Ridente v. MMR Wallace

The claimant was represented by Richard Aries, Esq., P. O. Box 431, South Windsor, CT 06074.

The respondents were represented by James L. Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

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 March 13, 1996 Finding of Facts and Award of Compensation of the Commissioner acting for the Sixth District was heard December 13, 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 Second Injury Fund has petitioned for review from the March 13, 1996 Finding of Facts and Award of Compensation of the Commissioner acting for the Sixth District. The Fund argues on appeal that the trier lacked jurisdiction to decide this case because the issue of transfer of liability pursuant to § 31-349 C.G.S. should have been presented to a three-doctor medical panel as per P.A. 95-277, § 4(a). The Fund also argues that the trier’s decision was issued more than 120 days after the last hearing, and was thus late under § 31-300 C.G.S. We reverse the trial commissioner’s decision.

The trier found that the claimant sustained a back injury in 1987, and subsequent injuries in 1988, 1990, and 1992. The primary source of the claimant’s disability was the 1987 back injury. After reviewing the testimony of Dr. Biondino and Dr. Becker, the trier found that the claimant’s degenerative disc disease and congenital spinal stenosis had made his disability materially and substantially greater than it would have been had the claimant only sustained the back injury. As the respondents provided timely notice to the Second Injury Fund, the commissioner ordered that liability for the back injury be transferred to the Fund pursuant to § 31-349. The Fund has appealed that decision on two jurisdictional grounds.

The formal hearing in this case was held on December 15, 1993. The respondents’ brief and proposed finding were filed toward the end of January, 1994. The record contains no proposed findings or briefs from the Fund or the claimant. Thus, we presume that the 120-day period for the commissioner to issue a decision began running on January 27, 1994, the date the proposed finding was filed. The trier’s decision is dated March 13, 1996, which is over two years after that date. However, a party must seasonably raise the issue of the tardiness of a decision in order to enforce its right to invalidate a late ruling. See Stewart v. Tunxis Service Center, 16 Conn. Workers’ Comp. Rev. Op. 69, 1684 CRB-6-93-4 (Oct. 30, 1996). Failure to raise this issue can result in the waiver of this right. Stewart v. Tunxis Service Center, 237 Conn. 71, 80-81 (1996); Minneman v. Norwich Board of Education/Norwich Public Schools, 2294 CRB-2-95-2 (decided Dec. 13, 1996).

The Fund wrote a letter to the respondents’ counsel (with a copy sent to the Sixth District Office) on February 5, 1996, objecting that § 31-349 was amended on July 1, 1995, and that a commissioner should not be adjudicating the issue of transfer at that time. This letter does not mention the Fund’s concern that the trier’s decision was two years late, however, and does not indicate that this fact posed any kind of problem to the Fund. If anything, the Fund’s letter was requesting a further delay of this case due to concerns regarding jurisdiction in light of the amendment to § 31-349. We do not read this letter to constitute a seasonable or timely objection to the lateness of the trier’s decision. Thus, we will not allow the Fund to raise the 120-day provision as a ground for appeal now that a decision unfavorable to their interests has been issued after all this time. See Minneman, supra.

The second jurisdictional issue raised by the Fund on appeal cannot be dismissed by this board, however. In light of our Supreme Court’s decision in Hall v. Gilbert & Bennett Mfg. Co., Inc., 241 Conn. 282 (1997), in which the court decided that P.A. 95-277, § 4(a) applies retroactively to all pending transfer claims where the second injury occurred before July 1, 1995, this case must be submitted to a three-doctor medical panel for determination of whether this claim qualifies for transfer to the Fund. We recently stated in Soto v. Swank Crestline Inc., 3255 CRB-7-96-1 (July 24, 1997), that “pending transfer cases” refers to all cases that have not yet reached final judgment. As this case is still pending within our state judicial system, and had not even been decided yet when P.A. 95-277 went into effect, the trial commissioner did not have jurisdiction to adjudicate the issue of medical qualification for transfer under § 31-349. Thus, his decision must be vacated on that ground.