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Jones v. Town of Redding

CASE NO. 5223 CRB-7-07-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 15, 2008

BRIAN JONES

CLAIMANT-APPELLEE

v.

TOWN OF REDDING

EMPLOYER

and

WAUSAU INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Andrew J. Morrissey, Esq., Morrissey, Morrissey & Mooney, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.

The respondent Town of Redding was represented by Michael N. LaVelle, Esq., Pullman & Comley, 850 Main Street, P.O. Box 7006, Bridgeport, CT 06601-7006. The respondent WAUSAU Insurance Company was represented by Maureen E. Driscoll, Esq., and Scott Wilson Williams, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824.

This Petition for Review from the April 11, 2007 Ruling on Employer’s Motion to Modify Award of the Commissioner acting for the Seventh District was heard on March 28, 2008 before a Compensation Review Board panel consisting of Commissioners Ernie R. Walker, Stephen B. Delaney, and Charles F. Senich.

OPINION

ERNIE R. WALKER, COMMISSIONER. The respondents have petitioned for review from the April 11, 2007 Ruling on Employer’s Motion to Modify Award of the Commissioner acting for the Seventh District. We find error, and accordingly remand this case to the trial commissioner for further proceedings consistent with this opinion.1

The following factual background is pertinent to our review. The claimant was employed as a police officer by the Town of Redding in August of 1985. Pursuant to the mandates of the Connecticut Heart and Hypertension Act (§ 7-433c C.G.S.),2 the claimant successfully passed a pre-employment physical that did not reveal any evidence of hypertension or heart disease. In June of 2002, the claimant’s physician diagnosed the claimant with hypertension, and on July 19, 2002, the claimant filed a notice of claim (“Form 30C”) with the Town of Redding. On March 13, 2003, the claimant and the Town of Redding entered into a Finding and Award which stipulated that the parties were subject to the provisions of § 7-433c C.G.S. and established the claimant’s average weekly wage and weekly compensation rate.

On March 20, 2003, the claimant’s treating cardiologist, Joseph Robert Anthony, M.D., determined the claimant had sustained a thirty-five (35%) percent impairment of the heart. The respondent’s medical examiner, Ronald Raymond, M.D., subsequently concluded the claimant had sustained a thirty (30%) percent impairment of the heart, and the parties thereafter arrived at a compromised rating of thirtytwo and one-half (32.5%) percent impairment of the claimant’s heart. In accordance with this compromised rating, the parties entered into a Supplemental Finding and Award on November 19, 2003 wherein the claimant was awarded 169 weeks of permanent partial disability benefits commencing on March 20, 2003. Under the terms of this Supplemental Finding and Award, the claimant received a lump-sum payment of $20,005.30 on or about October 24, 2003 and was scheduled to receive additional weekly payments of $571.58 until December 2003.

When the parties entered into the original Finding and Award on March 13, 2003, the operating assumption was that the Redding Police Department conformed to the definition of a “paid municipal police department” as it is used in § 7-433c C.G.S. However, on December 8, 2003, this board issued its decision in Genesky v. East Lyme, 4600 CRB-8-02-12 (December 8, 2003), aff’d, 275 Conn. 246 (2005), concluding that the organization of the East Lyme police force was not consistent with the specifications articulated in § 7-274 C.G.S.,3 and that the provisions of § 7-433c C.G.S. therefore did not apply to the parties.

Following the release of Genesky, the respondent employer in the instant matter determined that the organization of its police department was virtually identical to that of the respondent police force in Genesky.4 Presumably as a direct result of this determination, on January 30, 2004, pursuant to the provisions of § 31-315 C.G.S.,5 the respondent employer filed a Motion to Modify the Award and Supplemental Award entered into by the parties on February 6, 2003 and November 19, 2003, respectively. Arguing that § 31-315 C.G.S. provides for the modification of an agreement, award or transfer on the basis of a “changed condition of fact,” the respondent employer asserts that “the recent clarification of the scope of Section 7-433c [ostensibly provided by Genesky] is obviously such a changed condition” and “[s]ince Officer Jones has no statutory right to hypertension benefits, the Town of Redding has ceased such payments.” Employer Motion to Modify Award, p. 5.

The respondent further indicates that “the Town would like as a matter of continued good faith to confirm the cessation of benefits through a modification of the award,” and submits that “it seems appropriate to include a request for clarification as to whether Officer Jones had no right under the statute to a payment of any benefits at all, or only no right after the issuance of the Genesky decision.” Id. Essentially, it is the respondent employer’s position that because the trial commissioner never had subject matter jurisdiction to approve the awards, the payments to the claimant were “erroneous” and “the Supplemental Finding and Award dated November 19, 2003 should be modified to designate an appropriate method for Officer Jones to refund payments already received.” Id.

