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Soto v. Swank Crestline, Inc.

CASE NO. 3255 CRB-7-96-1



JULY 24, 1997














The claimant was not represented at oral argument. Notice sent to Francis Ficarra, Esq., 800 Clinton Ave., Bridgeport, CT 06604.

The respondents were represented by Daniel C. Heffernan, Esq., Law Offices of Christine Harrigan, City Place One, 185 Asylum St., Hartford, CT 06103-3402.

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

This Petition for Review from the January 11, 1996 Finding and Order of the Commissioner acting for the Seventh District was heard November 1, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.


JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the January 11, 1996 Finding and Order of the Commissioner acting for the Seventh District. The Fund argues on appeal that the trier failed to issue a timely decision, thereby invalidating said ruling, and that he was deprived of jurisdiction to determine whether the claimant’s injury was transferable under § 31-349 C.G.S. by Public Act 95-277, which makes such a decision the province of a three-doctor medical panel. We reverse the trial commissioner’s decision.

The claimant suffered a compensable injury on February 27, 1980 to her right shoulder. The respondent insurer gave timely notice of its intent to transfer the claimant’s case to the Second Injury Fund, contending that the claimant’s preexisting diabetic condition had made her subsequent disability from the shoulder injury materially and substantially greater by interfering with the course of the claimant’s treatment. The Fund has contested that relationship, and both sides have offered medical opinions to support their positions.

Five formal hearings were held in this case, the last being on June 30, 1995. At that time, the record was closed and the parties who had not yet filed briefs were given one week to do so, pursuant to a request by the Second Injury Fund. The Fund did not file a brief, however. The respondents had already filed a Proposed Finding of Facts on September 19, 1994. The claimant was not involved in the transfer issue. Thus, nothing more was submitted to the trier after June 30, 1995. The commissioner issued his decision on January 11, 1996, in which he ordered that liability be transferred to the Fund after the 104th week of disability. The Fund has appealed that decision.

There are two jurisdictional issues raised in this appeal: the effect of the 120-day provision in § 31-300 C.G.S., and the effect of P.A. 95-277, § 4(a)1 on the trier’s authority to issue a decision in this matter. Our Supreme Court has recently spoken on both of those issues. In Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997), the Court decided that P.A. 95-277, § 4(a) “applies retroactively to all pending transfer claims in which the claimant’s second injury occurred prior to July 1, 1995.” Id., 309. The Court ruled that the trial commissioner in Hall had correctly refused to consider the issue of transfer to the Fund at an August 8, 1995 formal hearing. Instead, the issue of medical qualification for transfer should have been submitted to the medical panel as provided by § 4(a) of the amendment to § 31-349, which took effect on July 1, 1995.

In Stewart v. Tunxis Service Center, 237 Conn. 71 (1996), the Court held that the provision in § 31-300 requiring a commissioner to send each party a written copy of his findings and award no later than 120 days after the conclusion of any hearing is mandatory rather than dependent on a showing of prejudice. However, the parties may waive a trial commissioner’s noncompliance with § 31-300 either explicitly or implicitly by conduct. Id., 80-81. This board has since held that when the 120-day time period has long passed, and a party has failed to object to the tardiness of a decision, we are inclined to interpret such inaction as an intent to waive the time limitation. Barring special circumstances, a party should not be allowed to choose to enforce its right to invalidate a ruling only after the party reviews the trier’s decision and decides that the ruling is adverse to its interests. Minneman v. Norwich Board of Education/Norwich Public Schools, 2294 CRB-2-95-2 (decided Dec. 13, 1996); Stewart v. Tunxis Service Center, 16 Conn. Workers’ Comp. Rev. Op. 69, 1684 CRB-6-93-4 (Oct. 30, 1996).

