JUNETTE BARLOW, CLAIMANT-APPELLEE v. CHARLOTTE HUNGERFORD HOSPITAL, EMPLOYER, and CONNECTICUT HOSPITAL ASSOCIATION, INSURER, RESPONDENTS-APPELLANTS

CASE NO. 1076 CRD-5-90-7Workers’ Compensation Commission
DECEMBER 13, 1991

The claimant was represented by Edward T. Dodd, Esq.

The respondents were represented at the trial level by Kathleen Smith of the Charlotte Hungerford Hospital. On appeal by Jeffrey Schwartz, Esq., and David A. Kelly, Esq., of Montstream May.

This Petition for Review from the July 5, 1990 Finding and Award of the Commissioner for the Fifth District was heard May 31, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew Denuzze.

OPINION

JOHN ARCUDI, CHAIRMAN.

As the respondent insurer Connecticut Hospital Association failed to receive notice of the June 5, 1990 hearing in the Fifth District, that respondent has appealed. Its appeal from the Fifth District July 5 decision was filed on July 17, 1990 after the ten day deadline mandated by Sec. 31-301(a), C.G.S. However, the appellant argues that the due process failure to notice this respondent deprived the Fifth District Commissioner of authority to make any ruling regarding it in the June 5, 1990 proceeding, and that defense may be raised at any time even if the appeal was late. The argument is the equivalent of a jurisdictional defense. We agree.

In the present matter the issue before the commissioner was whether claimant was entitled to continued insurance coverage under Sec. 31-284b. Ordinarily there is a unity of interest between employer and insurer. This is so because the insurer insures the employer full workers’ compensation liability. However the Sec. 31-284b liability for maintaining fringe benefit coverage falls on the employer directly and is not transferred to the insurer. In this case the insurer respondent had filed an appearance and there had been a Voluntary Agreement between the parties acknowledging compensability for the claimant’s back injury. That Agreement stipulated that claimant had suffered a 12.5% permanent partial disability of the back for which she was to receive 65 weeks for the period May 9, 1988 to August 7, 1989.

At the end of that period the respondent hospital employer cancelled claimant’s health insurance. Meanwhile claimant who could no longer do her previous work obtained another job which she alleged paid her less than her previous job with this employer would have paid. She therefore claimed more benefits under the partial wage loss provisions of Sec. 31-308a. As she claimed further benefit eligibility, she contended the hospital was wrong to have terminated her health insurance. Sec. 31-284b
provides that such health coverage must be continued by the employer while a claimant is receiving benefits.

It was in response to this claim that the Fifth District June 5, 1990 hearing was held. At that hearing the matter was treated as one involving only the hospital and its employer on the Sec. 31-284b issue. However, Sec. 31-284b coverage was pendent upon a determination that further benefits were payable for partial loss of wages under Sec. 31-308a. For that determination the insurer Connecticut Hospital Association should have been noticed and allowed to participate in the hearing. That failure of notice rendered the proceedings of no effect.

The appeal of the respondent Connecticut Hospital Association is sustained and the matter is remanded to the Fifth District for further proceedings consistent with this opinion.

Commissioners Robin Waller and Andrew Denuzze concur.