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Potvin v. Lincoln Service & Equipment

CASE NO. 5258 CRB-3-07-8



NOVEMBER 12, 2008











The claimant was represented by Joshua Hawks-Ladd, Esq., Pullman & Comley, LLC, 90 State House Square, 13th Floor, Hartford, CT 06103-3702.

The respondent GFMS was represented by Mark D. Robins, Esq., Nixon Peabody, LLP, 100 Summer Street, Boston, MA 02110 and Frank A. May, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review1 from the July 27, 2007 Finding and Award of the Commissioner acting for the Third District was heard March 28, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.


JOHN A. MASTROPIETRO. This appeal focuses on a single issue. Can a trial commissioner issue statutory sanctions against the Connecticut Insurance Guaranty Association (“CIGA”) when it engages in undue delay and/or unreasonable contest of claims brought under Chapter 568? The appellant argues the terms of their enabling statute provide a blanket exemption against penalties for such misconduct. The claimant argues such an application of statute is inconsistent with appellate precedent such as Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46 (2001) and violates the legislative purpose behind Chapter 568. We find that the trial commissioner had the statutory authority under Chapter 568 to sanction the respondent in this matter and conclude that the ability of a tribunal to sanction a party for disobedience goes to the core powers of commissioners acting under Chapter 568. Therefore, we affirm the decision of the trial commissioner in this matter and we dismiss this appeal.

The underlying facts in this case are not disputed by the parties to this appeal. The claimant suffered a compensable injury in 2000 which was accepted by his employer, Lincoln Service and Equipment in 2001. At that time a voluntary agreement was approved by the Commission. The claimant had a knee replacement surgery performed in 2003, but following the procedure, continued to complain of knee pain. CIGA’s umbrella organization, Guaranty Fund Management Services (GFMS) had the claimant examined by Dr. MacEllis Glass on January 12, 2005.2 3 Dr. Glass strongly recommended that the claimant be examined by another physician for consideration of a patellar replacement. GFMS authorized the claimant to be examined by a second doctor, Dr. John Grady-Benson, who noted an antalgic limp and recommended a bone scan of the patella. He also recommended an MRI of the claimant’s lower spine to determine if he had a neurological disorder due to the right knee replacement. Dr. Grady-Benson examined the claimant on April 6, 2005 and submitted a bill in the amount of $343 for the examination.

While this bill was properly submitted to GFMS, it was not paid until September 15, 2005. During this period an adjuster for GFMS, Kristen Rogers, prepared an authorization for the claimant’s MRI, but decided not to issue the authorization, claiming “she realized the back injury was not part of the compensable injury.” Ms. Rogers claimed she orally authorized the bone scan in August 2005. Counsel for GFMS offered to pay for the bone scan on September 1, 2005 on a “without prejudice” basis, but demurred on the issue of the MRI. Following an informal hearing before Commissioner Robin Waller on February 15, 2006, GFMS finally provided written authorization for both the bone scan and MRI.

Following this hearing wherein GFMS authorized these medical tests, the claimant encountered numerous difficulties in getting GFMS to guarantee payment to Hartford Hospital for these tests. The claimant presented himself twice for the tests, both on July 10, 2006 and July 11, 2006, and both times Hartford Hospital declined to perform the tests due to inadequate assurances of payment. The claimant then had the tests performed via private group insurance for which a $100 co-pay was assessed. The co-pay remains unpaid. Seven workers’ compensation hearings have been held on these issues, including two formal hearings on November 20, 2006 and January 16, 2007 to discuss the unreasonable contest and undue delay of benefits. The trial commissioner found that GFMS did not provide any medical reports that justified the delay in paying Dr. Grady-Benson or delaying the scheduling of the MRI and bone scan recommended by their examining physician, Dr. Grady-Benson.

In his Finding and Award of July 27, 2007, Commissioner Scott Barton concluded that GFMS has unreasonably contested and delayed medical treatment benefits for the claimant’s compensable knee injury; finding GFMS lacked a reasonable basis to delay payment for treatment, to contest the need for treatment, or to contest or delay the recommended diagnostic tests for the claimant. The commissioner concluded that the unreasonable delay of benefits was due to GFMS’s own fault and neglect in handling the claim. The commissioner did not find any monetary benefits were delayed for which interest could be granted. The commissioner further found that the undue delay in medical treatment caused the claimant’s attorney to expend substantially more time representing his client than would be reasonably expected. Therefore, pursuant to § 31-300 C.G.S. the trial commissioner ordered GFMS to pay claimant’s counsel $8,000 to compensate for 40 hours of legal time occasioned by the unreasonable delay, and penalized GFMS $500 pursuant to § 31-288(b)(1) C.G.S. The respondent GFMS filed a Motion to Correct seeking to interpose factual findings that GFMS did not act unreasonably and finding the insurance fund legally immune from sanction. The trial commissioner denied these corrections and this appeal ensued.4

The appellant argues that the trial commissioner cannot levy penalties since CIGA is not an “insurer” within the scope of § 31-300 C.G.S. They further argue that CIGA has absolute statutory immunity from such penalties pursuant to § 38a-838(5) C.G.S., § 38a-841(d) C.G.S., and § 38a-850 C.G.S. We find these arguments unpersuasive, as we must adhere stare decisis to the precedent in Pantanella, supra, which upheld this commission’s power to levy statutory sanctions against the appellant under substantially similar circumstances.

