Potvin v. Lincoln Serv.

• Decision Date: 19 October 2010
• Docket Number: No. 18357.,18357.
• Citation: 6 A.3d 60,298 Conn. 620
• Court: Connecticut Supreme Court
• Parties: James POTVIN v. LINCOLN SERVICE AND EQUIPMENT COMPANY et al.

6 A.3d 60

298 Conn. 620

James POTVIN

v.LINCOLN SERVICE AND EQUIPMENT COMPANY et al.

No. 18357.

Supreme Court of Connecticut.

Argued March 17, 2010.

Decided Oct. 19, 2010.

Mark D. Robins, pro hac vice, with whom was Frank A. May, Glastonbury, for the appellant (defendant Guaranty Fund Management Services).

Joshua A. Hawks-Ladds, Hartford, with whom, on the brief, was Christine Collyer, for the appellee (plaintiff).

ROGERS, C.J., and NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.^*

ZARELLA, J.

The defendant Guaranty Fund Management Services ¹ appeals ² from the decision of the compensation review board (board), which upheld the decision of the workers' compensation commissioner for the third district (commissioner) imposing sanctions against the Connecticut Insurance Guaranty Association (association) ³ pursuant to General Statutes (Rev. to 2005) § 31-288(b) ⁴ and ordering the association to pay attorney's fees ⁵ pursuant to General Statutes § 31-300⁶ for undue delay in processing a claim by the plaintiff,James Potvin, on behalf of an insolvent insurer pursuant to the Workers' Compensation Act, General Statutes § 31-275 et seq., and the Connecticut Insurance Guaranty Association Act (guaranty act), General Statutes § 38a-836 et seq. The board concluded that the commissioner had the authority to impose sanctions against the association, that the sanctions were part of a "covered claim" under General Statutes § 38a-838 (5),⁷ which the association is obligated to pay in accordance with General Statutes § 38a-841 (1)(a) and (b),⁸ andthat the association is not immune from sanctions by virtue of General Statutes § 38a-850.⁹ The defendant claims that the board improperly determined that the commissioner has the authority to impose sanctions on the association and specifically argues that the board improperly (1) applied the Appellate Court's decision in Pantanella v. Enfield Ford, Inc., 65 Conn.App. 46, 53, 782 A.2d 141, cert. denied, 258 Conn. 930, 783 A.2d 1029 (2001), to the facts of the present case, and (2) determined that the association is obligated topay the sanctions because § 38a-850 provides a broad grant of immunity to the association, including immunity from sanctions, the sanctions imposed are not part of a "covered claim" within the meaning of § 38a-838 (5), and the association cannot be "deemed the insurer" under § 38a-841 (1)(b). The plaintiff responds that the board properly upheld the imposition of sanctions. ¹⁰ We agreewith the defendant that the association is statutorily immune from the sanctions imposed in the present case and that the sanctions are not part of a "covered claim" within the meaning of § 38a-838 (5). Accordingly, we reverse the decision of the board.

The board found the following undisputed facts relevant to this appeal. "The [plaintiff] suffered a compensable injury in 2000, which was accepted by his employer, Lincoln Service and Equipment [Company], in 2001. At that time, a voluntary agreement was approved by the [workers' compensation] commission. The [plaintiff] had a knee replacement surgery performed in 2003 but, following the procedure, continued to complain of knee pain. [The association's] umbrella organization, [the defendant],¹¹ had the [plaintiff] examined by ... MacEllis Glass [a physician] on January 12, 2005.... Glass strongly recommended that the [plaintiff] beexamined by another physician for consideration of a patellar replacement. [The defendant] authorized the [plaintiff] to be examined by a second [physician], [namely] John Grady-Benson, who noted an antalgic limp and recommended a bone scan of the patella. He also recommended [a magnetic resonance image (MRI) ] of the [plaintiff's] lower spine to determine if he had a neurological disorder due to the right knee replacement.... Grady-Benson examined the [plaintiff] on April 6, 2005, and submitted a bill in the amount of $343 for the examination.

"[Although] this bill was properly submitted to [the defendant], it was not paid until September 15, 2005. During this period, an adjuster for [the defendant], KristenRogers, prepared an authorization for the [plaintiff's] MRI but decided not to issue the authorization, claiming [that] 'she [had] realized the back injury was not part of the compensable injury.' ... Rogers claimed she orally authorized the bone scan in August, 2005. Counsel for [the defendant] offered to pay for the bone scan on September 1, 2005, on a 'without prejudice' basis but demurred on the issue of the MRI. Following an informal hearing before [the] commissioner ... on February 15, 2006, [the defendant] finally provided written authorization for the bone scan and [the] MRI.

