5269 CRB-7-07-9 (2009). Franklin v. Superior Casting.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5269 CRB-7-07-9 (2009). Franklin v. Superior Casting CASE NO. 5269 CRB-7-07-9COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSION JUNE 15, 2009WILLIE L. FRANKLIN CLAIMANT-APPELLEE v. SUPERIOR CASTING EMPLOYER and LIBERTY MUTUAL INSURANCE GROUP INSURER RESPONDENTS-APPELLEES and GUARANTY FUND MANAGEMENT SERVICES INSURER RESPONDENT-APPELLANT and SECOND INJURY FUND RESPONDENT-APPELLEEAPPEARANCES: The claimant was represented by Robert F. Carter, Esq., Carter & Civitello, Attorneys at Law, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525. The respondents Superior Casting and Liberty Mutual Insurance Group were represented by James D. Moran, Esq., Maher & Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824-0550. The respondent Guaranty Fund Management Services was represented by Joseph J. Passaretti, Jr., Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 6087, Glastonbury, CT 06033-6087 and Mark D. Robins, Esq., Nixon Peabody, LLP, 100 Summer Street, Boston, MA 02110. The Second Injury Fund was represented by Lawrence G. Widem, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120 who did not appear at oral argument. This Petition for Review(fn1) from the August 28, 2007 Finding and Award of the Commissioner acting for the Seventh District was heard March 27, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.OPINIONJOHN A. MASTROPIETRO, CHAIRMAN. There is presently a single issue on appeal before this panel. Does the Connecticut Insurance Guaranty Association ("CIGA") have the responsibility for payment of a claim when it insured the now-insolvent last carrier on a risk and there are other carriers whom are subject to apportionment under § 31-299b C.G.S.?(fn2) The trial commissioner determined that CIGA was liable; holding that this constituted a "covered claim" under the CIGA statute; but that CIGA had apportionment rights against the solvent carrier on the risk. CIGA has appealed arguing that this would be a claim for the benefit of an insurer, which they are not obligated to pay. We reject CIGA's statutory interpretation and dismiss this appeal.The trial commissioner pointed out "the essential facts in this matter are not in serious dispute." The claimant worked for 15 years in the respondent Superior Casting's foundry. During the course of his employment he developed silicosis which was an occupational disease brought about by repetitive trauma. The claimant filed a timely Form 30C and the employer's medical examiner has opined he has a 40% permanent partial disability rating. During the years the claimant was employed the respondent Superior Casting retained two insurance carriers for workers' compensation. Liberty Mutual insured Superior Casting for about one and a half years; while during the remainder of the claimant's employment American Mutual Liability Insurance ("American Mutual") was on the risk. American Mutual became insolvent and CIGA became obligated to pay the claimant's benefits to the extent they were "covered claims." Based on those facts the trial commissioner concluded the claimant was totally disabled due to a compensable injury and established a weekly compensation rate. He determined that the Connecticut Supreme Court's decision in Connecticut Ins. Guaranty Assn. v. State, 278 Conn. 77 (2006) places CIGA in the stead of American Mutual by assuming the liability of the defunct carrier. The commissioner rejected CIGA's position that the claim herein is not a "covered claim" and the payment of this claim is for the benefit of an insurer. The commissioner determined CIGA, as the last insurer, is liable for payment of all medical and indemnity benefits and shall be reimbursed 11.26% of said benefits from respondent Liberty Mutual Insurance Company. He also ordered CIGA, as the last carrier on the risk pursuant to § 31-299b C.G.S., to pay past and future medical expenses for claimant's treatment. The commissioner rejected CIGA's argument that the Second Injury Fund was obligated to pay any part of the claim. Both the claimant and CIGA filed Motions to Correct. The claimant filed a motion which fixed a scrivener's error and adjusted the compensation rate. CIGA's motion sought to substitute conclusions that it was statutorily exempt from liability for this claim. The claimant's motion was granted and CIGA's was denied. CIGA appealed from this decision to this panel. CIGA has filed three separate Reasons for Appeal. They claim that CIGA is not an "insurer" within the scope of § 31-299b C.G.S. because the present claim is not a "covered claim" as defined under § 38a-838(5)(a) C.G.S.(fn3) and is subject to the theory of "exhaustion" under § 38a-845(1) C.G.S.(fn4) They argue that they should not be responsible for covering the medical lien because that is also in their view not a "covered claim." They also argue that the commissioner's award is for the benefit of an insurer, and thus cannot be honored by CIGA. We are not persuaded by any of these arguments. This panel last dealt with many of these same arguments in Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008). We noted in Potvin that "on multiple occasions this board and appellate courts have rejected the appellant's efforts to define 'covered claim' in a fashion exempting them from liability." Id, n 8. We cited a number of recent cases for this proposition, i.e. Esposito v. Simkins Industries, 5065 CRB-3-06-3 (March 1, 2007), aff'd, 286 Conn. 319 (2008); Connecticut Ins. Guaranty Assn. v. State, 278 Conn. 77 (2006); Giglio v. American Economy Ins., Co., 278 Conn. 794 (2006); Doucette v. Pomes, 247 Conn. 442 (1999) and CIGA v. Fontaine, 278 Conn. 779 (2006). We also cited in Potvin, supra, the text of § 38a-841(1)(b) C.G.S.

(1) Said association shall:

(b) be deemed the insurer to the extent of its obligations on the covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent (Emphasis added).

In the present case, as in Potvin, the original insurer became insolvent and CIGA was responsible for their covered claims. We held in Potvin "[t]he 'plain meaning' of § 38a-841(1)(b) C.G.S is that on a 'covered claim' CIGA shall act as the insurer and the claimant shall have the same rights against CIGA as he or she would have had against the original, and now insolvent, insurer." Id. We reached this conclusion after considering the text of the CIGA v...