LAUREL B. BELLERIVE CLAIMANT-APPELLEE
v.
THE GROTTO, INC. EMPLOYER RESPONDENT-APPELLEE
and
LIBERTY MUTUAL INSURANCE COMPANY INSURER RESPONDENT-APPELLANT
and
SECOND INJURY FUND RESPONDENT-APPELLEE
No. 6335 CRB-5-19-6
Connecticut Workers Compensation
Compensation Review Board Workers Compensation Commission
June 10, 2020
This
Petition for Review from the May 24, 2019 Finding and
Decision by Charles F. Senich, the Commissioner acting for
the Fifth District, was heard December 20, 2019 before a
Compensation Review Board panel consisting of Commissioners
Peter C. Mlynarczyk, David W. Schoolcraft and Toni M.
Fatone.[1]
The
claimant-appellee was represented by William M.
O’Donnell III, Esq., Carmody, Torrance, Sandak &
Hennessey
The
respondent-appellee, The Grotto, Inc., was represented by
James P. Brennan, Esq., Brennan Law Firm, L.L.C.
The
respondent-appellant, Liberty Mutual Insurance Company, was
represented by Christopher J. Powderly, Esq., Law Offices of
Meehan, Roberts, Turret & Rosenbaum
The
respondent-appellee, Second Injury Fund, was represented by
Donna Summers, Esq., Assistant Attorney General, Office of
the Attorney General
OPINION
PETER
C. MLYNARCZYK, COMMISSIONER.
The
respondent-insurer, Liberty Mutual Insurance Company (Liberty
Mutual), has appealed from a Finding and Decision (finding)
issued by Commissioner Charles F. Senich (commissioner) on
May 24, 2019 which determined that it had failed to
effectively cancel its insurance coverage for the
respondent-employer (The Grotto), as of the date of the
claimant’s compensable injury and, therefore, was
responsible to pay benefits for the claimant’s injury.
Liberty Mutual argues that as it properly notified the agent
of the Commission, the National Council on Compensation
Insurance (NCCI), of its intent to cancel the policy prior to
the date of the claimant’s injury, it complied with its
statutory obligations under General Statutes §
31-348[2] and the policy was validly
cancelled. The Grotto argues that subsequent communications
from Liberty Mutual after the asserted cancellation notice
led it to believe that the policy was still in effect, which
the commissioner credits by finding The Grotto reasonably
believed the coverage remained in force. Having reviewed the
communication received by The Grotto from Liberty Mutual, we
believe there was sufficient evidence to support the
commissioner’s conclusion that The Grotto reasonably
believed as late as March of 2016 that the policy was still
in force. Conclusion, ¶ J. We nevertheless believe the
commissioner erred in holding that the policy was still in
force on March 1, 2016, particularly in light of precedent
such as Yelunin v. Royal Ride Transportation, 121
Conn.App. 144 (2010). Accordingly, we must reverse the
finding.
The
commissioner reached the following factual findings at the
conclusion of the formal hearing. He noted the parties had
submitted a stipulation of facts that focused on the terms of
the policy of insurance between Liberty Mutual and The
Grotto. We note that, on September 15, 2015, Liberty issued
The Grotto a workers’ compensation insurance policy
that was scheduled to expire on August 20, 2016 —
policy number WC5-31S-606763-045. [Stipulation #17.] The
commissioner noted that Liberty Mutual claimed to have
cancelled this policy on October 14, 2015, but NCCI had said
the effective date on which this policy had been cancelled
was November 3, 2015. See Findings, ¶¶ 2-4. The
Grotto argued that it had paid the full premium for this
policy prior to the date of that injury and reasonably
believed the policy was still in effect. See Findings, ¶
6.
In his
findings, the commissioner cited several examples of
communications from Liberty to The Grotto, communications he
considered “inconsistent at best.” Findings,
¶ 7. On February 18, 2016, Liberty Mutual issued a new
endorsement for the policy in question and sent it to The
Grotto. This endorsement said, in part, that “other
than the endorsement changes to Policy #WC5-315-606763-045,
all other terms and conditions of this policy remain
unchanged.” Findings, ¶ 9. Liberty Mutual then
sent a letter to The Grotto on February 24, 2016, requesting
a response to an audit report warning that a “failure
to submit the audit report ‘may result in cancellation
of your existing policy.’” Findings, ¶ 10,
(Emphasis in original finding). However, a different letter
was sent by Liberty Mutual to The Grotto on the same day,
which said that the policy had been cancelled on November 3,
2015. This letter also noted the result of an audit
determining that there had been a $5 underpayment of the
premium. The commissioner noted that, while that letter
represented that the cancelled policy had only been in effect
for about seven weeks, Liberty Mutual did not send back to
the insured any portion of the $4,835 estimated annual
premium it had paid. See Findings, ¶ 11. The
commissioner also found that on March 15, 2016 Liberty Mutual
sent two additional letters. One letter, referencing a
revised audit, referred to the policy at issue here as having
been cancelled on November 3, 2015. See Findings, ¶ 13.
The other said that The Grotto’s self-audit was
incomplete and requested the submission of additional
materials. See Findings, ¶ 12. On March 17, 2016,
Liberty Mutual sent The Grotto a letter stating a policy
issued to them had expired on August 20, 2015, and a final
audit determined there had been a premium underpayment of
$12. See Findings, ¶ 14.[3] Finally on April 15, 2016,
Liberty Mutual returned to The Grotto a prorated portion of
the premium which had been paid on the policy at issue here...
