Opinion
CASE NO. 270 CRD-5-83
DECEMBER 23, 1986
The claimant was represented by Kevin T. Nixon, Esq.
Respondent-Employer was represented by John J. Keefe, Jr., Esq., Lynch, Traub, Keefe Errante, P.C.
Second Injury and Compensation Assurance Fund was represented by Robert W. Murphy, Esq., Assistant Attorney General.
This Petition for Review from the October 4, 1983 Finding and Award of the Commissioner for the Fifth District was heard June 29, 1984 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Rhoda Loeb and Gerald Kolinsky.
FINDING AND AWARD
1-27. Paragraphs 1 through 27 of the trial Commissioner's Finding and Award dated October 4, 1983, are made paragraphs 1 through 27 of this Division's Finding and Award.
28. The respondents gave notice to the Second Injury Fund on January 14, 1982 seeking transfer of liability under
29. The notice given by the respondents without any Voluntary Agreement or Finding and Award appended thereto failed to comply with the notice provisions of 31-349 C.G.S. as that statute requires notice to the Fund within ninety (90) days of the expiration of one-hundred-four (104) weeks payments of disability resulting from the injury.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that:
A. The respondent shall provide to the claimant all benefits due under Chapter 568 of the Connecticut General Statutes.
B. The request of the respondents to transfer liability to the Second Injury Fund under 31-349 C.G.S. is denied.
OPINION
Claimant sought benefits as a dependent under the Workers' Compensation Act alleging that the decedent, James Kiernan, died as a result of a myocardial infarction brought about by job related stress. The Fifth District Commissioner issued an October 4, 1983 Finding and Award granting benefits. On March 2, 1984 an Order against the Second Injury Fund was entered. The respondent-employer has appealed the Finding and Award and the Second Injury Fund has appealed the Order.
The substantive issue raised by the respondent-employer was whether decedent's death was a personal injury arising out of and in the course of employment. But the employer's appeal fails on procedural grounds. Claimant has moved that the employer's appeal be dismissed for failure to timely file Reasons for Appeal in accordance with Administrative Regulations 31-301-2.
The employer appealed the Finding and Award of October 4, 1983 in a Petition for Review filed October 11, 1983. On October 14, 1983 employer filed a Motion to Correct the Finding and Award and a Motion for Extension of Time to Submit Reasons for Appeal. The Chairman's Office granted said Motion for Extension of Time to Submit Reasons for Appeal until March 22, 1984. Reasons for Appeal were not filed until June 11, 1984. Employer's failure to comply with the extended deadline must result in the dismissal of its appeal. Domizio v. Domizio Enterprises, Inc., 306 CRD-5-84, 3 Conn. Workers' Comp. Rev. Op. 19 (1985); Johnson v. Courtland Gardens Convalescent Home, 154 CRD-7-82, 2 Conn. Workers' Comp. Rev. Op. 82 (1984).
Therefore, it is not necessary to consider the employer's substantive argument as to compensability. However, that argument was based on an allegation that decedent's fatal heart attack was not due to unusual exertion in the employment. But Connecticut has not followed the unusual exertion or special hazard rule for some four decades. St. John v. U. Piccolo Co., Inc., 128 Conn. 608 (1942), Jones v. Hamden, 129 Conn. 532 (1942), Donato v. Pantry Pride, 37 Conn. Sup. 836 (1981), Gecewicz v. Sealtest Foods Division, 77 CRD-1-81, 1 Conn. Workers' Comp. Rev. Op. 195 (1982), McDonough v. Connecticut Bank Trust, 184 CRD-2-82, 3 Conn. Workers' Comp. Rev. Op. 46 (1986). Thus we would also dismiss the employer's appeal on the merits if it were necessary to decide that issue.
An entirely different set of procedural considerations is presented by the Second Injury Fund appeal. They involve compliance with the notice provision of 31-349 C.G.S. The decedent's death occurred September 28, 1979. No notice was sent by the employer to the Fund until January 14, 1982, 119 6/7 weeks after the compensable event, some twenty-nine weeks after the filing deadline provided in the statute. The Fifth District Commissioner made no finding concerning notice to the Second Injury Fund either in his October 4, 1983 Finding and Award or his March 2, 1984 Order. It would serve no purpose for us to remand to the District to make such a finding as the parties agree and an examination of the District file clearly indicates there was no notice to the Fund within the ninety-one weeks after the injury as required by 31-349 C.G.S. We have therefore corrected the Finding and Award accordingly.
Section 31-349 provides, inter alia, "As 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 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."
Kramer v. General Electric Company, 37 Conn. Sup. 742 (1981) aff'g. 17 CRD-4-80, 1 Conn. Workers' Comp. Rev. Op. 12 (1980) is directly on point. There the respondent sent notice to the Second Injury Fund before the statutory deadline but failed to include with the notice a Voluntary Agreement as no Agreement was approved until some fifty days before the expiration of the one-hundred-four-week period. The employer there had actually paid some benefits and had attempted to get a Voluntary Agreement signed and approved well before the deadline contrary to the employer's position in the instant case. The District Commissioner had therefore found substantial compliance with the 31-349 notice provisions and entered an order transferring liability to the Second Injury Fund after 104 weeks. However, this Division disagreed and cited Plesz v. United Technologies Corporation, 174 Conn. 181 (1978) in support of its reversal of the District order. The Appellate Session of the Superior Court affirmed the reversal of the District order again citing Plesz stating that there must be strict compliance with the notice deadline and all the technical procedural requirements of 31-349 before liability could be transferred.
The respondents in the instant matter seek to distinguish Kramer, but if anything, their position here is worse than the Kramer employer. The Kramer employer had actually given notice 126 days before and the Voluntary Agreement within 50 days of the expiration of the 104 weeks. Here, the employer advanced no benefits, gave notice 30 weeks after the expiration of the 104 weeks, and did not present an Agreement or Award until 53 weeks after the 104 weeks.
We must therefore agree with the position of the Second Injury Fund and reverse the Fifth District Order. The appeal of the Fund is sustained, and the appeal of the Respondent-Employer is dismissed.
Commissioners Rhoda Loeb and Gerald Kolinsky concur.