Cece v. Felix Industries, Inc.

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

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

This Petition for Review from the December 19, 1996 Finding and Order of the Commissioner acting for the Seventh District was heard August 15, 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 Second Injury Fund has petitioned for review from the December 19, 1996 Finding and Order of the Commissioner acting for the Seventh District. The Fund argues on appeal that the trial commissioner erred by ruling that the respondent employer and insurer were not required to re-notify the Fund of their intent to pursue transfer of liability for the claimant’s compensable injury pursuant to P.A. 95-277, § 3(e). We agree, and reverse the trier’s decision.

The claimant suffered a compensable injury to his neck on January 16, 1992. Because of a pre-existing degenerative condition, the claimant’ s injury was made materially and substantially greater, and on February 15, 1993, the respondents provided the Second Injury Fund with notice of intent to transfer the injury pursuant to § 31-349 C.G.S. However, the case was not actually ripe for transfer until the 104th week of benefits was paid on December 10, 1995.

In the interim, the legislature passed Public Act 95-277, which took effect on July 1, 1995. That amendment not only prohibited any new injuries from being transferred to the Fund—it also contained a re-notification requirement that has since been codified at § 31-349(e). The statute provides:

The respondents failed to file another notice of their intent to transfer the injury. Although the language of § 31-349(e) appears to encompass the instant case by its terms, the trial commissioner ruled that it did not require the respondents to “re-notice” the Second Injury Fund. He reasoned that the statute did not have retroactive effect, as the legislature had not clearly provided for such an application. See Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 786 (1995). The Fund appealed that decision to this board.

In Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997), our Supreme Court decided that P.A. 95-277, § 4(a), which concerns the use of a medical panel to determine the presence of a preexisting disability, applies retroactively to any case still pending in which the injury occurred before July 1, 1995. The Court acknowledged the rule of presumed legislative intent that makes statutes affecting substantive rights applicable only prospectively, but never reached the question of whether the statute affected substantive rights or mere procedure. Instead, the Court held that the absence of any possible prospective application of § 4(a) sufficiently rebutted any presumption that said statute was not intended to apply retroactively. Id., 304-305. As noted above, injuries occurring on or after July 1, 1995 are not transferable to the Second Injury Fund pursuant to § 31-349(d). If § 4(a) [now codified at § 31-349c] did not apply retroactively, it would not apply to any cases at all.

The same analysis that the Court used in Hall obviously applies to the re-notice provision in § 31-349(e). As we stated in Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (Aug. 8, 1997), this section “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 re-notification by October 1, 1995. See 38 S. Proc., Pt. 15, 1995 sess., p. 5487 (remarks of Sen. Kissel).” In Audi, we explained that the re-notice provision did not allow a party who has already missed an earlier filing deadline to resurrect its claim by “re-notifying” the Fund of its intent to seek transfer. If § 31-349(e) does not apply to cases in which proper notice has already been given, it would therefore apply to no cases at all. As our Supreme Court stated in Hall, a court must presume that the legislature did not intend to enact useless legislation. Id., 303. We are thus bound to interpret § 31-349(e) as it is written, and apply it to all claims for which the Fund was properly notified before July 1, 1995. No other meaningful interpretation is possible.

The respondents raise the argument that this statute compromises the vested property rights of the respondents to transfer this case to the Second Injury Fund by improperly adding a new restriction on the enforcement of a past contract. Whether that argument has merit or not, this board cannot determine. This contention attacks the constitutionality of § 31-349(e) on its face. The CRB is a tribunal of limited jurisdiction, and is not cloaked with the plenary authority necessary to determine the constitutionality of a statute. Trantolo v. Trantolo & Trantolo, P.C., 8 Conn. Workers’ Comp. Rev. Op. 69, 70, 823 CRD-6-89-2 (April 17, 1990).

Thus, we reverse the trial commissioner’s decision, and order that the respondents’ claim for transfer be dismissed.