CASE NO. 03879 CRB-04-98-08CLAIM NO. 40008360
SEPTEMBER 17, 1999
The claimant was not represented and did not appear at oral argument.
The respondents were represented by David Schoolcraft, Esq., Duhamel Schoolcraft.
The Second Injury Fund was represented by Kenneth Kennedy, Esq., Assistant Attorney General.
This Petition for Review from the August 6, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District was heard April 30, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
The respondents have petitioned for review from the August 6, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District. In that decision the trial commissioner concluded that the respondents failed to provide proper notice to the Fund and thus denied the respondents' request to transfer pursuant to § 31-349. In support of their appeal the respondents contend that although their initial notice of request to transfer was defective because it was filed too early, this defect was rectified by a second notice provided on June 30, 1995.
The trial commissioner found the following relevant facts. The claimant sustained a compensable injury on November 22, 1993, and because of a previous disability the claimant's injury was materially and substantially greater than it otherwise would have been. On August 16, 1994, the respondents filed with the Fund a notice of intent to transfer the claim pursuant to § 31-349. This initial notice was filed during the claimant's 38th week of benefits. On September 2, 1994, the Fund acknowledged receipt of said notice, and did not include any objections to the notice. On June 30, 1995, the respondents filed re-notice which included the voluntary agreements, the medicals, and the information requirements of § 31-349. (Finding ¶ 14). The notice of June 30, 1995 (the "second" notice) was filed during the claimant's 83rd week of benefits. The respondents paid 104 weeks of benefits on November 19, 1995.
The Fund conceded that the claim medically qualified for transfer pursuant to § 31-349. The Fund further conceded that the second notice constituted proper re-notice pursuant to § 31-349 as amended by P.A. 95-277. However, the Fund maintained that the proper re-notice does not "cure" the initial notice which was defective because it was filed too early. The trial commissioner concluded that based upon the date of injury rule, § 31-349 as amended by P.A. 93-429 applied to the instant case, and that the initial notice was thus improper because it was not filed "no earlier than one year and no later than ninety days before the expiration of the first one hundred and four weeks of disability. . . ." Section 31-349 (Rev. to 1993). The trial commissioner thus denied the respondents' request for transfer of the claim.
In support of their appeal, the respondents make numerous arguments regarding the version of § 31-349 which should be applied in this case. First, the respondents contend that the notice provision in P.A. 95-277 should be applied to the initial notice of August 16, 1994. We disagree. Public Act 95-277 amended § 31-349 effective July 1, 1995. Subsection (b) sets forth the filing requirements for initial notice of an injury as follows:
"As a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification (A) copies of all medical reports, (B) an accounting of all benefits paid, (C) copies of all findings, awards, and approved voluntary agreements, (D) the employer's or insurer's estimate of the reserve amount to ultimate value for the claim, (E) a two-thousand-dollar notification fee payable to the custodian . . . and (F) such other material as the custodian may require."
Additionally, P.A. 95-277 provides in subsection (e) that "[a]ll claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue transfer."
In the instant case, the respondents seek to have the more liberal time limitations for initial notice provided by P.A. 95-277 applied to their 1994 notice, yet they do not allege that they have fulfilled all of the requirements including the two thousand dollar notification fee. We have recently addressed this argument, and held that the "amended statute cannot be used . . . to somehow rehabilitate a notice that was defective when it was filed in 1994, before P.A. 95-277 took effect." Crute v. Gilman Corp., 3812 CRB-2-98-5 (June 18, 1999). We explained as follows:
As discussed in Hall v. Gilbert Bennett Mfg. Co., 241 Conn. 282 (1997), P.A. 95-277 indeed applies retroactively to cases in which the claimant's second injury occurred prior to the statute's July 1, 1995 effective date. This retrospective operation means that (1) renotification is necessary for notices properly and timely filed prior to July 1, 1995, and (2) that initial notice to the Fund may be given pursuant to the provisions of P.A. 95-277 § 3 (b) if the criteria of the statute can be met at the time notice is attempted. Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (August 4, 1997). The amended statute cannot be used, however, to somehow rehabilitate a notice that was defective when it was filed in 1994, before P.A. 95-277 took effect. See Szedlmayer v. Moore Special Tool Co., 3764 CRB-4-98-1 (March 25, 1999). Under the version of § 31-349 in effect at that time, and at the time of the claimant's injury, the respondents' 1994 notice was submitted too early. When P.A. 95-277 took effect, it not only redefined the time period within which notices could be filed; it also made a host of new documents (and a $2,000 check) integral to a complete notice for transfer. The respondents cannot somehow append the time frame of P.A. 95-277 § 3 (b) to the version of § 31-349 that was enacted by P.A. 93-429. Thus, the renotification provision of § 31-349 (e) is inapplicable to this case, and the respondents' filing of a renotice on August 18, 1995 is of no legal import. Crute, supra, (citing Audi, supra).