On April 11, 2007, the trial commissioner issued her Ruling on the Employer’s Motion to Modify, defining the issues to be addressed as (1) whether the respondent’s Motion to Modify should be granted; and, (2) whether the parties’ mutual mistake of fact deprived the trial commissioner of subject matter jurisdiction. Noting that no formal hearings were held prior to the execution of either the award or supplemental award, the trial commissioner took administrative notice of all legal documents filed by the parties and found that the Workers’ Compensation Commission retained continuing jurisdiction over the matter pursuant to the terms of § 31-315 C.G.S.

Having thus established this agency’s jurisdiction, the trial commissioner went on to conclude that the two stipulated agreements which had been presented by the parties on March 13, 2003 and November 19, 2003 were void for lack of subject matter jurisdiction at the time of presentation to the trial commissioner and therefore void ab initio. Noting that the provisions of § 31-294c(a)6 of the Workers’ Compensation Act do not require that a claimant recite in the Form 30C the specific statute under which recovery is sought, the trial commissioner determined, pursuant to Salmeri v. Department of Public Safety, 70 Conn. App. 321 (2002), cert. denied, 261 Conn. 919 (2002),7 that the respondent had received adequate notice of the claimant’s heart and hypertension claim by virtue of the Form 30C filed with the employer on July 18, 2002. The trial commissioner also found that “the parties’ stipulated agreements support the assertion that neither party was in disagreement as to the compensability of the claim or the amount of compensation due thereunder” and ordered the parties to continue to administer the claim as if it had been brought pursuant to Chapter 568.8 Ruling on Employer’s Motion to Modify, p. 3.

In addition, the trial commissioner concluded that the respondent employer had improperly terminated the benefits to the claimant in violation of the provisions of § 31-296 C.G.S.,9 resulting in the need for further proceedings to determine the amount of benefits, including interest and attorneys’ fees, currently due and payable to the claimant.10 This appeal followed.

The respondent employer also filed a Motion to Present Additional Evidence, seeking to introduce into the record the Form 30C submitted to the employer by the claimant on July 19, 2002 wherein the claimant indicated that his claim was for heart and hypertension benefits pursuant to § 7-433c C.G.S. The respondent employer contends that the fact that the claimant asserted a heart and hypertension claim, rather than a workers’ compensation claim per Chapter 568, was significant, because “the Town did not challenge the rejection of the claim by Employer’s Insurance of Wausau, did not subject the claim to H.D. Segur Inc. [the town’s worker’s compensation insurance carrier], did not file a Form 43 (until April 24, 2007) and did not investigate whether there were grounds for contesting Officer Jones’ claim under the provisions of Chapter 568.” Motion to Present Additional Evidence, p. 2.11

On appeal, the respondent employer advances two primary contentions. The first is that the trial commissioner committed reversible error by concluding that Salmeri provided appropriate authority for the trial commissioner to transform the instant matter, “nunc pro tunc,” from a heart and hypertension claim to a Chapter 568 claim in which the compensability of the injury and the amount of benefits due to claimant have been determined. The respondent avers that the trial commissioner’s decision in this regard was a violation of due process, in that it “came as a complete surprise to the parties, having never been raised by the Commissioner or the parties, nor briefed nor argued by the parties, and being outside the scope of the factual stipulations presented to the Commissioner as well as outside the scope of the motion to modify itself ….” Appellant’s Brief, p. 3. If, the respondent argues, in accordance with DeMello, the trial commissioner had merely determined the claimant could advance his claim subject to the provisions of Chapter 568 but would be left to his proof regarding causation, no such due process deprivation would have occurred.

