CASE NO. 3139 CRB-7-95-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 9, 1996
GILBERT & BENNETT MFG. CO.
TRAVELERS INSURANCE CO.
SECOND INJURY FUND
The claimant was neither represented at oral argument nor at the formal hearing on this issue.
The respondent employer and Travelers Insurance Co. were represented by Janine M. D’Angelo, Esq., Law Offices of Christine L. Harrigan, 1952 Whitney Ave., Hamden, CT 06517.
The Second Injury Fund was represented by Michelle Truglia, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.
An amicus curiae brief was filed by Lucas D. Strunk, Esq. and Stephen Ekern, Esq. appeared at oral argument, on behalf of Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
This Petition for Review from the August 8, 1995 Ruling of the Commissioner acting for the Seventh District was heard January 26, 1996 before a Compensation Review Board panel consisting of Commissioners George Waldron, Michael S. Miles, and Robin L. Wilson.
GEORGE WALDRON, COMMISSIONER. The respondent employer and insurer (hereinafter “respondents”) have petitioned for review from the August 8, 1995 Ruling of the Commissioner for the Seventh District. At a formal hearing held on August 8, 1995, the trial commissioner ruled that he did not have jurisdiction to decide whether a claim was transferable to the Fund pursuant to § 31-349 because P.A. 95-277 requires that issue to be decided by a medical panel. On appeal, the respondents contend that the provision of a medical panel in P.A. 95-277 is a substantive change which should be applied prospectively, and thus does not apply to the claim at hand. The respondents’ appeal raises an issue of first impression before the Compensation Review Board.
We will first address the Fund’s contention that this board does not have jurisdiction over the respondents’ appeal because there is no final order. We find no merit to this argument. To the contrary, this board has jurisdiction to consider appeals from interlocutory rulings. Dixon v. The United Illuminating Co., 14 Conn. Workers’ Comp. Rev. Op. 215, 1996 CRB-4-94-3(Aug. 4, 1995); Marshall v. UTC/Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 204, 1317 CRD-1-91-10 (Sept. 27, 1993); Poventud v. Eagle Four, 6 Conn. Workers’ Comp. Rev. Op. 72, 775 CRD-5-88-10 (Dec. 30, 1988). Specifically, § 31-301(a) provides that a party may appeal from “a decision of the commissioner upon a motion....” Moreover, in this matter there is a transcript of the formal hearing which provides this board with a sufficient record to review the respondents’ appeal. The Fund further contends that the respondents are not aggrieved. We disagree, as the trial commissioner’s ruling effectively denied the respondents’ request for a hearing on the issue of a claimed § 31-349 transfer.
The Supreme Court of Connecticut has explained the purpose of § 31-3491 in the following statement:
In 1945, the legislature established the fund, primarily to encourage the employment of persons with an existing disability and, at the same time, to provide adequate workers’ compensation benefits for them. Additionally, by creating the fund, the legislature intended to relieve employers from the hardship of liability for those consequences of compensable injury not attributable to their employment....
Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 25 (1995) (citations omitted).
Pursuant to Public Act 95-277, the legislature made numerous changes regarding the application of § 31-349, including ending the transfer of all claims for injuries which occur on or after July 1, 1995. At issue in the present appeal is Section 4(a) of the Act, which provides that a medical panel, rather than the trial commissioner, shall decide “all controverted issues regarding the existence of a previous disability under section 31-349....” Specifically, Public Act 95-277, § 4(a) provides:
The custodian of the Second Injury Fund and an insurer or self-insured employer seeking to transfer a claim to the fund shall submit all controverted issues regarding the existence of a previous disability under section 31-349 of the general statutes, as amended by section 3 of this act, to the chairman of the Workers’ Compensation Commission. The chairman shall appoint a panel of three physicians, as defined in subdivision (17) of section 31-275 of the general statutes, and submit such dispute to the panel, along with whatever evidence and materials he deems necessary for consideration in the matter. The panel may examine the claimant, who shall submit to any examination such panel may require. Within sixty days of receiving the submission, the panel shall file its opinion, in writing, with the chairman, who shall forward it, along with any records generated by the panel’s work on the case, to the commissioner having jurisdiction over the claim in which the dispute arose. The panel’s opinion shall be determined by a majority vote of the three members. Such opinion shall be binding on all parties to the claim and may not be appealed to the Compensation Review Board....”
