CASE NO. 4530 CRB-7-02-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 20, 2003
NORWALK HOSPITAL ASSOCIATION
The claimant was represented by Douglas Drayton, Esq., and Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
The respondent-employer was represented by Thomas Mulligan, Esq., McNamara & Kenney, 375 Bridgeport Avenue, Shelton, CT 06484.
This Petition for Review from the May 13, 2002 Finding and Award of the Commissioner acting for the Seventh District was heard November 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle Jr., and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the Commissioner acting for the Seventh District’s May 13, 2002 Finding and Award. The pertinent facts giving rise to this appeal are as follows.
On February 12, 1996 the claimant suffered a work related injury to her neck. At that time the claimant was employed by the respondent-employer as a cafeteria worker. While at work the claimant slipped and fell on a wet area of a floor. Due to the fall, the claimant sustained injuries to her right wrist, right shoulder and right knee. These injuries were the subject of a Stipulation approved July 14, 1997.
In proceedings before the commissioner the claimant sought compensation for a neck injury which she claimed was causally related to her slip and fall on February 12, 1996. In a January 7, 1999 Finding and Award the Commissioner Acting for the Seventh District concluded that the neck injury was causally related to the work. The commissioner then awarded the claimant temporary total disability benefits. On or about February 5, 2000, the respondent filed a Form 36 seeking to discontinue payment of temporary total disability benefits. The claimant objected to the Form 36 and formal proceedings ensued. The commissioner in his May 13, 2002 Finding and Award concluded that the claimant had a light work capacity and terminated the claimant’s temporary total disability benefits.
The claimant took the instant appeal and presents the following issues; (1) whether the trial commissioner’s failure to issue his decision within 120 days of the last hearing as provided in § 31-300 renders the trier’s Finding and Award null and void, (2) whether the trial commissioner erred in concluding that the claimant was not totally disabled.
The threshold issue which we consider is whether the trier’s failure to render his decision within 120 days after the close of the hearings nullifies the trier’s decision. Under the factual circumstances in this case we think the claimant’s objection to the trier’s decision on the basis of its untimeliness is appropriate and the matter is remanded for a new trial.
The Appellate Court in Schreck v. Stamford, 72 Conn. App. 499 (2002) recently considered the application of § 31-300’s time constraints for issuing decisions. Sec. 31-300 provides in pertinent part, “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award.” In Schreck, the Appellate Court reversed this tribunal’s ruling where we held the appellant waived the time requirement for issuing a decision. The court noted a decision issued after the time permitted by § 31-300 is voidable. The voidability of the trier’s Finding and Award turns on whether the complaining party engaged in conduct, either express or implied which served to waive the lateness of the Finding and Award.
The court also referred to prior case law holding that waiver may be inferred by the conduct of the parties. Id p. 500 citing Waterman v. United Caribbean, Inc., 215 Conn. 688, 692 (1990). The Schreck court stated:
[W]hen “late judgment has been rendered and the parties fail to object seasonably, consent may be implied.” Waterman v. United Caribbean, Inc., supra, 692. “Waiver is the intentional relinquishment of a known right. . . . A waiver occurs, therefore, only if there is both knowledge of the existence of the right and intent to relinquish it. . . . [Waiver] involves the idea of assent, and assent is an act of understanding. . . . Intention to relinquish [must] appear, but acts and conduct inconsistent with intention [to assert a right] are sufficient.” (Citations omitted; internal quotation marks omitted.) Dichello v. Holgrath Corp., supra, 49 Conn. App. 349-50. “[Waiver] does not have to be express, but may consist of acts or conduct from which waiver may be implied. . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Stewart v. Tunxis Service Center, supra, 237 Conn. 80-81.
Schreck supra, p. 500.
The pertinent facts in Schreck 1 insofar as they relate to the issue under consideration were that the record was closed November 2, 1995 and the commissioner did not issue his decision until April 11, 1996, 148 days after the close of the record. On that same day, the appellant appealed the commissioner’s decision and raised the issue that the commissioner’s decision was not issued within the time constraints set out in § 31-300.