The respondents' second argument is that their June 30, 1995 notice constituted timely initial notice under § 31-349 (Rev. to 1993). As P.A. 95-277 had not yet become effective as of June 30, 1995, we agree with the respondents that § 31-349 (Rev. to 1993) applied based upon the date of injury rule. However, we have previously explained that "renotification is necessary for notices properly and timely filed prior to July 1, 1995." Crute, supra; Szedlmayer, supra. Thus, even if the June 30, 1995 notice is deemed to be proper initial notice, the respondents nevertheless fail in their attempt to transfer the claim because they did not file a re-notice on or before October 1, 1995 as required by P.A. 95-277.
Regarding revisions to § 31-349, the date of injury rule is normally applied (Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 636, f.n. 1 (1999)); however, because the notice provisions of P.A. 95-277 would be meaningless if the date of injury rule were used, P.A. 95-277 must be applied retroactively. See Hall v. Gilbert Bennett Mfg. Co., 241 Conn. 282 (1997); Szedlmayer v. Moore Special Tool Co., 3764 CRB-4-98-1 (March 25, 1999); Bass v. Chesebrough-Ponds, USA, 3709 CRB-3-97-10 (November 27, 1998).
The respondents' third and final argument is that their initial notice of August 16, 1994, although technically defective because it was filed too early, nevertheless should be deemed sufficient notice under § 31-349 (Rev. to 1993). Specifically, the respondents contend that the Fund did not reject the notice at that time and that the premature notice did not prejudice the Fund in any way. The respondents argue as follows: "The Fund's remedy in this case, if it thought the notice was premature, was to reject same and put the carrier on notice of its mistake so that it could be cured. . . . Having failed to do that, and having accepted the notice and set up a file on the case, the [F]und cannot now argue lack of jurisdiction." (Respondents' Brief at 12) (emphasis added).
We recognize that the Fund is a creature of statute, and that payment from the Fund "should be made only in accordance with express statutory authority. . . ." Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 27 (1995). In Szedlmayer, supra, we explained:
We do not doubt that, as a practical matter, the Fund had enough information to investigate this claim if it so wished. However, our courts have stated time and again that the liability of the Fund is to be construed very narrowly, and statutory requirements of notice must be specifically met. Szedlmayer, supra.
Indeed, "our Supreme Court has said: `We conclude that the giving of timely notice is the condition precedent to an effective transfer of liability to the Fund under § 31-349.'" Soares v. Max Services, Inc., 42 Conn. App. 147, 168 (1996) cert. denied (9/19/96), (quoting Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 396 (1993) (emphasis in original). Neither the Appellate nor the Supreme Court has decided the issue of whether the Fund may waive the notice requirements of § 31-349.
In Soares, supra, the court assumed for the purpose of argument (without deciding) that estoppel and waiver may apply against the Fund. Id. at 168, 175. In Soares, the insurer claimed that the Fund had agreed to accept transfer at an informal hearing. However, the court found that there was no evidence of the alleged agreement in the record and thus the court did not address the allegation in its decision. Id. at 173.
The Board in its decision Soares v. Max Services, 13 Conn. Workers' Comp. Rev. Op. 185, 1718 CRB-1-93-5 (March 21, 1995) explained that the Fund could not agree to accept transfer in the absence of strict compliance with the notice provisions of § 31-349. The Board reasoned that "the Fund's representatives do not have the power to waive the jurisdictional requirements of the very statutes that define the Fund's duties and liabilities." Id. at 188. In affirming that decision, the Appellate Court inSoares, opined that on the matter of waiver, the respondents "have not demonstrated that there was even a `right' existing on the part of the fund or its representatives to waive its statutory obligation, as public employees acting pursuant to § 31-349, to require compliance with the notice requirement before they accepted the transfer of a claim to the fund."Soares, 42 Conn. App. 147, 176.
In the instant case, we note the respondents' argument that the Fund did not reject the initial notice of August 16, 1994 and their argument that the fact that the notice was filed too early did not prejudice the Fund. However, based upon our reasoning inSoares, and the Appellate Court's decision affirming that decision, we conclude that the Fund lacked the authority to waive strict compliance with the notice provisions of § 31-349.
The trial commissioner's decision is affirmed.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.