Cruz v. Sheraton Hartford Hotel

The claimant was represented by Atty. Robert Fitzgerald, Esq., Fitzgerald & Prucker, 1127 Tolland Turnpike, (101 Buckland Center), Manchester, CT 06040.

The respondent, Second Injury Fund, was represented by Loida John-Nicholson, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 5, 1992 Finding and Dismissal of Claim of the Commissioner acting for the First District was heard January 14, 1994 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JOHN A. ARCUDI, COMMISSIONER. Claimant appeals the Commissioner’s denial of additional benefits. A voluntary agreement approved by the First District October 22, 1987 established the compensability of her July 2, 1982 back injury. She was paid benefits including those for an incremental five percent permanent partial loss of the back. Because there had been a previous 1980 injury and impairment, liability for paying benefits was transferred to the Second Injury Fund under § 31-349, C.G.S. at some point.

The present proceedings arose because claimant was seeking further permanent partial back disability in addition to the ten percent for the 1980 injury and five percent for the 1982 injury. Her claim was for ten percent more so that the total permanent awarded would be twenty-five percent. She also sought more temporary total disability benefits. Both these claims were resisted by the Fund and denied in the commissioner’s ruling here being appealed.

To support the appeal she argues: (1) the Commissioner’s November 5, 1992 decision should be vacated as it was rendered more than 120 days after the date of the last evidentiary hearing, April 29, 1992; (2) the decision should be set aside due to the Fund’s failure to file its appellate brief, a contention set forth in claimant’s January 12, 1994 Practice Book Sec. 4055 motion.

When claimant’s injury occurred July 2, 1992, § 31-278 provided for district jurisdiction over matters arising in each district, so the matter was under the jurisdiction of the First District Commissioner. Effective July 1, 1992, district jurisdiction was abolished, P.A. 91-339. The requirement in § 31-300 that a commissioner should render his decision within 120 days was enacted in 1985, P.A. 85-64, also after this date of injury. That 1985 amendment did not include any remedy or procedure to be followed if the district commissioner, the one with sole jurisdiction in the matter apart from the chairman, failed to decide the matter within 120 days.

We discussed these statutes, as they existed before the 1991 amendment in Stevens v. City of Hartford, 8 Conn. Workers’ Comp Rev. Op. 134, 831 CRD-1-89-2 (Aug. 6, 1990). There we relied on Besade v. Interstate Security Services, 212 Conn. 441, 450-52 (1989) and Statewide Grievance Committee v. Rozbicki, 211 Conn. 232 (1989) to rule that § 31-300, as amended in 1985, did not require automatic divestiture of jurisdiction in the Commissioner if no decision was reached in 120 days. We stated that absent a showing of prejudice to the litigant seeking that remedy, no new trial was necessitated. There has been no showing of prejudice here. It is not as if adjudication of initial claims for compensability of the 1980 and 1982 injury had long been delayed. Those issues had been settled before in claimant’s favor. The present proceedings are not about compensability, they are about the extent of additional permanent partial disability. As no prejudice has been proved, we see no reason to vacate the commissioner’s decision. Moreover, we are not even certain that the 1985 amendment to § 31-300 applies as the dates of the injuries involved were before the date of enactment of P.A. 85-64.

Claimant’s second contention that the Fund failed to defend the appeal with proper diligence is an argument based on Practice Book Sec. 4055. That section of the Practice Book does not mandate the setting aside of the decision below. It leaves it to the discretion of the appellate forum. Here, again, without a showing of prejudice, we see no reason to exercise the discretion provided in Practice Book Sec. 4055.