CASE NO. 03910 CRB-03-98-10 CLAIM NO. 300001557Workers’ Compensation Commission
AUGUST 31, 1999
APPEARANCES: The claimant was not represented at oral argument. Notice sent to George H. Romania, Esq., 2862 Whitney Avenue, Hamden, CT 06518.
The respondents were represented by Jason Dodge, Esq., Pomeranz, Drayton Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
The Second Injury Fund was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the September 30, 1998 Finding and Dismissal of the Commissioner acting for the Third District was heard January 22, 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.
JESSE M. FRANKL, CHAIRMAN.
The respondents have petitioned for review from the September 30, 1998 Finding and Dismissal of the Commissioner acting for the Third District. They argue on appeal that the trier erred by dismissing their request to transfer liability for the claimant’s compensable injury to the Second Injury Fund. We affirm the trial commissioner’s decision.
The claimant suffered a neck, back and left shoulder sprain during the course of his employment on May 2, 1992, as documented by a February 2, 1994 voluntary agreement. According to the agreement, the claimant’s incapacity began on May 3, 1992, and the claimant testified that he could not work or engage in his normal routine during either of the two days following the date of his injury. Findings, ¶ 4. Due to persistent pain, the claimant sought treatment with Dr. Halickman, a family practitioner, on May 5, 1992. Dr. Halickman noted that the claimant was in terrible distress with severe pain in the lower back, neck and left arm, and he immediately disabled his patient from work. He continued to treat the claimant extensively, and in January 1994 diagnosed an acute disc syndrome with associated radiculopathy involving his upper and lower extremities. The claimant was also examined in November 1995 by a doctor at the Yale Center for Pain Management; in the opinion of both physicians, he has been totally disabled since the date of his injury. There is no dispute that, medically, this case would qualify for transfer to the Fund under § 31-349.
The aforementioned voluntary agreement was initially prepared by an insurance adjuster for the respondent insurer on September 16, 1993, but due to a question concerning the average weekly wage, the agreement was not executed at that time. Findings, ¶ 10. Not until February 1, 1994 did the adjuster realize that the document had not yet been approved, whereupon he instructed an employee to hand-carry it to the Third District office for certification. A copy was then sent to the Second Injury Fund, together with a letter notifying the Fund of the claim for transfer under § 31-349. This notice was stamped “received” by the State Treasurer’s office on February 2, 1994. Under the version of § 31-349 in effect on the date of the claimant’s injury and at the time the respondents mailed their letter to the Fund, notice of a claim for transfer was due on the 90th day prior to the payment of 104 weeks of compensation. The trier found that the respondents began paying compensation on May 3, 1992, and continued to do so without interruption through the 1998 formal hearings. Thus, the 90th day before the payment of 104 weeks of compensation was January 31, 1994. Findings, ¶ I.
The trial commissioner did not dismiss the respondents’ request for transfer on account of untimely notice, however. He concluded that P.A. 95-277, which went into effect on July 1, 1995, applied retroactively to this matter pursuant to this board’s decision in Audi v. Blakeslee Arpaia Chapman,3418 CRB-3-96-9 (August 4, 1997). In his view, the language of the revised allowing notice to be filed “no later than ninety day after completion of payments for the first one hundred and four weeks of disability” (emphasis added) lengthened by 180 days the time frame within which the respondents had to file their initial notice of claim. However, the trier then dismissed their transfer request because they did not pay the Fund the $2000 notification fee required by § 31-349 (b)(E). The respondents have appealed that decision to this board.
In Audi, supra, this board was faced with a claim in which the injury occurred on April 8, 1993. We held that, in that case, the respondents could have satisfied the initial notice requirement of § 31-349 in two ways. Pursuant to the version of § 31-349 in effect on the date of the injury, the respondents’ notice was due on January 8, 1995, even though the claimant was only paid 97 total weeks of compensation. However, by virtue of the enactment of P.A. 95-277 on July 1, 1995, the respondents could theoretically also avail themselves of a second means of providing initial notice to the Fund: by filing their claim “no later than three 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.” Because the claimant had not received 104 weeks of disability payments, and three years had not yet elapsed from the April 8, 1993 date of injury when the amendment became effective on July 1, 1995, the statute by its own terms potentially applied to the claimant’s April 8, 1993 injury. However, this “retroactive” application does not entitle parties seeking transfer to rewrite the history of § 31-349 as if all previous versions of the statute had been rescinded, and declared null and void. Had the claimant’s injury occurred on April 8, 1992, for example, the revised notice provision would not have benefited the respondents in any way, as more than three years would have already elapsed by the time the statute took effect.
In the instant case, the 90th day after the completion of 104 weeks of benefit payments would have occurred sometime toward the end of July 1994, and three years would have elapsed on May 2, 1995. Thus, on July 1, 1995, the date P.A. 95-277 became effective, § 3 (b) of that amendment had no potential impact on this case. Notice was due to the Second Injury Fund 90 days prior to the 104th week of benefit payments — a date which the commissioner identified as January 31, 1994. Findings, ¶ I. (We remind the respondents that, as discussed in Audi, timely renotification under § 31-349 (e) cannot cure an otherwise insufficient notice. See also Szedlmayer v. Moore Special ToolCo., 3764 CRB-4-98-1 (March 25, 1999).)
Given our conclusion on that matter, the respondents’ only other relevant argument is that concerning the starting date of the claimant’s disability. The respondents observe that, based onInnocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998), the term “disability” under § 31-349 refers to medical impairment rather than employment status. Because the emergency room records provide no documentation of medical impairment, and the claimant was not examined by a doctor until May 5, 1992, the respondents argue that the claimant’s disability actually began on that date, thus making their notice to the Fund timely by one day. There is no competent medical evidence to establish otherwise, they contend.
This argument is specious. First, it is undisputed that the claimant’s injury occurred on May 2, 1992, and that it was the cause of his subsequent disability. Second, not only did the claimant testify that he was medically impaired as soon as his accident occurred, but Drs. Halickman and Thimineur (from the Yale Center for Pain Management) concurred. Findings, ¶¶ 7, 8. It was certainly reasonable for these doctors to determine that the claimant was disabled beginning on the day after he was injured, rather than on the day he saw Dr. Halickman; indeed, common sense favors that prospect. We are confident that the trier did not abuse his discretion in finding in accord with their opinions. As the trier’s findings are supported by the evidence, and his legal conclusions are supported by his findings, we will not disturb his decision regarding the date of the claimant’s disability. Webb v. Pfizer, Inc.,14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995).
We thus affirm the trier’s finding that the claimant’s disability began on May 2, 1992, and that notice was due to the Fund on January 31, 1994. As such, we dismiss the respondents’ appeal, and sustain the order of the trial commissioner.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
CERTIFICATION THIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 31st day of August 1999 to the following parties:
ROBERT ANASTASIO Z 012 303 716 certified
MAIL CONTRACTORS OF AMERICA Z 012 303 717 certified
GEORGE H. ROMANIA, ESQ.
JASON DODGE, ESQ.
J. SARAH POSNER, ESQ.
Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission