Hall v. Redland Brick, Inc.

CASE NO. 3895 CRB-01-98-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 4, 1999

MURRAY HALL

CLAIMANT-APPELLEE

v.

REDLAND BRICK, INC.

EMPLOYER

and

CNA INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented and did not appear at oral argument.

The respondents were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

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

This Petition for Review from the August 31, 1998 Finding and Dismissal of the Commissioner acting for the First District was heard May 21, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the August 31, 1998 Finding and Dismissal of the Commissioner acting for the First District. In that decision the trial commissioner concluded that the respondents failed to provide proper notice to the Fund and thus denied the respondents’ request to transfer pursuant to § 31-349. In support of their appeal the respondents contend that although their notice did not comply with § 31-349 as amended by P.A. 95-277, the notice should be deemed timely because the respondents were not aware that the notice provisions of P.A. 95-277 applied retroactively.

The trial commissioner found the following relevant facts. The claimant sustained a compensable injury to his right leg on April 6, 1993, and because of a previous disability the claimant’s injury was materially and substantially greater than it otherwise would have been. The claimant did not become disabled until August 31, 1994, when he underwent a total hip replacement, at which time he remained totally disabled until February 14, 1995. On April 19, 1996, the claimant reached maximum medical improvement and a voluntary agreement was issued for a fifty-percent permanent partial disability, specifically 95.2 weeks of compensation. Subsequently, when further surgery was performed the claimant again became totally disabled from March 26, 1997 through August 28, 1997, at which time permanent partial disability benefits resumed. On November 2, 1997, the claimant received a total of 104 weeks of compensation benefits.

On December 21, 1995, the respondents filed with the Fund a notice of intent to transfer the claim pursuant to § 31-349. On November 4, 1997, the respondents filed a second notice along with a check for $2,000. The Fund conceded that the claim medically qualified for transfer pursuant to § 31-349. The trial commissioner ruled that § 31-349 as amended by P.A. 93-429 applied to the instant case, and concluded that neither the notice of December 21, 1995 nor that of November 4, 1997 complied with said provision. The trial commissioner thus denied the respondents’ request for transfer of the claim.

In support of their appeal, the respondents contend that by “the time P.A. 95-277 was finally deemed retroactive by this state’s highest court, the employer’s ability to comply with that Act was lost. . . . Therefore, the commissioner erred in holding the [respondents] to an impossible standard of notice….” (Respondents’ Brief at p. 4). The respondents argue that they were not aware that P.A. 95-277 applied retroactively until June 3, 1997, the date on which the Supreme Court issued Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997). The respondents thus contend that their second notice filed on November 4, 1997 should be deemed timely. We disagree.

Public Act 95-277 amended § 31-349 effective July 1, 1995. Subsection (b) sets forth the filing requirements for initial notice of an injury as follows:

As 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 . . . and (F) such other material as the custodian may require.

Additionally, P.A. 95-277 provides in subsection (e) 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.”

In Crute v. Gilman Corp., 3812 CRB-2-98-5 (June 18, 1999), we explained as follows:

As discussed in Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997), P.A. 95-277 indeed applies retroactively to cases in which the claimant’s second injury occurred prior to the statute’s July 1, 1995 effective date. This retrospective operation means that (1) renotification is necessary for notices properly and timely filed prior to July 1, 1995, and (2) that initial notice to the Fund may be given pursuant to the provisions of P.A. 95-277 § 3(b) if the criteria of the statute can be met at the time notice is attempted.

Crute, supra, (citing Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (August 4, 1997)).

“It is well settled that notice provisions under the [workers’ compensation ] act should be strictly construed.” Thompson v. Roach, 52 Conn. App. 819, 823 (1999) (citing Soares v. Max Services, Inc., 42 Conn. App. 147, 164 (1996)). The court further explained:

Our requirement of strict compliance with § 31-349, however, has presumed the possibility of compliance. Where notice, such as providing the fund with a voluntary agreement, is impossible to give, the failure to comply strictly with § 31-349 will not preclude a transfer of liability.

Thompson, supra, at 823.

Thus, we agree with the respondents’ argument that where impossibility is demonstrated, such impossibility may excuse strict compliance with § 31-349. However, in the instant case the respondents have not demonstrated impossibility. Specifically, P.A. 95-277 went into effect on July 1, 1995, and required that notice be given to 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.” As the earlier of these two dates was April 6, 1996 (three calendar years after the date of injury), notice was required to be filed no later than April 6, 1996.

Under the facts of this case, there was no impossibility, as upon July 1, 1995 (the effective date of P.A. 95-277) the respondents had approximately nine months to file timely notice with the Fund on or before April 6, 1996. Indeed, the respondents could have followed the notice provisions of P.A. 95-277, including providing a check for $2,000, when they filed their first notice on December 21, 1995. We note that the facts of Thompson, supra, are distinguishable because there “the commissioner found that it was not possible for [the respondent] to have complied with the statute despite its efforts.” Id. at 824 (emphasis added).

Finally, we will briefly address the respondents’ argument that their notice of December 21, 1995 provided the Fund with sufficient information to investigate the claim and thus should be deemed to constitute sufficient notice. We disagree. The Fund is a creature of statute, and as such, 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). In Szedlmayer, supra, we explained:

We do not doubt that, as a practical matter, the Fund had enough information to investigate this claim if it so wished. However, our courts have stated time and again that the liability of the Fund is to be construed very narrowly, and statutory requirements of notice must be specifically met. Szedlmayer, supra.

In the instant case, the respondents do not contend that their notice of December 21, 1995 complied with all of the requirements of § 31-349 as amended by P.A. 95-277, including a $2,000 fee. Accordingly, the trial commissioner properly concluded that the respondents failed to provide proper notice pursuant to § 31-349 as amended by P.A. 95-277.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr. concur.