Hall v. Bilow Builders, Inc.

Page 269

699 A.2d 269

46 Conn.App. 346

Donald HALL v. BILOW BUILDERS, INC.

No. 16318.

Appellate Court of Connecticut.

Argued April 24, 1997.

Decided Aug. 19, 1997.

Certification Denied Oct. 9, 1997. ^*

John P. Clarkson, Hartford, with whom, on the brief, was Bernard Poliner, Middletown, for appellant (named defendant).

Taka Iwashita, Assistant Attorney General, with whom, on the brief, were Richard Blumenthal, Attorney General, and William J. McCullough and Michael Belzer, Assistant Attorneys General, for appellee (defendant second injury fund).

Before DUPONT, C.J., and LANDAU and SCHALLER, JJ.

SCHALLER, Judge.

The defendant employer, Bilow Builders (defendant), appeals from the decision of the compensation review board reversing the finding of the trial commissioner. The defendant claims that the board improperly refused to order transfer of a claim to the second injury fund. We affirm the decision of the board.

The following facts are undisputed. The plaintiff, Donald Hall, suffered a compensable back injury on October 11, 1991. The defendant, which was uninsured on the date of injury, paid 104 weeks of benefits and notified the second injury fund of its intent to transfer liability pursuant to General Statutes (Rev. to 1991) § 31-349. ¹ The fund acknowledged timely receipt of the notice, but refused to accept a transfer of liability, claiming that the defendant's failure to carry workers' compensation insurance on the date of injury deprived it of the benefit of transfer. On April 27, 1994, a hearing was held before the trial commissioner who found that there is no statutory impediment to transfer liability to the fund in this instance. The fund appealed to the compensation review board which reversed the trial commissioner's decision and held that the defendant's failure to carry workers' compensation insurance on the date of injury deprived it of the benefit of transfer. This appeal followed.

The issue raised in this appeal has been ruled on by the compensation review board in a case of first impression, Champlain v. Parnes, 14 Conn. Workers' Comp. Rev. Op. 113 (1995). In Champlain, the employer paid workers' compensation benefits to a previously injured employee and provided timely notice to the fund pursuant to § 31-349, but was not insured for workers' compensation on the date of the second injury and, thus, was not in compliance with either General Statutes (Rev. to 1991) § 31-284 ² or General Statutes (Rev. to 1991) § 31-354. ³ The issue was whether the second injury fund was liable for payment of a second injury pursuant to § 31-349 where the employer was uninsured for workers' compensation purposes at the time the second injury occurred. The board, after examining the statutes involved, concluded that the legislature intended to compel employers to obtain workers' compensation insurance or to self-insure. Accordingly, the board held that "when an employer is uninsured at the time of a second injury, the employer does not acquire the complete relief afforded under § 31-349...." Id., 116.

Upon our review of Champlain and the board's decision in this case, we conclude that the board properly denied the defendant's attempted transfer of liability to the fund when it was uninsured at the time of the plaintiff's injury. We accord great deference to the construction given to §§ 31-349, 31-284 and 31-355 by the board because it is charged with their enforcement. ⁴ See Borent v. State, 33 Conn.App. 495, 499, 636 A.2d 392 (1994). In addition, we agree with the board that the legislature intended to compel employers to obtain workers' compensation insurance or to self-insure. To allow uninsured employers to take advantage of § 31-349 would weaken employers' incentive to obtain the required insurance. Moreover, it would provide a windfall to employers operating outside the system who would seek the benefit of the fund without obtaining insurance or a certificate of insurance pursuant to § 31-284 and without paying their assessments into the fund pursuant to § 31-354. We conclude that the board properly reversed the trial commissioner's decision and denied transfer of liability to the fund.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

* J. Berdon would grant certification.

1 General Statutes (Rev. to 1991) § 31-349 provides in relevant part: "Compensation for second disability. Payment for insurance coverage. (a) The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for...