State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Cunningham v. City of Stamford

CASE NO. 3112 CRB-7-95-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 16, 1996

AUDREY CUNNINGHAM

CLAIMANT-APPELLEE

v.

CITY OF STAMFORD

EMPLOYER

and

KEMPER RISK MANAGEMENT SERVS.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Gary J. Wilson, Esq., 4 Daniels Farm Road, Trumbull, CT 06611-4552.

The respondents were represented by Kevin J. Maher, Esq., Maher & Williams, 1300 Post Road, Fairfield, CT 06430.

This Petition for Review from the July 6, 1995 Ruling Granting Claimant’s Motion to Preclude of the Commissioner acting for the Seventh District was heard March 15, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the July 6, 1995 Ruling Granting Claimant’s Motion to Preclude of the Commissioner acting for the Seventh District. The commissioner found that the claimant was diagnosed with a stress-related vocal disorder by Dr. Resor, and that she hand-delivered a Form 30C and a copy of Dr. Resor’s report to the city risk manager, Allan Brown, on October 11, 1994. The next day, Brown completed an injury report for the claimant’s alleged spasmodic dysphonia, and signed and dated it, giving the claimant a copy. The claimant sent a copy of her Form 30C to the Workers’ Compensation Commission on November 9, 1994. The respondents filed a Form 43 contesting liability for the claimant’s condition on December 21, 1994.

The claimant filed a Motion to Preclude the respondents from contesting liability on January 17, 1995. She argued in her motion that the respondents failed to file a notice to contest within the 28-day time period allowed by § 31-294c(b) C.G.S., and thereby lost their right to contest the compensability of her injury. The respondents defended on two grounds. First, they argued that the claimant had not served her Form 30C on the proper municipal official. Second, they contended that the claimant’s alleged spasmodic dysphonia falls within § 31-275(16)(B)(ii) C.G.S., which excludes mental and emotional impairments from being personal injuries under the Workers’ Compensation Act, unless they result from a physical impairment or occupational disease. The commissioner found that spasmodic dysphonia is in fact a physical impairment, and that it is not excluded from the definition of “personal injury.” He further found that the claimant’s service of notice complied with § 31-321 C.G.S. As more than 28 days had elapsed between the date of service and the notice to contest, the commissioner granted the Motion to Preclude. The respondents have petitioned for review from that decision.

In the process of preparing their appeal, the respondents filed a Motion to Correct, which the commissioner denied. One of the three requested corrections was a change in the description of spasmodic dysphonia from a physical impairment to a mental or emotional impairment, thus bringing it outside the statutory definition of “personal injury.” The respondents now argue that no evidence was submitted to support the commissioner’s finding that spasmodic dysphonia is a physical injury. Although a commissioner has wide latitude to assess the credibility of the evidence, a material fact found without any support in the record cannot stand on appeal. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). A review of the record here shows that neither party introduced any medical evidence or testimony regarding the claimant’s medical condition or the nature of spasmodic dysphonia. All of the proceedings focused on the issue of the notice given to the city’s risk manager.

An administrative agency such as the Workers’ Compensation Commission is a tribunal of limited jurisdiction whose authority is completely dependent on the statutes creating its power. Figueroa v. C&S Ball Bearing, 237 Conn. 1, 4 (1996), citing Castro v. Viera, 207 Conn. 420, 428 (1988). The Workers’ Compensation Act sets the boundaries of our subject matter jurisdiction, which cannot be conferred through consent or waiver. Id., 429-30; see also Allingham v. Burns International Security, 14 Conn. Workers’ Comp. Rev. Op. 333, 1977 CRB-1-94-2 (Sept. 20, 1995). In order for a commissioner to exercise jurisdiction over a case, the claimant must adduce evidence sufficient for the commissioner to conclude that there is subject matter jurisdiction over the claim. Castro, supra, 434; In Re Veterans Memorial Medical Center, 3063 CRB-8-95-5 (decided May 20, 1996). Manifestly, one of these essential elements is the existence of a personal injury within the meaning of the Workers’ Compensation Act.

Without any evidence to support the commissioner’s finding that spasmodic dysphonia falls within the definition of “personal injury,” we cannot uphold his implicit determination that the requirements of subject matter jurisdiction have been met here. Therefore, we remand this case to the Seventh District for further findings on that issue. We need not reach the respondents’ arguments regarding sufficiency of notice, nor the claimant’s Motion to Submit Additional Evidence, as they are both rendered moot by this decision.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

Page last revised: May 11, 2005

Page URL: http://wcc.state.ct.us/crb/1996/3112crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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