Verrinder v. Matthew’s Tru Colors Painting & Restoration

The claimant was represented by Jack F.X. Androski, Esq., Androski Law Firm, 156 Main Street, P.O. Box 656, Ansonia, CT 06401 and William F. Gallagher, Esq., The Gallagher Law Firm, 1377 Ella T. Grasso Boulevard, P.O Box 1925, New Haven, CT 06509-1925.

The respondents were represented by Terrance Brennan, Esq., Law Offices of Jack V. Genovese II, 200 Glastonbury Boulevard, Suite 301, Glastonbury, CT 06033.

This Petition for Review1 from the April 12, 2005 Ruling on Order Re: Claimant’s Motion to Preclude Dated April 19, 2004 was heard May 19, 2006 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Nancy E. Salerno, and Amado J. Vargas.

OPINION

DONALD H. DOYLE, JR., COMMISSIONER. In this appeal, we are faced with what appears to be an issue of first impression for this board: can a Motion to Preclude be granted when a self-employed individual files a claim for Chapter 568 benefits and failed to promptly notify his insurance carrier, who consequently did not file a timely Form 43 contesting the claim? The trial commissioner in this case concluded that it was appropriate to grant a Motion to Preclude and the carrier’s recourse in regards to the claimant was limited to enforcing their rights under the insurance policy in another forum. Upon applying the appropriate statutes and reviewing relevant case law governing this situation, we conclude the trial commissioner’s decision was legally sound, and dismiss this appeal.

The essential facts are not disputed. The claimant and the employer-respondent are one and the same individual, a gentleman named James Verrinder, who does business as a sole proprietorship under the trade name of Matthew’s Tru Colors Painting and Restoration, which is located at his home address, 27 Platt Street, Ansonia. Findings, ¶ A. On February 24, 2004, Mr. Verrinder says he was injured while in the course of his employment. Findings, ¶ 4. That day he says he made a telephone call to his insurance carrier, AIG Claims Services. Findings, ¶ 5. During the next few days there was an exchange of phone calls between Mr. Verrinder and AIG. AIG issued a claim number for the incident and sent Verrinder a blank “First Report of Injury” form. Findings, ¶ 6. Mr. Verrinder did not submit any documentation he had provided written notice to the carrier. Findings, ¶ 7. On March 10, 2004, Mr. Verrinder hand delivered a Form 30C to the Workers’ Compensation Commission office commencing a claim for Chapter 568 benefits. Findings, ¶ 8. There is a dispute as to whether the clamant sent a certified letter with the Form 30C to himself as respondent; he claimed to have done so but did not produce a receipt. Findings, ¶ 9, July 13, 2004 Transcript, pp. 60-61.2 The claimant produced no evidence he ever sent the Form 30C to this insurance carrier and the carrier denies receipt. Findings, ¶¶ 10 and 12. In his role as employer, Mr. Verrinder did not issue a Form 43 disclaimer of liability of claim against himself as claimant. On April 19, 2004, more than 28 days after the Form 30C had been filed and no disclaimer of liability having been filed in response, Mr. Verrinder as claimant filed a Motion to Preclude against himself as respondent, which would have established the February 24, 2004 injury as conclusively compensable. Findings, ¶ 1.

The respondent insurance carrier received the Motion to Preclude on April 21, 2004. They filed a Form 43 contesting liability on April 22, 2004. Findings, ¶¶ 14-15. A formal hearing on the Motion to Preclude was held on July 13, 2004. In her Order of April 12, 2005, the trial commissioner concluded the claim was timely, the employer did not contest the claim, and the insurance carrier was not given the opportunity to contest the claim. Findings, ¶¶ B-E. She determined the phone calls between Mr. Verrinder and the carrier did not constitute constructive notice. Findings, ¶ F. While she concluded an unanimity of interest precluded the filing of a timely Form 43 and she described the claimant/respondent-employer’s conduct as “underhanded,” she concluded that the governing statute (§ 31-294c(b) C.G.S.) had no provision regarding a duty to inform an insurer of claims and the Commission lacked jurisdiction over an insurance coverage dispute. Findings, ¶¶ G-J. As the respondent-insurer’s April 24, 2002 Notice of Contest was untimely, she granted the Motion to Preclude.

As a matter of policy, the respondents offer a compelling argument that under these facts they have received an inequitable outcome. We have often opined that the granting of a Motion to Preclude is “a harsh remedy.” West v. Heitkamp, Inc., 4587 CRB-5-02-11 (October 27, 2003), appeal dismissed for lack of final judgment, A.C. 24805 (February 11, 2004). Lacking notice from their insured that a claim existed to defend, they have an indisputable explanation for not filing a timely disclaimer. However, this is not dispositive of the matter. “[T]he workers’ compensation system in Connecticut is derived exclusively from statute . . . . A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Cantoni v. Xerox Corp., 251 Conn. 153, 160 (1999), citing Discuillo v. Stone & Webster, 242 Conn. 570, 576 (1997).

