CASE NO. 1377 CRB-3-92-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 4, 1994
AMERICAN POLICYHOLDERS INSURANCE COMPANY
AMERICAN & FOREIGN INSURANCE CO.
The claimant was represented by Joan Molloy, Esq., Loughlin, Henrici, Molloy & Rizzo, P.C., 150 South Main Street, Wallingford, CT 06492.
The respondents American Policyholders Insurance Company were represented by Neil Ambrose, Esq., (formerly of) and Dominick Stabile, Esq., Montstream & May, P.O. Box 1087, Glastonbury, CT 06033-6087. The respondents American Foreign Ins. Co. were represented by David Gustafson, Esq., P.O. Box 2912, Hartford, CT 06104.
These Petitions for Review from the January 22, 1992 Finding and Award of the Commissioner acting for the Third District was heard January 22, 1993 before a Compensation Review Board panel consisting of Commissioners John Arcudi, Donald H. Doyle, Jr. and Roberta D’Oyen.
JOHN ARCUDI, COMMISSIONER. At issue in this appeal is the contention by the respondent American Policyholders Insurance Company (APIC) that the claimant suffered two separate compensable injuries to the left knee with this same employer, the first on November 22, 1982 and the second, November 9, 1987. The commissioner found that disability after November 9, 1987 was a recurrence of the 1982 injury and not a new injury. On November 9, 1987, the carrier responsible for the employer’s workers’ compensation insurance was the American & Foreign Insurance Company (AFIC).
Actually, the 1982 carrier, APIC, accepted liability in a Voluntary Agreement between the parties approved in the Third District May 14, 1991. The periods of disability from November 9, 1987 on occurred after claimant slipped on a piece of glass at work. See paragraphs 11-12 of Finding. Three knee surgeries followed, one by Dr. Anthony Sterling, February, 1988, and two by Dr. Robert Matza, November, 1989 and November, 1990, APIC paid the related medical expenses and circa 90 weeks of workers’ compensation benefits after November 9, 1987.
However, despite claimant’s continuing disability, APIC ceased payments August 22, 1991. It argues that any payments due after November 9, 1987 were the obligation of the 1987 carrier, AFIC, and that the APIC payments after that date were paid by mistake. The trier’s January 22, 1992 decision ordered APIC to continue temporary total disability payments after August 22, 1991.
Respondents claim the following errors on appeal: (1) the failure to grant respondents Motion to Correct, (2) the failure to find a new injury on November 9, 1987, (3) the December 10, 1991 formal hearing was violative of APIC’s constitutional due process rights and (4) the Compensation Review Board’s denial of APIC’s Motion for Additional Evidence and Motion for Reconsideration dated August 28, 1992. Claimant’s cross appeal argues the commissioner erred in failing to award interest and attorneys fees pursuant to Sec. 31-296 C.G.S.
APIC maintains it was unaware that claimant had slipped on glass November 9, 1987, and had it known that fact, it would not have made the payments it did. APIC’s contention is that its representative took claimant’s sworn statement in February, 1988 and that statement made no mention of the November 9, 1987 slip on a piece of glass. Submitted in evidence was an affidavit by an APIC senior claims analyst, Joseph Allen. Allen’s affidavit refers to a March 1, 1988 letter from a treater, Dr. Seabra-Veiga to a “Jane Kulis of American Policyholders.” That letter mentions claimant’s stepping on a piece of glass and twisting his left leg November 9, 1987. Respondents’ Exhibit 2, the doctor’s office notes, also includes a reference to the November 9, 1987 incident. The Allen affidavit states that APIC never received that letter. But that same affidavit also noted that APIC received a $128.00 bill from Dr. Veiga submitted November 19, 1987. The bill received three and one half months before the March 1, 1988 letter constituted notice of a new development in the matter that should have prompted a request for the doctor to furnish information concerning the reasons for the medical services generating the $128.00 bill. Such a request for office notes or a report would ordinarily have revealed the information about the slip on the glass more than three years before May, 1991 when APIC executed the Voluntary Agreement accepting liability.
