CASE NO. 1892 CRB-2-93-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 3, 1995
R. R. DONNELLEY & SONS
GALLAGHER BASSETT SERVICES INC.
The claimant was represented by Thomas Albin, Esq., Embry & Neusner, 118 Poquonnock Road, P. O. Box 1409, Groton, CT 06340-1409.
The respondents were represented by Richard W. Lynch, Esq., Lynch, Traub, Keefe & Errante, P.C., 52 Trumbull Street, P. O. Box 1612, New Haven, CT 06506.
This Petition for Review from the October 28, 1993 Memorandum Order and Ruling on Motion for Payment of November 30, 1990 Finding and Award of the Commissioner acting for the Second District was heard October 28, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the Second District Commissioner’s October 28, 1993 Memorandum Order and Ruling on Motion for Payment of November 30, 1990 Finding and Award. They argue on appeal that the commissioner improperly awarded the claimant cost of living adjustments (COLAs) retroactive to 1980, and improperly issued his decision eleven months after the November 23, 1992 hearing. We affirm the commissioner’s decision.
The claimant suffered a compensable knee injury on April 16, 1980, resulting in a 35 percent permanent partial disability of her left leg. A voluntary agreement approved on May 9, 1980 established the claimant’s weekly compensation rate from the April 16, 1980 injury as $148.67. The claimant subsequently received total incapacity benefits and permanent partial disability benefits as a result of her disability from that injury.
The commissioner found that the claimant again became disabled on May 20, 1988 due to a back condition that was caused by an altered gait resulting from the original leg injury. The respondents argued that the back injury constituted a relapse or recurrence under § 31-307b C.G.S., and that under that statute, the claimant was only entitled to COLAs accruing after 1988. The commissioner found, however, that § 31-307b did not apply, and that under § 31-307a C.G.S., the claimant was entitled to COLAs calculated on the basis of the maximum prevailing at the time of her original injury in 1980. The respondents have appealed from that decision.
“Whether an injury is a recurrence of a prior injury pursuant to § 31-307b or a new injury is a factual determination within the purview of the trial commissioner. Erickson v. Grand Union Co., 11 Conn. Workers’ Comp. Rev. Op. 127, 128, 1325 CRD-7-91-10 (June 16, 1993).” Uva v. Valleries Transportation Service, Inc., 1625 CRB-7-93-1 (decided Jan. 31, 1995). Here, the commissioner concluded that the claimant’s back injury was caused by the original leg injury, but went on to state that her case was not the recurrence of a leg injury. Rather, he compared the claimant’s incapacity to that of the plaintiff in Hernandez v. Gerber Group, 222 Conn. 78 (1992), where our Supreme Court determined that a preexisting heart condition was at the beginning of the causal chain of the plaintiff’s injuries, and allowed assignment of liability for the subsequent injury to the Second Injury Fund. Id., 86. Unlike Hernandez, in this case the original injury was compensable, so the employer remained liable for its causally related sequelae. This conclusion is both legally sound and supported by the evidence, and we will not disturb the commissioner’s factual determination. Uva, supra; see also Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
Section 31-307b1 by its terms applies to relapses after recovery from injuries or recurrences of prior injuries. As the commissioner properly determined that the claimant did not suffer a relapse or a recurrent injury, we cannot agree with the respondents’ argument that § 31-307b applies to this case. The commissioner properly applied § 31-307a, which states that the weekly compensation rate of a totally disabled employee shall be adjusted annually “to provide such injured employee with a cost-of-living adjustment in his weekly compensation rate as determined as of the date of the injury . . . .”
Although the claimant became disabled from her herniated disc as of May 20, 1988, she was originally injured on April 16, 1980. As the claimant was not employed at the time she became disabled from the back injury, it is undisputed that the applicable compensation rate is the claimant’s average weekly wage at the time of the 1980 injury. Section 31-307; see Green v. General Dynamics Corporation, 1651 CRB-2-93-2 (decided Jan. 31, 1995); Orcutt v. Ohmweave Company, 8 Conn. Workers’ Comp. Rev. Op. 125, 128, 822 CRD-2-89-2 (Aug. 2, 1990). The commissioner thus correctly ruled that § 31-307a entitled the claimant to the difference between the maximum weekly compensation rate prevailing at the time of her injury and the maximum weekly compensation rate prevailing as of October 1, 1988, as well as to COLAs accruing after that date.
The respondents also argue that the commissioner’s October 28, 1993 decision should be set aside as untimely, for it was issued eleven months after the November 23, 1992 hearing. Section 31-300 requires the commissioner to send to each party a copy of his findings and award “[a]s soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion.” We agree with the respondents that eleven months is entirely too long for a commissioner to wait before issuing a decision. Such a delay is unnecessary and inequitable to all parties involved.
We have stated, however, that a showing of prejudice is required before a commissioner’s decision will be vacated on grounds of lateness. Weglarz v. State/Department of Corrections, 1648 CRB-4-93-2 (decided Nov. 8, 1994); Fletcher v. UTC/Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 182, 183, 1322 CRD-8-91-10 (Sept. 13, 1993). We disagree with the respondents’ contention that prejudice should not have to be demonstrated in this case. This Board will not assume that the commissioner forgot the parties’ arguments and misapplied the law where there is no evidence supporting that conclusion. By automatically vacating any untimely decision, we would create further delay in resolving workers’ compensation cases even though many of those decisions would have been reliable. Such a draconian remedy would be unwarranted and unwise.
The trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.
1 At the time of the claimant’s injury, § 31-307b provided in relevant part: “If any employee who receives benefits under section 31-307 returns to work after recovery from his injury and subsequently suffers total or partial incapacity caused by a relapse from the recovery from, or a recurrence of, such injury, such employee shall be paid a weekly compensation equal to sixty-six and two-thirds per cent of his average weekly earnings at the time of the original injury or at the time his relapse or at the time of the recurrence of such injury, whichever is the greater sum, subject to the maximum rate of compensation set pursuant to section 31-309 for the year in which such employee suffered the relapse or recurrent injury and the minimum rate under this chapter for said year, and provided (1) such compensation shall not continue longer than the period of total or partial incapacity following the relapse or recurrent injury and (2) no employee eligible for compensation for specific injuries set forth in section 31-308 shall receive compensation under this section. Such employee shall also be entitled to receive the cost-of-living adjustment provided in accordance with the provisions of section 31-307a, commencing on October first following the relapse or recurrent injury which disables him. . . .” BACK TO TEXT