Tufts v. Cary/New England Building

CASE NO. 5297 CRB-7-07-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 5, 2008

RONALD TUFTS

CLAIMANT-APPELLEE

v.

CARY / NEW ENGLAND BUILDING

EMPLOYER

RESPONDENT-APPELLEE

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant appeared pro se.

The respondent employer and Travelers Property & Casualty were represented by Tracey Green Cleary, Esq., Law Offices of Cynthia M. Garaty, Crossroads Corporate Park, 6 Devine Street, 1st Floor, North Haven, CT 06473.

The respondent Second Injury Fund was represented by Lawrence G. Widem, 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 November 21, 2007 Finding and Award of the Commissioner acting for the Seventh District was heard July 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Second Injury Fund has appealed from the November 21, 2007 Finding and Award of the Commissioner acting for the Seventh District. In that Finding and Award the trial commissioner was presented with a single legal question; whether § 31-299b as amended by Public Act 05-199 § 1 could be applied retroactively and thereby bar the respondent, Travelers Property & Casualty [hereafter Travelers] from seeking apportionment with the Second Injury Fund for an injury occurring prior to the effective date of Public Act 05-199.1

The pertinent factual circumstances giving rise to the claim are as follows. The claimant was employed by the respondent Cary Corp./New England Building Products, Inc., from February 9, 1988 to February 11, 2000. As a result of the heavy lifting activities engaged in by the claimant over the period with the employer he suffered a degenerative condition in his neck and suffered a disc herniation at C6-7 with C7 nerve root compression.

The parties stipulated that the claimant’s injury was a repetitive trauma injury. Additionally, a Voluntary Agreement was executed and the claim accepted. The date of injury was given as February 11, 2000.

For the period between January 1, 1988 to January 1, 1990, the respondent-employer was uninsured for its Workers’ Compensation liability. There was no dispute that the last insurance carrier on the risk was the respondent Travelers. Therefore, pursuant to § 31-299b, the respondent-Travelers assumed administration of the claim and paid, $44, 692.55 in benefits to the claimant.

Thereafter, the respondent Travelers sought reimbursement from the Second Injury Fund2 for the period during which the employer was without insurance and the claimant was exposed to acts of repetitive trauma contributing to his injury. The parties do not dispute that under this tribunal’s ruling in Anderson v. W.A. Crosscup, Inc. 4795 CRB-3-04-3 (March 23, 2005) and prior to the legislature’s enactment of Public Act 05-199 §1 amending § 31-299(b), the Fund was liable for the proportion of liability attributable to uninsured employers.

Public Act 05-199 § 1 provides:

If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability. Reimbursement shall be made within ten days of the commissioner’s order with interest, from the date of the initial payment, at twelve per cent per annum. If no appeal from the commissioner’s order is taken by any employer or insurer within twenty days, the order shall be final and may be enforced in the same manner as a judgment of the Superior Court. For purposes of this section, the Second Injury Fund shall not be deemed an employer or an insurer and shall be exempt from any liability. The amount of any compensation for which the Second Injury Fund would be liable except for the exemption provided under this section shall be reallocated among any other employers, or their insurers, who are liable for such compensation according to a ratio, the numerator of which is the percentage of the total compensation for which an employer, or its insurer, is liable and the denominator of which is the total percentage of liability of all employers, or their insurers, excluding the percentage that would have been attributable to the Second Injury Fund, for such compensation.

The underlined text sets out the amending language making it clear that the Fund no longer assumes a portion of liability for cases under § 31-299(b). However, the issue on appeal and before the trial commissioner was whether the amending language of Public Act 05-199 § 1 could be applied retroactively to a claim with a date of injury prior to the effective date of the Act. The trial commissioner concluded that the Act was substantive and therefore, the Second Injury Fund was liable for the proportionate amount attributable to the period when the employer was uninsured.

When construing statutes we are guided by § 1-2z. Sec. 1-2z provides:

The 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, extratextual evidence of the meaning of the statute shall not be considered.

