Clayton v. Joe O'Briant ( 1996 )

The Full Commission believes this case is one of first impression. The usual issue on a case where estoppel is alleged as grounds for forgiveness for not filing a Form 18 is a case where the employer intimates that it has Workers' Compensation coverage and says that it will take care of the matter and that the worker need not be concerned. And so the worker is lulled into a false sense of security. In this case based on the present record, the employer told the employee that he did not have Workers Compensation insurance and thus there was no reason to file. He also allegedly said that he would take care of the injured worker and actually did so for a period of time. Query, if the record is so developed, what should be the Commission's decision where the worker doesn't file a Form 18 because he or she thought it would be futile to do so because the employer says it is not covered and pledges to care for the worker in any event?

The answer to that question awaits development of a record in which all parties have had a chance to participate. Accordingly, it is ORDERED that the Cincinnati Insurance Company is made a party defendant to this case; a copy of this Order shall be mailed forthwith, by Certified Mail, to the insurance company; this case is hereby remanded for hearing de novo; and the Chief Deputy Commissioner shall schedule an expedited hearing for this remanded case before a Deputy Commissioner of his choice.

S/ ________________________ THOMAS J. BOLCH COMMISSIONER

CONCURRING:

S/ ______________________ J. RANDOLPH WARD COMMISSIONER

S/ ______________________ LAURA K. MAVRETIC COMMISSIONER