Cassidy v. Hertz Corporation

The claimant was represented by Gillis & Gillis, Two Whitney Ave., New Haven, CT 06510, who did not appear for oral argument.

The respondents employer and its insurer were represented by Paul Curtin, Esq., Williams, Cooney & Sheehy, One Lafayette Circle, Bridgeport, CT 06604.

The Second Injury Fund was represented by Kenneth Kennedy, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the April 7, 1997 Finding and Dismissal of the Commissioner acting for the Third District was heard December 19, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (“respondents”) have petitioned for review from the April 7, 1997 Finding and Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner concluded that the respondents failed to include a copy of an approved voluntary agreement with its notice to the Fund, and thus failed to provide proper notice of intent to transfer pursuant to § 31-349. In support of their appeal, the respondents contend that a voluntary agreement did not exist until June 1, 1992. We find no error on the part of the trial commissioner.

Section 31-349 (Rev. to 1989) provides in relevant part:

In Plesz v. United Technologies Corp., 174 Conn. 181 (1978), our Supreme Court explained that the object of the statutory notice provision “is to enable the fund to be apprised promptly of such a claim being made, to obtain a copy of the agreement and award and to have immediate access to all medical reports. Such information is essential to enable the fund to assess promptly its alleged liability and to establish immediately its financial reserves. A further objective is to give the fund a reasonable period of time within which to investigate the claim and to prepare to meet it.” Id., 188. Compliance with § 31-349 is a prerequisite to a transfer of liability under that section. Kiernan v. Roadway Express, 15 Conn. App. 625, 630 (1988).

In the instant case, the trial commissioner found that the respondents filed a timely notice with the Fund pursuant to § 31-349 on November 18, 1991. However, the trial commissioner concluded that said notice was not proper pursuant to § 31-349 because the respondent failed to attach “any document regarding the nature of the financial agreement between them and the Claimant, nor did they, within the next ninety days, send a copy of an agreement.” (Finding B). Furthermore, the trial commissioner specifically found that the respondent did not contest the claimant’s claim. (Finding No. 4 and 5). In their brief, the respondents do not dispute these findings. In fact, the respondents state in their brief that “the parties do not dispute that the respondent has been paying the claimant regularly since the 1990 injury....” (Respondents’ Brief at p. 3).

Decisions such as Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993) and Davis v. Norwich, 232 Conn. 311 (1995) have required strict compliance with the notice provisions of § 31-349. However, our Supreme Court has noted that “further construction of the notice provision, when and if it becomes necessary, would not require a type of notice that is impossible to give.” Vaillancourt, supra, 392-93 n. 10. In Reising v. Electric Boat, 13 Conn. Workers’ Comp. Rev. Op. 40, 1609 CRB-2-92-12 (Dec. 6, 1994), the board explained as follows: “Assuming that compensability of an employee’s injury is being challenged properly, it would be unreasonable to expect a respondent to deliver a copy of a nonexistent agreement or award to the second injury fund. It would not be impossible, however, for an employer or insurer to comply with the other requirements of § 31-349(b).... Requiring the submission of such information is consistent with the purpose of the notice provision.” Id. at 42 (emphasis added).

In contrast to the facts in Reising, supra, in the instant case the respondents failed to produce any evidence that they had been challenging the compensability of the claimant’s injury. (Finding No. 4 and 5). Rather, the respondents specifically admit that they had been paying the claimant’s claim since the 1990 injury. (Respondents’ Brief at p. 3). Moreover, the respondents do not contend that it was impossible for them to have obtained a voluntary agreement with the claimant. Compare Thompson v. Roach, 3382 CRB-7-96-7 (decided. 29, 1997), where a voluntary agreement was delayed due to the difficulty in obtaining the claimant’s wage information from a defunct employer.