CRB Case Annotations re: Section 31-355(b)

Commissioner’s conclusion respondent was uninsured at the time of claimant’s injury was supported by evidence. However, the amount of the fine imposed by the Commissioner was subject to remand as the Commissioner declared in the hearing that the amount of the fine would be the subject of a future hearing. See also, DeJesus, § 31-288; § 31-301 Appeal procedure; § 31-301-4.

Trial commissioner concluded, on basis of stipulated agreement between counsel for claimant and Second Injury Fund, that claimant was employee of respondents when he sustained facial injuries. Respondents appealed, contending that facts found were arbitrary and capricious in that stipulation did not provide sufficient basis for commissioner’s inferences relative to existence of employer/employee relationship as contemplated by Hanson v. Transportation General, Inc., 245 Conn. 613 (1998). CRB reversed, noting that fund representative was not canvassed regarding basis for stipulating that claimant was employee, and stipulated agreement arose out of negotiations between counsel for claimant and fund rather than negotiations between parties. CRB declined to reach claim of error alleging that decision to proceed with formal hearing in absence of respondents and/or representative and subsequent denial of motions to open constituted abuse of discretion. See also, Mellado, § 31-275(9); § 31-298; § 31-301 Factual findings; § 31-315.

Respondents alleged it was error to permit the Second Injury Fund to litigate its issues at hearing as to whether the respondent was claimant’s employer. CRB determined that precedent in Dechio v. Raymark Industries, Inc., 299 Conn. 376 (2010) stands for the proposition that the Fund should litigate the issues involved in the underlying claim whenever its interests are implicated. See also, DeJesus, § 31-275 (9); § 31-275 (10); § 31-294c; § 31-298; § 31-301 Factual findings; § 31-301-4.

Claimant sustained severed finger while operating lawn mower and putative employer drove him to hospital and later retrieved severed digit. Respondent argued only his firm could be deemed an employer, but CRB also affirmed trial commissioner’s finding that both Mr. Frosolone & his firm Seasonal Services were jointly liable as employers, similar to Diaz v. Capital Improvements and Management, LLC, 5616 CRB-1-11-1 (January 12, 2012) this firm was Frosolone’s alter ego. See also, Wetmore, § 31-294c; § 31-294d; § 31-301 Factual findings.

Claimant injured while installing equipment at customer of Cablevision cable TV system. Claimant employed by subcontractor of Cablevision which lacked insurance, and testified that he received instructions and tools from Cablevision. Trial commissioner found that Cablevision was liable under the “principal employer” statute, citing Pelletier v. Sordoni/Skanska Construction Company, 264 Conn. 509, 520 (2003). Cablevision appealed, arguing it did not exercise control of the worksite. CRB affirmed decision. Cases such as Mancini v. Bureau of Public Works, 167 Conn. 189 (1974) indicate ownership of premises not critical factor in determining control; CRB examined statutes governing cable television to ascertain respondent had significant rights to enter and use public rights of way and private premises to advance its business, unlike respondent in Brown v. Freedom Express Delivery, 4584 CRB-6-02-11 (November 14, 2003). CRB noted that technological advances now permitted off site control of employees. Evidence was claimant acted at Cablevision’s direction. See also, Moreno, § 31-298; § 31-291.

Claimant injured while employed as companion to elderly client. Employer said they would pay medical bills but did not so and laid off claimant while disabled. Firm later sold. Trial commissioner found claimant suffered compensable injury and found employer uninsured, and levied order on Second Injury Fund to pay award. Second Injury Fund appealed, arguing they had sought to make employer’s principal liable for award as alter ego of employer and to impose liability on employer’s successor firm. Trial commissioner did not rule on these motions. On appeal, CRB remanded to trial commissioner to determine whether facts warranted piercing the corporate veil. See also, Barbieri, § 31-275(1); § 31-355(a).

See also, Moore, § 31-301 Factual findings; § 31-310.

