Opinion
CASE NO. 1089 CRD-2-90-8CASE NO. 1090 CRD-2-90-8CASE NO. 1091 CRD-2-90-8
FEBRUARY 6, 1992
In each case the claimants were represented by James P. Berryman, Esq.
The respondent-employer was represented by David Phippen, Esq., Kilpatrick Cody.
The respondent-insurer was represented by Ralph A. Russo, Esq., McGann, Bartlett Brown.
The Second Injury Fund was represented by Gerard Rucci, Esq., Assistant Attorney General.
These Petitions for Review from the August 1, 1990 Finding and Award and Memorandum of Decision of the Commissioner for the Second District was heard June 28, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Andrew Denuzze and Angelo dos Santos.
OPINION
The issue in all three cases is whether the Second Injury and Compensation Assurance Fund also assumes liability for Sec. 31-284b benefits on the date of transfer of liability for the claimants' injuries pursuant to Sec. 31-349(a). The Commissioner concluded that the legislature did not intend Sec. 31-284b benefits to be an obligation transferable to the Second Injury Fund under Sec. 31-349(a) at the time of acceptance of the claimants' injuries. We agree.
The legislative intent is determined by the specific language contained in the relevant statutes. Sec. 31-349(a) provides: ". . . After the employer or its insurer has completed the payment for the one-hundred-four week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation and medical bills have been paid for the one-hundred-four-week period, and indicating thereon the date the custodian was notified of the pending case. Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund." (Emphasis ours) (Irrelevant portions omitted) This section does not refer to the obligations of employers under Sec. 31-284b or 31-290a. Since Sec. 31-349(a) only includes the transfer of compensation and medical expenses, the clear legislative intent was to exclude other employer obligations resulting from a claimant's injuries.
Analyzing the basic definition of an employer's liability in Sec. 31-284 lends further support to this interpretation. Sec. 31-284(a), (b), (c), (d) and (e) are the modern version of the original 1913 statute by which the employee gave up the right to sue at common law in exchange for the employer's obligation to furnish workers' compensation. The second part of that statute states: "Each employer . . . shall insure his full liability under this chapter . . . in one of the following ways: . . . or (2) by insuring his full liability under this part, exclusive of any liability resulting from the terms of Sec. 31-284b, in such stock or mutual or associations as are of may be authorized to take risks in this state; . . ." (emphasis ours) (Irrelevant portions omitted)
The potential liability of the Second Injury Fund for Sec. 31-284b benefits is addressed in Sections 31-284b(d) and 31-349(b) and (c). The language contained in these subsections is the strongest indication that the Second District Commissioner's opinion must be affirmed.
Section 31-284b (d)In any case where workers' compensation payments to an individual for total incapacity under the provisions of section 31-307 continue for more than one hundred four weeks, the cost of such accident and health insurance or life insurance coverage after the one hundred fourth week shall be paid out of the second injury fund in accordance with the provisions of section 31-349.
Section 31-349 (b) In any case where workers' compensation payments to an individual for total incapacity under the provisions of section 31-307 continue for more than one hundred four weeks, the cost of accident and health insurance or life insurance coverage required under section 31-284b shall be paid to the employer as reimbursement out of the second injury fund after the one-hundred-fourth week. As a condition precedent to the liability of the second injury fund, the employer shall, no earlier than sixty days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund that such payment is required. The employer shall also furnish to said custodian all information purporting to support the claim as to liability of the second injury fund, and shall make available to the custodian all medical reports as custodian shall request. The fund's liability for the costs of such coverage shall begin sixty days after the date the custodian is so notified. Failure on the part of the employer to comply does not relieve the employer of obligation to continue furnishing benefits under the provisions of section 31-284b. (c) On or after January 1, 1985, if an employer removes all or substantially all of its industrial or commercial operations to a location outside the state of Connecticut or permanently shuts down all its operations within a business facility located in this state and fails to comply with the provisions of section 31-284b, the cost of accident and health insurance coverage for any employee receiving workers' compensation payments pursuant to this chapter shall be paid out of the second injury fund. The employee shall notify the custodian of the second injury fund, by certified mail, that such coverage is needed with due diligence upon notification to the employee of the employer's failure to comply with said section 31-284b. The fund shall be liable for the cost of insurance coverage which is equivalent to the coverage provided for the employee prior to the relocation or shutdown of the employer's operations. The fund's liability for the costs of such coverage shall begin on the date the custodian is so notified and shall continue as long as the individual receives workers' compensation payments pursuant to this chapter provided the fund shall not be liable for any costs incurred by such individual prior to the date such notice is received.
Chairman Arcudi and Commissioner Denuzze concur.