The second allegation of error concerns the trial commissioner’s conclusion that the respondent employer violated the provisions of § 31-296 C.G.S. by unilaterally terminating payments to the claimant, thereby creating liability for interest and attorney’s fees. As the respondent employer accurately point out, “[s]ection 31-296 pertains to voluntary agreements, and of course there is no voluntary agreement.” Appellant’s Brief, p. 9. Rather, since the Award and Supplemental Award were void ab initio because of lack of subject matter jurisdiction, it is the respondent employer’s position that it never incurred the obligation to make any payments to the claimant, and should not now be penalized for terminating payments which were being made in error. Given that § 7-433c C.G.S. states, in part, that “the benefits provided under the statute shall be in lieu of any other benefits which the claimant may be entitled to receive from his municipal employer under the provisions of Chapter 568,” the respondent argues that the trial commissioner’s invocation and application of the penalty provisions of § 31-296 also constituted a deprivation of due process.12

We begin our analysis with an examination of the threshold issue in this appeal: the respondent employer’s assertion that this board’s holding in Genesky represented a clarification of the scope of § 7-433c C.G.S. and therefore constituted a changed condition of fact necessitating, pursuant to § 31-315 C.G.S., modification of the two agreements previously ratified by the parties. We disagree with this contention for several reasons.

First, we challenge the respondents’ contention that Genesky represented a “clarification” of the scope of the heart and hypertension statute. To be sure, this board affirmed the trial commissioner’s finding that the Genesky claimant was in fact a constable, and held that because the claimant was not “a regular member of a paid municipal police department,” he therefore did not fall within the class of employees to whom § 7-433c C.G.S. benefits apply.13 However, the notion that heart and hypertension benefits, pursuant to § 7-433c C.G.S., are not available to constables is hardly new to the legal landscape. In Zimmer v. Essex, 38 Conn. Sup. 419 (1982), the court determined that the claimant, who had been employed as a fulltime constable, was likewise not entitled to heart and hypertension benefits because the town of Essex did not have an organized police department as defined by § 7-274 C.G.S. Given that Zimmer has been “on the books” since 1982, we think the respondent could have ascertained whether the Redding police department was subject to § 7-433c C.G.S. long before the parties entered into the stipulations of March and November, 2003. We cannot thus logically infer that the holding in Genesky in any way constituted a “clarification” of § 7-433c and, thus, a “changed condition of fact” which necessitated a modification of the awards on those grounds.

In addition, even if we agreed with the respondents that our holding in Genesky did in fact operate as a clarification of the scope of § 7-433c C.G.S., we would still be dissuaded from affirming the trier’s decision to open the awards. We do not think such action was merited on the basis of a changed condition of fact or under the equitable considerations contemplated by § 31-315 C.G.S.,14 which allow a trier to extend equitable relief in situations involving accident, mistakes of fact, and fraud but not mistakes of law. Liano v. Bridgeport, 55 Conn. App. 75, 84 (1999), cert. denied, 252 Conn. 909 (1999). Consistent with this philosophy,

… the rule is clear, that equity will not interfere to grant a new trial in an action at law, however unjust the judgment or great the hardship, unless the judgment was obtained through fraud, accident or mistake, unconnected with any negligence or inattention on the part of the judgment debtor, and the rule is founded on the necessity of the case; for if it was otherwise, petitions to set aside or enjoin judgments at law would become too common, and a court of equity be compelled generally to revise decisions at law which on legal principles should be final. (emphasis added)

Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180, 186 (1923).15

For instance, in Kalinick v. Collins Co., 116 Conn. 1 (1932), our Supreme Court was confronted with an agreement wherein a claimant had been awarded one-half of his weekly wages for the twenty-six week time period prior to the point in time at which the claimant had ceased working at his occupation as a wet grinder. Several months later, the Supreme Court handed down a decision holding that the average weekly wage in such cases should be based on the twenty-six week period preceding the onset of the disability rather than the twenty-six weeks preceding the cessation of the type of work which had caused the disability.16 The defendants sought to have the claimant’s award opened and recalculated on the basis of the new ruling, and the trial commissioner granted the request.

On appeal, the court reversed the judgment, remarking that,

… a reopening and modification based upon a mistake of law, as here, would not be permissible unless the control over its award for correction of errors of law, as distinguished from mistakes of fact, which a court possesses over its judgment only during the term in which it is rendered, is held to continue in the commissioner during the entire compensation period. Such an extension would be inconsistent with and subversive of the considerations which have actuated the generally recognized limitations of the powers of the courts over their judgments.

Id., p. 8.

In a similar vein, but of somewhat more recent vintage, is the matter of Marone v. Waterbury, 244 Conn. 1 (1998). In Marone, the claimant was awarded heart and hypertension disability benefits at a rate equal to his base pay. Approximately seven years later, the Supreme Court handed down its decision in Szudora v. Fairfield, 214 Conn. 552 (1990), holding that the maximum weekly compensation calculations pursuant to § 7-433c C.G.S. should include overtime pay. The claimant sought to have his award recalculated retroactive to its commencement date seven years before. The court “held that Szudora was a new interpretation of the law and, therefore, could be applied only to pending cases.” Liano, supra, at 84. More specifically, the Marone court stated, “[b]ecause neither the plaintiff nor the defendant appealed the original award, it became final and was, accordingly, no longer pending when Szudora was decided.” Marone, supra, at 13.