In Pantanella, the appellant was found to have engaged in “stonewalling and foot-dragging” prohibited by General Statutes § 31-300 which led to the imposition of statutory sanctions by the trial commissioner. This panel affirmed that decision, which was upheld by the Appellate Court.

The commissioner found that on September 28, 1995, he had ordered that no further evidence would be admitted. CIGA ignored the commissioner’s order by attempting, on a number of occasions, to introduce the transcript of the deposition of Mazzara. The commissioner also found that the litigation that resulted from CIGA’s attempts to introduce the deposition caused undue delay in the payment of benefits to the plaintiff. On the basis of his findings, the commissioner awarded attorney’s fees.
Applying § 31-300 to the facts as found by the commissioner, we conclude that the board properly affirmed the award of attorney’s fees.

Id., at 53.

Looking to the facts in the present case, we find that Commissioner Barton reached a similar finding adverse to the appellant. Among the facts determined in the Finding and Award was that the respondent had made a specific representation before Commissioner Robin Waller that they would pay for the claimant’s MRI and bone scan, and then failed to authorize payment for the very tests that they had agreed to provide. Findings, ¶¶ 21-27.5 The trial commissioner could easily determine this conduct was unreasonable and, based on the record, this constituted conduct which disregarded the lawful authority of this Commission.

A brief discussion of the source of this authority is warranted at this juncture. Prior to 1913 an injured worker in Connecticut similar to the claimant in this matter had access to the judicial branch for redress of his injuries. His recourse if he or she were to be injured in the course of his employment was to file a common law tort action in the Court of Common Pleas or the Superior Court. Were a judge in such a court to find a defendant had violated an order of the court, or otherwise committed misconduct before the tribunal, the judge would have the power under the common law to impose sanctions for contempt as defined in Gorham v. New Haven, 82 Conn. 153 (1909). Connecticut tribunals continue to have the common law power to sanction misconduct which occurs during the course of legal proceedings. See Keeney v. Buccino, 92 Conn. App. 496 (2005).

The court’s authority to impose civil contempt penalties arises not from statutory provisions but from the common law …. The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both.

Id., at 513. See also Daniels v. Alander, 268 Conn. 320, 329 (2004).

The passage of the Workers’ Compensation Act in 1913 supplanted the common law rights existing as of that date. See Dodd v. Middlesex Mutual Assurance Company, 242 Conn. 375 (1997) and Powers v. Hotel Bond Co., 89 Conn. 143 (1915). The General Assembly saw fit when enacting the enabling Act for this Commission to vest trial commissioners with the statutory authority to sanction parties for misconduct before the tribunal. This legislation enables trial commissioners to force parties to adhere to orders of the tribunal.6

The statutory powers of trial commissioners are set forth in § 31-278 C.G.S. which states, in part, “[h]e shall have power to certify to official acts and shall have all powers necessary to enable him to perform the duties imposed upon him by the provisions of this chapter.” (Emphasis added). We note that pursuant to § 31-300 C.G.S. interest and attorney’s fees are specifically included among the remedies the trial commissioner may award to claimants for malfeasance on the part of an employer or insurer. We also find that the power to levy sanctions is inherently part of the process of “adjudicating claims arising under the Act” which is vested in trial commissioners. Stickney v. Sunlight Construction Inc., 248 Conn. 754, 762 (1999). The nature of a trial commissioner’s quasi-judicial powers has long been recognized under Connecticut law. Powers, supra, 148-150.

While the appellate precedent and the statutory provisions supportive of the power to levy sanctions are important arguments supportive of the trial commissioner’s actions in this matter, we must also look to the paramount purpose of this Commission. This Commission exists to protect the interests of Connecticut’s injured workers. Frequently during informal proceedings before this Commission it will be apparent, although there are other unresolved issues between the parties, that a claimant is in need of immediate medical treatment or testing. The Commission expects that when a respondent makes representations such medical treatment had been authorized, that such representations will be honored. Forcing such issues to be resolved at formal hearings would be highly detrimental to public policy. Employers would lose the services of employees who failed to obtain remedial care; the adjudicative process to resolve claims by this Commission would grind to a near halt, and most importantly, claimants would be deprived of their right under the law to timely and appropriate medical attention. This is contrary to the humanitarian mission of this Commission, as held in Gartrell v. Dept. of Correction, 259 Conn. 29 (2002) and Powers, supra, 146 “[t]he statute is remedial in nature and its provisions are to be broadly construed.” In Casey v. Northeast Utilities, 249 Conn. 365 (1999) the Supreme Court clearly acknowledged these concerns as part of the purpose of our Act.

