State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Wierzchowski v. CRL Industries, Cope, Inc.

CASE NO. 4246 CRB-1-00-6

CASE NO. 4154 CRB-8-99-11



NOVEMBER 5, 2001
















The claimant was not represented at oral argument. Notice sent to Francis Drapeau, Esq., Law Offices of Leighton, Katz & Drapeau, 20 East Main Street, P. O. Box 838, Rockville, CT 06066-0838.

The respondents were represented by Lynn M. Raccio, Esq., Law Offices of Murphy & Raccio, 1062 Barnes Road, Suite 110, P. O. Box 865, Wallingford, CT 06492.

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

These Petitions for Review from the November 22, 1999 Ruling and the May 25, 2000 Finding and Dismissal of the Commissioner acting for the First District were heard September 15, 2000 before a Compensation Review Board panel consisting of Commissioners Robin L. Wilson, Leonard S. Paoletta and Ernie R. Walker.


ROBIN L. WILSON, COMMISSIONER. The respondents have petitioned for review from the May 25, 2000 Finding and Dismissal of the Commissioner acting for the First District, while the Second Injury Fund has filed a petition for review from his November 22, 1999 denial of the Fund’s Motion to Dismiss. The respondents argue that the trier erroneously found that they failed to provide timely notice or re-notice of their intent to transfer liability for the instant claim to the Second Injury Fund under § 31-349 C.G.S. The Fund’s petition for review, meanwhile, essentially raises an alternative argument to affirmance of the trier’s decision on the merits—namely, that this board lacks jurisdiction over the instant appeal pursuant to § 31-349h C.G.S. Pursuant to our Supreme Court’s recent decision in Giaimo v. New Haven, 257 Conn. 481 (2001), it has been established that we have jurisdiction to consider this matter. Nevertheless, we affirm the trial commissioner’s decision regarding the untimeliness of notice.

The claimant injured his low back while engaged in employment-related tasks on June 22, 1994. At the time, he suffered from a pre-existing lumbar degenerative disc disease, and had undergone surgery for that ailment. The parties have stipulated that, medically speaking, the instant claim would qualify for transfer to the Second Injury Fund pursuant to § 31-349. The respondent Sentry Insurance initially sent notice of its intent to transfer liability for this claim to the Second Injury Fund on June 19, 1995, which was apparently received on or before June 28, 1995, as evidenced by a letter from the Fund. The respondents offered no reliable proof of when this notice was received, however. Pursuant to § 31-349(e), “All 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.” Sentry Insurance attempted to re-notify the Fund of its intent to pursue transfer by mailing a letter on September 30, 1995. No receipt for the notice could be located, and it is unknown when the Fund actually received it.

In a May 25, 2000 decision, the trial commissioner found that the respondents had introduced insufficient evidence to meet their burden of proving that the Fund received notice in a timely manner. Thus, although the case medically qualifies for transfer, the trier held that the request for transfer would have to be dismissed because “the notice and/or re-notice requirements have not been met.” Findings, ¶ C. The respondents have appealed that decision. Meanwhile, the trier had earlier denied the Fund’s motion to dismiss the pending claim for transfer pursuant to § 31-349h, which states, “All transfers of claims to the Second Injury Fund with a date of injury prior to July 1, 1995 shall be effected no later than July 1, 1999. All claims not transferred to the Second Injury Fund, on or before July 1, 1999, shall remain the responsibility of the employer or its insurer.” In response to that ruling, the Fund filed a petition for review from that ruling, which still remains pending before this board.

In light of the aforementioned Giaimo decision that was issued by our Supreme Court on August 14, 2001, and its affirmance of our prior holdings regarding the July 1, 1999 deadline, we can dispose of the Fund’s appeal relatively quickly. Section 31-349h is not the only statute that sets a deadline for transfers; § 31-349(f) also provides that “[n]o claim . . . shall be eligible for transfer to the Second Injury Fund unless all requirements for transfer . . . have been completed prior to July 1, 1999. All claims . . . not eligible for transfer to the fund on or before July 1, 1999, will remain the responsibility of the employer or its insurer.” Both § 31-349(f) and § 31-349h were added to the Act by 96-242, which took effect on June 6, 1996.