In this case, the last formal hearing was held on June 30, 1995. The Fund sought a week’s extension to determine whether anything else needed to be filed, and the trier gave them one week to file a brief. Nothing was in fact filed. Generally, the appropriate date to begin the calculation of the 120-day period is the date when the last brief or proposed finding is filed, whether or not it be done at a pro forma hearing. See Dichello v. Holgrath Corporation, 15 Conn. Workers’ Comp. Rev. Op. 441, 443, 2249 CRB-5-94-12 (Sept. 5, 1996). Any other result would penalize the trier of fact for waiting for the parties’ briefs, as he or she would have less time in which to write a decision.

Because no documents or briefs were filed here after June 30, 1995, we hold that the record in fact closed on that date, and the 120th day lapsed on October 28, 1995 (or October 30, 1995, which was the following Monday). The decision was thus issued over two months after the expiration of the statutory time limitation. However, the Fund did not raise any objection or concern regarding the lateness of the trier’s decision until they had received the unfavorable ruling. As we discussed in Minneman, supra, and Stewart, supra, we will not allow parties the luxury of holding a kind of “veto power” over late decisions that they can exercise when they decide they are unhappy with a particular ruling. Instead, the objection to the late decision must be made in a seasonable manner. We thus construe the Fund’s inaction as a waiver in this case.

As stated above, our Supreme Court has stated that Public Act 95-277, § 4(a) applies to all pending transfer cases in which the date of the second injury is prior to July 1, 1995. By “pending transfer cases,” it would appear that the Court was referring to all cases that have not yet reached final judgment, or at least those that were still in dispute when the amendment to § 31-349 went into effect on July 1, 1995. Although no further evidence was taken in this case after June 30, 1995, Black’s Law Dictionary states that “an action or suit is ‘pending’ from its inception until the rendition of final judgment.” See Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569 (1981); Rivera v. Allstate Ins. Co., 44 Conn. App. 47, 52 (1996). No final judgment has yet been reached in this case.

We recently stated in Marone v. City of Waterbury, 3117 CRB-5-95-7 (Jan. 10, 1997), that retroactive application of an appellate decision is contemplated in cases in which “proceedings are still pending,” i.e., cases that have not become final, and in which no further appeal is possible. The definition of “pending” does not radically change when the retroactive application of a statute, where allowable, is being contemplated. See Enfield Federal Savings & Loan Assn., supra, 573 (discussing whether amendment of statute that took effect while appeal was pending should be applied to case). Pursuant to Hall, supra, all pending transfer cases must be submitted to the three-physician panel to determine whether they medically qualify for transfer. This case was still pending before the trial commissioner as of July 1, 1995, and is now pending on appeal before this board. Accordingly, we hold that, at the time the trier issued his Finding and Order, he lacked jurisdiction to decide that the claimant’s second injury medically qualified for transfer. Therefore, we must vacate his decision.2

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

1 Public Act 95-277, § 4(a) provides that “The custodian of the Second Injury Fund and an insurer or self-insured employer seeking to transfer a claim to the fund shall submit all controverted issues regarding the existence of a previous disability under section 31-349 of the general statutes, as amended by section 3 of this act, to the chairman of the Workers’ Compensation Commission. The chairman shall appoint a panel of three physicians, as defined in subdivision (17) of section 31-275 of the general statutes, and submit such dispute to the panel, along with whatever evidence and materials he deems necessary for consideration in the matter. The panel may examine the claimant, who shall submit to any examination such panel may require. Within sixty days of receiving the submission, the panel shall file its opinion, in writing, with the chairman, who shall forward it, along with any records generated by the panel’s work on the case, to the commissioner having jurisdiction over the claim in which the dispute arose. The panel’s opinion shall be determined by a majority vote of the three members. Such opinion shall be binding on all parties to the claim and may not be appealed to the Compensation Review Board pursuant to section 31-301 of the general statutes, as amended by section 9 of this act.” BACK TO TEXT

2 We do not decide here whether cases in which the trial commissioner had issued a decision regarding transfer before July 1, 1995 should be considered final despite a pending appeal. Based on the decisions of our Supreme Court, other factors would need to be considered in making such a determination. See Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 573 (1981); Salem Park, Inc. v. Salem, 149 Conn. 141, 144 (1961). BACK TO TEXT

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