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Kolomiets v. Syncor International Group

CASE NO. 4578 CRB-7-02-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 8, 2003

GREGORY KOLOMIETS

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

SYNCOR INTERNATIONAL GROUP

EMPLOYER

and

TRANSPORTATION INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by Brendan T. Canty, Esq., Kerin & Canty, P.C., 193 East Avenue, Norwalk, CT 06855.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

These Petitions for Review from the October 22, 2002 Finding and Award of the Commissioner acting for the Seventh District were heard December 20, 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.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. Both the claimant and the respondents have petitioned for review from the October 22, 2002 Finding and Award of the Commissioner acting for the Seventh District. The claimant objects to the trial commissioner’s decision on the ground that it was issued beyond 120 days after the last formal hearing in violation of § 31-300 C.G.S., while the respondents have objected to the trier’s finding that certain medical expenses were their responsibility. We sustain the claimant’s appeal and order a trial de novo, thus rendering the respondents’ appeal moot.

The relevant facts are as follows. The claimant was injured on February 10, 1993 while driving an automobile. The trial commissioner found that incident compensable in a January 5, 1996 Finding and Award. This board reversed that ruling following an appeal by the respondents. Kolomiets v. Syncor International Corp., 16 Conn. Workers’ Comp. Rev. Op. 234, 3251 CRB-7-96-1 (June 23, 1997). This board’s decision was subsequently reversed by the Appellate Court, and the finding of compensability was reinstated. Kolomiets, 51 Conn. App. 523 (1999). The Supreme Court then affirmed that decision. Kolomiets, 252 Conn. 261 (2000). The issues at trial below concerned the nature of the claimant’s injuries, the benefits due the claimant, and the necessity of various medical treatments. Several of the claimant’s benefit requests were ultimately dismissed by the trial commissioner upon the issuance of his decision.

The trial commissioner held formal hearings in this matter on March 8, 2001, May 17, 2001, October 1, 2001, and April 1, 2002. The record was then closed at a pro forma hearing on May 22, 2002, at which the parties submitted proposed findings of fact. However, the trial commissioner’s decision was not issued until October 22, 2002, a span of 153 days from the pro forma hearing. The claimant then filed a petition for review on November 1, 2002, along with a Motion for New Trial on the ground that the commissioner’s decision was rendered in an untimely manner.

Section 31-300 reads in relevant 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 the recent case of Schreck v. Stamford, 72 Conn. App. 497 (2002), our Appellate Court noted that a decision issued beyond that 120-day period is voidable, as long as the party seeking to void the ruling has not engaged in express or implied conduct which would operate as a waiver of that tardiness. In reversing this board’s earlier holding that the claimant had waived his right to so object; see Schreck, 3322 CRB-7-96-4 (May 17, 2001), the court explained, “The plaintiff [in Schreck] 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. 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.” Id., 501. The court went on to state that the remedy for the trier’s late decision was the revocation of that decision, and the scheduling of a new hearing.

This board has since ruled that a claimant who filed a timely petition for review following a late decision by a trial commissioner, and then raised an objection to that tardiness in her timely-filed Reasons of Appeal, acted seasonably within the meaning of Schreck, thereby entitling her to a revocation of the trier’s decision and a new trial. Simotas v. Norwalk Hospital Association, 4530 CRB-7-02-5 (May 20, 2003). The instant case appears to be substantially identical. The claimant filed his objection to the lateness of the trier’s decision well within the time allotted by § 31-301(a) and Admin. Reg. § 31-301-2 to file a petition for review and accompanying Reasons of Appeal. There is no indication in the record that either of the parties waived the 120-day time limit prior to the issuance of the trier’s Finding and Award. The claimant’s right to void the trier’s late decision was therefore asserted in a prompt and seasonable manner, and we must vacate the trier’s decision with orders that a de novo trial be conducted.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

Workers’ Compensation Commission

Page last revised: December 15, 2004

Page URL: http://wcc.state.ct.us/crb/2003/4578crb.htm

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