Holland v. UTC/Pratt & Whitney

CASE NO. 3248 CRB-2-96-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 14, 1997

JOSEPH HOLLAND

CLAIMANT-APPELLANT

v.

UTC/PRATT & WHITNEY

EMPLOYER

and

CIGNA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was not represented at oral argument, and went forth on papers. Notice sent to Giancarlo Rossi, Esq., Bershtein, Bershtein, & Bershtein, P.C., 1188 Dixwell Ave., Hamden, CT 06514.

The respondents were not represented at oral argument, and went forth on papers. Notice sent to Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the January 12, 1996 Finding and Award of the Commissioner acting for the Eighth District was considered on November 22, 1996 by 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 January 12, 1996 Finding and Award of the Commissioner acting for the Eighth District. Among the arguments he raises on appeal is a contention that the commissioner did not issue his decision within 120 days from the close of the last hearing. We agree that the decision was several months tardy, and vacate the award.

As our Supreme Court recently discussed in Stewart v. Tunxis Service Center, 231 Conn. 71 (1996), compliance with the 120-day time period in § 31-300 is mandatory. Id., 76-80. However, a trial commissioner’s compliance with the statute may be waived either explicitly or implicitly by conduct. Id., 80; Dichello v. Holgrath Corp., 15 Conn. Workers’ Comp. Rev. Op. 441, 2249 CRB-5-94-12 (Sept. 5, 1996). We have held that the failure to promptly object to a tardy award is tantamount to waiver; Dichello, supra; as is an objection that is first raised after the late decision has been issued and the appellant’s case dismissed. Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (decided Dec. 13, 1996).

Here, the 120th day following the July 11, 1995 filing of the respondents’ brief was November 8, 1995. On November 17, 1995, claimant’s counsel wrote to the trier regarding the late ruling. He also spoke to a clerk at the district office several times to ask when a decision would be forthcoming. Although there is no proof that counsel specifically cited the provisions of § 31-300 in his communications, it is clear that he was attempting to press his client’s right to a speedy decision. We do not believe that this amounts to a waiver of the provisions of § 31-300, as the claimant’s counsel began to actively seek a decision as soon as the 120-day limit had passed. See Stewart v. Tunxis Service Center, 16 Conn. Workers’ Comp. Rev. Op. 69, 1684 CRB-6-93-4 (Oct. 30, 1996). Thus, the claimant is entitled to raise that issue on appeal. We hold that the commissioner’s award must be vacated and the case remanded to the Eighth District for further proceedings.

Commissioners George A. Waldron and Robin L. Wilson concur.