Murphy v. City of West Haven

The claimant was not represented at oral argument. At trial, he was represented by Paul Flynn, Esq., One Trumbull St., New Haven, CT 06511.

The respondents were represented by Kevin J. Maher, Esq., Maher & Williams, 1300 Post Road, P. O. Box, 550, Fairfield, CT 06430-0550.

The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 18, 1994 Finding and Award of the Commissioner acting for the Third District was heard June 9, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund (Fund) has petitioned for review from the October 18, 1994 Finding and Award of the Commissioner for the Third District. The parties stipulated that the deceased claimant was a police officer for the respondent employer City of West Haven, and that he filed a § 7-433c C.G.S. heart and hypertension claim that was deemed compensable. The claimant received total disability benefits from the January 14, 1977 date of injury until his death on September 17, 1984, which was caused by that injury. After that date, the claimant’s widow was paid dependent widow’s benefits under § 7-433c by the respondent insurer.

The insurer subsequently argued below that under § 31-306(a)(2)(B) and 31-306(b) of the Workers’ Compensation Act, it was entitled to reimbursement for § 7-433c benefits paid to the dependent widow. In accord with this Board’s decision in McNulty v. Stamford, 12 Conn. Workers’ Comp. Rev. Op. 32, 1332 CRD-7-91-10 (Jan. 26, 1994), the commissioner agreed and ordered that the Fund reimburse the insurer for all payments made to the claimant’s widow. The award was issued on October 18, 1994; the Second Injury Fund filed a petition for review on October 31, 1994, acknowledging in the petition that it received the commissioner’s decision on October 19, 1994.

The respondents filed a timely motion to dismiss the Fund’s petition for review on the ground that it was filed after the 10-day appeal period prescribed by § 31-301(a). We note that the Fund also failed to file Reasons for Appeal, a Brief, a Motion to Correct, or anything else to support its claim of error. However, on May 16, 1995, our Appellate Court issued its decision in McNulty v. Stamford, 37 Conn. App. 835 (1995), holding that § 7-433c benefits are not benefits payable within the Workers’ Compensation Act, and that the Fund cannot be liable absent express statutory authorization for Fund liability for awards made outside the Act. Under McNulty, the Fund would not be liable for the § 31-306 payments made by the insurer in this case. At oral argument, the Fund contended that the McNulty decision rendered the commissioner’s order void regardless of the timeliness of its appeal.

The respondents correctly assert in their Motion to Dismiss that the Fund did not file its appeal on time. As we have often held, this Board does not have subject matter jurisdiction over a late appeal. O’Connor v. United Parcel Service, 1741 CRB-4-93-5 (decided March 30, 1995). There is no question that this appeal is late. This Board consequently lacks the authority to consider the merits of this appeal and affirm or reverse the decision below.

Despite the complete disregard for the appellate procedure of the Compensation Review Board by the Fund’s attorney, however, we remain cognizant of the impact that the McNulty decision has on the validity of the commissioner’s award. Therefore, this board is compelled to overlook the poor appellate practice of the Fund’s attorney. We instead exercise our equitable powers by construing the Fund’s appeal as a motion to modify the award based on changed conditions of fact under § 31-315. See Vincent v. New Milford, 8 Conn. Workers’ Comp. Rev. Op. 27, 30-31, 761 CRD-7-88-8 (Feb. 5, 1990). The case is thus remanded to the Third District for further consideration of the Fund’s motion to modify the award based on the impact of the McNulty decision.