Claimant injured while employed by uninsured employer who filed bankruptcy. Second Injury Fund would pay benefits in absence of award against employer. Employer argued automatic stay forbid an award; both parties argued over terms of order of bankruptcy court in matter. Trial commissioner determined award could not issue and directed Fund to pay benefits. Fund appealed. CRB remanded matter. Terms of bankruptcy court order and precedent prevented enforcement of award against respondent, not issuance.

See also, Pinto, § 31-348.

Claimant sustained injury working for roofing subcontractor at new home construction site. Trial commissioner found injury compensable and assigned liability to subcontractor. Subcontractor did not have workers’ compensation insurance policy in force on date of injury and matter transferred to Second Injury Fund. Fund subsequently brought principal employer claims against both the architect hired by property owner’s husband to build cabinets and assist in supervising construction and the property owner’s husband who was working on-site as a mason. Trial commissioner dismissed claim against architect, concluded mason was acting as principal employer, and ordered him to reimburse Second Injury Fund. Respondent mason appealed, arguing Workers’ Compensation Commission lacked jurisdiction as neither roofing nor framing were a part or process of his regular trade or business as a mason and therefore statutory requirements set out by principal employer statute were not satisfied. CRB affirmed, noting trier’s findings were consistent with precedent and testimony of parties adequately supported his conclusions that architect was functioning as a part-time project manager while actual supervisory responsibility for and control of construction site rested with mason, who was essentially acting as a general contractor. See also Sobon, § 31-291, § 31-301. Factual Findings.

See, Jacobs, § 31-275(9), § 31-275(10), § 31-284(a), § 31-291, § 31- 301. Appeal procedure, § 31-355(a).

Claimant worked for subcontractor of respondent at new home construction site and was injured in nail gun accident. Respondent, who was not insured for worker’s compensation, argued Commission lacked jurisdiction as it was not in “regular” business of new home construction; therefore they were not “principal employer”. Record was that respondent had built one house per year for 14 years, and trial commissioner found that this was not “part and process” of respondent’s business. Second Injury Fund appealed and CRB reversed. Record clearly demonstrates the prongs were met in Samaoya v. William Gallagher, 4951 CRB-7-05-6 (April 26, 2006), aff’d, 102 Conn. App. 670 (2007). See also, Martinez, § 31-275(9), § 31-291.

See Chiriboga, § 31-301. Appeal procedure., § 31-308(a).

Respondent was uninsured employer. See also Diaz, § 31-307, § 31-301. Factual findings, § 31-294d, § 31-301-9.

Respondent-employer failed to pay medical providers in accordance with order from trial commissioner, commissioner then issued order against Second Injury Fund directing them to pay. Second Injury Fund had not received notice of hearing prior to having order issued against them. Fund appealed and CRB remanded, statute requires that Fund receive notice their interests are at stake prior to a hearing where relief is sought against the Fund.

Dependent widow awarded benefits after husband’s death as trial commissioner concluded prior compensable injury substantial factor in his death. At same time commissioner awarded § 31-306 benefits to claimant , Second Injury Fund sought reimbursement of the original award it paid to decedent after his employer, who claimed to be self-insured, went bankrupt. The Fund then paid the benefits pursuant to statute. Further investigation found decedent’s employer had coverage for some employees, including decedent, and Fund demanded reimbursement. Trial commissioner denied reimbursement, citing Stickney v. Sunlight Construction, 248 Conn. 754 (1999), CRB reversed and remanded. Since Fund has statutory right to seek reimbursement (§31-355 (c)), Stickney not applicable, issue remanded for factual determination. See also, Stevens, § 31-299b, § 31-301. Appeal procedure, § 31-306.

CRB held Second Injury Fund’s appeal from order issued pursuant to § 31-355(b) untimely insofar as it sought to challenge findings and conclusions made in the underlying Finding and Award issued previously. Appellate Court reversed CRB holding Sec. 31-301(a) does not limit the CRB’s subject matter jurisdiction to hear a late appeal. Rather it provides the board with jurisdiction when no motion to dismiss is timely filed pursuant to practice book Sec. 66-8. Here, a motion to dismiss was timely filed. Therefore, appeal should not have been dismissed. Appellate Court relied on Murphy v. Elms Hotel, 104 Conn. 351 (1926).