A review of the Connecticut Workers’ Compensation statutes indicates that to a great extent they have presumed an identity of interest exists between the insured employer and the insurance carrier. Our analysis is limited by the “plain meaning” rule to the actual terms of these statutes.

The relevant statute to consider in regards to filing a disclaimer of liability is § 31-294c C.G.S. Subsection (a) of this statute says in part, “[n]otice of a claim for compensation may be given to the employer or any commissioner . . . .” Subsection (b) states in part,

We note that the word “insurer” does not appear anywhere in the text of § 31-294c C.G.S. The term does appear in two related statutes, however. The General Assembly has required that all workers’ compensation policies must contain provisions wherein the carrier acknowledge an identity of interest with the insured employer in regards to its knowledge of claims. The text of § 31-287 C.G.S. states,

One statute under Chapter 568 provides that notice must be provided to an insurer as a matter of law, but it clearly does not apply to the present situation. Section 31-341 C.G.S. states,

As a result, the statutory duty to notify an insurance carrier to participate in a workers’ compensation case appears not upon the filing of the claim and of an employer’s decision whether to contest a claim; the duty appears at the time a hearing is scheduled before a trial commissioner.3

Obviously, the situation where a self-employed individual in the compensation system is acting as both employee and employer is unlikely to result in an adversarial investigation of the claim. However, the General Assembly specifically permitted sole proprietors to be defined as “employers” and to have the concurrent status of both “employers” and “employees,” See § 31-275(10) C.G.S. “A person who is the sole proprietor of a business may accept the provisions of this chapter by notifying the commissioner, in writing, of his intent to do so. If such person accepts the provisions of this chapter he shall be considered to be an employer and shall insure his full liability in accordance with subdivision (2) of subsection (b) of section 31-284.” See also § 31-275(9)(A)(ii) C.G.S. “Employee” means any person who: . . . Is a sole proprietor or business partner who accepts the provisions of this chapter in accordance with subdivision (10) of this section;”4

Therefore, the present situation appears to fall squarely within a statutory loophole. The statutes place the entire burden of filing a defense to a claim on an employer even if, in the case of a sole proprietor, it is the same person who would benefit from no timely defense being presented. The insurance carrier is thus bound by the failure of the insured employer to file a timely disclaimer of claim. Faced with this situation the trial commissioner concluded that there was no relief available for the respondent insurance carrier under Chapter 568 and they would need to seek redress in another forum. The relevant case law supports her position.

In particular, the court opinions in Stickney v. Sunlight Construction, 3205 CRB-6-95-11 (April 25, 1997), rev’d, 48 Conn. App. 609 (1998), aff’d, 248 Conn. 754 (1999) are supportive of the trial commissioner’s decision. In Stickney, a dispute between two insurers and an employer as to whether a voluntary agreement should be modified was brought to the trial commissioner to adjudicate. The Appellate Court concluded the Workers’ Compensation Commission lacked jurisdiction to decide this dispute, “as we note that Aetna is not a signatory to the voluntary agreement and conclude that it has no standing to raise insurance coverage claims in a motion for modification.” Stickney, supra, 616. As for the other insurer, “Commercial Union’s liability in the case, if any, involves issues of contract law independent of the rights of the injured employee and his employer.” Id., 617. The Appellate Court specifically rejected an argument similar to that raised by the Respondents in this case that various statutes conferred general equitable powers on the Commission. “Aetna’s contention that § 31-278 and § 31-315 confer jurisdiction on the commissioner is without merit.” Id., 616.

On appeal, the Supreme Court upheld the Appellate Court’s determination in Stickney that a dispute involving contractual obligations under an insurance policy was beyond the jurisdiction of the Workers’ Compensation Commission, citing Discuillo, supra. Once again, the argument that a workers’ compensation commissioner possesses broad equitable powers to resolve disputes over insurance coverage was rejected. “If no provision confers jurisdiction on its own, we disagree with Aetna’s contention that taken together the provisions somehow create jurisdiction over coverage issues under the principle of equity.” Stickney, supra, 759, 766.

The essence of the respondent’s argument is that when there is a concurrent employer-employee status, equity demands that the insurer receive notice of the claim so as to determine whether to defend the claim. The plain meaning of the statutes do not confer such a duty on the claimant or such a right on the insurance carrier. As previously noted, from a legal standpoint the employer and the insurer are presumed to have the same knowledge of the facts of the case.

The holding of DiBello v. Barnes Page Wire Products, Inc., 67 Conn. App. 361 (2001) addresses this point.

The Appellate Court noted there was no authority within this statute that required an insurer to provide notice to an insured employer. We note there is also no legal obligation under this statute requiring an insured employer to provide notice to its insurer. Id.

