Opinion
FILE NO. 1065
Unless an employer gives both notice of his pending action and a copy of the workers' compensation agreement or award to the custodian of the Second Injury Fund within the time prescribed by the statute ( 31-349), the fund is not subject to liability.
Argued April 21, 1981 —
Decided August 28, 1981
Appeal from a finding and award of the workers' compensation commissioner for the fourth district, brought to the compensation review division by the defendant Second Injury and Compensation Assurance Fund; decision sustaining the appeal, from which the defendants General Electric Company and Electric Mutual Liability Company have appealed to this court. No error.
Edward S. Downes, Jr., for the appellants (named defendant et al.).
Carl R. Ajello, attorney general, and Robert W. Murphy, assistant attorney general, for the appellee (defendant Second Injury and Compensation Assurance Fund).
The petitioners, claimant's employer, General Electric Company (G.E.), and the employer's compensation carrier, Electric Mutual Liability Company (E.M.L.C.), have appealed from a decision of the workers' compensation review division. This decision had reversed the decision of the compensation commissioner in the fourth district and absolved respondent Second Injury and Compensation Assurance Fund (Second Injury Fund) from any liability.
The facts in this case are undisputed. The claimant, Philip Kramer, was injured on November 28, 1977. Disability commenced on December 14, 1977, whereupon he became eligible for compensation benefits from his employer's compensation carrier, E.M.L.C. On July 25, 1979, E.M.L.C. notified the Second Injury Fund that a claim was being made against the fund. On October 17, 1979, the Second Injury Fund was given a copy of an approved voluntary agreement made between the claimant, his employer, G.E., and his employer's insurer, E.M.L.C. The agreement indicated that the claimant had suffered a compensable injury on November 28, 1977, which arose from the course of his employment with G.E. The Second Injury Fund denied that the letter of July 25, 1979 and the delivery of the agreement on October 17, 1979 constituted compliance with the notice provisions of General Statutes 31-349, and therefore disclaimed responsibility for the claimant's compensation.
The notice read as follows: "Notice is hereby given pursuant to Section 31-349 of the General Statutes. The claimant's prior physical disability is materially and substantially contributing to his present and future disability. We have not issued a Voluntary Agreement as of this date as the liability has been in dispute."
The parties submitted the question to the compensation commissioner in the fourth district, who decided that there was compliance and ordered the Second Injury Fund to begin paying claimant's indemnity and medical expenses commencing December 13, 1979. The Second Injury Fund appealed from the commissioner's decision. The compensation review division sustained this appeal, indicating that General Statutes 31-349 required both the timely filing of notice and the timely filing of the agreement. G.E. and E.M.L.C. have appealed from the review division's decision. The principal issue in this appeal is whether the petitioners' failure to comply with the provisions of General Statutes 31-349 acts as a bar to recourse against the Second Injury Fund.
Section 31-349 provides in relevant part that "[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 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." (Emphasis added.) Our Supreme Court has interpreted the nearly identical predecessor to this section to mean that for the employer to avail himself of the statute and transfer responsibility to the second injury fund, "the employer would be obliged to give the custodian of the second injury fund notice of the pending action, a copy of the agreement or award, and furnish the custodian with medical reports" 90 days prior to the expiration of the 104 week period. Plesz v. United Technologies Corporation, 174 Conn. 181, 187, 384 A.2d 363 (1978). As the court noted, the object of the ninety-day statutory notice period is to enable the fund to assess its alleged liability quickly and thereby immediately establish its financial reserves, with a further objective being to give the fund reasonable time to investigate the claim and prepare to meet it. In order to achieve these goals, the fund must be apprised without delay that such a claim is being made, it must obtain a copy of the agreement or award, and it must have immediate access to all medical reports. Id., 188.
The 1969 statute, which was operative in the Plesz case, read as follows: "Ninety days prior to the expiration of the one-hundred-four-week period, the employer or his insurance carrier shall 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, and shall make available to the custodian such medical reports as the custodian shall desire." The legislative history of Public Acts 1971, No. 447, which changed this section to its present form, reveals no intention on the part of the legislature to make the requirements that the employer must fulfill less strict. Instead, the history reveals an intent that the Second Injury Fund not accept liability for payment until the claim has, been fully documented. See, e.g., 14 S. Proc., Pt. 6, 1971 Sess., pp. 2561-62, wherein Senator Smith said that the purpose of the bill (Sub. H.B. 6894) was "`to insure that the employer of an individual covered under workmen's Compensation . . . shall fulfill all responsibilities . . . and that the custodian of the Second Injury Fund shall accept liability for payment after the case has been completely documented as to injuries sustained and benefits paid and the liability of the fund is demonstrated.'" (Emphasis added.) See also 14 H.R. Proc., Pt. 6, 1971 Sess., p. 2668, remarks of Representative Herbert V. Camp, Jr.; Joint Standing Comm. Hearings, Labor Industrial Relations, 1971 Sess., p. 196, remarks of Bernard McGovern, assistant attorney general.
In the present case, the plaintiffs disability began on December 14, 1977. The ninetieth day prior to the expiration of the 104-week period was reached on September 13, 1979. For the employer or its insurance carrier to avail itself of the provisions of General Statutes 31-349, it was obliged to give the custodian of the Second Injury Fund notice of the pending action and a copy of the agreement or award by September 13, 1979. The review division found that the defendants failed to comply with these statutory provisions. We conclude that the division did not err in sustaining the appeal of the Second Injury and Compensation Assurance Fund.