We think the text of the Act at issue is clear. As the Fund notes in its brief, the intention of the Act as evidenced by the Act’s language was to close the Fund to an obligation to contribute for the proportionate liability resting with an uninsured employer. We agree. Further, we think the reasoning applied by our Supreme Court in Badolato v. New Britain, 250 Conn. 753 (1999) applies to the instant matter.

Badolato, concerned a municipal employer’s claim that it was entitled to reimbursement for sums paid for the continuation of the claimant’s medical insurance benefits as required by § 31-284b. Section 31-349(e) provided sums paid pursuant to § 31-284b to a claimant who was paid temporary total benefits for more than 104 weeks were to be reimbursed by the Second Injury Fund. The Compensation Review Board held that the employer was not entitled to reimbursement. The Badolato court affirmed the Compensation Review Board’s holding. The court acknowledged that Public Act 95-277 § 3 amending § 31-349(e) provided in relevant part “no injury which occurs on or after July 1, 1995 shall serve as a basis for a transfer of a claim to the second injury fund ….” The Badolato3 court held:

We previously have held that “[p]ayment of an award from a special fund such as the second injury … fund … should be made only in accordance with express statutory authority ….” (Citations omitted; internal quotation marks omitted.) Civardi v. Norwich, [231 Conn. 294.] In repealing the only procedure available for employers to seek reimbursement from the fund for paid health and life insurance premiums, the legislature intended the fund to cease all reimbursement on or after July 1, 1995, regardless of the date of injury or the date the claim originally was transferred to the fund.

Id. at 761-62.

In the instant matter, in order to effect the change it sought, the legislature did not need to repeal an already existing statute. To accomplish its intent, the legislature merely had to enact a prohibition against the practice. It therefore strikes us that the legislature intended and stated that after the effective date of Public Act. 05-199 § 1, July 1, 2006 the Fund was shielded from contributing a proportionate share of an uninsured employer’s liability under § 31-299b. Any other construction would thwart the purpose of the amendment.

Finally, we believe under principles of stare decisis, we are compelled to follow the analysis employed by the Badolato court. The issue in Badolato is sufficiently analogous to warrant applying the court’s ratio decidendi.4 Certainly, following the rationale of the Badolato court furthers the important underlying policy of stare decisis which is to preserve stability and certainty in the law. Herald Publishing Co. v. Bill, 142 Conn. 53 (1955).

We therefore reverse the November 21, 2007 Finding and Award of the Commissioner acting for the Seventh District.

Commissioners Ernie R. Walker and Charles F. Senich concur.

1 The effective date of Public Act 05-199 § 1 is July 1, 2006. BACK TO TEXT

2 The Second Injury Fund’s liability for the period that the claimant was exposed and the employer was without Workers’ Compensation insurance is premised on the Fund’s obligations set out in § 31-355(b). BACK TO TEXT

3 We note that in the tribunal’s opinion in Badolato, supra, a dissenting opinion suggested that the statute at issue should be applied prospectively only. We think the court’s holding in Badolato evinces its rejection of the dissent’s analysis. BACK TO TEXT

4 As was noted in Smith v. Scripto-Tokai Corp., 178 F. Supp.2d 477, 480-81 (W.D.Pa. 2001):

Stare decisis is the policy of courts to stand by precedent — i.e., to adhere to decisions and not disturb that which is settled. Our Supreme Court has said “It is indisputable that stare decisis is a basic self-governing principle within the Judicial Branch which is entrusted with the sensitive and difficult task of fashioning and preserving a jurisprudential system that is not based upon arbitrary discretion.” Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989), citing The Federalist No. 78 at 490 (Alexander Hamilton). It is important to remember that stare decisis does not mean to follow or stand by that which was said. Rather, it means to keep the rationes decidendi of past cases. Discerning the rationes decidendi — the reason for the decision — is a task which falls in the first instance to counsel and ultimately, to the court. In the absence of binding precedent, the rationes decidendi of non-binding opinions becomes critical. BACK TO TEXT