Rodriguez v. Hamilton Connections, Inc.

CASE NO. 5239 CRB-5-07-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 30, 2008

CARLOS RODRIGUEZ

CLAIMANT-APPELLEE

v.

HAMILTON CONNECTIONS, INC.

EMPLOYER

and

BRIMAR ADMINISTRATION

ADMINISTRATOR

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Barry S. Moller, Esq., Cramer & Anderson, LLP, 46 West Street, P.O. Box 278, Litchfield, CT 06759-0278.

The respondents were represented by Kate M. Casagrande, Esq., Law Offices of Kate M. Casagrande, 4 Research Drive, Suite 402, Shelton, CT 06484.

The Second Injury Fund was represented by Lisa G. Weiss, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 5, 2007 Order of the Commissioner acting for the Fifth District was heard December 14, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Second Injury Fund appeals from an order issued by the Commissioner for the Fifth District directing the Fund to make payments to the claimant in accordance with § 31-355 C.G.S. The Fund argues that they did not receive notice that they were a potentially responsible party prior to the order being issued, thus they were denied due process. They also believe the relief ordered is vague as the order is in the form of a hearing transcript. They seek a remand of this order to provide the Fund an opportunity to be heard and to clarify the nature of the relief. We believe the Fund’s concerns are meritorious; therefore we vacate the present order and remand this matter to the Fifth District for further proceedings.

The following facts are relevant to this issue. This is an accepted claim for compensable foot injuries for which a Voluntary Agreement was approved in January 2007. On April 12, 2007 the commissioner held a hearing on a motion from claimant’s counsel seeking to compel payments to some of the claimant’s medical providers and to address allegations the claimant’s benefit checks were delayed. The commissioner issued orders responsive to these concerns from the bench. On June 5, 2007, having determined that the respondent had failed to perform the obligations ordered at the April 12, 2007 hearing, the commissioner issued an order to the Fund. The order directed them to make the payments due pursuant to the orders issued to the respondent at the April 12, 2007 hearing.

We have reviewed the hearing notice issued for the April 12, 2007 hearing and it was not sent to the Second Injury Fund. The record does not reflect that the Second Injury Fund received any post-hearing notice advising their interests were potentially impacted; nor did the commissioner summon the Fund to a hearing prior to issuing his June 5, 2007 order.

We also have reviewed the Matey v. Dember line of cases which delineate a number of issues concerning the liability of the Fund for unpaid awards under § 31-355 C.G.S. While the commissioner did enter an award against the employer which was evidently unpaid Matey v. Dember, 3153 CRB-5-95-8 (January 10, 1997), thus establishing liability for the fund pursuant to § 31-355(a) C.G.S., there is no evidence the Fund was ever made aware that this had occurred.

In a subsequent decision on the Matey case, Matey v. Estate of Dember, 3848 CRB-7-98-6 (July 7, 1999), aff’d in part, rev’d in part, 256 Conn. 456 (2001), we discussed that under the statutory scheme placing liability on the Fund it is presumed that they will have notice of hearings to which they are an interested party.

Section 31-355(a) states that, “the commissioner shall give notice to the Treasurer of all hearing of matters which may involve payment from the Second Injury Fund, and may make an award directing the Treasurer to make payment from the Fund.” (Emphasis added.) Read in conjunction with § 31-355(b), this subsection must contemplate that the Fund can participate in hearings before an award is entered against an employer. In fact, that is commonly the case, and was done here. The existence of § 31-355(a) suggests that § 31-355(b) was directed at situations where the Fund was not involved in proceedings prior to the entry of an award against the employer or insurer, and has thus not had an opportunity to contest the compensability of an injury.

In our 1999 Matey, decision we did not order additional hearings as we found, as a factual matter, the Fund had received notice and had failed to avail themselves of their opportunity to contest the relief granted the claimant. Under those circumstances we deemed it inequitable to force a claimant to prove their claim twice. The opposite situation is present herein as the Fund did not receive notice prior to being made liable for an unpaid award. As a result, we believe a remand is necessary based on the facts herein.

The June 5, 2007 Order of the Commissioner acting for the Fifth District is vacated and the matter is remanded for further proceedings

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.