"Following [the defendant's authorization of] these medical tests, the [plaintiff] encountered numerous difficulties in getting [the defendant] to guarantee payment to Hartford Hospital for these tests. The [plaintiff] presented himself twice for the tests, both on July 10, 2006, and July 11, 2006, and both times Hartford Hospital declined to perform the tests due to inadequate assurances of payment. The [plaintiff] then had the tests [covered by] private group insurance for which a $100co-pay was assessed. ¹² ... Seven workers' compensation hearings [were] held on these issues, including two formal hearings on November 20, 2006, and January 16, 2007, to discuss the unreasonable contest and undue delay of benefits. The ... commissioner found that [the defendant] did not provide any medical reports that justified the delay in paying ... Grady-Benson or [the delay in] scheduling ... the MRI and bone scan recommended by ... Grady-Benson.

"In his [f]inding and [a]ward of July 27, 2007, [the] commissioner ... concluded that [the defendant had] unreasonably contested and delayed medical treatment benefits for the [plaintiff's] compensable knee injury ... [and found that the defendant had] lacked a reasonable basis to delay payment for treatment, to contest the need for treatment, or to contest or delay the recommended diagnostic tests for the [plaintiff]. The commissioner concluded that the unreasonable delay of benefits was due to [the defendant's] own fault and neglect in handling the claim. The commissioner did not find any monetary benefits were delayed for which interest could be granted. The commissioner further found that the undue delay in medical treatment caused the [plaintiff's] attorney to expend substantially more time representing his client than would be reasonably expected. Therefore, pursuant to § 31-300 ... the ... commissioner ordered [the defendant] to pay [the plaintiff's] counsel $8000 to compensate for [forty] hours of legal time occasioned by the unreasonable delay, and penalized [the defendant] $500 pursuant to § 31-288(b)(1).... The [defendant and the plaintiff's employer] filed a motion to correct, seeking to interpose factual findingsthat [the defendant] did not act unreasonably and ... [that the defendant was] legally immune from sanction. The ... commissioner denied [the motion], and [the] appeal [to the board followed]."

The board concluded that the commissioner had properly imposed sanctions against the association ¹³ for its undue delayin processing the plaintiff's claim. In its decision, the board first concluded that the facts of Pantanella v. Enfield Ford, Inc., supra, 65 Conn.App. at 53, 782 A.2d 141, in which the Appellate Court upheld the award of attorney's fees, pursuant to § 31-300, against the association in another context, were "indistinguishable" from the facts of the present case, thereby requiring the board to abide by that decision unless the "inescapable logic" of the defendant's arguments required the board to overturn the commissioner's decision. (Internal quotation marks omitted.) The board then addressed the defendant's claim that the commissioner was without authority to impose sanctions on the association. The board concluded that [the association] was "deemed the insurer" under § 38a-841 (1)(b) because the sanctions were part of a "covered claim" within the meaning of § 38a-838 (5), thereby subjecting the association to the commissioner's authority to impose sanctions on an insurer under §§ 31-288(b)(1) and 31-300. Additionally, the board concluded that the immunity provision of General Statutes § 38a-850, which provides that the association shall incur "no liability" for "any action taken or any failure to act" under the guaranty act, could not be read to divest the commissioner of the authority to impose sanctions under the Workers' CompensationAct. The board concluded that, in addition to the statutory authority to impose sanctions, the commissioner also had the "common-law power to enforce orders of the tribunal," ¹⁴ including "the right to sanction parties for violating orders of the tribunal." ¹⁵ For these reasons, the board concluded that the commissioner had the authority to impose sanctions against the association and it upheld the commissioner's imposition of sanctions and award of attorney's fees. This appeal followed.

I

The association is a creature of statute, and any basis for liability must be found within the provisions of the guaranty act, which define the scope and extent of the association's liability. See, e.g., Esposito v. Simkins Industries, Inc., 286 Conn. 319, 338, 943 A.2d 456 (2008) ("the association's liability is dictated by the guaranty act"); cf. Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 449, 705 A.2d 1012 (1997) ("the association is authorized to pay only covered claims ... and must deny all other claims"). Therefore, we turn first to the question of whether the guaranty act obligates the association to pay the sanctions imposed by the commissioner.

A

The defendant first claims that the plain meaning of § 38a-850 grants the associationimmunity from thesanctions imposed in the present case. The relevant portion of that statute provides: "There shall be no liability on the part of and no cause of action of any nature shall arise...