The workers’ compensation system is also designed to minimize the adverse effects that administrative delays could have on the financial status of an injured employee. See, e.g., General Statutes § 31-301(f).[fn10] An injured employee who may not be able to earn a living due to temporary or permanent disabilities caused by his injuries faces grim economic hardships that will be aggravated if there is delay in the availability of compensation. Hence, promptness in providing compensation is a key factor in alleviating the severity of an injured employee’s financial predicament.

Id., at 379.

The Supreme Court recognized in Schiano v. Bliss Exterminating Company, 260 Conn. 21 (2002) that statutory sanctions are included within the award a trial commissioner may grant to a claimant. Moreover, the court held that once parties engage the jurisdiction of the Commission they are then barred from contesting the jurisdiction of the trial commissioner to award sanctions. We find this reasoning applicable to the present case.

Prior to considering the appellant’s argument, we wish to consider the burden they face on appeal. We find that the facts herein are indistinguishable from Pantanella, and thus this precedent has the force of stare decisis. We have frequently reiterated the importance of stare decisis in our system of jurisprudence.

In Chambers v. Electric Boat, [4952 CRB-8-05-6 (June 7, 2006), aff’d, 283 Conn. 840 (2007)], we referenced the importance accorded to the principle of stare decisis. Application of stare decisis assures predictability and certainty in a court’s conclusions. It provides a body of law that informs parties a tribunal will not reach a different legal outcome when presented with substantially similar circumstances. This creates a reliable structure behind judicial and quasi-judicial decisions which enable parties to organize their affairs upon the belief tribunals will not suddenly reach new interpretations of the law.
In Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998) fn.1, we held “Stare decisis, although not an end in itself, serves the important function of preserving stability and certainty in the law. Accordingly, ‘a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. Maltbie, Conn. App. Proc., p. 226.’ Herald Publishing Co. v. Bill, 142 Conn. 53, 62 (1955).” Chambers, supra.

Badawieh v. Federal Express Corporation, 5240 CRB-7-07-6 (September 4, 2008).

We must now decide whether the appellant’s argument presents the type of “inescapable logic” that would cause us to overturn the trial commissioner’s decision in this matter.7 The appellant’s argument is basically that the General Assembly intended to immunize them from liability by virtue of the terms of the Connecticut Insurance Guaranty Act. They also claim that they are not an “insurer” within the scope of Chapter 568. We are not persuaded, however, that for the purposes of this matter that the appellant is not an “insurer” within the scope of our precedent and statutes.

Our reasoning is based on the fact the enabling act creating CIGA defines CIGA as an “insurer” as it relates to the payment of a “covered claim.” The “plain meaning” of § 38a-841(1)(b) C.G.S. is definitive in that regard;

(1) Said association shall:
(b) be deemed the insurer to the extent of its obligations on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent (Emphasis added).

The “plain meaning” of § 38a-841(1)(b) C.G.S is that on a “covered claim” CIGA shall act as the insurer and the claimant shall have the same rights against CIGA as he or she would have had against the original, and now insolvent, insurer. We find the appellant’s citation of Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007) as authority to the contrary completely misreads the applicable law. As we pointed out in Christensen, the trial commissioner had directed CIGA to pay money to another insurance carrier, which was barred by binding precedent in Hunnihan v. Mattatuck Manufacturing, 243 Conn. 438 (1997) “which determined CIGA was not obligated to honor claims from solvent insurers” Christensen, supra. Statutory sanctions are not claims from solvent insurers.

We believe that the Supreme Court’s reasoning in Connecticut Insurance Guaranty Association v. Fontaine, 278 Conn. 779 (2006) is applicable herein. In Fontaine CIGA attempted to avoid responsibility for a loss of consortium claim, claiming it was not a “covered claim” under § 38a-838(5) C.G.S, which the Supreme Court held was a “circular and unpersuasive” argument. Id., at 791. The Court held, to the contrary “[i]n general, the legislative objective was to make the [association] liable to the same extent that the insolvent insurer would have been liable under its policy.” Id. There is no dispute that had the original insurer unreasonably delayed payment or unreasonably contested liability that the trial commissioner could have imposed statutory sanctions. The statutory definition of “covered claim” in § 38a-838(5) C.G.S is as follows:

