Sec. 31-349. Compensation for second disability. Payment of insurance coverage. Second Injury Fund closed July 1, 1995, to new claims. Procedure. - Connecticut Statutes

      Sec. 31-349. Compensation for second disability. Payment of insurance coverage. Second Injury Fund closed July 1, 1995, to new claims. Procedure. (a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, "compensation payable or paid with respect to the previous disability" includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.

      (b) As a condition precedent to the liability of the Second Injury Fund, the employer or its insurer shall: (1) Notify the custodian of the fund by certified mail no later than three calendar years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier, of its intent to transfer liability for the claim to the Second Injury Fund; (2) include with the notification (A) copies of all medical reports, (B) an accounting of all benefits paid, (C) copies of all findings, awards and approved voluntary agreements, (D) the employer's or insurer's estimate of the reserve amount to ultimate value for the claim, (E) a two-thousand-dollar notification fee payable to the custodian to cover the fund's costs in evaluating the claim proposed to be transferred and (F) such other material as the custodian may require. The employer by whom the employee is employed at the time of the second injury, or its insurer, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. Failure on the part of the employer or an insurer to comply does not relieve the employer or insurer of its obligation to continue furnishing compensation under the provisions of this chapter. The custodian of the fund shall, by certified mail, notify a self-insured employer or an insurer, as applicable, of the rejection of the claim within ninety days after receiving the completed notification. Any claim which is not rejected pursuant to this section shall be deemed accepted, unless the custodian notifies the self-insured employer or the insurer within the ninety-day period that up to an additional ninety days is necessary to determine if the claim for transfer will be accepted. If the claim is accepted for transfer, the custodian shall file with the workers' compensation commissioner for the district in which the claim was filed, a form indicating that the claim has been transferred to the Second Injury Fund and the date that such claim was transferred and shall refund fifteen hundred dollars of the notification fee to the self-insured employer or the insurer, as applicable. A copy of the form shall be mailed to the self-insured employer or the insurer and to the claimant. No further action by the commissioner shall be required to transfer said claim. If the custodian rejects the claim of the employer or its insurer, the question shall be submitted by certified mail within thirty days of the receipt of the notice of rejection by the employer or its insurer to the commissioner having jurisdiction, and the employer or insurer shall continue furnishing compensation until the outcome is finally decided. Claims not submitted to the commissioner within said time period shall be deemed withdrawn with prejudice. If the employer or insurer prevails, or if the custodian accepts the claim all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or insurer by the Second Injury Fund.

      (c) If the second injury of an employee results in the death of the employee, and it is determined that the death would not have occurred except for a preexisting permanent physical impairment, the employer or its insurer shall, in the first instance, pay the funeral expense described in this chapter, and shall pay death benefits as may be due for the first one hundred four weeks. The employer or its insurer may thereafter transfer liability for the death benefits to the Second Injury Fund in accordance with the procedures set forth in subsection (b) of this section.

      (d) Notwithstanding the provisions of this section, no injury which occurs on or after July 1, 1995, shall serve as a basis for transfer of a claim to the Second Injury Fund under this section. All such claims shall remain the responsibility of the employer or its insurer under the provisions of this section.

      (e) All claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue transfer pursuant to the provisions of this section. No notification fee shall be required for notices submitted pursuant to this subsection. This subsection shall not apply to notices submitted prior to July 1, 1995, in response to the custodian's request, issued on March 15, 1995, for voluntary resubmission of notices.

      (f) No claim, where the custodian of the Second Injury Fund was served with a valid notice of intent to transfer under this section, shall be eligible for transfer to the Second Injury Fund unless all requirements for transfer, including payment of the one hundred and four weeks of benefits by the employer or its insurer, have been completed prior to July 1, 1999. All claims, pursuant to this section, not eligible for transfer to the fund on or before July 1, 1999, will remain the responsibility of the employer or its insurer.