Issue was whether employer had worker’s compensation insurance on date of accident. CRB rejected appeal by Second Injury Fund trial commissioner improperly determined policy had been cancelled prior to date of accident. See also Velez, § 31-301. Factual findings, § 31-348.

CRB remanded case to trial commissioner for consideration of § 31-355 order prior to determination regarding apportionment. See also, Anderson, § 31-299b.

CRB remanded case for additional proceedings where trier had granted motion to correct findings to eliminate all subordinate findings concerning agreement between parties that employer was uninsured, yet left in place legal conclusion that employer had no insurance. Commission records as maintained by NCCI indicated that insurance policy was in effect on date of injury, and most efficient resolution of case will be obtained by expedited hearing to resolve insurance issue, along with entry of revised findings. See also, Degnan, § 31-275(9), § 31-292, § 31-348.

Williams v. Merestone Construction, 4436 CRB-4-01-9 (July 3, 2002), appeal dismissed, A.C 23281 (October 24 2002), A.C. 24164 (March 25, 2004), cert. denied, 269 Conn. 905 (2004).

See, Williams, § 31-301. Appeal procedure, and § 31-293.

Claimant was found to be employee of uninsured respondent employer, but underlying claim was dismissed. Employer was subsequently ordered to pay for cost of commissioner’s exam. When employer failed to pay, trier entered § 31-355 order against Fund for $557 cost of exam. CRB held that Fund was required to cover this amount, as § 31-294f directs that employer shall be responsible for cost of exam, and uninsured respondent was found to be claimant’s employer. Award had been entered against employer, which was not appealed. Board declined to interpret the term “award” as used in § 31-355(b) to exclude dismissal orders. See also, Taylor, § 31-301. Appeal procedure, and § 31-294f.

Matey v. Dember, 3848 CRB-7-98-6 (July 7, 1999), aff’d in part and rev’d in part, 256 Conn. 456 (2001).

CRB affirmed trial commissioner’s decision, which denied the Fund’s Form 43 contesting an order to pay pursuant to § 31-355. Fund argued that an order of payment against it pursuant to § 31-355 was improper because no order has ever been entered against a living person or against the executors of the employer’s estate. CRB declined to relitigate these issues as they had already been decided in previous board decisions. In addition, the board did not agree with the Fund’s argument that it has a right to a de novo hearing pursuant to § 31-355(b) where, as here, the Fund participated in the hearings below. Supreme Court agreed that Fund had no right to de novo hearing where it had opportunity to participate in prior proceedings concerning liability, but disagreed in n.11 of its opinion with CRB’s assessment that no award had been entered against the employer. Prior decisions at Matey, 5 Conn. Workers’ Comp. Rev. Op. 104, 516 CRD-5-86 (June 14, 1988), appeal dismissed, 210 Conn. 626 (1989)(per curiam), § 31-278, § 31-310, Matey, 1189 CRD-5-91-3 (April 5, 1991), § 31-301. Appeal procedure, Matey, 3153 CRB-5-95-8 (January 10, 1997), aff’d in part and rev’d in part, 256 Conn. 456 (2001), § 31-301. Appeal procedure, § 31-315, § 31-355(a). Subsequent decision, Matey, 4488 CRB-7-02-2, 4532 CRB-5-02-5 (May 14, 2003), appeal dismissed for failure to comply with Supreme Court’s directive, 85 Conn. App. 198 (2004).

See, Park, § 31-288, § 31-343.

