CASE NO. 1092 CRD-6-90-8Workers’ Compensation Commission
DECEMBER 16, 1991
Claimant was represented at the trial level by Walter Clebowicz, Esq., as the issue on appeal involved only the respondents.
Respondent Employer and Travelers were represented by David A. Kelly, Esq., Montstream May.
The respondent Second Injury and Compensation Assurance Fund was represented by Cori-Lynn Webber, Esq. Robin L. Wilson, Esq., Assistant Attorneys General.
This Petition for Review from the August 6, 1990 Finding and Dismissal of the Commissioner At Large acting for the Sixth District was heard May 31, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners George Waldron and Angelo dos Santos.
OPINION
JOHN ARCUDI, CHAIRMAN.
The respondent employer, New Britain Machine, and insurer, Travelers Insurance Company contend in this appeal that the commissioner should have ordered transfer of liability from them to the Second Injury Fund. The commissioner ruled that they did not satisfy the time requirements of Sec. 31-349 for notice to the Second Injury Fund.
Claimant sustained a work related back injury on September 18, 1980 and subsequently had surgery on February 22, 1982. From February 22, 1982 to April, 1987 he received temporary total benefits. See Paragraph #4 October 11, 1990 Corrected Finding and Dismissal. The insurer’s first notice to the Second Injury Fund claiming transfer of liability was January 23, 1984. However that notice was not accompanied by a completed Voluntary Agreement. Such an Agreement was not filed until mid-February 1984.
Subsequently, respondents interceded in the employee’s third party medical malpractice suit, and they recovered $7,000 from that suit. They argue that because they recouped that amount, then the weeks of benefits amounting to the equivalent of $7000 should not be counted in calculating the statutory 104 weeks of disability before which the primarily liable employer and insurer needed to give notice to the Fund. This would have the effect of extending the deadline for notice to the Fund until May 4, 1984. Without the extension of that deadline, the mid-February, 1984 notice would clearly have been untimely as not being within the limits set under Sec. 31-349[1]
We disagree. Sec. 31-349 states, “The employer by whom the employee is employed at the time of injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability” (emphasis ours). Following the principles of statutory construction we are to read the statutes as a whole. Hayes v. Smith, 194 Conn. 52
(1984).
In construing Sec. 31-349, that portion referring to one hundred four weeks of disability cannot be ignored. That “one-hundred-four-week period” refers to weeks of disability, not to the net number of weeks of benefits paid calculated after credit was given for third party recovery. If the legislature had so intended, it would have so stated.
Our construction of Sec. 31-349 is consistent with established case law. Kramer v. General Electric Co., 37 Conn. Sup. 742
(1981) held that the notice provisions of Sec. 31-349
were to be strictly construed. Further in that part of the Kramer opinion citing Sec. 31-349 the court stated:
`[a]s a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period [first 104 weeks of disability], notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award’. . . . (emphasis theirs)
Id. at 744 quoting Sec. 31-349.
If we applied Sec. 31-349 in the manner advanced by the respondents we would be imposing different time requirements for respondents in situations where recoupment from a third party suit was ultimately obtained. The statute imposes uniform time requirements for all respondents. The deviation from uniformity proposed by this insurer might well be violative of equal protection constitutional provisions.
We therefore affirm the trial commissioner’s Finding and Award and dismiss the appeal.
Commissioners George Waldron and Angelo dos Santos concur.
The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. Failure on the part of the employer or the carrier to comply does not relieve the employer or carrier of its obligation to continue furnishing benefits under the provisions of this chapter. In the event the custodian shall reject the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction, as promptly as possible, and the employer or carrier shall continue furnishing benefits until the outcome is finally decided, and if the employer or carrier prevails all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or carrier by the second injury fund. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having . . .