      (1949 Rev., S. 7489; 1949, 1951, 1953, S. 3053d; September, 1957, P.A. 13, S. 6; 1958 Rev., S. 31-216; 1959, P.A. 580, S. 11; 1961, P.A. 491, S. 75; 1967, P.A. 842, S. 20; 1969, P.A. 696, S. 14; 1971, P.A. 447, S. 1; P.A. 79-376, S. 80; P.A. 81-464, S. 2; P.A. 82-398, S. 6; 82-472, S. 109, 183; P.A. 86-31; P.A. 88-40, S. 1, 2; 88-47, S. 1; P.A. 89-66, S. 1, 2; P.A. 90-116, S. 7; 90-327, S. 2, 3; P.A. 91-32, S. 35, 41; 91-339, S. 36, 55; P.A. 93-228, S. 24, 35; 93-429, S. 2, 7; P.A. 95-277, S. 3, 19; P.A. 96-242, S. 1, 10.)

      History: 1959 act simplified provisions by deleting references to specific loss of or damage to body organs, allowed compensation for injuries which result in permanent partial incapacity greater than would have resulted if person did not have preexisting incapacity, specified amount of additional compensation as "the same amount as the weekly compensation paid by his employer", changed minimum payment for total incapacity from $15 to $20 and maximum payment from $45 to maximum rate in Sec. 31-309 and replaced 780-week payment limit with unspecified "period of incapacity"; 1961 act entirely replaced previous provisions and was entirely replaced by provisions of 1967 act; 1969 act deleted requirement that insurer or employer furnish custodian with a copy of the agreement or award and deleted provision which stated that fund was to be used to pay for injuries covered by Sec. 31-310; 1971 act clarified employer's responsibilities to notify custodian of agreement and award; P.A. 79-376 substituted executions of acknowledgment of physical defect for executions of waiver and reduced compensation by amount of "any compensation benefits payable or paid with respect to the previous disability"; P.A. 81-464 permitted the use of the second injury fund for payment of insurance coverage for totally incapacitated recipients of workers' compensation after 104 weeks of benefits and provided for notification of fund custodian; P.A. 82-398 replaced the reference to Sec. 31-51h with a reference to Sec. 31-284b, as Sec. 31-51h was repealed by the act and deleted obsolete provision requiring employer to notify custodian of second injury fund within 60 days after October 1, 1981, that coverage is required for persons who have received payments for more than 104 weeks as of that date; P.A. 82-472 made a technical correction; P.A. 86-31 divided section into Subsecs. and clarified the notice requirements for payment by the second injury fund of insurance coverage costs for totally incapacitated workers' compensation recipients; P.A. 88-40 amended Subsec. (b) to provide that the cost of insurance for totally incapacitated individuals shall be paid to the employer as reimbursement and the employer shall furnish all medical information in support of the claim as to liability of the second injury fund as requested; P.A. 88-47 added Subsec. (c) re payment of the cost of accident and health insurance coverage by the second injury fund for certain employees receiving workers' compensation payments who are affected by a plant move or shutdown; P.A. 89-66 specified that the provisions of Subsec. (c) apply to employers who shut down or relocate on or after January 1, 1985, specified that the fund's liability is effective as of the date it receives notice and provided that the fund shall be liable for the cost of equivalent insurance; P.A. 90-116 amended Subsec. (c) to provide that notice shall be by certified mail; P.A. 90-327 added Subsec. (d) concerning insurance coverage for employees injured on or after January 1, 1980, but before January 1, 1982; P.A. 91-32 made technical changes and divided existing Subsec. (a) into Subsecs. (a) to (d), inclusive, relettering former Subsecs. (b) to (d), inclusive, accordingly; P.A. 91-339 amended Subsec. (f)(2) to provide that the fund's liability shall begin 15 days after notice to the custodian and by adding provisions re determination of ineligibility for costs of coverage; P.A. 93-228 amended Subsec. (a) to define "compensation payable or paid with respect to the previous disability" for purposes of the subsection, effective July 1, 1993; P.A. 93-429 amended Subsecs. (b) and (c) to modify the notice and filing requirements imposed on employers or their insurance carriers in order to transfer liability for an injury or death to the second injury fund, effective July 1, 1993; P.A. 95-277 amended Subsec. (b) to replace previous provisions re transfer of claims to the Second Injury Fund, to substitute references to "insurer" for "insurance carrier", to detail notification procedure for the rejection of a claim and to specify that improper submittal of claims within specific time period could result in a prejudice of claim, amended Subsec. (c) to replace previous provisions re transfer of liability for death benefits with new provisions, deleted Subsecs. (d) to (g), inclusive, added a new Subsec. (d) to close the Second Injury Fund for injuries occurring on or after July 1, 1995, and new Subsec. (e) requiring an employer or insurer to notify the custodian of the fund prior to October 1, 1995, of its intention to pursue a transfer of claim to the Second Injury Fund, effective July 1, 1995; P.A. 96-242 added Subsec. (f) concerning the eligibility of claims for transfer to the Second Injury Fund, effective June 6, 1996.

