from the Fund “should be made only in accordance with express statutory authority....” Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 27 (1995) (citations omitted); see alsoCivardi v. Norwich, 231 Conn. 287, 294 (1994).7

In the instant case, I agree with the Fund’s argument that the only sentence which applies to the Fund is the following: “Payments due from the Second Injury Fund shall be payable on or before the tenth business day after the receipt of a fully executed agreement.” Moreover, the sentence imposing the twenty percent penalty specifically references only an “employer” but does not reference the Fund: “Any employer who fails to pay within the prescribed time limitations of this section shall pay a penalty for each late payment, in the amount of twenty per cent of such payment, in addition to any other interest or penalty imposed pursuant to the provisions of the chapter.” Sec.31-303 (emphasis added).

As the language of the statute is clear and unambiguous, we must assume “that the words themselves express the intention of the legislature and there is no room for judicial construction.” Vaillancourt, supra, at 395. Accordingly, it must be concluded that the twenty percent penalty provision applies only to employers and insurers, but not to the Fund. Accordingly, I would reverse the trial commissioner’s decision imposing a penalty against the Fund.

For the above reasons, I dissent.

1 We note that § 31-325 has since been repealed by Public Act 95-277. BACK TO TEXT

2 Public Act 93-228, §14 which became effective July 1, 1993, added the twenty percent penalty provision to § 31-303. BACK TO TEXT

3 However, the legislative history contains the following statement by Representative Lawlor:

In this bill, and this is one ingredient that I am especially happy is in the amendment we’re about to vote on. There is a 20% penalty for insurance companies or employers who make late payments of doctor bills or benefits for wage replacement after they have been ordered to be made by the workers’ comp commission or after they were part of a voluntary agreement by the employer.

In other words, there are many informal and formal hearings at the workers’ comp commission where insurance company lawyers or lawyers promise to make a payment within a few days, or who are ordered to make that payment. If they don’t make the payment and (sic) there are no effective penalties on the books today. This imposes a 20% penalty going directly to the claimant for those late payments, plus interest.

“Imposition of penalties for insurance companies and employe(r)s (sic) who don’t pay on time those benefits and medical bills that they are obligated to do under the system.”

4 See DeLucia v. Modena, 12 Conn. Workers’ Comp. Rev. Op. 212, 214, 1471 CRB-3-92-7 (March 15, 1994), where independent medical examination was conducted at request of the Second Injury Fund. BACK TO TEXT

5 We have ruled that § 31-303 also applies to stipulations approved on or after July 1, 1993. Davis v. The Foreman School, 3026 CRB-5-95-3 (decided Jan. 30, 1998) (Wilson, C., dissenting). BACK TO TEXT

6 See also Donahue v. City of Milford, 1 Conn. Workers’ Comp. Rev. Op. 200, 202, 92 CRD-3-81 (Nov. 1, 1982) (doctrine of “inclusio unius alteruis”). BACK TO TEXT

7 Our Supreme Court has stated that “[p]ayment of an award from a special fund such as the second injury and compensation assurance fund, which was established, inter alia, to assist in the payment of compensation awarded to handicapped and disadvantaged workers... should be made only in accordance with express statutory authority....” Civardi, supra, at 294 (emphasis added). BACK TO TEXT