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CASE NO. 1684 CRB-6-93-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 30, 1996
TUNXIS SERVICE CENTER
SECOND INJURY FUND
The claimant was represented by David M. Reilly, Esq., 129 Church St., P. O. Box 1533, New Haven, CT 06506-1533. Notice also sent to Allen J. Segal, Esq., Segal & Laska, 100 East Main St., Plainville, CT 06062.
The Second Injury Fund was not represented at oral argument. Notice was sent to Loida John-Nicholson, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the March 26, 1993 Finding and Award of the Commissioner acting for the Sixth District was originally heard on April 29, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet. Pursuant to a decision by the State of Connecticut Supreme Court, it was remanded to the same panel and heard on September 20, 1996 for a determination as to whether the claimant waived his right to challenge the trial commissioner’s untimely decision.
JESSE M. FRANKL, CHAIRMAN. The claimant initially petitioned for review from the March 26, 1993 Finding and Award of the Commissioner acting for the Sixth District, where the claimant’s request for temporary total disability benefits was denied. One of the issues he raised on appeal was the failure of the trial commissioner to issue his decision within 120 days of the conclusion of hearings on this matter. Relying on our opinion in Stevens v. City of Hartford, 8 Conn. Workers’ Comp. Rev. Op. 134, 831 CRD-1-89-2 (Aug. 6, 1990), we ruled that the tardiness of the award did not require a new trial unless the claimant could demonstrate prejudice due to the delay. Stewart v. Tunxis Service Center, 13 Conn. Workers’ Comp. Rev. Op. 135, 136-37, 1684 CRB-6-93-4 (Feb. 1, 1995). The claimant then appealed our decision to the state Supreme Court, which held that the 120-day time period set forth in § 31-300 C.G.S. is mandatory, and not dependent on a showing of prejudice. Stewart v. Tunxis Service Center, 237 Conn. 71, 76 (1996). The justices also noted that untimeliness can be expressly or impliedly waived. Id. The Court then remanded the case to this board for consideration of the waiver issue, which was not addressed in our previous Stewart opinion.
Whether or not there has been a waiver is essentially a factual question that would normally be the province of a trial commissioner rather than this board. However, the Court specifically stated that in this circumstance it is more appropriate for the CRB to determine whether a party has waived the right to challenge a commissioner’s tardy decision. Id., 81 n.7. As guidance, the Stewart opinion has set forth the general rules surrounding waiver. “Although a mandatory statutory provision typically must be strictly complied with, the parties may waive noncompliance, either explicitly or implicitly by conduct. . . . ‘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 citation omitted.) Id., 80-81, quoting Hensley v. Commissioner of Transportation, 211 Conn. 173 (1989).
We recently addressed this issue for the first time in Dichello v. Holgrath Corporation, 2249 CRB-5-94-12 (decided Sept. 5, 1996). In Dichello, the claimant did not object to the tardiness of the award before it was issued, even though it was over one year late. She also filed a motion to open the record to submit additional evidence and her initial reasons of appeal after the decision was released without raising the 120-day rule. She first mentioned the delay in issuing the decision via amended reasons for appeal over eight months after the award was made. We held that this did not constitute a prompt objection to the award, and amounted to a waiver of the § 31-300 time limit.
In this case, the record was closed on May 19, 1992 with the filing of the Second Injury Fund’s brief. Seven months later, on January 4, 1993, the Sixth District received a letter from the claimant’s attorney stating that the trial commissioner’s failure to issue a decision or continue the claimant’s benefits was unduly prejudicing him, and requesting that the matter be decided as soon as possible. The attorney sent another letter on February 23, 1993 reiterating his objections. He requested that a new formal hearing be held if a decision was not made by March 1, 1993. When no decision came by that date, the claimant’s attorney sent a letter requesting another formal hearing and a continuation of benefits in the interim. Two weeks later, on March 26, 1993, the commissioner entered his award.
It is evident from these communications that the claimant did not waive compliance with the 120-day limit of § 31-300. Unlike the Dichello case, where the claimant waited until eight months after she received an unfavorable decision before raising the issue of timeliness, the claimant here attempted to avail himself of his right to a speedy decision. When the 120-day time limit has long passed, and a party has made no indication that it has an objection to the lateness of a decision, this board is inclined to interpret that inaction as an intent to waive the 120-day time limit. A party shall not be allowed to choose to enforce its right to invalidate a ruling only after the party reviews the decision and decides that it is adverse to its interests, barring special circumstances. Here, on the contrary, the claimant raised the issue of tardiness well before the decision was issued. It is quite apparent that he did not relinquish his right to assert noncompliance with § 31-300 as an objection to the late Finding and Award.
Accordingly, the trial commissioner’s decision is vacated, and this matter is remanded to the Sixth District for a new formal hearing. See Sanchez v. Prestia, 29 Conn. App. 157, 161-62 (1992) (consequence of trial court’s failure to render timely decision is revocation of judgment and scheduling of new trial).
Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.
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