In Kuban v. Bridgeport Hospital, 3926 CRB-4-98-11 (Sept. 23, 1999), appeal dismissed, A.C. 20100 (Jan. 5, 2000), we held that § 31-349(f) requires parties seeking transfer to have completed all of the conditions precedent within their control by July 1, 1999, such as the payment of 104 weeks of benefits and the submission of certain documents to the Fund. However, the statute does not require such parties to ensure that the decisionmaking or appeal process is completed by that date, as such a restriction would unfairly burden employers and insurers, and “would also place untenable time constraints on workers’ compensation commissioners, this board, the Appellate Court and the Supreme Court, and would deprive the parties of thoughtful, well-considered decisions and appellate review.” Id. Later, in Zeoli v. Norwalk Hospital Association, 3974 CRB-7-99-2 (March 13, 2000), we observed that the provisions of § 31-349(f) and § 31-349h conflicted with one another insofar as any claim transferred by July 1, 1999 would also have had to be “eligible for transfer” by that date. We declined to read the latter statute as engulfing the former via the interpretation advocated by the Fund, which urged that any transfer cases not successfully and finally adjudicated by July 1, 1999 were no longer within the jurisdiction of this Commission.

The Supreme Court found our Kuban reasoning persuasive in Giaimo, supra, and ruled that the legislature did not intend for § 31-349h to bar any transfer claims not completely resolved by July 1, 1999. In reconciling the redundancy of § 31-349h and § 31-349(f), the Court observed that the Fund’s reading of § 31-349h raised due process concerns, as it seriously infringed upon the statutory right of an employer to obtain an adjudication of its transfer claim and to secure administrative and judicial review of such a decision. “[I]f literal construction of a statute raises serious constitutional questions, we are obligated to search for a construction that will accomplish the legislature’s purpose without risking the statute’s invalidity.” Id., quoting Worsham v. Greifenberger, 242 Conn. 432, 443 (1997). “Accordingly, we interpret § 31-349h to mean that claims not eligible to be transferred to the second injury fund, on or before July 1, 1999, . . . shall remain the responsibility of the employer or its insurer. If those requirements have been met, however, but the eligibility of a claim was in dispute on July 1, 1999, transfer of the claim is not barred if the claim is ultimately found to have been eligible for transfer before that date.” Id. (emphasis added). As per our Supreme Court’s decision, and its companion decision in Zeoli, supra, 257 Conn. 527 (2001), the fact that the instant matter remains pending after July 1, 1999 does not render the underlying transfer claim moot. Thus, we affirm the trial commissioner’s denial of the Fund’s motion to dismiss.

Having established that we retain jurisdiction to adjudicate this appeal, we are now confronted with the respondents’ claims of error. Their appellate brief initially raises nine different allegations of error that encompass several aspects of the trier’s decision. Upon examination of this brief, we have discovered that a few of these issues are not truly in dispute,1 and we are able to sort the appellants’ arguments into two categories: those protesting the commissioner’s conclusion that initial notice was untimely, and those protesting his conclusion that re-notification was untimely.

At the time of the claimant’s June 22, 1994 injury, § 31-349(b) required that an employer or its insurer “shall, no earlier than one year and no later than ninety days before the expiration of the first one hundred four weeks of disability, notify the custodian of the Second Injury Fund of the pending case . . . .” The trier found that, if one assumes that the claimant was continuously disabled from the date of his injury forward, the last day of the 104-week period was June 19, 1996. The respondents’ notice of intent to transfer liability was dated June 19, 1995, and was mailed to the Fund on that day or on the following day. As noted above, the exact receipt date of the notice is unknown. Though the “green card” attached to the letter in Respondents’ Exhibit 4 reflects a delivery date of June 22, 1995, it features a different certified mail receipt number than the one typed on the letter. The respondents were unable to persuade the trier that this receipt corresponds to that document. Findings, ¶ 10. At some point prior to June 28, 1995, the Fund was presumably notified of the respondents’ transfer request, as that is the date upon which the parties apparently agree that the Fund acknowledged receiving their notice. This was not enough to prevent the trier from concluding that the respondents provided him with insufficient evidence as to the Fund’s receipt date of their notice, thereby failing to meet their burden of proof under § 31-349(b).

In its appellee’s brief, the Second Injury Fund argues that the trier’s decision should be affirmed because, in order to be timely, the respondents’ initial notice letter had to be filed sometime after June 23, 1995. Though we are highly skeptical of the Fund’s attempt to whittle away at the definition of “one year” in this context, we can resolve this appeal without determining whether notice had to be filed on or after June 19th, 20th, 21st, 22nd or 23rd of 1995 in order for it to be timely. As the Fund correctly observes, the insurer seeking transfer was the party petitioning for relief to this Commission, and it had the initial burden of proving that it had met the prerequisites of § 31-349(b). The trial commissioner, in turn, was charged with the duty of determining whether the respondents’ evidence satisfied that burden. We remind the respondents that the filing deadlines of § 31-349 are strict, and must be met before the Fund may become liable for a claim. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 395-96 (1993).

