Stec v. Raymark Industries, Inc. a/k/a Raybestos Company

CASE NO. 5156 CRB-4-06-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 21, 2007

ESTATE OF RICHARD STEC, Deceased

JUNE STEC, Dependent widow

CLAIMANT-APPELLEE

v.

RAYMARK INDUSTRIES, INC. a/k/a/ RAYBESTOS COMPANY

SELF-INSURED

EMPLOYER

RESPONDENT-APPELLEE

and

GENERAL REINSURANCE CORPORATION

INSURER

RESPONDENT-APPELLEE

and

NATIONAL UNION FIRE INSURANCE COMPANY

INSURER

RESPONDENT-APPELLEE

and

CNA INSURANCE COMPANIES

INSURER

RESPONDENT-APPELLEE

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENT-APPELLEE

and

CIGA

INSURER

RESPONDENT-APPELLEE

and

ZURICH NORTH AMERICA

INSURER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Chris Meisenkothen, Esq., Early, Ludwick & Sweeney, 265 Church Street, 11th Floor, P.O. Box 1866, New Haven, CT 06508-1866.

The employer was represented by Pepe & Hazard, One Goodwin Square, Hartford, CT 06103; Shepro & Blake, 2051 Main Street, Stratford, CT 06615 and Bai, Pollock, Blueweiss & Mulcahey, P.C., One Corporate Drive, 5th Floor, Shelton, CT 06484. However, they did not file a brief or appear at oral argument.

The respondent General Reinsurance Corporation was represented by Allan Taylor, Esq., and Eric L. Sussman, Esq., Day, Berry & Howard, LLP, CityPlace I, Hartford, CT 06103-3499.

The respondent National Union Fire Insurance Company was represented by David Weil, Esq., Nuzzo & Roberts, One Town Center, P.O. Box 747, Cheshire, CT 06410.

The Hartford Insurance Group was represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondent CIGA was represented by Joseph Passaretti, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

The respondent Zurich North America was represented by Brian Smith, Esq., D’Attelo, Shields, La Bella & Smith, 500 Enterprise Drive, Suite 4B, Rocky Hill, CT 06067.

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

This Petition for Review from the October 25, 2006 Order of the Commissioner acting for the Fifth District was heard May 18, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund appeals from the October 25, 2006 Order of the Commissioner acting for the Fifth District.1 In that Order the trial commissioner directed the Fund to pay all the benefits that the commissioner ordered the respondent self insured, Raymark to pay in a September 29, 2006 Order. Both of these Orders were based on the trial commissioner’s October 3, 2005 Finding and Award which determined the claimants’ entitlement to benefits and the respondents’ liability for the claims brought.

While the appellant presents a number of issues in its appeal, our immediate concern is directed to the Motion to Dismiss the Fund’s appeal filed by the respondent National Union Fire Insurance. In support of its Motion to Dismiss the respondent cites our Supreme Court’s holding in Matey v. Dember, 256 Conn. 456 (2001) as well as this tribunal’s opinion in DeLucia v. Modena, 12 Conn. Workers’ Comp. Rev. Op. 212, 1471 CRB 3-92-7 (March 15, 1994). It is clear from the record here that the Second Injury Fund participated in the proceedings culminating in the trial commissioner’s October 3, 2005 Finding and Award and that its appeal challenges the findings and the conclusions drawn by the commissioner in that Finding and Award.

In Matey, the Court held that where the Second Injury Fund fully participated in proceedings resulting in the commissioner’s Finding and Award the subsequent order of payment directed against the Fund pursuant to § 31-355(b) did not provide the Fund with “yet another opportunity to relitigate its claims.” Id., 494. In DeLucia, supra, this tribunal did not permit the Second Injury Fund to challenge the findings of an earlier Finding and Award following the Fund’s appeal of a subsequent Finding and Award. Id., note 5. The transcripts reflect that the Fund actively participated in the proceedings before the trial commissioner resulting in the commissioner’s October 3, 2005 Finding and Award.

This tribunal’s appellate jurisdiction is limited. Section 31-301(a)2 provides:

At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof.

Ruling as we have we do not reach the merits of the Second Injury Fund’s appeal. The Fund’s appeal of issues stemming from the October 3, 2005 Finding and Award is untimely. We therefore dismiss the Fund’s appeal.

Commissioners George Waldron and Ernie R. Walker concur.

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

2 Public Act 07-31 § 2 has since amended § 31-301(a). BACK TO TEXT