DEBRA BASS CLAIMANT v. CHESEBROUGH-PONDS, USA EMPLOYER and ALEXSIS, INC., INSURER, RESPONDENTS-APPELLANTS and SECOND INJURY FUND, RESPONDENT-APPELLEE

CASE NO. 03709 CRB-03-97-10 CLAIM NO. 300027550Workers’ Compensation Commission
NOVEMBER 27, 1998

APPEARANCES: The claimant was not represented at oral argument. Notice was sent to William J. Gaffey, Esq., 6 North Main Street, Wallingford, CT 06492.

The respondents were represented by Kevin M. Blake, Esq., Cotter, Cotter, Sohon, P.C., 500 Boston Post Road, Milford, CT 06460.
The Second Injury Fund was represented by Kenneth Kennedy, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 16, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 29, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION
JESSE M. FRANKL, CHAIRMAN.

The respondents Chesebrough-Ponds, USA and Alexsis, Inc. have petitioned for review from the October 16, 1997 Finding and Dismissal of the Commissioner acting for the Fifth District. The trial commissioner found in that decision that their attempted transfer of liability to the Second Injury Fund was time-barred, because notice was not given to the Fund within three years of the date of the claimant’s injury. She therefore dismissed their Motion to Transfer. The appellants contend that the trial commissioner’s application of § 31-349 C.G.S. was incorrect, and her decision should be reversed.

The trial commissioner found the following relevant facts. The claimant sustained a compensable work-related injury on January 29, 1991. On December 17, 1996, the appellants sent via registered mail a letter to the Assistant State Treasurer indicating their intent to transfer the claim to the Fund pursuant to § 31-349. On June 18, 1997, the office of the Treasurer notified the appellants that notification was not received within three years of the date of injury, and was therefore time barred pursuant to the statute. Upon these findings, the trial commissioner dismissed the appellants’ Motion to Transfer for failure to provide notice within three years of the injury.

The appellants argue that the trial commissioner erred in applying P.A. 95-277[1] retroactively. We have explained in recent cases why the proper application (indeed, the only logical application) of P.A. 95-277
is retroactive. “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 . . . did not intend to enact meaningless provisions.’ Id., 303.” Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (Aug. 4, 1997). We recognize that this interpretation of § 31-349 deprived the appellants of any opportunity to transfer their claim to the Fund after July 1, 1995. However, policy determinations are for the legislature, not the judiciary or this board, to make. SeeDiscuillo v. Stone Webster, 242 Conn. 570, 577 (1997). Therefore, we find the trial commissioner correctly applied § 31-349 as amended by P.A. 95-277 to the case at bar, and properly denied the respondents’ Motion to Transfer.

The appellants also argue that § 31-349 unconstitutionally deprives the appellants of a judicially and legislatively recognized property right without due process of law, as required under the Constitutions of the United States and Connecticut. It is well-settled that this board is not an Article III court, and does not have the authority to decide the constitutionality of statutes. Baribault v. Harben Flooring Co., Inc., 3579 CRB-7-97-3 (June 4, 1998); Repasi v. Jenkins Brothers, 4 Conn. Workers’ Comp. Rev. Op. 82,88-89, 227 CRD-4-83 (June 11, 1987). Therefore, we must refrain from considering the appellants’ constitutional challenges to § 31-349 as amended by P.A. 95-277.

The trial commissioner’s decision is affirmed.

Commissioner Donald H. Doyle, Jr., concurs.

[1] P.A. 95-277 went into effect on July 1, 1995. Among its provisions is § 3(b), which amends § 31-349 to provide that “[a]s a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) notify the custodian of the fund by certified mail 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, of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification (A) copies of all medical reports, (B) an accounting of all benefits paid, (C) copies of all findings, awards, and approved voluntary agreements, (D) the employer’s or insurer’s estimate of the reserve amount to ultimate value for the claim, (E) a two-thousand-dollar notification fee payable to the custodian to cover the fund’s costs in evaluating the claim proposed to be transferred and (F) such other material as the custodian may require.

MICHAEL S. MILES, COMMISSIONER, DISSENTING.

Although I recognize that this board does not have the authority to decide the constitutionality of statutes, I still wish to voice my dissent to this particular application of § 31-349. By applying the provisions of § 31-349 to this case, we are stating that the legislature has created a group of employers and their insurers (i.e., those administering claims that involve injuries occurring before July 1, 1992) who were precluded upon the enactment of P.A. 95-277 from transferring liability to the Fund. The injury in this case occurred on January 29, 1991. The version of § 31-349 in effect on that date gave them the right to file notice of intent to transfer liability to the Fund until the ninetieth day before 104 weeks of benefits had been paid. Through no fault of the respondents, the statute was changed, and on July 1, 1995 it suddenly became impossible for them to comply with the new requirement that notice be sent within three years of the date of injury. The last day for proper notification under the revised statute would be January 29, 1994, a year and a hal prior to the effective date of P.A. 95-277. This strikes me as unfair. Thus, I would not apply P.A. 95-277 in this case, or to parties who are similarly situated to the respondents.

Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission