Austin v. Coin Depot Corp.
| Decision Date | 07 December 2021 |
| Docket Number | AC 44135 |
| Parties | Howard AUSTIN, Jr. v. COIN DEPOT CORPORATION et al. |
| Court | Connecticut Court of Appeals |
Andrew S. Knott, Cheshire, with whom, on the brief, was Robert J. Santoro, for the appellant (plaintiff).
Joseph J. Passaretti, Jr., Glastonbury, with whom, on the brief, was Robert A. Skolnik, for the appellee (defendant Connecticut Insurance Guaranty Association).
The plaintiff, Howard Austin, Jr., appeals from the decision of the Compensation Review Board (board) affirming the decision of the Workers’ Compensation Commissioner for the Fourth District (commissioner) finding that the defendant Connecticut Insurance Guaranty Association1 discharged its obligations under General Statutes § 31-307a (c)2 of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. On appeal, the plaintiff claims that the board erred in determining that the commissioner properly concluded that the defendant fulfilled its statutory duty to the plaintiff regarding his retroactive lump sum cost of living adjustment (COLA) payment without considering certain provisions of the Uniform Commercial Code (UCC), General Statutes § 42a-1-101 et seq. We affirm the decision of the board.
The following facts, as found by the commissioner, and procedural history are relevant to our resolution of this appeal. In November, 2001, the plaintiff sustained an injury compensable under the act. In 2003, the plaintiff and his employer entered into a voluntary agreement that documented a 30 percent permanent partial disability of the plaintiff's cervical spine. Initially, Kemper Services was the insurer responsible for payments; however, the defendant assumed responsibility in 2013 when Kemper Services became insolvent. At that time, Marjorie Corbett, who is an employee of the defendant, was assigned to administer the plaintiff's claim.
In July, 2015, Corbett identified that the plaintiff was entitled to both a prospective COLA and a retroactive lump sum COLA payment in the amount of $27,059.46. Consequently, she set up prospective weekly COLA payments, and, in August, 2015, she mailed to the plaintiff's attorney, Enrico Vaccaro,3 a check for $27,059.46, the retroactive lump sum COLA payment. In December, 2017, the plaintiff called Corbett to inquire about the calculation of his current COLA. During the conversation, Corbett mentioned the retroactive lump sum COLA payment, at which point the plaintiff informed Corbett that he had not received the check. Corbett immediately began an investigation, ordered copies of the original check, and examined the endorsement on the check. Subsequently, the defendant's head of accounting opened an investigation with the drawing bank (defendant's bank). Following its investigation, the defendant's bank determined that the proper party had endorsed the check.4 In December, 2017, Attorney Vaccaro admitted to Corbett that he had received the retroactive lump sum COLA check and had given the check to the plaintiff's father, Howard Austin, Sr.5 At the formal hearing before the commissioner, the plaintiff testified that the signature on the back of the retroactive lump sum COLA check was that of his father.
Although the plaintiff maintained that his legal name is Howard Austin, Jr., and that he uses that name on all legal documents, the retroactive lump sum COLA check, the recurring weekly compensation checks,6 and the original agreement between the plaintiff and his employer regarding the workers’ compensation benefits all bear the name "Howard Austin." At the formal hearing, Corbett testified that, at no point since the defendant took over administration of the plaintiff's claim in 2013, had she been informed that there was any issue with the weekly checks, all of which were made payable to "Howard Austin."
The plaintiff sought an order requiring the defendant to reissue the retroactive lump sum COLA payment of $27,059.46,7 claiming that he was never paid as required by § 31-307a. The defendant maintained that delivery of the COLA check to the plaintiff's attorney—his authorized representative—equated to delivery to the plaintiff and completely discharged its duties under § 31-307a (c). The plaintiff argued that the defendant had not discharged its duties because the check was endorsed improperly, and, therefore, the benefits never were paid properly. The plaintiff cited "the [UCC], the law of negotiable instruments and commercial paper, and [presented] other arguments, incursions, allegations and remedies ... all outside of the confines of [the act]" in aid of his argument that he was never paid as required by § 31-307a. In essence, the plaintiff argued that payment did not occur because the wrong person endorsed the check and, even though the defendant delivered the check to Attorney Vaccaro, who was the plaintiff's agent, that was not sufficient to constitute payment under § 31-307a and the law of negotiable instruments provisions in article 3 of the UCC.
The commissioner found that "it was customary and appropriate for the [defendant] to send the COLA check to Attorney Vaccaro in [the plaintiff's] stead"8 and that the defendant's "responsibilities ... were satisfied when [it] placed payment in the possession of the [plaintiff's] legal representative, and, when learning of a claimed irregularity, [it] initiated an investigation and followed it through to its conclusion." Further, because the defendant had issued checks payable to "Howard Austin" for years without ever receiving a request to change the name on the checks and because several legal documents in the original workers’ compensation claim bore the name "Howard Austin," the commissioner determined that it was reasonable for the defendant to make the retroactive lump sum COLA check payable to "Howard Austin" rather than to "Howard Austin, Jr." Finally, the commissioner determined that the plaintiff's arguments involving the UCC were "beyond the jurisdiction of [the] tribunal to rule upon or to address ...." Thus, the commissioner "denied and dismissed" "[a]ny claims against [the defendant] [in] association with the lump sum five year retroactive COLA ...."
The plaintiff then filed a petition for review of the commissioner's order with the board.9 On review, the board found no error and affirmed the commissioner's decision, noting that it had "no reason to challenge the accuracy of the [plaintiff's] recitation of the provisions contained in article 3 of the UCC" but that the Workers’ Compensation "[C]ommission is ‘not in a position to determine what happened to the [plaintiff's] COLA check after it was received by the [plaintiff's] attorney ....’ " This appeal followed.
Before addressing the substance of the plaintiff's claim, we set forth the applicable standard of review. "[T]he principles that govern our standard of review in workers’ compensation appeals are well established. ...
The board sits as an appellate tribunal reviewing the decision of the commissioner. ... [T]he review ... of an appeal from the commissioner is not a de novo hearing of the facts. ... [T]he power and duty of determining the facts rests on the commissioner .... [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses .... Where the subordinate facts allow for diverse inferences, the commissioner's selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ...
(Citation omitted; internal quotation marks omitted.) Melendez v. Fresh Start General Remodeling & Contracting, LLC , 180 Conn. App. 355, 362–63, 183 A.3d 670 (2018).
The plaintiff argues that the board erred in determining that the commissioner properly concluded that the defendant had discharged its statutory obligations by mailing the retroactive lump sum COLA check to the plaintiff's attorney and, thereafter, promptly investigating the matter upon receiving information that the plaintiff never received the check. Specifically, he contends that "the [c]ommissioner must still determine the factual matter of whether ... the [c]heck was properly negotiated [under the UCC]." The plaintiff does not contest the determinations that Attorney Vaccaro was his agent for the purposes of delivery of the check, delivery to Attorney Vaccaro as the plaintiff's agent was commensurate with delivery to the plaintiff, and delivering such check to a claimant's attorney is standard practice. In addition, he does not contest the commissioner's finding that it was reasonable for the defendant to make the check payable to "Howard Austin." He does, however, contend that delivery of a check is insufficient to constitute payment under § 31-307a. According to the plaintiff, in order to be paid as required by the statute, the funds must actually have been transferred to the plaintiff.10
In its consideration of the plaintiff's appeal, the board stated that ...
To continue reading
Request your trial