CASE NO. 03579 CRB-07-97-03 CLAIM NO. 700107344Workers’ Compensation Commission
JUNE 4, 1998
The claimant was represented by Michael D’Amico, Esq.
The respondents were represented by Jules Lang, Esq., Lepofsky, Lepofsky Lang.
The Second Injury Fund was not represented at oral argument. Notice sent to William McCullough, Esq., Assistant Attorney General.
This Petition for Review from the March 21, 1997 Finding and Award of the Commissioner acting for the Seventh District was heard December 19, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN.
The respondent employer has petitioned for review from the March 21, 1997 Finding and Award of the Commissioner acting for the Seventh District. The appellant argues that the trial commissioner improperly assessed a penalty against it for failing to carry workers’ compensation insurance. We agree that further proceedings are necessary, and remand this matter for a hearing concerning the amount of the fine.
The trial commissioner found that the claimant was employed as a floor sander by the respondent Harben Flooring Company on March 12, 1996. He was involved in an accident while driving to a job site, and injured his back, neck and hip. The respondent was not insured for workers’ compensation coverage on that date. The claimant incurred medical bills and some lost time from work. The trial commissioner found that the claimant was injured as a result of the car accident, and ordered the respondent to pay a $15,000 penalty for failure to carry workers’ compensation insurance. He also ordered the Second Injury Fund to assume responsibility for defending the claim at future formal hearings. The respondent employer has appealed the imposition of the fine.
Section 31-284(b) C.G.S. requires every employer in the state of Connecticut who does not possess a certificate of self-insurance to insure its full liability for workers’ compensation benefits under Chapter 568. Failure to comply with that statute not only exposes an employer to a possible action for damages by the injured employee as per § 31-284(a); it also subjects the employer to penalties under § 31-288. This section provides, in relevant part:
(c) Whenever . . . the commissioner finds that the employer is not in compliance with [the insurance and self-insurance requirements of § 31-284 (b)] he shall assess a civil penalty of not less than five hundred dollars per employee or five thousand dollars, whichever is less and not more than fifty thousand dollars against the employer. (d) In addition . . . the commissioner shall assess an additional penalty of one hundred dollars for each day after the finding of noncompliance that the employer fails to comply with the insurance and self-insurance requirements of subsection (b) of section 31-284. Any penalties assessed under the provisions of this subsection shall not exceed fifty thousand dollars in the aggregate. (e) . . . Any appeal of a penalty assessed pursuant to the provisions of subsections (c) and (d) of this section shall be taken in accordance with the provisions of section 31-301. The chairman shall adopt regulations for the commissioners to use in setting fines which shall require the commissioners to take into account the nature of the employer’s business and his number of employees. (f) When any employer knowingly and wilfully fails to comply with the insurance and self-insurance requirements of subsection (b) of section 31-284(b), such employer . . . shall be guilty of a class D felony.
The statute was significantly revised on July 1, 1995, when P.A. 95-277
increased the maximum penalty from $10,000 to $50,000, and strengthened the felony provision in what is now subsection (f). As the claimant’s injury occurred in 1996, the revisions in P.A. 95-277 apply to the instant case.
We begin our analysis by noting that the appellant has raised several arguments in his brief concerning the constitutionality of § 31-288, insofar as it allegedly prescribes multiple penalties against an employer for the same offense (in conjunction with § 31-284(b)), is unconstitutionally vague due to a lack of guidelines for the assessment of fines, and improperly delegates legislative authority to the Chairman to enact regulations without a declaration of legislative policy to guide him as to their content. It is very well-settled that this board does not have jurisdiction to decide the constitutionality of statutes. Trantolov. Trantolo Trantolo, P.C., 8 Conn. Workers’ Comp. Rev. Op. 69, 70, 823 CRD-6-89-2 (April 17, 1990); Repasi v. Jenkins Brothers, 4 Conn. Workers’ Comp. Rev. Op. 82, 88-89, 227 CRD-4-83 (June 11, 1987). Although we perceive significant differences between the statutes at issue in cases cited by the appellant such as Brazo v. Real EstateCommission, 177 Conn. 515 (1979), and the statute in question here, we do not have the authority to make a ruling on the constitutionality of §31-288.
