Austin v. Coin Depot Corp., 052620 CTWC, 6318 CRB-4-19-4

Docket Nº:6318 CRB-4-19-4
Case Date:May 26, 2020
Court:Connecticut
 
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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’...

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