Karutz v. Feinstein and Herman8/29/2000
The defendant second injury fund (fund) appeals from the decision of the workers' compensation review board (board) affirming an order by the workers' compensation commissioner (commissioner) that the notice to the fund by the insurer, the defendant Middlesex Mutual Assurance Company (insurer), of intent to transfer liability to the fund was timely under the requirements of General Statutes § 31-349. The fund claims that the board improperly affirmed the commissioner's determination because the notice was untimely. We conclude that the insurer failed to notify the fund in a timely manner and therefore could not transfer its liability to the fund.
In his finding and order, the commissioner found the following facts. The plaintiff, Teresa Karutz, worked as an attorney for the defendant law firm of Feinstein & Herman, P.C. On September 27, 1990, the plaintiff injured her back during the course of her employment when a file cabinet drawer that she was opening unexpectedly came out of the cabinet. The plaintiff subsequently experienced stiffness and pain in her lower back. She did not seek medical attention, however, until November 12, 1990, when she saw Peter B. Stovell, an orthopedic surgeon. The plaintiff filed a form 30 C in March, 1991, and submitted an employer's first report of occupational injury or disease form on July 1, 1991. From the date of the injury until November 25, 1991, the plaintiff lost no time from work as a result of her injury and was paid her regular salary.
Stovell treated the plaintiff on a regular basis from November 12, 1990, through July 29, 1991. Stovell prescribed anti-inflammatory drugs, a home exercise program, physical therapy and diagnostic tests. On the basis of Stovell's and other examining physician's reports, the plaintiff was found to be temporarily totally disabled from November 25, 1991, through November 30, 1992. The insurer paid temporary total disability benefits during this period of time. The temporary total disability benefits were terminated and payments ceased on November 30, 1992. The plaintiff asserted a claim for temporary partial disability benefits for the period from November 30, 1992, to July 12, 1994.
Subsequently, the commissioner conducted informal hearings. The insurer and the plaintiff agreed that the plaintiff would be entitled to an award of thirty-six weeks of temporary partial disability benefits covering the period from November 30, 1992, to July 12, 1994. This award by stipulation was approved by the commissioner on August 8, 1995. The plaintiff, according to Stovell's assessment, reached maximum medical improvement on July 12, 1994, and was rated with a 15 percent permanent partial disability of her back.
On August 2, 1993, the insurer notified the fund of its intention to transfer the liability to the fund pursuant to § 31-349. The insurer perfected notice to the fund on October 12, 1993. Section 31-349 (a) provides that as a condition precedent to an employer's transfer of liability to the fund for an employee's permanent disability, the employer must furnish notice of intent to transfer to the custodian of the fund ninety days prior to the expiration of the first 104 weeks of a claimant's disability. Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 393, 618 A.2d 1340 (1993). The fund contested the transfer, arguing that the insurer's notice was late because the notice period began to run on September 28, 1990, the date of the injury. The insurer requested a formal hearing on the matter, which was heard on July 29, 1997.
The commissioner found that the notice to the fund was timely and that the insurer is therefore entitled to transfer to the fund responsibility f
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