CASE NO. 4178 CRB-2-00-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 19, 2003
ESTATE OF NOZARIO MELENDEZ
WAUSAU INSURANCE CO.
SECOND INJURY FUND
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, the dependent widow of the decedent Nozario Melendez, filed a Motion to Reopen Judgment with this Commission on September 22, 2003. In it, she seeks to reopen this board’s May 1, 2001 opinion and remand order in the above matter; Melendez v. Valley Metallurgical, 4178 CRB-2-00-1 (May 1, 2001); and a subsequent decision of the trial commissioner dated January 28, 2003. At the same time, the claimant filed a petition for review on September 22, 2003 that purports to be from a September 18, 2003 finding and award, along with reasons for appeal that request this board to review the trial commissioner’s decision of January 28, 2003, and to render “its final decision, affirming, modifying, or reversing the decision of the commissioner’s finding and award of said date.” We have also received an objection from the respondents dated October 8, 2003, and a reply to that objection dated October 20, 2003.
For the reasons stated in our August 27, 2003 Ruling on Motion for Clarification, we are bound by the Appellate Court’s determination that our May 1, 2001 opinion was not a final judgment reviewable by that court. See, e.g., Stern v. Allied Van Lines, Inc., 246 Conn. 170 (1998)(appellate courts lack jurisdiction to entertain appeals not taken from final judgments). Further, the claimant’s September 22, 2003 petition for review is far too late to allow review of the January 28, 2003 decision, and there is no other judgment from which it could have any legal effect in this forum. Thus, we dismiss it as a nullity. The question then seems to be, can this board take any action involving the January 28, 2003 Finding and Award, which was not separately appealed within twenty days of the date of decision as contemplated by § 31-301(a)?
Neither § 31-301(c) nor any other statute or regulation explicitly authorizes this board to sua sponte incorporate the January 28, 2003 findings of the trial commissioner into our earlier decision and then reissue the consolidated product as an updated final decision “affirming, modifying or reversing the decision of the commissioner,” as the claimant requests in her motion. However, the claimant has brought to our attention case law that supports the existence of such authority, suggesting that it may not have been necessary for her to file a petition for review to this board from the January 28, 2003 Finding and Award in order to preserve appeal rights from our previous decision.
In support of her position, the claimant cites Carlino v. Danbury Hospital, 1 Conn. App. 142 (1984), a case in which the Compensation Review Division (the predecessor to this board) postponed ruling on a claimant-appellant’s assertions of legal error because the commissioner had made insufficient findings of fact. The underlying issue was whether the claimant had received medical treatment so as to satisfy the “medical care” exception now codified at § 31-294c(c), and the review division twice remanded the matter for supplemental findings on that subject before issuing a decision on the merits of the appeal. See Carlino v. Danbury Hospital, 1 Conn. Workers’ Comp. Rev. Op. 219, 25 CRD-7-80 (Dec. 6, 1982); Carlino, 1 Conn. Workers’ Comp. Rev. Op. 119 (Feb. 25, 1982); Carlino, 1 Conn. Workers’ Comp. Rev. Op. 61 (Oct. 14, 1981)(“Until the findings are adequate, we cannot determine whether the award is just or not.”) The claimant in Carlino only filed an appeal from the first Finding and Award, and did not file separate appeals from the supplementary decisions of the commissioner.
The Appellate Court explained that the purpose of the review division’s remands in Carlino was to require additional findings so that the review division could make a final decision on the merits of the appeal. The Court noted statutory language substantially identical to that now codified at § 31-301(c), which states that “Upon the final determination of the appeal . . . the Compensation Review Board shall issue its decision affirming, modifying or reversing the decision of the commissioner.” The Court then wrote, “A decision to remand to the commissioner for him to supplement and clarify his findings cannot be construed as a final determination of the appeal. . . . Under these circumstances the review division retained jurisdiction over the appeal. To hold otherwise would require after each such remand a new appeal process with new filing periods and reasons of appeal. The Workers’ Compensation Act does not contemplate such an unnecessarily burdensome brochure.” (Citations omitted.) The Appellate Court went on to affirm the review division’s decision on the merits.
Carlino directly holds that a remand for the purpose of supplementing and clarifying findings cannot be construed as a final determination of an appeal, and further, that the review division retains jurisdiction over such an appeal throughout the remand process without the formality of another appeal. There is no case law suggesting that this decision has been overruled or abrogated. Therefore, it would appear that we still retain jurisdiction over the instant appeal, pending the issuance of some type of final determination affirming, modifying or reversing the trial commissioner’s decision(s).
In this case, we acknowledge that the commissioner’s role on remand was more than ministerial. This prevented the Appellate Court from considering the merits of the claimant’s appeal when it was first filed in May of 2001. See Matey v. Dember, 210 Conn. 626 (1989)(review board’s order contemplated taking of further evidence and entry of further findings by trial commissioner, thus making appeal premature); cf. Mulligan v. F.S. Electric, 231 Conn. 529, 534 n.4 (1994)(performance of mere arithmetical compilation of figures on remand was a ministerial task that did not involve exercise of discretion by trial commissioner); Santos v. Publix Theatres Corporation, 108 Conn. 159 (1928)(remand order directing trial commissioner to enter award without application of his own discretion or taking of further evidence was a final judgment, and appeal from subsequent decision was superfluous). This matter accordingly remained within the jurisdiction of this commission until the proceedings on remand were resolved. Although the claimant’s failure to appeal the trier’s subsequent decision on remand would prevent him from challenging those findings and conclusions on appeal, pursuant to Carlino, supra, it would appear that the issues raised on his prior appeal are still viable, and become ripe for consideration by our Appellate Court and/or Supreme Court only when the issues contemplated on remand are finally settled.
Insofar as § 31-301(c) requires this board to make a final determination of all issues on appeal before a compensation claim may be reviewed by the Appellate Court, we hereby issue the following ruling: the claimant’s Motion to Reopen Judgment is granted as a procedural necessity for the limited purpose of reconfirming our prior decision in Melendez v. Valley Metallurgical, 4178 CRB-2-00-1 (May 1, 2001), along with our May 24, 2001 Ruling on Motion to Correct Opinion, our July 20, 2001 Ruling on Motion for Articulation, and our November 13, 2001 Ruling on Motion for Articulation. In no way do we revise the legal conclusions reached in that opinion and in our subsequent rulings on the claimant’s motions.
Additionally, the trial commissioner’s January 28, 2003 findings and conclusions adequately address the issues that were remanded pursuant to our May 1, 2001 opinion. As that award was not appealed to this board in a timely manner, the findings and conclusions within that award stand as a final determination of those remand issues, and constitute a final judgment on the discretionary element of those matters (specifically, the trier’s finding that the respondent did not unreasonably contest liability, and his articulation of the basis for his award of an attorney’s fee equivalent to 12% of the interest sum. Such findings are hereby incorporated as part of our prior decision, insofar as we have the authority and the obligation to do so under § 31-301(c) and Carlino, supra.
Commissioners Leonard S. Paoletta and Ernie R. Walker concur.