5) “Covered claim” means an unpaid claim, including, but not limited to, one for unearned premiums, which arises out of and is within the coverage and subject to the applicable limits of an insurance policy to which sections 38a-836 to 38a-853, inclusive, apply issued by an insurer, if such insurer becomes an insolvent insurer after October 1, 1971, and (A) the claimant or insured is a resident of this state at the time of the insured event; or (B) the claim is a first party claim for damage to property with a permanent location in this state, provided the term “covered claim” shall not include (i) any claim by or for the benefit of any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise; provided that a claim for any such amount, asserted against a person insured under a policy issued by an insurer which has become an insolvent insurer, which, if it were not a claim by or for the benefit of a reinsurer, insurer, insurance pool or underwriting association, would be a “covered claim” may be filed directly with the receiver of the insolvent insurer but in no event shall any such claim be asserted against the insured of such insolvent insurer, (ii) any claim by or on behalf of an individual who is neither a citizen of the United States nor an alien legally resident in the United States at the time of the insured event, or an entity other than an individual whose principal place of business is not in the United States at the time of the insured event, and it arises out of an accident, occurrence, offense, act, error or omission that takes place outside of the United States, or a loss to property normally located outside of the United States or, if a workers’ compensation claim, it arises out of employment outside of the United States, (iii) any claim by or on behalf of a person who is not a resident of this state, other than a claim for compensation or any other benefit which arises out of and is within the coverage of a workers’ compensation policy, against an insured whose net worth at the time the policy was issued or at any time thereafter exceeded twenty-five million dollars, provided that an insured’s net worth for purposes of this section and section 38a-844 shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries as calculated on a consolidated basis, (iv) any claim by or on behalf of an affiliate of the insolvent insurer at the time the policy was issued or at the time of the insured event, or (v) any claim arising out of a policy issued by an insurer which was not licensed to transact insurance in this state either at the time the policy was issued or when the insured event occurred.

The underlying claim before this Commission clearly falls within the statutory definition of a “covered claim.” The appellant does not identify any of the enumerated grounds in the statute which preclude the payment order presently under appeal, and consistent with Fontaine, supra, we believe the insolvency of the original insurer would be irrelevant to the question as to whether sanctions can be levied.

We are not persuaded by an interpretation of § 38a-838(5) C.G.S which would determine sanctions are not part of a “covered claim” as it flies in the face of the Supreme Court’s opinion in Fontaine, supra.8 It also ignores the procedural aspects of a motion for sanctions, which cannot be stripped away from the underlying action before the tribunal.

A motion for an attachment for contempt, when there is a disobedience of an injunction order, is not disconnected from the decree which it seeks to enforce. Lyon v. Lyon, 21 Conn. 185, 192. Such a proceeding is but an incident to the original action. In effect it is an application for an execution of a judgment already rendered, and should not be commenced as a separate action.

Gorham, supra, at 155.

In addition, we have previously noted that sanctions are part of the award due to the claimant. See Schiano, supra, and Casey, supra. Nonetheless, the appellant argues “civil penalties and attorney’s fees for ‘unreasonable delay’ are therefore not obligations which the Legislature intended to impose on CIGA.” Appellant’s Brief, p. 6. While they offer no appellate authority for this position, they cite two statutes in the CIGA Act which they claim exempts them from penalties for misconduct.

The appellant argues that § 38a-841(d) C.G.S provides them unfettered discretion in making the decision in what payments are deemed reasonable. Appellant’s Brief, p. 6. Interestingly, they chose not to cite the entire text of this statute in making this assertion, nor do they cite any appellate precedent on point. Considered as a whole, we simply cannot find that it means what the appellant claims that it says. Section 38a-841(d) provides the power to CIGA to take the following actions.

investigate claims brought against said association and adjust, compromise, settle, and pay covered claims to the extent of said association’s obligations, and deny all other claims. The association shall pay claims in any order it deems reasonable, including but not limited to, payment in the order of receipt or by classification. It may review settlements, releases and judgments to which the insolvent insurer or its insureds were parties to determine the extent to which such settlements, releases and judgments may be properly contested.

“In construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous.” Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 659 (2007); Jalowiec Realty Associates v. Planning & Zoning Commission, 278 Conn. 408, 414 (2006). See also Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007).

Applying this canon of statutory construction we note the first sentence of this statute basically sets forth the scope of authority for CIGA to resolve pending claims against the association. The second sentence, when read as a whole, provides discretion to the association in the overall conduct of its business, noting it may determine to address certain claims before others. The final sentence enables the association to determine if prior judgments and settlements against the insolvent insurer were properly resolved. The statute makes no mention of judicial or administrative sanctions, and does not reference the authority of administrative or judicial tribunals. Read in its totality, this statute represents a boilerplate recitation of corporate powers, and does not represent the unbridled grant of discretion as represented by the appellant.

Applying the facts of this case to this statute, we find the present case does not present a circumstance where the wisdom of the appellant’s business judgment is being challenged. Rather, the appellant was sanctioned for misconduct before the tribunal. We believe the facts of this case could not be deemed “reasonable” by any objective observer. The appellant simply made representations to the tribunal which it failed to perform.