Relying on its prior decision in Kalinick, supra, the Marone court determined that the trial commissioner had no authority to modify the claimant’s weekly compensation retroactively, remarking that,

Our conclusion is further supported by consideration of the consequences of allowing retroactive recalculations of awards in nonpending cases. Such a ruling would plunge the workers’ compensation system into a state of paralytic uncertainty. Employers and insurers, as well as injured employees, would find it difficult, if not impossible, to plan for the future if judgments could be opened and retroactively modified on the basis of unanticipated changes in the law.

Id., at 18-19.

In the instant matter, we have indicated that we do not consider the holding in Genesky, supra, to represent either a change in or a clarification of the law. However, assuming we did consider Genesky to have changed the law, we think the Marone court’s reasoning does not support the trial commissioner’s decision to open the awards in this matter.

As mentioned herein, the respondents have also asserted, and the trial commissioner so found, that the agreements tendered to the claimant were void ab initio for lack of subject matter jurisdiction. Of course, it is well settled that the issue of subject matter may be raised at any time. Del Toro v. Stamford, 64 Conn. App. 1 (2001), cert. denied, 258 Conn. 913 (2001). However, as our Supreme Court recently observed, “[a]t least [when] the lack of jurisdiction is not entirely obvious, the critical considerations are whether the complaining party had the opportunity to litigate the question of jurisdiction in the original action, and, if he did have such an opportunity, whether there are strong policy reasons for giving him a second opportunity to do so.” Gerte v. Logistec Connecticut, Inc., 283 Conn. 60, 63 (2007), quoting In re Shamika F., 256 Conn. 383, 407-408 (2001).

This board was subsequently guided by that observation in arriving at its decision in Christensen v. Logistec Connecticut, Incorporated, 4961 CRB-3-05-6 (February 23, 2007). In Christensen, we reversed the trial commissioner’s decision to dismiss a longshoreman’s claim for lack of subject matter jurisdiction after the parties had entered into a stipulation. Noting that “[i]n Gerte, we acknowledged that a challenge to subject matter jurisdiction can be raised at any time but there are instances where public policy supports leaving a judgment undisturbed when subject matter jurisdiction is later challenged,” the board held that “in the instant matter the respondent had the opportunity to litigate the question of subject matter jurisdiction but failed to pursue that opportunity.” Christensen, supra. As we have previously remarked, we find the respondents had ample opportunity to investigate and contest the issue of subject matter jurisdiction prior to entering into the disputed agreements, and this board will not reward their failure to do so on appeal.

This board does recognize the obligation conferred on the trial commissioner by the language of § 31-315 C.G.S. to “retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.” “It has been the policy of this State, uniformly adhered to, to recognize a continuous jurisdiction of an award by the commissioner, during the whole compensable period, a jurisdiction which is necessary and vital, for the protection of the interests of all parties under our Act.” Wysocki v. Bradley & Hubbard Co., 113 Conn. 170, 173 (1931). However, that same statute sharply curtails the ability of a trial commissioner to open a judgment for any reason other than those enumerated by the statute.

Administrative agencies [such as the commission] are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves…. A commissioner may exercise jurisdiction to hear a claim only under the precise circumstances and in the manner particularly prescribed by the enabling legislation. (internal citations omitted)

Stickney v. Sunlight Construction, Inc., 48 Conn. App. 609, 615 (1998).17

Thus, in O’Neil v. Honeywell, Inc., 66 Conn. App. 332 (2001), cert. denied, 259 Conn. 914 (2002), an attempt by the Second Injury Fund to open on equitable grounds a stipulation following the death of the claimant ultimately proved unavailing. The Fund filed its motion when it discovered that the claimant’s administratrix had appeared at the stipulation approval hearing, the claimant having passed away on the same day that the stipulations were delivered to the workers’ compensation commissioner by claimant’s counsel (who was unaware at that time of his client’s death). “The fund argued that lack of notice of the … hearing violated its right to due process and that failure to disclose the claimant’s death violated principles of fairness and full disclosure.” Id., at 334. The trial commissioner granted the Fund’s motion, but on plaintiff’s appeal, the appellate court reversed, stating that “[w]e conclude that the commissioner did not have authority to grant the fund equitable relief under § 31-315 because there is no evidence that the fund was prevented from making a defense by fraud, accident, mistake, surprise or improper management of the opposite party.” Id., at 339.

