Opinion
CASE NO. 1243 CRD-3-91-6
SEPTEMBER 18, 1992
The claimant appeared pro se.
The respondent Second Injury Fund was represented at the trial level by Taka Iwashita, Esq., Assistant Attorney General. The Fund did not appear at oral argument nor did the Fund file a brief on appeal.
This Petition for Review from the June 11, 1991 Finding and Dismissal of the Commissioner At Large acting for the Third District was heard January 24, 1992 before a Compensation Review Board panel consisting of the then Commission Chairman, John Arcudi and Commissioners Robin Waller and Angelo L. dos Santos.
OPINION
Claimant has appealed pro se from the commissioner' refusal to order respondents to pay into the claimant's welfare fund. Claimant sustained a compensable injury on October 23, 1981. Liability to pay compensation benefits was transferred to the Second Injury Fund effective October 24, 1983. The respondent-employer had provided an employee benefit plan with group life, health, disability, pension and employee stock ownership benefits. The employer maintained claimant's membership in the welfare plan until 1985.
Claimant filed no brief in this appeal, but his argument appears to be that Sec. 31-51h obligated an employer to maintain an employee's welfare benefits while that employee was receiving workers' compensation benefits. Although Sec. 31-51h was declared unconstitutional in Stone Webster Engineering Corp. v. Ilsley, 518 F.Sup. 1297 (D. Conn. 1981), aff'd 690 F.2d 323 (1982), aff'd sub nom. Arcudi v. Stone Webster Engineering Corp., 463 U.S. 1220 (1983), claimant contends that ruling was inapplicable to him, (the claimant) because he was not a member of a labor union unlike the claimant in Ilsley. We disagree.
Sec. 31-51h in pertinent part: No employer, private, municipal or state, shall cancel or withhold accident and health insurance or life insurance coverage of any employee or his dependents or cease to make payments or contributions at the regular hourly or weekly rate for full-time employees for each week of disability to an employee's welfare fund as defined in subsection (h) of section 31-53 while the employee is eligible to receive or is receiving workers' compensation payments pursuant to chapter 568 or is receiving a continuation of salary or wages under a provision for sick leave payments for time for on the Job injury. Such accident and health insurance coverage may include but shall not be limited to coverage provided by insurance or directly by the employer for the following health care services; Medical, surgical, dental, nursing and hospital care and treatment, drugs, diagnosis or treatment of mental conditions or alcoholism, and pregnancy and child care.
First, the applicable law is that in effect at the time of a claimant's injury. Munroe v. Dunham-Bush, Inc., 4 Conn. Workers' Comp. Rev. Op. 123, 324 CRD-1-84 (1987) citing Chieppo v. Robert McMichael, Inc. 169 Conn. 646 (1975). Claimant's injury occurred prior to the October 1, 1982 effective date of Sec. 31-284b which requires employers to continue payments or contributions for accident and health insurance or life insurance while an employee is eligible to receive or is receiving workers' compensation payments. But, we held in Munroe, supra held that Sec. 31-284b had no retroactive application.
Sec. 31-284b. Employer to continue insurance coverage or welfare fund payments for employees eligible to receive workers' compensation. Use of second injury fund. (a) In to maintain, as nearly as possible, the income of employees who suffer employment-related injuries, any employer, as defined in section 31-275, who provides accident and health insurance or life insurance coverage employee or makes payments or contributions at the weekly rate for full-time employees to an employee welfare fund, as defined in section 31-53, shall provide to such employee equivalent insurance coverage or welfare fund payments or contributions while the employee is eligible to receive or is receiving workers' compensation payments pursuant to this chapter, or while the employee is receiving wages under a provision for sick leave payments for time lost due to an employment-related injury.
Secondly, Ilsley, held Sec 31-51h to be unconstitutional on the basis that it was preempted by the federal Employee Retirement Income Security Act of 1974 ("ERISA") 29 U.S.C. Sec. 1001 et seq. The Second Circuit Court of Appeals in Ilsley stated at 328:
Section 514 of ERISA, 29 U.S.C. Sec. 1144 provides that applicable provisions of ERISA "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan. "In order to determine whether Stone Webster [the employer] may be required to make payments to the [employee welfare] Fund on Ilsley's [claimant's] behalf we must decide the single substantive issue — whether Sec. 31-51h of the Connecticut General Statutes "relate[s] to" an employee benefit plan. If so, void under the Supremacy clause contained in Article VI of the [federal] constitution." Id at 328.
The opinion then concluded Sec. 31-51h was invalid as it related to an to an employee benefit plan as defined by ERISA and was therefore preempted. Given that basis for the Ilsley holding, claimant's non-membership in a union as a collective bargaining representative is irrelevant. Ilsley cannot be distinguished for that reason.
We therefore affirm and dismiss claimant's appeal.
Commissioners Robin Waller and Angelo L. dos Santos concur.