AUDI v. CHAPMAN, 3418 CRB-3-96-9 (8-4-1997)

CASE NO. 3418 CRB-3-96-9Workers’ Compensation Commission
AUGUST 4, 1997

The claimant did not appear at oral argument, and proceeded pro se in this appeal.

The respondent-appellants were represented by James D. Moran, Jr., Esq., Maher Williams.

The respondent employer was separately represented by Neil Ambrose, Esq., Letizia Ambrose, Esq., Letizia Abrose.

The Second Injury Fund was represented by Richard Hine, Esq., Assistant Attorney General.

This Petition for Review from the September 9, 1996 Finding and Denial of Transfer Under C.G.S. 31-349 of the Commissioner acting for the Third District was heard May 9, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN.

The respondent insurer Liberty Mutual Insurance Co. has petitioned for review from the September 9, 1996 Finding and Denial of Transfer Under C.G.S. 31-349 of the Commissioner acting for the Third District. The insurer argues on appeal that the trier erred by failing to find that it provided timely notice to the Second Injury Fund pursuant to § 31-349
as amended by P.A. 95-277, § 3 (b). We agree, and reverse the trial commissioner’s decision.

The facts of this case have been stipulated to by the parties. The claimant suffered a right knee injury on April 8, 1993, and was totally disabled from April 12, 1993 through February 19, 1995, for a total of 97 weeks. The respondent insurer notified the Second Injury Fund on February 8, 1995 that it was seeking transfer to the Fund pursuant to § 31-349. Notice would have been due on or about January 8, 1995, pursuant to the version of § 31-349 in effect at that time. Thus, the initial notice to the Fund was late. However, upon the passage of P.A. 95-277[1] , the respondent provided statutory notice to the Fund notifying it of the respondent’s intention to pursue transfer of the injury under § 31-349 as amended by P.A. 95-277. Based on these stipulated facts, the trial commissioner ruled that the respondent initially failed to file timely notice with the Fund, and that the filing of a re-notice to the Fund under P.A. 95-277 does not constitute timely notice of this claim. The respondent insurer has appealed from the trier’s dismissal of its claim.

Pursuant to P.A. 95-277, there are two types of notice that an insurer may give to the Fund regarding transfer of a claim based on an injury prior to July 1, 1995. (No injuries on or after that date may be the basis of a claim for transfer of liability to the Fund.) One of those types of notice is the re-notice required by § 3 (e) of the Public Act, which concerned all claims for transfer of injuries “for which the fund has been notified prior to July 1, 1995.” The employer or insurer seeking transfer was required by the amendment to resubmit notice of its intent to pursue transfer to the Fund by certified mail prior to October 1, 1995. No filing fee was charged. The appellant alleges that it provided such notice in this case; the trier concluded, however, that the filing of re-notice did not constitute timely notice for this claim under P.A. 95-277.

We agree that the filing of a timely re-notice under § 3 (e) of the Public Act would not cure a prior untimely notice under the previous version of § 31-349, which required that notice be filed at least 90 days before the 104th week of disability had passed. Section 3 (e) specifically refers to claims “for which the fund has been notified prior to July 1, 1995.” By “notified,” the legislature meant properly and timely notified, rather than unsuccessfully notified. Section 3 (e) clearly deals with pending notice claims that the Fund had been apprised of prior to July 1, 1995, and forces the party seeking transfer to reaffirm its intent to pursue its claim, as all claims were “deemed withdrawn with prejudice” subject to renotification by October 1, 1995. See 38 S. Proc., Pt. 15, 1995 Sess., p. 5487 (remarks of Sen. Kissel). Nowhere in this provision does the legislature evince an intent to allow parties that have missed the filing deadline in the past to resurrect those claims by “re-notifying” the Fund of their intent to seek transfer. One can not reaffirm one’s intent to pursue a claim that has already lapsed due to improper observance of § 31-349‘s procedural rules.

The second type of notice contemplated by P.A. 95-277 is of a different nature than that in § 3 (e). It does not deal with the resubmission of previous notices that were timely filed in order to reaffirm the pursuit of pending claims. Instead, § 3 (b) provides a means by which initial notice to the Fund must be given of the intent to pursue transfer of a claim. The statute states in a very straightforward manner that the employer or insurer seeking to transfer liability for a claim must notify the Fund “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.” Section 3 (b) also requires other materials to be submitted along with the notice, as well as a $2000 fee to cover the Fund’s costs in evaluating the claim ($1500 of which is refunded if the claim is accepted). The statute’s language does not imply that issues regarding untimely notice under the previous version of § 31-349 have any bearing on the notice requirements included in this amendment.

There is no question that this statute was intended to apply retroactively to injuries that occurred when the previous version of §31-349 was still in effect, as injuries occurring on or after the effective date of the amended statute are not transferable to the Fund. See Hall v. Gilbert Bennett Mfg. Co., 241 Conn. 282, 302-303 (1997). “We presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” Id., 303. Notably, although the statute provides “three calendar years” from the date of injury within which to notify the Fund of intent to transfer liability, the legislature also created an alternate time requirement by providing that a claim must be filed within ninety days after the first 104 weeks of disability if that date occurs before the three-year period has expired. Thus, a step was taken toward shortening the time period for filing notice in certain cases.[2] No line was specifically drawn between cases that could have transferred under the old law assuming timely notice and cases that were not ripe for transfer until the new law was in effect, however.

As the parties stipulated that the claimant was only totally disabled for 97 weeks, the 104-week provision in § 3 (b) is inapplicable to the notice provided by the insurer in this case. Thus, the three-calendar-year time limitation is plainly apposite to this case. Here, the date of the injury was April 8, 1993, and notice was provided to the Fund on July 5, 1995, about two years and three months later. These facts, again, were stipulated by the parties. Assuming that all of the necessary elements were included with the notice provided by the insurer on July 5, 1995, including the $2000 notification fee, this claim for transfer was timely filed with the Second Injury Fund. There is simply no language in the amendment to suggest that P.A. 95-277 is inapplicable to claims in which notice previously filed under the existing version of § 31-349 was untimely.

The trial commissioner’s decision is therefore reversed, and the case remanded to him for a finding as to whether the respondent insurer’s notice otherwise complied with § 31-349, beyond the issue of timeliness. Further findings, as needed, may also follow. Of course, any contested issue regarding medical qualification for transfer would have to be referred to the three-doctor medical panel as per § 4 (a) of P.A. 95-277, which is also retroactively applicable to all pending cases pursuant toHall, supra.

Commissioners James J. Metro and John A. Mastropietro concur.