We are aware of the language in § 31-288(e) stating that the chairman “shall adopt regulations for the commissioners to use in setting fines which shall require the commissioners to take into account the nature of the employer’s business and his number of employees.” This Commission has adopted many regulations in the past at the behest of the legislature, including regulations defining “place of abode” and “acts in preparation for work” in accordance with § 31-275(1), and regulations prescribing the necessary contents of a notice of the availability of workers’ compensation to employees under § 31-279. However, regulations such as the ones cited above have been promulgated to guide the conduct of members of the public, employers, attorneys, and physicians.
Here, the purpose of any regulations under § 31-288 would be to guide commissioners in making their decisions as to the amounts of fines. With respect to the public, the conduct that would merit a fine is clearly delineated by § 31-284 and § 31-288, i.e., the failure of an employer to carry workers’ compensation insurance. See State v. White, 204 Conn. 410, 415 (1987) (due process requires a statute to be sufficiently definite so that a person knows what is permitted and what is prohibited). If the chairman were to adopt regulations specifically prescribing the amount of a fine for a given violation, this Commission would risk creating a situation where certain employers opt to ignore the requirements of the workers’ compensation law because it would be more cost-effective to avoid paying workers’ compensation premiums and risk paying a relatively small fine than it would be to obtain the required workers’ compensation insurance in the first place. That is a highly undesirable result. In lieu of publishing regulations, the chairman has thus set forth guidelines to be followed by trial commissioners in determining the amount of a fine. These were distributed on September 15, 1995.
Under § 31-288(c), it is clear that a commissioner must fine an employer who does not carry workers’ compensation insurance at least $500 per employee or $5000, whichever is less, but not more than $50,000 overall. This maximum includes a mandatory $100 per day fine for continued noncompliance under § 31-288(d). The primary factors that a commissioner should take into account in determining the egregiousness of the employer’s violation of the law and the appropriate fine for that violation are: (1) the number of employees; (2) the present premium rate; (3) the nature of the employer’s business; (4) exposure to hazardous materials, unsafe conditions, or other extraordinary risk factors; (5) the length of time the employer has been in business; (6) the cost of workers’ compensation insurance for that employer; (7) the length of time the employer was not insured; (8) the circumstances surrounding the employer’s failure to carry insurance; (9) whether or not the lapse in coverage was due to an inadvertent failure to renew; and (10) whether a change in ownership occurred that may have affected the need to carry insurance. The guidelines distributed by the chairman to the workers’ compensation commissioners also suggested a formula for computing the fine that takes into account the number of employees, the annual premium rate and the length of time that coverage was not provided. By focusing on these issues, a commissioner should be able to calculate a reasonable fine to fit the circumstances of a given case. We note that unawareness of the law regarding workers’ compensation is not a valid reason for failing to have insurance. Dowling v. Slotnik, 3062 CRB-4-95-5, 3277 CRB-4-96-2 (decided Feb. 5, 1997).
In the instant matter, the commissioner did not set forth any factual findings to substantiate the $15,000 fine, other than the requisite (and uncontested) finding that the employer did not have workers’ compensation insurance. Without factual findings, this board cannot review the record to ensure that the trial commissioner took into account the appropriate factors in making his decision regarding the amount of the fine. SeeState of Connecticut Second Injury Fund v. Champagne, 3269 CRB-8-96-1
(decided June 24, 1997). We therefore remand this matter to the Seventh District for a new hearing on the appropriate fine to be imposed in this case, using the guidelines delineated above.
Commissioners James J. Metro and John A. Mastropietro concur.
Lorraine Lockery Administrative Hearings Lead Specialist