      Cited. 150 C. 156. "Second injury fund", legislative history and purpose discussed. The phrase "permanent physical impairment" construed to include a decedent's heart disease, although that disease had neither manifested itself so as to be a hindrance to obtaining employment nor come to the attention of the employer. 166 C. 352. Second injury fund assumes responsibility for compensation and medical treatment only when preexisting impairment contributes materially and substantially to permanent disability. 171 C. 577. Cited. 174 C. 181. Cited. 218 C. 9. Cited. 222 C. 78. Cited. 223 C. 336. Phrase "one-hundred-four-week period" refers to time period of claimant's disability. 224 C. 382. Cited. 226 C. 569. Cited. 227 C. 333. Interpretation of "compensation" discussed. 231 C. 287. Cited. Id., 469. Cited. 232 C. 311. Cited. 233 C. 14; Id., 243. Cited. 235 C. 778; Id., 790. Cited. 237 C. 259; Id., 490. Cited. 241 C. 282. Limitations provision in Subsec. (b) and re-notification provision of Subsec. (e) do not violate contract or due process clauses of U.S. Constitution because premise that second injury fund had contractual relationship with employees, employers and insurers is unsustainable. 248 C. 466. Section requires employer at time of claimant's second injury to accept liability for all compensation benefits due claimant for a period of 104 weeks, and thereafter, requires fund to accept liability for all benefits due claimant for the combined injuries. Id., 635. Legislature intended amendment to this section, contained in P.A. 95-277, to remove fund's obligation to reimburse employers on or after July 1, 1995. 250 C. 753.

      Cited. 6 CA 45. Notification provision relating to a fatality is mandatory. 15 CA 625, 627. Cited. 27 CA 699. Cited. 37 CA 131. Cited. 41 CA 231. Cited 42 CA 147. P.A. 71-447, Sec. 1 cited. Id. Cited. 43 CA 732; Id., 737. Cited. 45 CA 324; Id., 448. Cited. 46 CA 346. Where employee has suffered two separate injuries that result in total disability, fund is liable only for the portion of disability attributable to the second injury. 48 CA 474. "Disability", as used in section, connotes medical impairment. 76 CA 563.

      Cited. 37 CS 742.

      Subsec. (a):

      "Compensation benefits" refers only to compensation under the act. 223 C. 336. P.A. 79-376 cited. Id. P.A. 91-32, Sec. 35 cited. Id. For purposes of calculating one-hundred-four-week period in which notice must be given, "disability" refers to claimant's degree of medical impairment, rather than inability to work or loss of earning capacity. 243 C. 513.

      Disability refers to physical impairment, not capacity for employment. 59 CA 565.

      Subsec. (b):

      Cited. 38 CA 175. Employer's insurer was excused from complying with statutory notice requirements for transfer of liability to Second Injury Fund where evidence showed that employer was defunct and that insurer was unable to obtain wage information necessary for strict compliance with statute. 52 CA 819. Employer and insurance company did not give timely notice of their intent to transfer liability to the fund because period of plaintiff's disability began on the day he was injured rather than on the day he sought medical care for the injuries or the day he underwent surgeries for the injuries. 67 CA 385. Appeal dismissed as moot-notice filed was timely but not proper. 69 CA 385. A person can be disabled for purposes of section even though such person can carry on all aspects of the employment. 73 CA 523.

      Subsec. (d):

      With passage of this section legislature rebutted any presumption in favor of prospective only application of Sec. 31-349c. Id. P.A. 95-277 Sec. 3(d) cited. Id. Apportionment is not an available form of relief for second injury employer or its insurer under subsection. 263 C. 279.

      Subsec. (e):

      Re-notification clause in this subsec. does not violate contract or due process clauses of U.S. Constitution, because no showing under circumstances of this case that legislature, in establishing second injury fund, entered into a contract with employees, employers and insurers. 248 C. 457.

      Renotice letter was timely where town sent it by certified mail on September 28, 1995 and fund received it on October 2, 1995. 67 CA 276.