Champlain v. Eric Parnes d/b/a Physical Therapy Clinic

The claimant was represented by James Berryman, Esq., 2 Union Plaza, Suite 200, Courtney Bldg., P.O. Box 1591, New London, CT 06320.

The employer was represented by Scott N. Roberts, Esq., 349 Mitchell Street, P.O. Box 883, Groton, CT 06340, who filed a brief but did not appear at oral argument.

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

This Petition for Review from the September 17, 1993 Finding and Award of the Commissioner acting for the Second District was heard April 29, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent Second Injury Fund has petitioned for review from the September 17, 1993 Finding and Award of the Commissioner for the Second District. This appeal presents the issue of whether the Second Injury Fund is liable for payment of a second injury pursuant to § 31-349 C.G.S. where the employer was uninsured for workers’ compensation purposes at the time the second injury occurred. This is a case of first impression in Connecticut.

The trial commissioner made the following findings of fact, which are not disputed by the parties. On September 15, 1988, the claimant, an employee of the employer/respondent, sustained an injury to her back arising out of and in the course of her employment. The employer was uninsured for workers’ compensation when this injury occurred. The claimant had a pre-existing back condition from a prior work-related injury which had occurred on May 5, 1985, which resulted in a ten percent permanent physical impairment. The second injury of September 15, 1988, when superimposed upon the prior injury, made the overall injury materially and substantially greater. The claimant was totally disabled as a result of the second injury from September 26, 1988 through March 26, 1989, and the employer met its obligation to pay the claimant workers’ compensation for that period. In addition, the claimant was temporarily partially incapacitated as a result of the second injury from March 27, 1989 until April 3, 1991, and the employer paid the claimant workers’ compensation benefits through February 1, 1991. The employer provided timely notice regarding the second injury to the Second Injury Fund pursuant to § 31-349 C.G.S.

The respondent Second Injury Fund (“Fund”) contends that the trial commissioner improperly transferred liability to the Second Injury Fund for the second injury pursuant to § 31-349 C.G.S. Specifically, the Fund contends that a transfer of liability pursuant to § 31-349 C.G.S. should not be afforded to an employer which was neither properly insured as required by § 31-284 C.G.S., nor in compliance with § 31-354 C.G.S., at the time of the injury. Instead, the employer urges this Board to analyze this case under § 31-355 C.G.S., which provides that the Second Injury Fund shall pay an award of compensation in instances where an employer “fails or is unable” to pay workers’ compensation benefits.1

Because there are no reported decisions in Connecticut regarding the issue of whether an uninsured employer is entitled to transfer liability to the Second Injury Fund pursuant to § 31-349 C.G.S., we must turn to the language of the statute. Section 31-349 C.G.S. provides, in pertinent part:

It is not clear whether the term “employer” in the above statute includes uninsured employers, such as the employer in the instant case. The Connecticut Supreme Court has provided the following guidance in construing § 31-349 C.G.S when a term is ambiguous:

In the instant case, the legislative history of § 31-349 C.G.S. does not shed any light on the issue of whether the legislature intended uninsured employers to receive the benefit of transferring a second injury pursuant to this statute. We therefore must examine the purpose of the statutes involved. Section 31-349 C.G.S. was enacted by the legislature to “limit the employer’s liability to 104 weeks of compensation in situations where a claimant’s disability following a work-related injury is materially and substantially greater as a result of an earlier injury or previous condition.” (Citations omitted). Levanti v. Dow Chemical Co., 218 Conn. 9, 17-18 (1991). Its purpose is well established, specifically to prevent discrimination against handicapped workers while providing workers’ compensation benefits to such workers, and “to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment.” Hernandez v. Gerber Group, 222 Conn. 78, 82 (1992).