CRB reversed § 31-349 transfer, and held that commissioner should have applied § 31-355 (which provides that Fund will pay claim where employer unable to pay). Claimant sustained a second injury which qualified for transfer under § 31-349, however, at time of second injury the employer was uninsured. CRB held that employer could not transfer claim to Fund due to lack of insurance. (Santos, C., DISSENTING) (there is no requirement in § 31-349 that the employer be insured. Majority is adding a penalty for non-insurance, namely disallowing transfers under § 31-349, which is not contained in the statutes). See also, Champlain, § 31-349.

Second Injury Fund claimed that Chapter 7 discharge of employer in bankruptcy rendered workers’ compensation award null and void, thus precluding § 31-355 claim against Fund. Held, because neither bankruptcy petition nor discharge order specifically addressed claim for workers’ compensation benefits, CRB could not determine whether debt was discharged. Moreover, relationship between individual debtor and employer unclear, as presence of separate legal entity could affect status of claim. Also, CRB noted that Fund had not yet paid benefits despite presence of order to pay award; Fund ordered to comply with order. See also, Walton, § 31-290c.

Hebert v. RWA Roofing & Sheet Metal, 13 Conn. Workers’ Comp. Rev. Op. 43, 1750 CRB-2-93-6, 1899-CRB-2-93-11, 2129 CRB-2-94-8 (December 6, 1994).

Where remand was ordered on separate issue regarding principal employer, but finding of compensability against uninsured immediate employer was not appealed, § 31-355 order against Second Injury Fund remains in effect. See also, Hebert, § 31-291, § 31-301. Appeal procedure.

Purpose of § 31-355 is for the Fund to pay compensation when the employer fails or is unable to pay. The Fund is not liable to pay compensation to injured employee of uninsured subcontractor where trial commissioner finds principal employer liability. See also, Phelan, § 31-291. See later Phelan, § 31-310.

Aubertin v. Pacelli Bros., 12 Conn. Workers’ Comp. Rev. Op. 69, 1381 CRB-1-92-2 (February 3, 1994).

Where employer’s insurance policy is canceled, and employer remains uninsured and fails to pay benefits, statute does not authorize trial commissioner to require the second injury fund to repay insurer who mistakenly paid benefits.

Kluttz v. Howard, 10 Conn. Workers’ Comp. Rev. Op. 195, 1188 CRD-4-91-3 (November 5, 1992), aff’d, 228 Conn. 401 (1994).

CRB affirmed trier’s factual finding that Connecticut has jurisdiction over out of state truck driver’s claim under principles outlined in Supreme Court’s decision in Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991). Second Injury Fund requested CRB apply interest analysis rule regarding actual working time spent in Connecticut as decided by our appellate court in Cleveland, 21 Conn. App. 610 (1990). Additionally, Second Injury Fund argued inequitability of Supreme Court’s ruling in Cleveland, 218 Conn. 181 (1991) in that, here, the Fund is forced to assume liability for an uninsured out of state employer. CRB while sympathetic to the Fund’s claim, held that the only available method of change is through legislation.

Altieri v. B.K.S. Excavating, Inc., 10 Conn. Workers’ Comp. Rev. Op. 83, 1146 CRD-3-90-12 (April 10, 1992).

Reversed. Trier failed to allow Second Injury Fund the opportunity to litigate whether a potential principal employer liability claim existed pursuant to § 31-291. The fact that the trial commissioner found B.K.S. Excavating the uninsured employer does not eliminate the need to fully litigate and hear evidence regarding a possible § 31-291 principal employer claim. See also, Altieri, § 31-275(10), § 31-291 and § 31-301, Factual findings.

Bethune v. A & A Seafood, 9 Conn. Workers’ Comp. Rev. Op. 79, 927 CRD-3-89-10 (February 20, 1991).

CRD vacated order against S.I.F. and remanded matter as statute clearly requires award be made against liable employer first.

McGloin v. Gateway Industries, 5 Conn. Workers’ Comp. Rev. Op. 148, 618 CRD-1-87 (July 26, 1988).

Second Injury Fund not liable for awards of interest entered against an employer due to undue delay.

CRB Case Annotations re: Section 31-355(b)

Employer’s failure to comply with award. Second Injury Fund liability.