In this tribunal’s consideration of that issue we concluded that as the appellant did not raise an objection to the lateness of the trier’s decision until he filed his Reasons of Appeal, the appellant waived the time requirements of § 31-300. Our rationale was based on prior holdings in which this tribunal concluded, “We will not allow parties to acquire a type of veto power over a decision by failing to object to a late award until they have an opportunity to see whether they approve of the result. Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (Dec. 13, 1996).” Schreck v. Stamford, 3322 CRB-7-96-4 (May 17, 2001) (note 4). The Appellate Court reversed our ruling that the appellant’s conduct constituted waiver of § 31-300’s 120 day requirement. The court stated:
In the present case, the commissioner issued his decision 148 days after the close of the record. The plaintiff objected to the decision on the day that it was received. In its decision, the board held that the plaintiff’s objection was untimely because it was filed after the decision was issued. em class="ul">There is, however, no requirement that a party object to a decision, or a judgment for that matter, prior to its issuance. Because the plaintiff objected the very day he received the decision, the objection was seasonable. See Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 669 A.2d 620 (objection filed five days after judgment seasonable), cert. denied, 236 Conn. 920, 674 A.2d 1326 (1996); compare Dichello v. Holgrath Corp., supra, 49 Conn. App. 352 (objection filed 280 days after judgment not seasonable). (emphasis ours)(footnote omitted).
Schreck v. Stamford, 72 Conn. App. 497, 501 (2002).
In the instant matter the trier was to have rendered his decision within 120 days of April 16, 2001, or according to our calculation by August 13, 2001. As the trier’s decision was issued May 13, 2002, it was rendered 274 days after the time required by § 31-300. The appellant’s objection to the tardiness of the trier’s decision occurred within 18 days after the trier’s decision was issued. This fact pattern differs substantially from the facts as they existed in Dichello v. Holgrath Corp., 49 Conn. App. 339 (1998) a case where the Appellate Court found the claimant waived the right to object to the untimeliness of the trier’s decision.
We note that in the instant matter the claimant filed a timely appeal pursuant to § 31-301(a) and then complied with a timely filing of her Reasons of Appeal.2 In those Reasons of Appeal the claimant raised her objection to the untimeliness of the trier’s decision under § 31-300. In comparison, the claimant in Dichello, supra, first indicated an objection to the trier’s tardiness when the claimant filed his Amended Statement of Reasons of Appeal September 27, 1995. The Amended Statement of Reasons of Appeal were filed more than five months after her original Reasons of Appeal.3 Furthermore as the Appellate Court commented in Dichello, there were filings made by the claimant in the course of the prosecution of her appeal between the time of the trier’s decision and her amended statement of reasons of appeal none of which raised her objection as to the trier’s failure to comply with the time requirements of § 31-300. Here the claimant’s objection to the trier’s failure to comply with the time requirement of § 31-300 was registered within the appropriate procedural time frames for appeal required by the Compensation Review Board. No affirmative action occurred which would have been contrary to the claimant’s intention to contest the § 31-300 time requirement.
Therefore, the failure to waive the time requirement in § 31-300 either expressly or impliedly, in conjunction with raising the objection within the procedural time periods permitted by the Compensation Review Board leads us to conclude that the claimant’s objection is seasonable.
We therefore vacate the trial commissioner’s May 13, 2002 Finding and Award and remand the matter for a new trial.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.
1 Schreck v. Stamford, was also considered by this tribunal and both the Appellate and Supreme Courts in relation to other issues. See Schreck v. Stamford, 250 Conn. 592 (1999). BACK TO TEXT
2 Admin. Reg. § 31-301-2 provides:
Within ten days after the filing of the appeal petition, the appellant shall file with the compensation review division his reasons of appeal. Where the reasons of appeal present an issue of fact for determination by the division, issue must be joined by a pleading filed in accordance with the rules applicable in ordinary civil actions; but where the issue is to be determined upon the basis of the finding of the commissioner and the evidence before him, no pleadings by the appellee are necessary. BACK TO TEXT
3 In Dichello v. Holgrath Corp., 15 Conn. Workers’ Comp. Rev. Op. 441, 2249 CRB-5-94-12 (Sept. 5, 1996) the claimant’s initial Reasons of Appeal were filed April 12, 1995. BACK TO TEXT