Lamberti v. Children’s Discovery Center, Inc.

The claimant was represented by Gary G. Cooper, Esq., 345 Whitney Ave., New Haven, CT 06511.

The respondents were represented by David Kelly, Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the October 31, 1995 Decision Re: Motion to Preclude of the Commissioner acting for the Third District was heard April 19, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 31, 1995 Decision Re: Motion to Preclude of the Commissioner acting for the Third District. She argues on appeal that the commissioner erred in denying that motion. We agree, and reverse the trial commissioner’s decision with orders that the case be remanded for further findings.

The record indicates that the claimant filed a Notice of Claim on March 10, 1995 alleging that she suffered food poisoning in the course of her employment on February 20, 1995. The respondents filed a Form 43 Notice of Intention to Contest Liability on April 24, 1995, according to the Third District date stamp. As § 31-294b(c) allows an employer only 28 days to contest a claim after it has received a notice of claim, the claimant filed a Motion to Preclude asserting the untimeliness of the respondents’ Form 43. The claimant also asserted that the respondents had failed to state sufficient grounds for contest. The respondents objected to that motion on the grounds that the Form 43 did state sufficient cause for denial of the claim, and that the Form 43 raised the absence of an employee-employer relationship, which implicates the subject matter jurisdiction of this Commission and thus supersedes the issue of the Form 43’s tardiness.

The trial commissioner denied the Motion to Preclude. He simply stated that the claimant had failed to establish by competent evidence a basis for granting her motion, and notwithstanding that, Castro v. Viera, 207 Conn. 420 (1988), would control the instant facts and require a full evidentiary hearing with regard to subject matter jurisdiction and compensability. The claimant has appealed from that ruling, arguing that the commissioner erred by not including any findings of facts in his decision.

In Fleming v. New Haven Register, 8 Conn. Workers’ Comp. Rev. Op. 108, 827 CRD-5-89-2 (June 19, 1990), this board reversed a trial commissioner’s denial of a Motion to Preclude where the commissioner had made findings as to the date the notice of claim was received by the employer, the injury date on the claim, and the date the claimant had stopped working. He had also noted that the claimant testified regarding the date that his workplace stress had begun. His conclusion was that “the factual situation presented does not support a preclusion and the consequences that would flow from it. The motion is denied.” Id., 109. Because the commissioner’s ruling did not indicate specific reasons for denying preclusion, we held that it was impossible for this tribunal to determine the legal basis for his decision, obviating meaningful appellate review. We remanded the case to the commissioner for further proceedings.

In this case, there is even less information in the commissioner’s decision. Without any findings, we have no way of determining whether the commissioner’s conclusion has any support in the record. We are not empowered to make findings ourselves based on the evidence, or the parties’ allegations. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Therefore, as we did in Fleming, we remand this case to the trial commissioner so that he may make factual findings.