52 Conn. App. 819 | Conn. App. Ct. | 1999
Opinion
The defendant second injury fund (fund) appeals from a decision of the workers’ compensation review board (board) affirming an order by the workers’ compensation commissioner (commissioner) transferring liability for workers’ compensation benefits payable to the plaintiff, Robert Thompson, from the defendant workers’ compensation carrier, Aetna Life and Casualty Company (Aetna), to the fund. The fund claims that the board improperly (1) determined that Aetna’s difficulty in obtaining wage information excused it from the notice requirements of General Statutes § 31-349
On September 11, 1989, Pamela Keyes, an Aetna claims representative, informed the director of special
I
The fund claims that the board improperly concluded that Aetna was excused by impossibility from the statutory notice requirements. Specifically, the fund’s argument is that (1) impossibility does not excuse untimely notice and (2) the board improperly determined that compliance was impossible, which was not found by the commissioner.
A
Section 31-349 (b) provides in relevant part: “As 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 ninety days after completion of payments for the first one hundred and four weeks of disability ... of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification . . . (C)
“The object of the ninety-day statutory notice is to enable the fund to be apprised promptly of such a claim being made, to obtain a copy of the agreement or award and to have immediate access to all medical reports. Such information is essential to enable the fund to assess promptly its alleged liability and to establish immediately its financial reserves. A further objective is to give the fund a reasonable period of time within which to investigate the claim and to prepare to meet it.” Plesz v. United Technologies Corp., 174 Conn. 181, 188, 384 A.2d 363 (1978).
“It is well settled that notice provisions under the [workers’ compensation] act should be strictly construed.” Soares v. Max Services, Inc., 42 Conn. App. 147, 164, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996). Our requirement of strict compliance with § 31-349, however, has presumed the possibility of compliance.
B
The fund asserts that the commissioner did not determine that timely notice was impossible. Instead, the
“[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Citation omitted.) Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979).
The commissioner found that Keyes had written twice to the fund to inform it of Aetna’s intent to transfer liability and of Aetna’s inability to obtain wage information necessary to formulate a voluntary agreement. The evidence showed that the employer was defunct and that Aetna was unable to obtain wage information from the employer. Shortly after receiving that information from the plaintiffs attorney and formulating a voluntary agreement, Aetna forwarded the agreement to the fund. Without using the term impossible, the commissioner found that it was not possible for Aetna to have complied with the statute despite its efforts. The board affirmed that finding. We conclude that the board properly affirmed the commissioner’s decision.
II
The fund also claims that the commissioner improperly denied its motion to correct and, therefore, the board should have ordered the commissioner to correct his finding. We disagree.
“The finding of the commissioner cannot be changed ‘unless the record discloses that the finding includes
The fund’s motion to correct proposed additional findings regarding the efforts Aetna made to obtain the wage information. In part I of this opinion, we rejected the fund’s interpretation of the law in that respect. Because the proposed factual additions would not change the commissioner’s conclusions and because those conclusions are proper, we conclude that the board properly affirmed the commissioner’s decision.
The decision of the workers’ compensation review board is affirmed.
In this opinion the other judges concurred.
General Statutes § 31-349 (b) provides: “As 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
Neither this court nor the Supreme Court has considered the circumstance where compliance with an element of § 31-349 is impossible. In those cases where we have insisted on strict compliance, strict compliance was