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Rulewicz v. New Britain General Hospital

CASE NO. 3302 CRB-6-96-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 5, 1997

JEROME RULEWICZ

CLAIMANT-APPELLEE

v.

NEW BRITAIN GENERAL HOSPITAL

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

RULING RE: MOTION FOR RECONSIDERATION

On September 16, 1997, the Compensation Review Board issued a decision affirming the March 15, 1996 Finding and Dismissal of the Commissioner acting for the Sixth District. Subsequently, the respondent employer and its insurer (hereinafter “respondents”) filed a timely Motion for Reconsideration. In that motion, the respondents contend that this board did not have jurisdiction to affirm the trial commissioner’s denial of the respondents’ request to transfer liability for the claimant’s left knee injury pursuant to § 31-349 C.G.S. Specifically, the respondents contend that the issue regarding whether the claim medically qualified for transfer should have been referred to the medical panel, as that issue was under the jurisdiction of the medical panel created by P.A. 95-277, §4(a) effective July 1, 1995. The respondents rely on Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997), which was issued after oral argument was heard by this board.

At issue is the applicability of P.A. 95-277, § 4(a)1 which amended § 31-349 C.G.S. Our Supreme Court in Hall, supra, held that P.A. 95-277, § 4(a) “applies retroactively to all pending transfer claims in which the claimant’s second injury occurred prior to July 1, 1995.” Id. at 309. The Court ruled that the trial commissioner in Hall had correctly refused to consider the issue of transfer to the Fund at an August 8, 1995 formal hearing, and that the issue of medical qualification for transfer should have been submitted to the medical panel as provided by P.A. 95-277, § 4(a), which took effect on July 1, 1995.

In Soto v. Swank Crestline, Inc., 16 Conn. Workers’ Comp. Rev. Op. 196, 3255 CRB-7-96-1 (July 24, 1997) we addressed the effect of P.A. 95-277, § 4(a) on the trial commissioner’s authority to issue a decision regarding whether a claim medically qualifies for transfer pursuant to § 31-349 C.G.S. In Soto, the board held that where the last formal hearing was held on June 30, 1995 and the trial commissioner’s decision was rendered on January 11, 1996, the issue regarding whether a claim medically qualified for transfer pursuant to § 31-349 C.G.S. was under the jurisdiction of the medical panel rather than the trial commissioner. The board explained that in Hall, supra, the court held that P.A. 95-277, § 4(a) applies to all cases pending as of July 1, 1995. A “pending” case includes “all cases that have not yet reached final judgment, or at least those that were still in dispute when the amendment to § 31-349 C.G.S. went into effect on July 1, 1995.” Soto, supra; see also Huber v. General Dynamics, Case No. 3471 CRB-8-96-11 (Aug. 27,1997); Ridente v. MMR Wallace, Case No. 3303 CRB-6-96-3 (Aug. 21, 1997).

In the instant case, the transfer issue was undecided as of July 1, 1995, and hence it was a “pending” case. The trial commissioner found that the respondents provided timely notice to the Fund, and thus the only issue was whether the claim medically qualified for transfer. (Finding No. 3). Therefore, jurisdiction over the issue of whether the claim medically qualified for transfer belonged with the medical panel rather than with the trial commissioner. See Hall, supra; see also Soto, supra.

We note that the Second Injury Fund has filed an objection to the Motion for Reconsideration. Specifically, the Fund contends that the instant case was “fully and finally decided” by this board, and that allowing it to be reopened would “open the floodgates” as to numerous other cases. We disagree. Practice Book § 4121 specifically provides for motions for reargument and reconsideration. In Williams v. Best Cleaners, Inc., 237 Conn. 490 (1996), the court granted motions for reargument which were filed after the court’s decision had been issued in Williams v. Best Cleaners, Inc., 235 Conn. 778 (1996). The court decided that it had “incorrectly decided Williams I.” Williams, supra, 237 Conn. at 492; see also State v. Marsala, 27 Conn. App. 291 (1992). Furthermore, we are not convinced by the Fund’s argument that granting the instant motion will “open the floodgates,” as it has been held that P.A. 95-277, § 4(a) applies only to cases pending as of July 1, 1995. See Soto, supra; see also Huber, supra; Ridente, supra. Here, the respondents were able to raise this issue by means of a timely filed Motion for Reconsideration.

In accordance with the above, we hereby vacate our September 16, 1997 decision.

Commissioners George Waldron and Robin L. Wilson concur.

1 Public Act 95-277, § 4(a) provides that “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 pursuant to section 31-301 of the general statutes, as amended by section 9 of this act.” BACK TO TEXT

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