The appellant finally argues that the General Assembly has granted them unlimited immunity against any and all forms of civil liability, citing § 38a-850 C.G.S. We are not persuaded the “plain meaning” of this statute compels the result sought by the appellant:

There shall be no liability on the part of and no cause of action of any nature shall arise against any member insurer, said association or its agents or employees, the board of directors, or any person serving as an alternate or substitute representative of any director or the commissioner or his representatives for any action taken or any failure to act by them in the performance of their powers and duties under sections 38a-836 to 38a-853, inclusive.

The appellant relies on the text of the statute to conclude they enjoy absolute immunity, relying as well on various unpublished trial court decisions and the decisions reached by courts in other jurisdictions applying similar statutes in those states. Connecticut appellate precedent governing the powers of this Commission and the rules of statutory construction following the enactment of § 1-2z C.G.S. cause us to reach a different conclusion.9 10

We acknowledge that the CIGA Act may well afford the appellant, its agents and its employees broad statutory defenses to tort and contractual liability. That is not the issue before us, however. We cannot, based on relevant Connecticut precedent, conclude this immunity extends to divest this Commission of its statutory jurisdiction to sanction parties that appear before the tribunal.

We look to a recent case interpreting § 1-2z C.G.S. In First Union National Bank v. Hi Ho Shopping, 273 Conn. 287 (2005) the plaintiff asserted a right under the foreclosure statutes to foreclose upon an interest held by the State of Connecticut in real property, asserting “§ 49-31 is clear on its face.” Id., at 290. The Supreme Court, however, made a further inquiry.

General Statutes § 1-2z provides that [t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extra-textual evidence of the meaning of the statute shall not be considered.

Id., at 291.

Upon further review the Supreme Court concluded the term “interest” in the foreclosure statute was not statutorily defined, and was ambiguous. Id. The court further decided “this court will not interpret statutes in such a way that would lead to ‘bizarre or absurd results.’ ” Id., at 294. Concluding that the plaintiff’s statutory construction would result in “substantial interference with the state’s statutory obligation” to provide higher education, the Supreme Court ordered the plaintiff’s complaint dismissed.

We believe the appellant’s statutory construction in this case is equally as untenable as that of the plaintiff in First Union National Bank v. Hi Ho Shopping, 273 Conn. 287 (2005). See also Jalowiec, supra, at 416. Southern New England Telephone v. Cashman, supra, is also in accord with this approach.

As we repeatedly have stated, “the legislature is always presumed to have created a harmonious and consistent body of law ….” (Internal quotation marks omitted.) Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 238, 915 A.2d 290 (2007). This requires the court “to read statutes together when they relate to the same subject matter …. Accordingly, [i]n determining the meaning of a statute … we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction …. In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result.” (Internal quotation marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 748, 865 A.2d 428 (2005); cf. General Statutes § 1-2z. “When more than one construction [of a statute] is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results.”

Id., at 652-653.11

To prevail on their argument that the CIGA Act bars sanctions against parties for misconduct before the tribunal, the appellant would need to prove that this statutory interpretation would not pose a “substantial interference with the state’s statutory obligation” to operate an effective system of workers’ compensation. The appellant cannot meet this burden. We have previously held that, “[w]e believe the use of statutory monetary sanctions by trial commissioners seeking to enforce orders of this Commission is essential to the performance of this Commission’s statutory mission” Hummel v. Marten Transport, LTD, 5303 CRB-5-07-11 (May 14, 2008). We also look to the “plain meaning” of § 31-288 C.G.S. and § 31-300 C.G.S. The appellant points to no effective alternative remedy available to this Commission which would enable it to enforce its own orders in the absence of the availability of statutory sanctions. The ability to “run one’s own courtroom” goes directly to the core powers of this Commission to adjudicate claims.12

Connecticut precedent also requires ambiguities between statutes to be resolved in favor of the remedial purpose of the Workers’ Compensation Act. “The purposes of the Act [Chapter 568] itself are best served by allowing the remedial legislation a reasonable sphere of operation considering [its] purposes …. In [reservations] arising under workers’ compensation law, we must resolve statutory ambiguities or lacunae in a manner which will further the remedial purposes of the Act.” Mello v. Big Y Foods, Inc. 265 Conn. 21, 26 (2003). In Mello, the Supreme Court held that the rights and obligations of parties before the Commission could not be “unbundled” stating such an effort would compromise the integrity of the workers’ compensation system. Id., at 31. We believe the appellant’s approach would constitute such an “unbundling” of rights and obligations and cannot find it consistent with the Supreme Court’s reasoning in Mello.