The court in DiBello, however, also concluded that this statute “does not implicate an insurer’s right to raise the defense of lack of coverage against an employer, . . .” Id., 373. In DiBello, the court determined the filing of a Form 43 to defend the putative insured party did not waive the insurer’s right to contest coverage between insurer and insured. This is consistent with the trial commissioner’s decision in this case. While she determined the statutory elements of preclusion were met by the claimant, she also suggested the insurer had available remedies in a court of general jurisdiction to assert the claimant/employer/insured had not complied with the terms of the policy.

We also note that in a recent case interpreting § 31-294c (b) C.G.S., the Appellate Court rejected an equitable reading of who should receive a disclaimer of claim in favor of strictly applying the actual terms of the statute. In Walter v. State, 63 Conn. App. 1 (2001) the appellant argued a disclaimer was inadequate when it was addressed to the deceased employee and not the surviving dependent claimants. “The statutes at issue do not expressly provide for notice to ‘claimants’” Id., 8.

The Walter opinion speaks directly to any effort on our part to equitably add a notice requirement to insurers under § 31-294c (b) C.G.S. “The absence of a term from the language of a statute can be telling. Although workers’ compensation statutes commonly use the terms “claimant” and “dependent”, §§ 31-297 (b) {Note, now § 31-294c}and 31-321 do not expressly provide for notice to either claimants or dependents.” As previously noted, this statute also does not expressly provide for notice to “insurers” and we must note the absence of this term. We conclude with a suggestion from the Walter opinion as to the appropriate party to resolve the sort of statutory anomaly we are powerless to correct. “We are also mindful that “[t]he court may not, by construction, supply omissions in a statute or add exceptions or qualifications, merely because it opines that good reason exists for so doing . . . . This is especially so where it appears the omission was intentional. In such a situation the remedy lies not with the court but with the General Assembly” Id., citing Bailey v. Mars, 138 Conn. 593, 598 (1952).

The appeal is herein dismissed. Commissioner Nancy E. Salerno concurs with this opinion.

COMMISSIONER AMADO VARGAS, DISSENTING. I respectfully dissent from my colleagues’ opinion on this matter. I believe the trial commissioner’s ruling granting the Motion to Preclude should have been vacated.

I believe that given the calculating fact pattern here where the claimant manufactured compensability we must look to our broader legislative purpose. In a number of recent decisions such as Mankus v. Robert Mankus, 4958 CRB-1-05-6 (August 22, 2006) and Audi v. Blakeslee Arpaia Chapman, 4234 CRB-3-00-5, 4151 CRB-3-99-11 (June 26, 2001) we have made clear “[w]e do not condone the use of misrepresentation or artifice by either claimants or respondents in proceedings before this Commission” Mankus, supra. I believe any award granted under these circumstances would be vulnerable to being set aside pursuant to a § 31-315 C.G.S. motion based on precedent in Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 275 (1948) where an award can be reopened when “it appears likely that an injustice has been done, and upon a rehearing a different result would probably be reached.”

In Jalowiec Realty Associates, L.P. v. Planning & Zoning Commission, 278 Conn. 408 (2006), our Supreme Court restated the principle that statutes should not be interpreted in such a fashion as to lead to a bizarre result. I believe that permitting a claimant to engineer a circumstance where the compensability of his claim is precluded from challenge is exactly the type of result that we should renounce, as I do not believe the “plain meaning” rule of §1-2z C.G.S. compels us to reach results which are “absurd or unworkable.”

1 We note that postponements as well as extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 The respondents argued at the hearing, in a Motion to Correct that was denied, and again on appeal that the alleged failure of the claimant to send himself a copy of the Form 30C via certified mail renders the claim defective due to legally inadequate notice. The trial commissioner properly rejected this argument which is based on a misreading of the appropriate statute. Section 31-321 C.G.S. is written to provide alternate forms of service. “Unless otherwise specifically provided, or unless the circumstances of the case or the rules of the commission direct otherwise, any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last-known residence or place of business.” (Emphasis added). For the trial commissioner to have concluded the notice statute was not satisfied she would have had to have concluded the claimant did neither, which would seem implausible given the unity of interests present herein. In any case, this is a finding of fact which we cannot disturb on appeal. BACK TO TEXT

3 The fact that the General Assembly placed a notice requirement for insurers in this statute and not the statute governing disclaimers of liability cannot be presumed to be superfluous. “Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject . . . is significant to show that a different intention existed . . . .” Hatt v. Burlington Coat Factory, 263 Conn. 279, 310 (2003). BACK TO TEXT

4 The respondents argue that the General Assembly “could not have intended” a sole proprietor to investigate a claim against himself. We are unwilling to reach this conclusion as the Supreme Court held in Hatt, supra, that the General Assembly is presumed to have known the terms of all the other statutes and the effect its action or non-action would have upon them. We also take notice that the General Assembly added sole proprietors to the scope of the Act as “employers” in 1967, (1967, Public Act 842, S.1); but amended the statute regarding notice of claim in 1991. (Public Act 91-32, S. 11, 41; Public Act 91-339, S. 47, 55). The statute as amended does not require sole proprietors to notice their insurers regarding claims. BACK TO TEXT