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Walter and Walter v. State of Connecticut/Services for the Blind

CASE NO. 3785 CRB-02-98-03

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 18, 1999

CLAUDIA WALTER, Presumptive Dependent Widow, and DANA WALTER, Presumptive Dependent Daughter of NORBERT WALTER, Deceased

CLAIMANTS-APPELLANTS

v.

STATE OF CONNECTICUT/SERVICES FOR THE BLIND

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

Both parties agreed that the CRB should decide this matter without the benefit of oral argument. The claimants’ brief was prepared by, and notice was sent to, Brian W. Prucker, Esq., Fitzgerald & Prucker, 1127 Tolland Turnpike, Suite 101, Manchester, CT 06040.

The respondent’s brief was prepared by, and notice was sent to, Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the March 3, 1998 Finding and Dismissal of Claim of the Commissioner acting for the Second District was considered on October 23, 1998 by a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimants have petitioned for review from the March 3, 1998 Finding and Dismissal of Claim by the Commissioner acting for the Second District. On appeal, they do not directly challenge the findings or conclusions of the trial commissioner in that ruling; instead, they allege that this board committed error in its June 2, 1995 decision in Walter v. State of Connecticut/Services for the Blind, 14 Conn. Workers’ Comp. Rev. Op. 107, 1694 CRB-2-93-4, appeal dismissed for lack of final judgment, A.C. 14925 (Sept. 7, 1995). We affirm the trier’s decision.

As we recounted in our previous Walter opinion, the claimants, Claudia and Dana Walter, are respectively the widow and the daughter of the decedent Norbert Walter, who was an employee of the State of Connecticut at the time of his death on November 13, 1989. The claimants each filed a Notice of Claim for Compensation dated January 15, 1990, informing the state of each individual claim, one by the dependent widow and one by the dependent child. See § 31-306 C.G.S. On January 26, 1990, the state mailed duplicate Notices of Intention to Contest Liability to Pay Compensation, using the Form 43 prescribed by this Commission. These notices were sent certified to the Second District office within the 28-day period prescribed by § 31-297(c) C.G.S. (now § 31-294c(b).) However, the Forms 43 named only the deceased employee, failing to name either claimant. The claimants subsequently filed a Motion to Preclude the respondent from contesting their claims.

A formal hearing was scheduled for December 16, 1992, at which the state did not appear. The state then filed a Motion to Open the Record and Submit Additional Evidence on March 19, 1993, in which it explained that its counsel was not present at that hearing due to lack of timely notice. The commissioner granted the motion, and the state was allowed to request that administrative notice be taken of the timely Forms 43 sent by the state. The claimants appealed the granting of the state’s motion.

The commissioner then issued a decision on the Motion to Preclude, finding that the claimants were both supported by the decedent, who at the time of his death was an employee of the State of Connecticut. He also found that the Forms 43 named the wrong parties as claimants and were not sent to the proper parties. Therefore, the trier granted the claimants’ Motion to Preclude. The respondent appealed from that decision.

This board held that the trial commissioner did not commit error in granting the Motion to Open the Record and Submit Additional Evidence. A commissioner has considerable discretion to grant or deny a motion to reopen. Absent a showing by the claimants that they were prejudiced by the reopening of the record, this board declined to hold that the trier abused his discretion by allowing the respondent to file its brief and to request that administrative notice be taken of its Forms 43, particularly as an award had not yet been entered. Walter, supra, 109. This board then went on to reverse the granting of the Motion to Preclude on the ground that the information in the Forms 43 sufficiently informed the claimants that their claim was being contested. The claimants appealed this ruling to the Appellate Court, who dismissed their appeal for lack of a final judgment.

Further hearings were held upon remand. A different trial commissioner presided over the case, and issued a thorough, meticulous finding stating that the claimants had not established by a preponderance of the evidence that work-related stress substantially contributed to the death of the decedent. Instead, the trier found that other factors, such as cigarette smoking, chronic renal failure, diabetes mellitus and hypertension had combined to cause and exacerbate the decedent’s coronary artery disease and his October 29, 1989 heart attack. The claimants filed an appeal from that decision, but their appellate brief focus its arguments exclusively against the reasoning of this board in our 1995 Walter opinion, and does not address the trier’s findings in any way.

This board has occasionally been asked to reconsider its earlier rulings in cases that have been remanded, and have returned to the CRB on a subsequent appeal. Our policy on that matter is clear: this board does not disregard the law of cases it has already decided. Schiano v. Bliss Exterminating, 3436 CRB-4-96-10 (April 8, 1998); Bowman v. Jack’s Auto Sales, 16 Conn. Workers’ Comp. Rev. Op. 223, 226, 3384 CRB-1-96-7 (June 18, 1997); Ericson v. Perreault Spring & Equipment, 3200 CRB-5-95-11 (April 28, 1997); Chase v. State of Connecticut/Department of Motor Vehicles, 15 Conn. Workers’ Comp. Rev. Op. 292, 294-95, 2185 CRB-2-94-9 (June 20, 1996), rev’d. on other grounds, 45 Conn. App. 499 (1997). Here, we have already reviewed the rulings of the first commissioner on the respondent’s Motion to Open the Record and Submit Additional Evidence and the claimants’ Motion to Preclude, and issued a decision on June 2, 1995. At that point, our ruling became the law of the case, subject to review by the Appellate Court. Chase, supra, 295. Although the Appellate Court has dismissed the claimants’ earlier appeal for lack of final judgment, a future appeal to the court on that issue is still permissible once this case becomes final for purposes of appeal (as it would appear to be now). Our decision, however, has already been released, and must stand. Id.

The trial commissioner’s decision is thus affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

Workers’ Compensation Commission

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