The Fund argues that the statute should not be interpreted so as to provide such relief from hardship to an uninsured employer. We agree. When read as a whole, § 31-349, § 31-284, § 31-354, § 31-355 C.G.S. indicate that the legislature intended to compel employers to obtain workers’ compensation insurance, or to self-insure. Section 31-284 C.G.S. requires all employers with one or more employees to procure workers’ compensation insurance or to provide a certificate of self-insurance as a condition of doing business in Connecticut. Section 31-354 C.G.S. provides that employers must contribute to the Second Injury Fund, and further provides that compliance is a “condition of doing business in this state and failure to pay the assessment, when due, shall result in the denial of the privilege of doing business in this state or to self-insure....” Section 31-355(c) C.G.S. specifically makes the employer liable to repay the amount paid by the Second Injury Fund, pursuant to § 31-355(b), on behalf of an employer which “fails or is unable to pay” an award of workers’ compensation.

In the case at hand, the employer was not insured for workers’ compensation on the date of the claimant’s second injury, and thus was not in compliance with either § 31-284 C.G.S. or § 31-354 C.G.S. If § 31-349 is interpreted to provide relief from the monetary burden of second injuries to all employers, including uninsured employers, it would weaken the incentive of employers to obtain the required insurance, which is an important goal in the workers’ compensation system. It would also be inequitable to place the full burden of a second injury solely on the Second Injury Fund, which is funded by complying employers, without recourse to reimbursement from the employer, when the employer has failed to obtain the insurance which our act clearly requires.2 We conclude that when an employer is uninsured at the time of a second injury, the employer does not acquire the complete relief afforded under § 31-349 C.G.S., but rather the uninsured employer must be held liable to repay pursuant to § 31-355 C.G.S. the payments made to the claimant by the Second Injury Fund.

For the above reasons, we conclude that the trial commissioner improperly applied § 31-349 C.G.S. rather than § 31-355 C.G.S., the statute which is applicable to the facts as found by the trial commissioner.

Accordingly, this matter is remanded to the commissioner to issue an order in accordance with the above decision.

Commissioner Nancy A. Brouillet concurs.

COMMISSIONER ANGELO L. dos SANTOS. I dissent. I disagree with the majority’s determination that § 31-349 C.G.S. does not apply to uninsured employers.3 Nowhere in § 31-349 does the legislature limit the term “employer” to an insured employer or to an employer otherwise in compliance with the Workers’ Compensation Act. The Connecticut Supreme Court has stated:

The majority is adding a requirement to § 31-349 which the legislature did not choose to include, specifically that an employer must be insured for workers’ compensation as required by § 31-284.

It is important to note that § 31-354, which requires employers to contribute to the Second Injury Fund, provides a specific penalty for non-compliance: the “denial of the privilege of doing business in this state or to self-insure.” Moreover, a specific penalty for an employer’s failure to insure or self-insure is contained in § 31-284(b) which provides: “If the employer wilfully fails to conform to any provision of this subsection, he shall be fined not more than one thousand dollars for each failure.” By not allowing uninsured employers the benefit of § 31-349, the majority is effectively adding a new penalty on those employers which fail to obtain insurance or to self-insure.

Section 31-349 repeatedly uses the broad term “employer” but does not limit that term to “insured employers.” The majority has simply added this restriction of its own initiative. I find no statutory basis for the restriction, nor do I find any evidence that the legislature intended to limit § 31-349 to insured employers. Compare Dos Santos v. F. D. Rich Construction, Inc., 223 Conn. 14, 20-21 (1995). Accordingly, I would affirm the trial commissioner.

1 Under §31-355(c), the employer is liable to repay the amount paid by the Second Injury Fund under this statute. On the other hand, there is no right to reimbursement from the employer to the Second Injury Fund when the Fund assumes liability for a second injury pursuant to §31-349 C.G.S. BACK TO TEXT

2 Our conclusion is consistent with Crouse v. Workmen’s Compensation Board, 554 P.2d 568, 569 (Or.App. 1976), in which the Oregon Appellate Court addressed a similar issue. That court affirmed the validity of an administrative rule which prohibited an employer from receiving reimbursement from the Second Injury Fund for an employee’s second injury if the employer was uninsured at the time of the second injury. BACK TO TEXT

3 Section 31-349 provides that an employer may transfer a claim, after 104 weeks, to the Fund when an employee who has “a permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is made materially and substantially greater than that which would have resulted from the second injury alone....” BACK TO TEXT