Properly speaking, APIC does not seek to modify or open an award under Sec. 31-315 due to mistake although their claim seems similar to motions under that statute. Rather they admit compensability for the November 22, 1982 injury, acknowledging it by executing the May, 1991 Voluntary Agreement. Rather, they argue on equitable grounds that they paid benefits mistakenly attributed to the 1982 injury and that those benefits should be the responsibility of AFIC, the 1987 carrier. Therefore, they seek reimbursement. In this connection, a seventy-one year old decision, Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 100 (1923) still retains validity. There, the respondents sought to open the award and the Voluntary Agreement on the ground that respondents were not the employer at the time of injury. The Hayden court refused to open the previous decision citing Jarvis v. Martin, 77 Conn. 19, 21 (1904):
[E]quity will not relieve against the operations of judgments rendered through the negligence or inattention of the party claiming to be aggrieved or his attorney . . . . The plaintiff, however, contends that the situation presented is one arising from mistake and not from negligence, the distinction is not fundamental. Equity will not, save in rare and extreme cases, relieve against a judgment rendered as the result of a mistake on the part of party or his counsel, unless the mistake ‘unmixed with negligence’, or to use the language of this court, ‘unconnected with any negligence or inattention on the part of the judgment debtor, or, . . .’ when the negligence of the party is not one of the producing causes.’”
The injury which APIC claims was the subject of its mistake occurred November 9, 1987. It received a bill from the doctor treating claimant for the alleged new injury November 19, 1987. APIC then paid for three surgeries and some 90 weeks of benefits without asking the doctor what caused his services in November 1987. Moreover three and one half years later in May, 1991 APIC executed a Voluntary Agreement for the 1982 injury, accepting that the payments it had made were due to 1982. Only after that in the latter part of 1991 did APIC raise the issue of mistake, i.e. four years after the November 1987 occurrence. The recognition of its alleged mistake so late in the chronology of events on its face would seem to be negligence. But whether negligence or mistake, Hayden holds the distinction is not fundamental. It is too late to open a judgment or to seek equitable reimbursement.
Even assuming, arguendo that there were grounds to consider APIC’s claim, then we have to rely on the evidential basis of the fact finder’s decision. Whether disability is due to a separate new injury or the recurrence or relapse from a previous injury is a factual determination to be made by the trier. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). Janoy v. General Electric Co., 4 Conn. Workers’ Comp. Rev. Op. 44, 491 CRD-4-86 (1987). There was evidence, and the commissioner so found, that claimant’s left knee symptoms persisted after the November 22, 1982 injury. See December 10, 1991 Formal Hearing, TR 12-13. See also Dr. Anthony Sterling’s February 16, 1988 report, claimant’s Exhibit A. Since there was a sufficient basis in the evidence for the trier’s conclusion, it must stand.
As another reason for appeal, APIC asserts it was denied procedural due process at the December 10, 1991 formal hearing. It claims it only received two hours notice of that proceeding. Actually it had received more than adequate notice of an informal hearing the morning of December 10, 1991. The informal was held that morning with all parties present, and at the end of the informal the commissioner notified all parties the matter would proceed to trial, a formal hearing that afternoon. Moreover, there had been informal hearings on the same issue August 27, 1991 and October 15, 1991. That hardly forms a basis for a claim of surprise and insufficient time for preparation.
At the December 10, 1991 formal proceeding the only witness heard was the claimant. The hearing was then continued to January 2,1992 for completion of cross examination and further testimony which the parties wished to present.
The reason why the commissioner convened the formal hearing December 10 so soon after the informal that morning was the claimant’s straitened economic circumstances caused by APIC’s cessation of payments August 22, 1991. Claimant had six dependent children and was suffering financial hardship. Section 31-297(a) provides hearings should be on no less than ten days notice but “the commissioner may on finding an emergency to exist, give such notice as to he finds reasonable under the circumstances.” (emphasis ours) Given the totality of circumstances, the financial hardship caused by APIC’s cutting of benefits August 22, 1991 and the three informal hearings which APIC had attended and of which it had adequate written notice, including one the every morning of December 10, 1991, it lay within the commissioner’s reasonable exercise of his statutory authority to convene a formal for that afternoon. In addition the carrier had three more weeks to complete its preparation and present its case at the January 2, 1992 hearing.
We therefore uphold the commissioner’s January 22, 1992 Finding and Award and the Board’s previous denial of the Motion for Additional Evidence and Motion for Reconsideration.
As to the claimant’s appeal concerning the failure to award interest and attorney’s fees, the commissioner below made no finding on these issues although the matter was raised. See December 10, 1991, TR 8. A decision on those issues requires the taking of evidence and factual findings on the evidence, a matter within the province of the trial commissioner. See Halliday v. Dow’s Critical Care Registry, 8 Conn. Workers’ Comp. Rev. Op. 74 (1990). See also Crochiere v. Board of Education, 227 Conn. 333, 346-348 (1993).
We dismiss respondent APIC’s appeal and remand for further proceedings consistent with this opinion as to the claimant’s appeal.
Commissioners Donald H. Doyle, Jr. and Roberta D’Oyen concur.