In their brief, appellant argues that the statute permits CIGA to be the ultimate judge of whether its conduct is “reasonable.” Appellant’s Brief, pp. 6-7. This interpretation would undermine the discretionary powers of trial commissioners granted under § 31-288 C.G.S. and § 31-300 C.G.S.13 Both this panel and the Appellate Court have ruled against similar efforts to delegate statutory grants of discretionary authority to outside entities. See Dzienkiewicz v. State/Department of Correction, 5211 CRB-8-07-3 (March 18, 2008) (State Disability Board decision not binding on trial commissioner) and Hill v. State Employees Retirement Commission, 83 Conn. App. 599 (2004) (Medical Examining Board had exclusive authority to decide whether an injury was service connected). We find the appellant’s legal reasoning similarly untenable.

For these foregoing reasons, we find the appellant’s argument ultimately unpersuasive.14 We affirm the Finding and Order of the trial commissioner, and dismiss this appeal.

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

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

2 The Finding and Award does not disclose the identity of the original workers’ compensation carrier for the employer-respondent. The Connecticut Insurance Guaranty Fund’s obligations would commence upon the insolvency of the employer-respondent’s carrier. BACK TO TEXT

3 GFMS is a major multi-state organization based in Boston which manages a number of guaranty funds, including CIGA, in the North and Mid-Atlantic regions. BACK TO TEXT

4 The text of the relevant statues § 31-288 and § 31-300 are as follows:

Sec. 31-288

(a) If an employer wilfully fails to conform to any other provision of this chapter, he shall be fined not more than two hundred fifty dollars for each such failure.

(b) Whenever (1) through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due under this chapter is unduly delayed, or (2) either party to a claim under this chapter has unreasonably, and without good cause, delayed the completion of the hearings on such claim, the delaying party or parties may be assessed a civil penalty of not more than five hundred dollars by the commissioner hearing the claim for each such case of delay. Any appeal of a penalty assessed pursuant to this subsection shall be taken in accordance with the provisions of section 31-301.

(c) Whenever an investigator in the investigations unit of the office of the State Treasurer, whether initiating an investigation at the request of the custodian of the Second Injury Fund, the Workers’ Compensation Commission, or a commissioner, finds that an employer is not in compliance with the insurance and self-insurance requirements of subsection (b) of section 31-284, such investigator shall issue a citation to such employer requiring him to obtain insurance and fulfill the requirements of said section and notifying him of the requirement of a hearing before the commissioner and the penalties required under this subsection. The investigator shall also file an affidavit advising the commissioner of the citation and requesting a hearing on such violation. The commissioner shall conduct a hearing, after sufficient notice to the employer and within thirty days of the citation, wherein the employer shall be required to present sufficient evidence of his compliance with said requirements. Whenever the commissioner finds that the employer is not in compliance with said requirements he shall assess a civil penalty of not less than five hundred dollars per employee or five thousand dollars, whichever is less and not more than fifty thousand dollars against the employer.

(d) In addition to the penalties assessed pursuant to subsection (c) of this section, the commissioner shall assess an additional penalty of one hundred dollars for each day after the finding of noncompliance that the employer fails to comply with the insurance and self-insurance requirements of subsection (b) of section 31-284. Any penalties assessed under the provisions of this subsection shall not exceed fifty thousand dollars in the aggregate.

(e) The chairman of the Workers’ Compensation Commission shall notify the State Treasurer and the Attorney General of the imposition of any penalty, the date it was imposed, the amount and whether there has been an appeal of said penalty. Any civil penalty order issued pursuant to subsection (c) or (d) of this section shall state that payment shall be made to the Second Injury Fund of the State Treasurer, and that failure to pay within ninety days may result in civil action to double the penalty. The State Treasurer shall collect any penalty owed, and if the penalty is not paid within ninety days, the State Treasurer shall notify the chairman of the Workers’ Compensation Commission and the Attorney General so that civil action may be brought pursuant to section 31-289. Any appeal of a penalty assessed pursuant to the provisions of subsections (c) and (d) of this section shall be taken in accordance with the provisions of section 31-301. The chairman shall adopt regulations for the commissioners to use in setting fines which shall require the commissioners to take into account the nature of the employer’s business and his number of employees.

(f) When any employer knowingly and wilfully fails to comply with the insurance and self-insurance requirements of subsection (b) of section 31-284, such employer, if he is an owner, in the case of a sole proprietorship, a partner, in the case of a partnership, a principal, in the case of a limited liability company or a corporate officer, in the case of a corporation, shall be guilty of a class D felony.

(g) Any employer who, with the intent to injure, defraud or deceive any insurance company insuring the liability of such employer under this chapter, (1) knowingly misrepresents one or more employees as independent contractors, or (2) knowingly provides false, incomplete or misleading information to such company concerning the number of employees, for the purpose of paying a lower premium on a policy obtained from such company, shall be guilty of a class D felony.