In support of their appeal, the respondents contend that Public Act 95-277, § 4(a) affects substantive rather than procedural rights, and therefore it should be applied prospectively only. Specifically, the respondents contend that it should only apply to cases where the date of injury occurred after July 1, 1995, the date on which the section at issue went into effect. In this case, the claimant’s injury occurred in 1980, and the respondents filed their notice requesting transfer to the Fund in 1988. Thus, the respondents contend that the provision regarding the medical panel does not apply. We agree.
The Connecticut Supreme Court has repeatedly stated that when new legislation is passed regarding workers’ compensation, the statute in effect on the date of injury is the statute which applies. This is known as the “date of injury rule.” Specifically, the court has stated that “new workers’ compensation legislation affecting rights and obligations as between the parties, and not specifying otherwise, applie(s) only to those persons who received injuries after the legislation became effective, and not to those injured previously.” Iacomacci v. Trumbull, 209 Conn. 219, 222 (1988). Recently, the Supreme Court again explained that the statute in effect on the date of injury applies. Specifically, the court stated that the date of injury rule applies to transfers pursuant to § 31-349:
We look to the statute in effect at the date of injury to determine the rights and obligations between the parties. See Civardi v. Norwich, 231 Conn. 287, 293 n.8 (1994); Iacomacci v. Trumbull, 209 Conn. 219, 222 (1988). This rule applies to the employer’s right to transfer liability to the fund pursuant to § 31-349. See Plesz v. United Technologies Corp., 174 Conn. 181, 186-87 and n.2 (1978).
Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 16, n.1 (1995).
We note that in Civardi the court stated that the date of injury rule “dates back to 1916 and has been applied consistently to all nonprocedural aspects of a case.” Civardi, supra, 231 Conn. 287, 293 n.8. Public Act 95-277, §4 creates a medical panel to decide controverted issues regarding the existence of a previous disability under § 31-349, issues which have heretofore been decided by trial commissioners using the hearing process established in the workers’ compensation system. Pursuant to the language of P.A. 95-277, §4, it does not appear that the parties will be allowed to present oral argument to the panel. More importantly, the provision abolishes the right to appeal2 such a decision to the Compensation Review Board. Accordingly, the provision certainly affects substantive rights rather than merely procedural rights.
Moreover, our Supreme Court has “made it abundantly clear that workers’ compensation legislation affecting rights and obligations between the parties would apply only to those injured after the adoption of the legislation and not those previously injured.” DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 451 (1992). Accordingly, the “General Assembly is presumed to be aware of the decisional law of our courts, and thus if the legislature ‘intends for legislation to change the interpretation of a judicially created concept [here, the date of injury rule], it must make that intent specific....’” Id. (citations omitted). A careful review of the legislative history in this matter reveals no indication of whether the legislature intended the provision to apply retroactively. Accordingly, P.A. 95-277, §4 properly applies only to those injured after the adoption of the legislation and not those previously injured. See Dos Santos, supra, at 16, n.1; Civardi, supra, at 293 n.8; DeAlmeida, supra; Iacomacci, supra, at 222; Plesz, supra, at 186-87.
As the injury in the instant case occurred in 1980, we conclude that the medical panel provision does not apply. Accordingly, the trial commissioner’s ruling is reversed, and the matter is remanded for a hearing on the issue of transfer.
Commissioner Michael S. Miles concurs.
COMMISSIONER ROBIN L. WILSON. I concur in part and dissent in part. First, I concur with the conclusion that this board has jurisdiction to consider the respondents’ appeal. However, I disagree with the majority’s conclusion that P.A. 95-277, § 4(a) does not apply retroactively to all pending cases.
“Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong.... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.... It is a familiar principle that a court which exercises limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation.” Figueroa v. C & S Ball Bearing, 237 Conn. 1, 4 (1996) (citing Castro v. Viera, 207 Conn. 420, 427-30 (1988)).
The concept of subject matter jurisdiction is not limited to courts. Administrative agencies, such as this commission, are “tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves.” Id. “(I)t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner..... It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power.” Id. Workers’ compensation benefits and relief therefrom are statutory in nature and can only be ordered as particularly and precisely set forth by the act. Kinney v. State, 213 Conn. 54, 60 (1989). Thus, the trial commissioner’s authority in the instant matter was confined to the plain language set forth in P.A. 95-277, §4(a) which removes from his decision making the determination of “all controverted medical issues regarding the existence of a previous disability” for purposes of transferring claims to the Second Injury Fund pursuant to § 31-349. The trial commissioner was therefore correct in concluding that he lacked jurisdiction to hear the respondents’ claim for transfer.
With respect to the retroactive application of P.A. 95-277, §4(a), our Supreme Court has consistently expressed reluctance to construe statutes retroactively where the statutes effect substantial changes in the law, unless the legislative intent clearly and unequivocally appears otherwise. Rice v. Vermilyn Brown, Inc., 232 Conn. 780, 786 (1995); State v. Lizotte, 200 Conn. 734, 741 (1986); Anderson v. Scheiffer, 35 Conn. App. 31, 39 (1994). Moreover, § 55-3 C.G.S. states: “No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligations on any person or corporation, shall be construed to have a retrospective effect.” Sec. 55-3 C.G.S. The obligations referred to in the statute are those of substantive law. Rice, supra, at 786.
On the other hand, procedural statutes and rules of practice ordinarily apply retroactively to all actions whether pending or not at the time the statute or rule became effective, in the absence of an expressed intent to the contrary. “Where an amendment in effect construes and clarifies [or enhances] a prior statute [it] must be accepted as the legislative declaration of the meaning of the original act. Such a clarifying amendment, thus, would be applied retroactively.” Anderson, supra, at 40.
In my opinion, P.A. 95-277, § 4(a) merely enhances § 31-349 but imposes no new obligations on the respondents, the employer and its insurer. Thus, P.A. 95-277, § 4(a) is a procedural modification of § 31-349 to carry out the clearly delineated legislative intent to seek closure to the process of transferring cases to the Fund. The respondents must show new obligations, and once they have been shown, prove that said new obligations are those of a substantive nature in order to defeat the rule of presumed legislative intent that a procedural provision applies retrospectively rather than prospectively. Id.
“‘A statute of limitations is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action.’” Aetna Life & Casualty v. Braccidiferro, 34 Conn. App. 833, 850 (1994) (citations omitted); see also Baxter v. Sturm, Ruger & Co., 230 Conn. 335 (1994). Similarly, the legislature’s prohibition on the respondents’ right to appeal in P.A. 95-277, §4(a) is purely procedural. The Act merely sets forth the process by which a controverted issue regarding the existence of a previous disability is to be heard and decided. P.A. 95-277, §4(a) does not in and of itself “create a new right of action” for transferring a pending claim to the Fund, nor are any new jurisdictional requirements to effectuate a § 31-349 transfer imposed upon the insurer and or employer.
Accordingly, I conclude that P.A. 95-277, § 4(a) applies to all existing claims, and thus that any controverted issue regarding the existence of a previous disability under § 31-349 should be decided by a three member medical panel rather than by a trial commissioner. In the instant case, I would affirm the trial commissioner’s ruling that he did not have jurisdiction to decide whether a claim was transferable to the Fund pursuant to § 31-349 because P.A. 95-277, § 4(a) requires that issue to be decided by a medical panel.
1 Section 31-349 (Rev. to 1983), provides in relevant part:
“The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has . . . permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case.... In the event the custodian shall reject the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction....” BACK TO TEXT
2 P.A. 95-277, §4 provides that the opinion of the medical panel “shall be binding on all parties to the claim and may not be appealed to the Compensation Review Board.” BACK TO TEXT