Opinion
CASE NO. 925 CRD-3-89-10
MARCH 1, 1991
The claimant was represented at the trial level by Robert R. Sheldon, Esq. As the issue on appeal involved only the respondents, the claimant did not participate in appellate proceedings.
The respondent-St. Paul Insurance Company was represented by Robin L. Wilson, Esq., Assistant Attorney General.
The respondent-St. Paul Insurance Company was represented by Robin L. Wilson, Esq., Assistant Attorney General.
This petition for Review from the October 16, 1989 Finding and Award of the Commissioner for the Third District was heard September 28, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and George Waldron.
OPINION
This appeal concerns issues arising under Sec. 31-349, C.G.S., the state under which the primarily liable employer may transfer liability to the Second Injury Fund after the employer has paid the first 104 weeks of benefits. Claimant's compensable heart attack occurred December 14, 1984. His compensation rate was $381.00. The employer paid 26.3 weeks of total indemnity benefits at the rate. After the claimant was partially disabled and the employer paid 85 weeks of partial benefits at 251.87 per week. During this period there were unresolved disputed issues between employer and employee, i.e. when was maximum medical improvement reached and depending on that determination what was the weekly benefit amount which should be paid?
The Third District approved a transfer of liability to the Second Injury Fund pursuant to Sec. 31-349 effective December 16, 1986. The respondent Second Injury Fund concedes that as of the date of transfer the issue of permanent partial disability and the date of claimant's maximum medical improvement had not been agreed upon between the parties. More than a year after the transfer, the Fund without participation by the employer or its insurer, St. Paul, entered into a Voluntary Agreement with the employee approved February 29, 1988 by the Third District. That agreement recognizes December 14, 1985 as the date of maximum improvement and provides specific benefits under Sec. 31-308(d) in the weekly amount of $381.00 for 195 weeks beginning December 15, 1985. As a result claimant was owed $129.13 per week for the 52 weeks from December 15, 1985 to December 16, 1986, i.e. the difference between the $251.87 partial benefit paid by St. Paul and the $381.00 weekly benefit included in the 1988 agreement.
In her October 16, 1989 decision the Third District Commissioner ruled against the Fund's assertion that the employer and its insurer, St. Paul, were liable to pay claimant the sums due for those fifty-two weeks. The Fund argues that those weeks were in the employer's primary liability period and therefore were the responsibility of St. Paul.
The only participants appearing on the February 1988 document, the Voluntary Agreement, were Russell Haluschak, the employee, and Gail Packard, the Second Injury Fund representative. Of course, the Third District also participated in the sense that it approved the agreement. Nowhere does it appear that either the Fund or the claimant or for the matter the Third District itself notified St. Paul or asked St. Paul to participate in any way.
St. Paul argues that a Voluntary Agreement is a contract between the parties entering into it, and as such does not bind any party which did not take part. It is true that a Voluntary Agreement is a Contract, Wallace v. Lux Clock Co., 120 Conn. 280 (1935), Richardson v. H.B. Sanson, Inc., 6 Conn. Workers' Comp. Rev. Op. 107, 590 CRD-1-87 (1989). We held "Sec. 31-296 clearly contemplates that a Voluntary Agreement is a consensual undertaking requiring the approval of both parties before it becomes the type of document described in the statute. Such agreements under Connecticut law are in the nature of contracts. Without the consent of both participants, no contract can exist." (footnote omitted). Id at 108.
Therefore, since St. Paul was not a party to the February, 1988 contract, it cannot be bound by it. It needs to be added however that Sec. 31-296, C.G.S., provides that an agreement approved by the commissioner "shall be as binding upon both parties as an award by the commissioner. Sec. 31-300, C.G.S. provides that and award is the functional equivalent of a court judgment. The Fund's argument is impliedly premised on those statutes, i.e. the agreement is a judgment, and the party liable to pay the judgment for weeks due before December 16, 1986 is St. Paul. But no judgment can bind a party over which a tribunal does not have in personam jurisdiction; without notice to St. Paul the Third District did not have such jurisdiction over St. Paul at the point in the proceedings.
We dismiss the appeal and affirm the District Commissioner.
Commissioners Frank Verrilli and George Waldron concur.