Sec. 31-300

As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of the commissioner’s findings and award. The commissioner shall, as part of the written award, inform the employee or the employee’s dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. The commissioner shall retain the original findings and award in said commissioner’s office. If no appeal from the decision is taken by either party within twenty days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the Superior Court. The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the Superior Court; and, upon the filing of an application to the court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said court, send to the clerk a certified copy of such findings and award. In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in the award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee. Payments not commenced within thirty-five days after the filing of a written notice of claim shall be presumed to be unduly delayed unless a notice to contest the claim is filed in accordance with section 31-297. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed the rate prescribed in section 37-3a, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than the rate prescribed in section 37-3a to be upon the employer or insurer. In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. No employer or insurer shall discontinue or reduce payment on account of total or partial incapacity under any such award, if it is claimed by or on behalf of the injured person that such person’s incapacity still continues, unless such employer or insurer notifies the commissioner and the employee of such proposed discontinuance or reduction in the manner prescribed in section 31-296 and the commissioner specifically approves such discontinuance or reduction in writing. The commissioner shall render the decision within fourteen days of receipt of such notice and shall forward to all parties to the claim a copy of the decision not later than seven days after the decision has been rendered. If the decision of the commissioner finds for the employer or insurer, the injured person shall return any wrongful payments received from the day designated by the commissioner as the effective date for the discontinuance or reduction of benefits. Any employee whose benefits for total incapacity are discontinued under the provisions of this section and who is entitled to receive benefits for partial incapacity as a result of an award, shall receive those benefits commencing the day following the designated effective date for the discontinuance of benefits for total incapacity. In any case where the commissioner finds that the employer or insurer has discontinued or reduced any such payment without having given such notice and without the commissioner having approved such discontinuance or reduction in writing, the commissioner shall allow the claimant a reasonable attorney’s fee together with interest at the rate prescribed in section 37-3a on the discontinued or reduced payments. BACK TO TEXT

5 Compare the factual circumstances herein with Keeney v. Buccino, 92 Conn. App. 496 (2005) (defendant ignored stipulated judgment to remove a dam which violated environmental laws). Had the appellant wished to challenge the appropriateness of this approved medical treatment, they were obligated to obtain a finding from the trial commissioner and take an appeal from an adverse decision. See Cologne v. Westfarms Associates, 197 Conn. 141, 148 (1985)(parties must comply with court orders until they are reversed on appeal). BACK TO TEXT

6 In interpreting Article X of the Connecticut Constitution, the Supreme Court held in Mello v. Big Y Foods, Inc., 265 Conn. 21 (2003) that “[i]t is settled law that this provision restricts the power of the legislature to abolish a legal right existing at common law prior to 1818 without also establishing a ‘reasonable alternative to the enforcement of that right.’ Id., at 32. We believe the legislature’s enactment of § 31-288 C.G.S. and § 31-300 C.G.S. constitutes a statutory grant to trial commissioners of the common law power to enforce orders of the tribunal. The appellant’s statutory construction would provide trial commissioners no “reasonable alternative to the enforcement of that right,” i.e. the right to sanction parties for violating orders of the tribunal. BACK TO TEXT

7 As a general matter, we note a recent Supreme Court decision outlines the heavy burden the appellant face in their effort to construe statutory language so as to overcome the precedent in Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46 (2001). In Hummel v. Marten Transport, LTD, 282 Conn. 477 (2007) the parties challenged the validity of the “final judgment” rule; arguing that the precedent behind this rule was inconsistent with the “plain meaning” of the Workers’ Compensation Act. The Supreme Court rebuffed this effort for the following reasons.

“We acknowledge that, if we were writing on a clean slate, § 1-2z might foreclose us from reading a final judgment requirement into § 31-301b because the text of § 31-301b contains no such requirement. For the reasons that follow, however, we conclude that § 1-2z does not dictate the result that the parties urge . It is evident from that history that the legislature, by virtue of its enactment of § 1-2z, did not intend to overrule our prior interpretation of any other statutory provision, including § 31-301b.” Id., at 496, 498-499. BACK TO TEXT

8 We note that on multiple occasions this board and appellate courts have rejected the appellant’s efforts to define “covered claim” in a fashion exempting them from liability. See Esposito v. Simkins Industries, 5065 CRB-3-06-3 (March 1, 2007), aff’d, 286 Conn. 319 (2008); Connecticut Ins. Guaranty Assn. v. State, 278 Conn. 77 (2006); Giglio v. American Economy Ins., Co., 278 Conn. 794 (2006); Doucette v. Pomes, 247 Conn. 442 (1999) and CIGA v. Fontaine, 278 Conn. 779 (2006). BACK TO TEXT