In the instant matter, we likewise find no evidentiary support for the proposition that the respondents were prevented from contesting the issue of subject matter jurisdiction by “fraud, accident, mistake, surprise or improper management of the opposite party.” Id. As the foregoing analysis indicates, the provisions of § 31-315 C.G.S. certainly afford the trier some degree of discretion to modify awards, but the legal interpretations of the statute have imposed significant limitations on that discretion. “Once approved, ‘an Award by Stipulation is a binding award which, on its terms, bars a further claim for compensation unless [General Statutes §] 31-315, which allows for modification, is satisfied.’” Id., at 337, quoting Gagne v. Tilcon, Inc., 4031 CRB3993 (May 25, 2000). If the discretion of the trial commissioner to grant the petition of a claimant seeking relief is circumscribed by the limitations placed upon § 31-315 C.G.S., so must it also be for the petition of a respondent. Clearly the assumptions of the instant parties regarding the applicability of § 7-433c C.G.S. to their mutual agreements were in retrospect inaccurate, but given the stipulated facts as presented at the time of signing, the decisions of the respective trial commissioners18 to approve the original awards were eminently reasonable.19

The Ruling on the Employer’s Motion to Modify of the trial commissioner acting for the Seventh District is accordingly reversed, and we hereby remand this matter for additional proceedings consistent with this opinion. Insofar as any benefits due the claimant may have remained unpaid pending appeal, interest is awarded as required by § 31-301c(b) C.G.S.

Commissioners Stephen B. Delaney and Charles F. Senich concur in this decision.

1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT

2 Sec. 7-433c C.G.S. (Rev. to 2001) states, in pertinent part:

(a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term “municipal employer” shall have the same meaning and shall be defined as said term is defined in section 7-467. BACK TO TEXT

3 Sec. 7-274 C.G.S. (Rev. to 2001) states: Any town may, by ordinance, establish a board of police commissioners to be elected, in accordance with the provisions of section 9-201 or to be appointed by the council or board of directors of a town, the common council or other body empowered to make ordinances of a city, the board of burgesses of a borough or the board of selectmen of a town not having a council or board of directors, provided in a town having both a board of selectmen and a representative town meeting such ordinance may designate the representative town meeting as the appointing authority, for the purpose of organizing and maintaining a police department in such town. Such board shall consist of three, five or seven electors, all of whom shall be resident taxpayers of such town. Such commissioners shall be sworn to the faithful performance of their duties and shall serve without compensation, but their actual expenses and disbursements incurred in the performance of their duties shall be paid from the town treasury. BACK TO TEXT

4 With regard to the organization of the Redding police department, the respondent employer has asserted:

a) There is no elected or appointed board of police commissioners or any of the other mechanisms for organizing and maintaining a police force as articulated in Section 7-274, Conn. Gen. Stat.

b) Until July 1, 2002, the Town of Redding contracted with the State of Connecticut to employ the resident state trooper program.

c) The resident state trooper had the responsibility for maintaining the police department on a daily basis.

d) The resident state trooper performed management functions, including scheduling of officers for work, crime investigations and training of officers.

e) Until July 1, 2002, the Redding First Selectman served as the chief of police.

f) On July 1, 2002, the Town of Redding hired an individual to be chief of police, with the duty of managing the police department on a daily basis, and cancelled the resident state trooper contract.

g) The Redding First Selectman is ultimately responsible for disciplinary action against police officers.

h) The police officers have always been regarded as constables.

Employer Motion to Modify Award, p. 3. BACK TO TEXT

5 Sec. 31-315 C.G.S. (Rev. to 2001) provides: Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question. BACK TO TEXT

6 Sec. 31-294c (Rev. to 2001) provides:

(a) No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury BACK TO TEXT

7 In Salmeri, the claimant, a state trooper, filed a claim for heart and hypertension benefits pursuant to § 5-145 C.G.S., which provides heart and hypertension benefits to state employees in hazardous occupations, rather than § 29-4a C.G.S., which provides heart and hypertension benefits to state police. The court concluded that even though the claimant had elected the incorrect statutory remedy, the claim could proceed, stating that “the use of § 5-145a as the plaintiff’s avenue of relief, instead of § 29-4a, makes little or no difference.” Id., at 331. Further, “[T]he state employer had sufficient notice of the facts and the issues to be tried and neither it nor the plaintiff was prejudiced by the failure to proceed under § 29-4a.” Id., at 333. Observing that both statutes had been created to offer an alternate remedy to Chapter 568, the court remarked, “[T]he present case involves a conflict between the two statutes, both of which give enhanced benefits, but does not involve a conflict in the amount of compensation due.” Id., at 332. BACK TO TEXT

