CARL E. AUBERTIN, CLAIMANT-APPELLEE v. PACELLI BROS. TRANSPORTATION, INC., EMPLOYER and HARTFORD INSURANCE GROUP, INSURER, RESPONDENT-APPELLEE and SECOND INJURY FUND, RESPONDENT-APPELLANT

CASE NO. 1381 CRB-1-92-2Workers’ Compensation Commission
FEBRUARY 3, 1994

The claimant appeared pro se.

Respondent-Employer failed to appear at formal hearing. Respondent-Appellee, Hartford Insurance Group, was represented by James L. Pomeranz, Esq. and Margaret Corrigan, Esq. of Pomeranz, Drayton Stabnick.

Respondent-Appellant, Second Injury Fund was represented by Brewster Blackall, Esq. and Ernie R. Walker, Esq., Assistant Attorneys General.

This Petition for Review from the January 31, 1992 Finding and Award of the Commissioner at Large acting for the First District was heard February 26, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN.

The Second Injury Fund has petitioned for review from the January 31, 1992 Finding and Award of the Commissioner at Large acting for the First District. In that Finding and Award, the commissioner held that the employer, Pacelli Bros. Transportation Inc., (hereinafter Pacelli Bros.) had to repay the Hartford Insurance Group (hereinafter Hartford) $713.28 within 10 days. Upon failure of the employer to pay within that timeframe, the commissioner ordered the Second Injury Fund to repay said amount to the Hartford Insurance Group.

The pertinent facts are as follows. The claimant suffered a compensable injury on October 27, 1986 while in the employ of Pacelli Bros. Hartford mistakenly paid the claimant’s temporary total benefits and medical bills totalling $713.28, in that its policy covering the Pacelli Bros. had been cancelled on June 14, 1986. Hartford notified Pacelli Bros. of the June 14, 1986 cancellation and presented a Notice of Termination of Workers’ Compensation Policy to the Commissioner for the First District. (Respondent’s Exhibit A). Pacelli Bros. remained uninsured. The commissioner ordered that Hartford be repaid within 10 days by the respondent, Pacelli Bros. The employer failed to pay, and the Second Injury Fund was ordered to repay forthwith.

The Second Injury Fund took the instant appeal and presents the following issues for review; (1) whether Sec. 31-355 C.G.S. authorizes the Second Injury Fund to reimburse an insurer who has mistakenly paid benefits to a claimant in lieu of payments by the employer; (2) whether the trier erred in ordering the Second Injury Fund to reimburse an insurance carrier who erroneously paid benefits on behalf of an uninsured employer.

Sec. 31-355(a) C.G.S. stated in pertinent part:

When an award of compensation shall have been made under the provisions of this chapter against an employer who fails or is unable to pay the medical and surgical aid or hospital and nursing service required under section 31-294
or any type of compensation for disability, or both, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, dependency allowance, or any adjustment in compensation required by this chapter, hereafter referred to as “the compensation” and whose insurers fails or is unable to pay the compensation, such payments shall be made and compensation provided from the second injury and compensation assurance fund established in section 31-354. Upon finding by the commissioner of such failure to pay compensation, he shall give notice to the treasurer of such award, directing the treasurer to make payment from said fund. . . . (Emphasis ours)

Sec. 31-355(a) only authorizes the fund to pay when the employer fails or is unable to pay or if the insurer fails or is unable to pay. The statute further states that it is only upon a finding by the commissioner of a failure to pay that the Second Injury Fund becomes responsible for payment. Nowhere in the statute does it authorize the commissioner to require the Second Injury Fund to repay mistakenly paid benefits by an insurer. The respondents assert that under Sec. 31-278 the commissioner has the power to order such reimbursement. We do not agree.

In McGloin v. Gateway Industries, 5 Conn. Workers’ Comp. Rev. Op. 148, 618 CRD-1-87 (1988), the Compensation Review Board held that a statute’s specific enumeration of the various particular benefits payable by it excludes those items not listed. In that cases the commissioner at large awarded Chapter 568 benefits and interest at a rate of 12% per annum based on a finding that payments to the claimant were unduly delayed. Because the benefits remained unpaid, the commissioner, under Sec. 31-355, ordered the Second Injury Fund to pay all sums due claimant plus interest. The Second Injury Fund argued that the statute did not authorize such an order by the commissioner. The Compensation Review Board agreed and sustained the appeal by the Second Injury Fund.

The reasoning applied in McGloin is equally applicable to the instant case. The insurer mistakenly paid the claimant benefits and requested reimbursement. Under Sec. 31-355 the commissioner at large ordered the Second Injury Fund to refund the monies expended by the insurer based upon the failure of Pacelli Bros. to repay the insurer. We must again sustain the appeal of the Second Injury Fund.

Additionally our Supreme Court has held: “An enumeration of powers in a statute is uniformly held to forbid the things not enumerated. . . .” State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620 (1957). Sec. 31-355 does not authorize the commissioner to order reimbursement by the Second Injury Fund for mistakenly paid benefits. “It is not the function of courts to read into clearly expressed legislation provisions which do not find expression in its words. . . .” Dental Commission v. Tru-Fit Plastics, Inc. 159 Conn. 362, 365 (1970). Therefore, because the statute is clear and unambiguous, as to reimbursement by the Second Injury Fund, we are confined to the expression in the words of the statute, Johnson v. Manson, 196 Conn. 309, 314
(1985).

Therefore, we must sustain the appeal of the Second Injury Fund. We reverse the January 31, 1992 decision of the Commissioner at Large acting for the First District.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

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