HOWARD AUSTIN, JR. CLAIMANT-APPELLANT
v.
COIN DEPOT CORPORATION EMPLOYER
and
CONNECTICUT INSURANCE GUARANTY ASSOCIATION INSURER RESPONDENTS-APPELLEES
No. 6318 CRB-4-19-4
Connecticut Workers Compensation
Compensation Review Board Workers Compensation Commission
May 26, 2020
This
Petition for Review from the April 2, 2019 Findings and Order
of Randy L. Cohen, Commissioner acting for the Fourth
District, was heard on November 22, 2019 before a
Compensation Review Board panel consisting of Commission
Chairman Stephen M. Morelli and Commissioners Peter C.
Mlynarczyk and David W. Schoolcraft.
The
claimant was represented by Enrico Vaccaro, Esq.
The
respondents were represented by Joseph J. Passaretti, Jr.,
Esq., and Paul M. Shearer, Esq., Montstream Law Group, L.L.P.
OPINION
STEPHEN M. MORELLI, CHAIRMAN.
The
claimant has petitioned for review from the April 2, 2019
Findings and Order (order) of Randy L. Cohen, Commissioner
acting for the Fourth District (commissioner). We find no
error and accordingly affirm the decision of the
commissioner.[1]
The
commissioner identified as the issue for determination
whether the Connecticut Insurance Guaranty Association (CIGA)
discharged its obligation to the claimant for cost-of-living
adjustment (COLA) benefits in accordance with the provisions
of General Statutes § 31-307a.[2] The following factual
findings are pertinent to our review of this matter. The
claimant sustained a work-related injury on November 19,
2001; a voluntary agreement approved on November 7, 2003,
documented a 30 percent permanent partial disability of the
cervical spine with a maximum medical improvement date of
August 3, 2003. The named claimant on this document was
“Howard Austin.” Attorney Enrico Vaccaro has been
the claimant’s attorney since July 10, 2009.
Marjorie
Corbett has been the claims supervisor for this matter since
2013, when Kemper Services became insolvent. She testified
that for more than two decades, she has been licensed to
examine workers’ compensation claims in several states,
including Connecticut. She holds an SCLA (Senior Claims Law
Associate) and an AIC (Associate in Claims). As of the date
of the July 24, 2018 formal hearing, she had worked for CIGA
for six years, and had previously worked for Zurich, The
Hartford, EBI Companies, and Royal & SunAlliance. In July
2015, Corbett discovered that the claimant was entitled to a
retroactive COLA and issued payment in the amount of
$27,059.46 in August 2015.[3] She testified that she mailed a
check payable to “Howard Austin” to
Vaccaro’s law offices as Vaccaro was the attorney of
record for the claimant.
Corbett
testified that she did not become aware that the claimant had
not received this payment until more than two years later, in
December 2017, when the claimant telephoned her to discuss
how a COLA was calculated. After the claimant informed
Corbett that he had never received the COLA check, she
immediately began an investigation by ordering copies of the
front and back of the original check, and then turned the
matter over to the head of accounting, who opened an
investigation with the bank. The bank investigation resulted
in a determination that the proper party had negotiated the
check.
In
December 2017, Corbett had a telephone conversation with
Vaccaro, who admitted he had received the COLA check and
given it to the claimant’s father. Corbett immediately
memorialized this conversation “in a letter indicating
that Attorney Vaccaro had received the check, and that the
claimant’s father was also Attorney Vaccaro’s
client, and that Attorney Vaccaro had given the
claimant’s father the claimant’s COLA
check.” Findings, ¶ 4.h. The claimant testified
that the signature on the back of the COLA check belonged to
his father, whose legal name was “Howard Austin
Sr.” The claimant indicated that his legal name is
“Howard Austin Jr.,” which is the name listed on
his driver’s license, birth certificate, and automobile
registration.
The
claimant contended that CIGA had not discharged its legal
obligation pursuant to § 31-307a relative to the payment
of the retroactive COLA benefits, and was seeking an order
requiring the respondents to pay the claimant the sum of
$27,059.46 as well as attorney’s fees and costs
pursuant to General Statutes § 31-300 for unreasonable
contest.[4] The respondents argued that the
claimant received payment when delivery of the check was made
to Vaccaro, the claimant’s duly authorized legal
representative. The respondents therefore asserted that CIGA
had “properly and completely discharged [its]
obligations” pursuant to § 31-307a.”
Findings, ¶ 8. The parties stipulated to the fact that
the claimant has been receiving regular weekly payments made
payable to “Howard Austin” for more than five
years.
Corbett
further testified that since April 2013, the claimant’s
ongoing weekly workers’ compensation benefits were in
the form of checks made payable to “Howard
Austin,” and at no time did anyone alert her that the
fact that the claimant’s checks were being issued in
this manner was a problem. Corbett indicated that the case
was captioned as “Howard Austin” when CIGA
received it from the bankruptcy liquidator, and CIGA is not
allowed to change anything or disrupt the continuity of the
payments. Corbett testified that the check for $27,059.46 was
made payable to “Howard Austin,” which was the
same name that had been used on all his other checks. She
also stated that “[i]t is general practice in her
company, and an accepted practice in the insurance industry,
that you would send a large COLA check like that to the
claimant’s attorney.” Findings, ¶ 10.e.; see
also July 24, 2018 Transcript, p. 18.
Commissioner
Jodi Murray Gregg presided over a hearing in this matter on
May 31, 2018, and was called to testify at the formal hearing
of November 26, 2018. She stated that although she had not
reviewed her notes from the May 2018 hearing, she had an
“independent recollection of the events that transpired
during that hearing, even though it was nearly six months
prior.”[5] Findings, ¶ 12. She recalled
that the claimant was very angry and was directing his anger
towards Vaccaro, and the commissioner witnessed a
“heated exchange” between the claimant and
Vaccaro which at one point prompted Vaccaro to rise to his
feet. Findings, ¶ 12.b. Commissioner Gregg specifically
remembered that the claimant was angry about a check which
had been issued in his name that his father had either
received or picked up from Vaccaro. Vaccaro, in addition to
representing the claimant, also testified at the formal
hearing on November 26, 2018. He stated that the claimant had
“said a lot of things” at the May 2018 hearing
but he had no basis to refute Commissioner Gregg’s
testimony regarding the events that had occurred or what was
said at that hearing. November 26, 2018 Transcript, p. 46.
The
commissioner noted that in addition to the voluntary
agreement which was approved on November 7, 2003, the file
contained several forms 36 and forms 43 which refer to the
claimant as “Howard Austin.” The file also
contains two pieces of correspondence from the
claimant’s former attorney referring to the claimant as
“Howard Austin.”
Attorney
Lawrence Morizio, who has practiced workers’
compensation law in Connecticut for twenty-one years and been
a board-certified Workers’ Compensation Specialist
since 2010, also testified at the November 26, 2018 hearing.
He indicated that he has represented claimants throughout his
career, and “it is custom and practice” in the
workers’ compensation system that large lump-sum
payments due a claimant be sent to the claimant’s legal
counsel, even when regular weekly indemnity payments are
being sent to the claimant at his or her home address.
Findings, ¶ 16; see also November 26, 2018 Transcript,
pp. 14-15.
Attorney
David Morrissey, who has practiced workers’
compensation law in Connecticut for thirty-nine years and
been a board-certified Workers’ Compensation Specialist
since 2001, also testified at the November 26, 2018 formal
hearing. Morrissey indicated that he has been the chair of
the workers’ compensation section of the Connecticut
Bar Association, continues to serve on its executive
committee, and is a Fellow of the National College of
Workers’...