8 Sec. 31-275 C.G.S., et. seq. BACK TO TEXT

9 Sec. 31-296 C.G.S. (Rev. to 2001) provides, in pertinent part: Before discontinuing or reducing payment on account of total or partial incapacity under any such [voluntary agreement], the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor (sic), and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner. The employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice. BACK TO TEXT

10 The trial commissioner also noted that except for the tax consequences, the amount of benefits for which the claimant was eligible would have been the same under either Chapter 568 or § 7-433c C.G.S. BACK TO TEXT

11 It does not appear from the record before this board that the trial commissioner ever ruled on the Motion to Present Additional Evidence. However, the claimant did file an objection to the motion, arguing that the holding in DeMello v. Cheshire, 3633 CRB-8-97-6 (August 26, 1998) should be dispositive of the issue. In DeMello, the claimant filed a Form 30C asserting a hypertension claim pursuant to § 7-433c C.G.S., which claim the respondents accepted. Following the expiration of the one year statute of limitations, the claimant attempted to convert his claim to one requiring proof of causation pursuant to Chapter 568. The respondents objected, and the trial commissioner dismissed the claim. However, this board reversed and remanded, holding that notice of a claim for benefits pursuant to § 7-433c C.G.S. was also sufficient to place a respondent employer on notice for a Chapter 568 claim. BACK TO TEXT

12 It should be noted that Wausau Insurance Company, the workers’ compensation insurance carrier for the Town of Redding, moved to intervene in this matter on October 16, 2007. In its brief filed on December 13, 2007, Wausau identified two principal issues for analysis: (1) whether the claimant had the right to appeal the rulings of the trial commissioner with regard to the modification of the awards without having filed a cross-appeal; and, (2) whether the trial commissioner had the authority, per Salmeri, to transform the instant matter from a heart and hypertension claim to a workers’ compensation claim in which compensability was already established. BACK TO TEXT

13 The parties also testified that “the municipality did not have a lock up, the First Selectman served as the Chief of Police and that an East Lyme police officer’s arrest powers were limited.” Genesky, supra. BACK TO TEXT

14 As previously mentioned in footnote 5, supra, § 31-315 C.G.S. provides, in pertinent part, that “[t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court.” BACK TO TEXT

15 In Hayden, supra, the respondents appealed a decision by the trial commissioner to uphold a voluntary agreement and several supplemental findings and awards after it was discovered that the claimant was an independent contractor and not an employee. The court affirmed the trial commissioner, remarking that, “[t]he failure to ascertain [the claimant’s status] was due to the negligence of these defendants or their attorney or representative.” Id., at 185. BACK TO TEXT

16 See Rousu v. Collins Co., 114 Conn. 24 (1931). BACK TO TEXT

17 In Stickney, supra, the trial commissioner granted a motion by one insurer to open a voluntary agreement and substitute another insurer when it was determined that the second insurer was the one actually on the risk at the time of the injury. The appellate court reversed, finding that the commissioner did not have subject matter jurisdiction to open and modify the award because the change being sought did not affect the injured employee but, rather, “involve[d] issues of contract law independent of the rights of the injured employee and his employer.” Id., at 617. BACK TO TEXT

18 Commissioner James J. Metro approved the Finding and Award dated March 13, 2003 and Commissioner Leonard S. Paoletta approved the Supplemental Finding and Award dated November 19, 2003. BACK TO TEXT

19 See Mathurin v. Putnam, 136 Conn. 361 (1950), in which the respondent insurer sought to open an award when it was discovered that the claimant, a policeman injured while providing security at a high school football game, should have been insured under the board of education’s policy rather than the police department’s. The court upheld the trial commissioner’s decision to deny the respondent’s motion, remarking, “[t]he immediate question before us is not whether in fact the plaintiff was the employee of the police department but whether the commissioner’s conclusion that he was, when considered on the basis of the subordinate facts, was so unreasonable and illogical as to be an abuse of discretion.” Id., at 366, citing Leszczymski v. Radel Oyster Co., 102 Conn. 511, 514 (1925). BACK TO TEXT

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