The evidence offered by the respondents regarding the delivery of their initial notice to the Fund consists of two items: a letter dated June 19, 1995 (Respondents’ Exhibit 4) and a re-notification letter of September 29, 1995 (Respondents’ Exhibit 5). Due to a discrepancy between the serial number in the letter and the serial number on the return receipt, the trier was unable to determine when the first letter actually arrived at the Fund, or by extension, whether the June 19, 1995 date on the letter is accurate. There is no reliable record as to when it was either sent or received. As for the second letter, it was generated by the insurer to inform the Fund that it intended to pursue transfer of the instant claim, and included language stating that the original notification letter “was dated June 19, 1995, and the fund acknowledged receipt of that letter, in writing, on June 28, 1995.” However, this secondhand reference to the Fund’s receipt of notice is not the equivalent of the Fund’s June 28, 1995 confirmation letter itself, nor does it shed any light on when initial notice was received by the Fund. We find no error in the trier’s factual determination that this evidence did not adequately prove that the respondents timely filed notice of their transfer claim within the meaning of § 31-349(b), and in his resultant decision to dismiss their claim. It is not the prerogative of this board to second-guess the inferences that a trial commissioner draws from the evidence, including those that concern its reliability and authenticity. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); see also Masko v. Wallingford, 4076 CRB-8-99-7 (July 11, 2000) (discussing authentication of records, and inferences drawn regarding their accuracy). Thus, we must affirm the trier’s decision that the respondents’ failed to prove that their initial notice of claim was timely filed.

As we have discussed in the past, the untimely filing of an initial notice of claim cannot be subsequently remedied by the otherwise timely filing of a re-notification letter under § 31-349(e). Crute v. Gilman Corp., 3812 CRB-2-98-5 (June 18, 1999); Szedlmayer v. Moore Special Tool Co., 3764 CRB-4-98-1 (March 25, 1999). Our resolution of the respondents’ first claim of error thus makes it unnecessary to address the somewhat close question of whether or not their re-notification letter was filed in a timely manner by virtue of its being mailed on September 30, 1995. See, e.g., Masko, supra; Correnti v. Grossman’s, Inc., 3858 CRB-8-98-7 (Aug. 31, 1999); Sanders v. GAE Services, 3481 CRB-5-96-11 (April 29, 1998). Accordingly, we decline to address that question as part of our decision here.

The trial commissioner’s decision is hereby affirmed.

Commissioners Leonard S. Paoletta and Ernie R. Walker concur.

1 The preface to the respondents’ brief includes the following protests, as do their Reasons of Appeal: that there was no factual basis for the finding that the claimant was an employee of the respondent CRL Industries/COPE, Inc. when he suffered a compensable back injury, and that there was no evidence that the respondent insurer accepted the underlying claim and paid benefits for it. See Findings, ¶¶ 1, 6. Yet, the parties have stipulated that the instant case medically qualifies for transfer to the Fund under § 31-349. Findings, ¶ 3. As the respondents did not elaborate upon these objections to the finding of compensability by discussing them in the text of their brief or at oral argument, we will not discuss them here.

We also note that, in the course of her discussion of the re-notification issue, the respondents’ attorney wrote: “Workers’ Compensation Commissioners have also interpreted the October 1, 1995 deadline to refer to the date on which the certified mail must be sent to the Fund rather than received by the Fund. Relying on [Tucker v. Connecticut Insurance Placement Facility, 192 Conn. 653 (1984)], Commissioner dos Santos in Correnti v. Grossman’s, 3858 CRB-08-98-07 (August 31, 1999) interpreted the October 1, 1995 deadline to refer to the date on which the certified mail must be sent to the Fund rather than received by the Fund and concluded that 31-349(e) is satisfied with the posting of re-notice by certified mail prior to October 1, 1995. Additionally, Commissioner Metro in Sanders v. GAE Services, 3481 CRB-05-96-11 (April 29, 1998), asserted that . . . [t]he ‘statute does not explicitly require that the Second Injury Fund actually receive the re-notification of transfer by October 1, 1995 . . . [only that] the re-notice must be mailed [by certified mail] prior to [October 1, 1995]. . . .’” Brief, p. 12. In citing these decisions as authority for her argument, counsel neglected to mention that she was relying on a pair of dissenting opinions. The majority holdings of Correnti and Sanders do not support this interpretation of § 31-349(e); indeed, the Sanders holding directly refutes it. Though our system demands zealous advocacy from the attorneys who participate in it, they should also take care to cite cases accurately, lest an unsuspecting reader become misled by the omission of an important detail. BACK TO TEXT

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