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Matey v. Estate of Sara Dember

CASE NO. 3153 CRB-5-95-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 10, 1997

MARY LOU MATEY

CLAIMANT-APPELLEE

v.

ESTATE OF SARA DEMBER

EMPLOYER

NO INSURANCE

and

JEROME and MICHAEL SCHWEITZER

CO-EXECUTORS OF THE DEMBER ESTATE

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Laurence Parnoff, Esq., 1566 Park Ave., Bridgeport, CT 06604.

The respondent employer and her estate were not represented at oral argument. Notice sent to Gary Ginsberg, Esq., 377 Main St., West Haven, CT 06516.

The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the August 18, 1995 Ruling on Respondent’s Motion to Reopen Pursuant to Finding and Award and the undated denial of the Motion to Reopen Judgment by the Commissioner acting for the Fifth District were heard May 24, 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 respondent Second Injury Fund has petitioned for review from the Ruling on Respondent’s Motion to Reopen Pursuant to Finding and Award dated August 18, 1995, and has also petitioned for review from the undated denial of its August 28, 1995 Motion to Reopen Judgment of the Commissioner acting for the Fifth District. The Fund argues on appeal that the commissioner erred by ordering the Fund to pay benefits without first entering an order against another party, and that he erroneously failed to address other issues below. Before addressing these arguments, we first review the history of this case.

The claimant suffered a compensable injury on August 9, 1984, when she was involved in an automobile accident while running an errand for her employer, Sarah Dember. Dember, who was not insured for workers’ compensation liability, died on October 13, 1984. The claimant filed a notice of claim for compensation with the Fifth District and with the attorney representing Dember’s estate on July 8, 1985. The claimant did not file a claim with the probate court during the appropriate period, however. The Fund argued that this prevented the claimant from pursuing her workers’ compensation claim. The trial commissioner did not agree, and ordered the estate (which was represented at an informal hearing, but not at the formal hearings) to pay benefits. The Fund appealed that decision to this board, which ruled that the claimant gave proper notice of her claim for workers’ compensation purposes, and declined to address the probate court issues as a court of limited jurisdiction. Matey v. Dember, 5 Conn. Workers’ Comp. Rev. Op. 104, 105-106, 516 CRD-5-86 (June 14, 1988). The CRD also remanded the case for further findings regarding the claimant’s compensation rate.

Meanwhile, the case was appealed to the Supreme Court in an attempt to raise the jurisdictional issue there. Because the remand had not yet occurred and further evidentiary proceedings were necessary, the Court ruled that the appeal was premature and had to be dismissed. Matey v. Estate of Dember, 210 Conn. 626, 631 (1989). Subsequently, the commissioner issued an order as to the claimant’s compensation rate. When that award was neither appealed nor paid, the trial commissioner issued a payment order against the Fund. The commissioner then granted a motion by the Fund to set aside that order and reopen proceedings, which entailed several more hearings and culminated in a Finding and Award dated July 26, 1995. There, the commissioner acknowledged the findings in the prior Finding and Award, and extended the period of the claimant’s total disability to August 23, 1994.1 He also ruled that the 1988 CRD decision and the prior awards had determined the jurisdictional issue concerning the absence of a probate claim against the employer’s estate, and that the doctrine of res judicata applied.

Instead of appealing that decision, the Fund again moved to reopen on August 11, 1995, on the ground, inter alia, that no order had been entered against a legal entity prior to the entry of the order against the Fund. Most of that motion was denied, and the Fund filed a petition for review. It also filed a supplemental motion to reopen, again alleging insufficient factual findings to support the exercise of jurisdiction over the Fund. That motion was also denied, and the Fund again petitioned for review. Subsequently, the claimant filed a motion to dismiss the two appeals.

Our consideration of the claimant’s Motion to Dismiss first requires us to note that the Second Injury Fund did not file reasons for appeal pursuant to Admin. Reg. § 31-301-2 in this case. According to that regulation, reasons for appeal were due within ten days of the filing of the petition for review. The second petition for review was filed in this case on September 8, 1995. However, the claimant’s Motion to Dismiss should have been filed within ten days of the day the reasons of appeal became late, pursuant to Practice Book § 4056. Instead, it was filed on December 19, 1995. Thus, the absence of the Fund’s reasons of appeal is deemed waived. Sager v. GAB Business Services, 11 Conn. App. 693, 698 (1987).

As the claimant points out in the argument accompanying her Motion to Dismiss, the Fund has not appealed here from the Finding and Award itself. Instead, both petitions for review arise from the denial of a Motion to Reopen. In two instances in the procedural history of this case, the Fund has failed to appeal from a commissioner’s Finding and Award, and has instead moved to reopen proceedings. “Where, as here, an appeal from a final judgment has not been seasonably taken, ‘[c]laimed errors which might have been assigned on such an appeal are no longer open to review’ upon an appeal from a denial of a motion to open that judgment.” Crozier v. Zaboori, 14 Conn. App. 457, 462 (1988), citing Zingus v. Redevelopment Agency, 161 Conn. 276, 282 (1971). Moreover, the issues the Fund seeks to raise in this appeal are primarily attempts to reargue the jurisdictional issue addressed in this board’s prior Matey decision. As we stated in Peters v. State of Connecticut/Southern Connecticut State University, 13 Conn. Workers’ Comp. Rev. Op. 131, 134, 1616 CRB-5-92-12 (Feb. 1, 1995), a party is not entitled to raise questions which were or could have been answered in a prior appeal, even if they concern subject matter jurisdiction. Thus, we must limit our focus on this appeal to the question of whether or not the commissioner abused his discretion in denying the Fund’s motions to reopen under § 31-315 C.G.S.

In the motions to reopen, the Fund did not contend that there was a change in the claimant’s incapacity, or that her degree of dependence on compensation had changed, or that any other conditions of fact relevant to this case had somehow become different. Thus, the commissioner did not err in refusing to reopen the case yet again to consider the claims that the Fund was entitled to a credit pursuant to § 31-293, or that the employer’s executors have not been properly served with the various awards. See Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180, 185 (1923). Those issues could have been raised long, long ago.

The one legitimate argument that the Fund does have is that the commissioner did not have authority under § 31-355(a) to order payment from the Fund until an award was first made against the employer, and that employer failed to pay the compensation. Bethune v. A&A Seafood, 9 Conn. Workers’ Comp. Rev. Op. 79, 80, 927 CRD-3-89-10 (Feb. 20, 1991). That flaw can be remedied simply by remanding this case to the trial commissioner, however, for entry of an order against the decedent employer and/or her estate. As the co-executors of the claimant’s estate both appeared at formal hearings and were excused by the trial commissioner, we have no qualms about saying that they have been apprised of these proceedings and have consented to the jurisdiction of the Workers’ Compensation Commission, and that an award may be entered against the estate. Any difficulty that the Fund has due to the lack of a notice of claim in the probate court is, as we decided in the earlier appeal, not an issue that we will address in this forum. Once an award has been entered against the decedent employer or her estate, if it remains unpaid, an order to pay that award may then be entered against the Second Injury Fund.

The trial commissioner’s denial of the Fund’s August 28, 1995 Motion to Reopen Judgment is thus reversed. The case is remanded to the Fifth District for the limited but necessary procedural purpose of entering an award against the decedent employer’s estate before the trial commissioner may invoke Fund liability under § 31-355(a).

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

1 Corrected from May 30, 1995, as the last evidentiary hearing was held on August 23, 1994. BACK TO TEXT

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