Babcock v. Smoron, No. Cv 92-0452735s (May 25, 1994) , 11 Conn. L. Rptr. 568 ( 1994 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION This is a matter referred to the court for trial. After hearing the testimony of the plaintiff, the one witness presented and the arguments of counsel for both parties and briefs submitted by them, this court determines the matter should be dismissed.

The plaintiff was a farmhand who was injured during the course of his employment, his injury arose out of this employment.

Some time prior to April 1992, plaintiff was hired by the defendant, the owner of a farm in Southington, Connecticut. On or about April 17, 1992 plaintiff, in the course of his employment, assisted in the birthing of a calf in one of the defendant's barns. While assisting in the birthing of the calf, the plaintiff lost his balance, fell, and suffered an injury to his ankle which resulted in the need for medical treatment.

Workers' compensation benefits are the exclusive remedy for an employee who suffers a work related personal injury.

An employee shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employee as provided under this Chapter (Ch. 568) except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by CT Page 5577 his intoxication. All rights and claims between employer and employees, or any representative or dependents of such employees, arising out of personal injury . . . are abolished other than rights and claims given by this Chapter. (Ch. 568). . . . Conn. Gen. Stat. § 31-284 (a).

A plaintiff, employee, in a situation such as the case here, where presumably, no compensation insurance is available because the employer did not obtain coverage is not left without a remedy. Such a person has a remedy under Workers' Compensation. Sec. 31-355(b) C.G.S. provides, in pertinent part, as follows:

Sec. 31-355. Hearings; awards. Payments from second injury fund on employer's failure to comply with award. Civil action for reimbursement. Insolvent insurer. (a) The commissioner shall give notice to the treasurer of all hearing of matters which may involve payment from the second injury fund, and may make an award directing the treasurer to make payment from the fund.

(b) When an award of compensation has been made under the provisions of this chapter against an employer who fails or is unable to pay medical and surgical aid or hospital and nursing service required under this chapter or any type of compensation for disability, or both, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, or any adjustment in compensation required by this chapter, and whose insurer fails or is unable to pay the compensation, such compensation shall be paid from the second injury fund. The commissioner, on a finding of failure or inability to pay compensation, shall give notice to the treasurer of the award, directing the treasurer to make payment from the fund.

Plaintiff's complaint is dismissed. CT Page 5578

LEONARD W. DORSEY STATE TRIAL REFEREE