9 The appellant argues that the terms “liability” and “cause of action” in § 38-850 C.G.S. clearly encompasses statutory sanctions levied against CIGA. We do not agree since these terms are not defined within the relevant statute. Therefore, we proceed in this matter consistent with Hummel, supra, “the term ‘text’ is not plain and unambiguous with respect to the issue of statutory construction raised by this appeal.” Id., at 498. See also First Union National Bank v. Hi Ho Shopping, 273 Conn. 287, 291-295 (2005). “We agree with the state, therefore, that the meaning of the term ‘interest’ in § 49-31 is not unambiguous.” Determining herein the terms “liability” and “cause of action” are ambiguous, we proceed to resolve this ambiguity in a manner consistent with the existing legal precedent governing CIGA. BACK TO TEXT

10 Appellant relies heavily on two unpublished Superior Court cases that they claim support their view that CIGA enjoys absolute immunity. We find these cases factually and legally distinguishable. In Stearns & Wheeler v. CIGA, 2007 Conn. Super. Lexis 1858 the Superior Court declined to find CIGA liable for damages due to an estoppel theory for not settling a claim. This case, however, did not involve sanctions from a tribunal or involve this Commission. Moreover, the primary issue in this case was the court’s determination that payment in this matter would be “for the benefit of an insurer” and hence, not a “covered claim” under § 38a-383(5). We also find CIGA v. Onolfo, 1997 Conn. Super. Lexis 1544 inapposite to the issues at hand; once again, this case did not involve sanctions levied on CIGA by a tribunal and it did not involve this Commission. In Onolfo the court denied statutory interest on a $299,900 award primarily for one reason—“a meaningful interest award” could not be granted against CIGA when at the time its monetary exposure to any one claim was limited by statute to $300,000. We also note that CIGA submitted themselves to judicial review of their decisions in these matters; contrary to their present position that § 38-841(d) C.G.S. provides them unfettered discretion to act in any manner they deem “reasonable.” BACK TO TEXT

11 We believe the General Assembly’s grant of exclusive jurisdiction to this Commission over compensable injuries in § 31-284 C.G.S. and its grant of general powers to trial commissioners under § 31-278 C.G.S. is akin to the “broad grant of authority” granted by the General Assembly to the Connecticut Housing Finance Authority under § 8-242 C.G.S and § 8-250 C.G.S. to address the state’s housing issues Renaissance Management Co. v. Connecticut Housing Finance Authority, 281 Conn. 227, 235-236, 238-240 (2007). Essentially the appellant’s argument herein is that the General Assembly’s grant of powers to a private organization being managed by a firm based in Massachusetts should be deemed superior to the General Assembly’s grant of powers to an agency in the Executive Branch of the Connecticut state government. BACK TO TEXT

12 On the other hand, the General Assembly has granted this Commission the power of exclusive jurisdiction over claims such as the instant claim. This grant of exclusivity is embodied in § 31-284 C.G.S.:

(a) An employer who complies with the requirements of subsection (b) of this section shall not be liable for any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as provided under this chapter, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between an employer who complies with the requirements of subsection (b) of this section and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment are abolished other than rights and claims given by this chapter, provided nothing in this section shall prohibit any employee from securing, by agreement with his employer, additional compensation from his employer for the injury or from enforcing any agreement for additional compensation.

Therefore, in contrast to the vague statutory language cited by the appellant, this Commission operates under a broad and unequivocal grant of authority by the General Assembly to resolve “all rights and claims” pertaining to compensable injuries within the jurisdiction of the State of Connecticut. The Supreme Court recently ruled against what it deemed “an impermissible end run around the Workers’ Compensation exclusivity provision.” Stearns & Wheeler, LLC v. Kowalsky Bros., Inc., 289 Conn. 1 (2008). BACK TO TEXT

13 The appellant’s statutory interpretation would create the unreasonable result of permitting trial commissioners to penalize solvent insurance carriers for misconduct, while providing a blanket exemption to CIGA exempting it from sanctions for identical misconduct. This interpretation is inconsistent with the purpose of § 38a-838(5) C.G.S. wherein a “covered claim” by CIGA is to be treated as if CIGA was acting as the insurer. BACK TO TEXT

14 Counsel for CIGA has provided a massive amount of authority regarding the issues in this case. We decline to comment on most of the cases cited as we have previously held that it is the quality of a party’s argument which is dispositive before the Commission, not the quantity of documentation that is provided Arnott v. Taft Restaurant Ventures, LLC, 4932 CRB-7-05-3 (March 1, 2006). Much of the authority offered were from courts in other jurisdictions, which are not binding on this panel. Atkinson v. United Illuminating Company, 5064 CRB-4-06-3 (April 19, 2007); Christensen, supra. Since we have decided this case primarily on appellate precedent governing statutory interpretation under Connecticut law, we find reliance on precedent from our sister states misplaced. CIGA v. Fontaine, supra, n.11. BACK TO TEXT


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