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CASE NO. 3306 CRB-3-96-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 21, 1997
BLACK TIE LIMOUSINE
GREAT AMERICAN INSURANCE CO.
SECOND INJURY FUND
The claimant was represented by Joseph B. Barnes, Esq., 8 North St., Milford, CT 06460.
The respondent employer was represented by William C. Brown, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.
The respondent insurer was represented by David J. Weil, Esq., Nuzzo & Roberts, L.L.C., One Town Center, P. O. Box 747, Cheshire, CT 06410.
The Second Injury Fund was not represented at oral argument. Notice sent to Michael Giammatteo, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
These Petitions for Review from the March 8, 1996 Decision of the Commissioner acting for the Third District were 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.
JESSE M. FRANKL, CHAIRMAN. The respondent employer and respondent insurer have filed separate petitions for review from the March 8, 1996 Decision of the Commissioner acting for the Third District. They both argue that he erred by granting the claimant’s Motion to Open Dismissal and Return to Trial List. We affirm the trial commissioner’s decision.
A formal hearing was scheduled in this case on January 10, 1996 at 1:00 p.m. at the Third District office. The claimant’s attorney did not appear, and all of the respondents joined in the employer’s motion to dismiss for failure to appear and diligently prosecute the claim. The commissioner granted that motion. Apparently, the claimant’s attorney had believed that the matter was scheduled for 2:00 p.m., and showed up just after the case had been dismissed. (The claimant himself was residing in Wisconsin on that date.) The commissioner suggested to the claimant’s attorney that he file documents to reopen the matter immediately. (March 1, 1996 Transcript, p. 4). However, when nothing came forth, the commissioner made a formal finding and dismissal on January 19, 1996.
The claimant filed a motion to reopen the dismissal on February 22, 1996, noting that less than four months had elapsed since the judgment was rendered, and explaining the reason for the failure to appear at the formal hearing. The commissioner held a hearing on the motion, where the claimant’s counsel cited § 31-315 C.G.S. in support of his motion. The respondents pointed out the claimant’s failure to appeal within ten days of the decision and argued that the commissioner’s jurisdiction over the case had terminated. The commissioner granted the motion to reopen the case, whereupon the respondents appealed to this board.
Section 31-315 states:
Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.
The respondents argue that this statute does not authorize a commissioner to reopen a claim when a dismissal has been entered, as it only addresses cases involving an award of compensation or a voluntary agreement. They contend that the claimant’s remedy in this case was to appeal the dismissal order pursuant to § 31-301 C.G.S., and that his failure to file a petition for review within ten days of that decision cost him the chance to pursue his claim any further.
The respondents’ interpretation of the phrase “award of, or voluntary agreement concerning, compensation” in § 31-315 is allegedly based on a plain reading of the statute and on their construction of the rest of its language. However, this argument has several weaknesses. First, assuming arguendo that the list of situations warranting modification seems to presuppose that the claimant is receiving compensation, the next sentence states that the commissioner shall also have the same power to open and modify an award as any state court has to open and modify one of its judgments. This power is additional to the one described in the first sentence of § 31-315. Thus, the definition of “award” is not completely constrained by the opening sentence of that statute. We note that under § 52-212 C.G.S. and Practice Book § 377, a judgment rendered upon a default or nonsuit may be set aside within four months of the date notice was sent, as long as the movant can show the existence of a good cause of action or defense, and that mistake, accident or “other reasonable cause” prevented the prosecution of the claim or defense.
Second, the last sentence of the statute states that the commissioner shall retain jurisdiction over “claims for compensation, awards and voluntary agreements” during the whole compensation period applicable to the injury in question. Presumably, “claims for compensation” refers to something other than awards and voluntary agreements, or the phrase would be unnecessary. The most evident possibility is that it refers to pending claims. Read in conjunction with the preceding sentence, this could encompass claims that were dismissed on procedural grounds, but merit a second look in the opinion of the trial commissioner. Thus, he would have the discretion to entertain a motion to set aside a dismissal as per Practice Book § 377.
Third, the respondents’ argument that “award of, or voluntary agreement concerning, compensation” does not include dismissal orders is wrapped up in the idea that the claimant’s remedy here was to appeal the decision under § 31-301. However, a look at § 31-301 shows that it requires an appeal to be filed “within ten days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b.” Interestingly, there is also no mention of dismissal orders in this statute. Of course, no one could reasonably argue that this statute implies that there is either no right of appeal from a dismissal order, or that the time to appeal such a decision is indefinite. Instead, it is apparent from a common-sense reading of the statute that “award” encompasses dismissal orders as well as orders to pay compensation. Why the case should be different for § 31-315 is not explained by the respondents, and unclear to this board.
The respondents also argue that, even if § 31-315 allows the claimant’s motion, he did not meet the requirements of Practice Book § 377 to justify opening the dismissal. They cite Segretario v. Stewart-Warner Corp., 9 Conn. App. 355 (1986), in support of their argument. In that case, our Appellate Court reviewed the standard for a trial court’s determination of a motion to open a judgment of nonsuit pursuant to § 52-212. “The granting of relief under this statute, when its provisions are properly complied with, lies within the sound discretion of the trial court. . . . Such relief ordinarily should not be granted if the failure to comply with an order of the court resulted from the moving party’s own negligence.” Id., 361-62, citing Jaquith v. Revson, 159 Conn. 427, 431-32 (1970). The trial court had failed to address the merits of the intervening plaintiff’s motion for setting aside the nonsuit. The Appellate Court could not review the validity of the ruling on that motion, which was (erroneously) predicated instead on other grounds concerning counsel’s conduct. However, the Appellate Court held that the intervening plaintiff had not met his burden of proving that such error was harmful in light of the facts of the case, as the failure of counsel’s secretary to adequately record the date of trial on counsel’s calendar was probably counsel’s fault, and that “in view of the totality of the circumstances, the cause given for setting aside the nonsuit was neither reasonable cause nor adequate for the purpose.” Id., 363. See also Jaconski v. AMF, Inc., 208 Conn. 230 (1988) (trial court found plaintiff negligent in failing to revise complaint, and ruled it had no discretion to reopen nonsuit; affirmed by Supreme Court).
Although these cases could provide guidance to a trier of fact entertaining a similar motion, they are not binding with respect to the legal effect of a calendaring error by counsel or counsel’s secretary. Here, the trial commissioner made no finding that claimant’s counsel was negligent. He could just as easily have concluded that the late arrival of the claimant’s counsel at the formal hearing was a reasonable mistake, and that in the remedial spirit of the Workers’ Compensation Act, the appropriate solution was to hear the case on the merits. See Gil v. Courthouse One, 239 Conn. 676, 682 (1997) (Act is remedial and must be interpreted liberally to achieve humanitarian purposes); Infante v. Mansfield Construction, 3067 CRB-4-95-5 (decided Dec. 18, 1996) (respondents needed to show abuse of discretion in trier’s denial of motion to modify before CRB could interfere with decision). We are not persuaded that he would have been outside the bounds of his authority in doing so.
The trial commissioner’s decision is hereby affirmed.
Commissioners George A. Waldron and Robin L. Wilson concur.
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