State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Fish v. Caldor, Inc.

CASE NO. 3840 CRB-07-98-06



MAY 11, 1999














The claimant was represented by Douglas Lewis, Esq., Evans & Lewis, 93 Greenwood Ave., Bethel, CT 06801.

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

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 May 14, 1998 report of a three-physician medical panel appointed by the Chairman of this Commission pursuant to §31-349c C.G.S., and regarding a case arising in the Seventh District, was heard October 23, 1998 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Michael S. Miles and Stephen B. Delaney.


DONALD H. DOYLE, JR., COMMISSIONER. The respondents have filed a petition for review from a May 14, 1998 report that was prepared by a three-physician medical panel pursuant to § 31-349c(a) C.G.S. This case, which arose in the Seventh District, concerns a claimant who allegedly injured her low back on June 13, 1990, and allegedly suffered an exacerbation of that injury on November 11, 1993. A voluntary agreement between the claimant and the respondents was approved by a commissioner on September 17, 1996, stipulating that the claimant was entitled to 93.5 weeks of compensation for a 25% permanent partial impairment of her back as a result of the 1993 injury.

The respondents then requested that liability for the injury be transferred to the Second Injury Fund as per § 31-349. The Fund apparently opposed this effort, and requested that the issue of medical qualification for transfer be referred to a medical panel pursuant to § 31-349c(a).1 The Chairman of this Commission made that referral, and the panel issued an opinion on May 14, 1998. Its assessment was that the claimant’s current back symptoms were causally related to her June 13, 1990 accident, but were not materially and substantially worsened by her 1993 exacerbation. The panel opined that the claimant’s disability was therefore exclusively related to the 1990 injury. Upon receipt of the medical panel’s opinion, the respondents filed a petition for review with this board. There has been no decision by a trial commissioner in this matter.

Both the claimant and the Second Injury Fund have moved to dismiss the respondents’ appeal on the ground that § 31-349c(a) expressly denies this board jurisdiction to entertain an appeal from a decision of the medical panel. The Fund also emphasizes that § 31-301(a) only allows appeals to the CRB from awards and decisions by a commissioner, and posits that this statutory classification does not encompass the three-doctor medical panel’s non-adjudicatory opinion. The respondents have countered with several arguments that collectively oppose the motion to dismiss, question the scope of the medical panel’s authority to decide issues related to the existence of a previous disability, and challenge the constitutionality of § 31-349c both on its face and as this Commission interpreted it in a prior case. See Olsen v. Dubois Chemicals, Inc., 3385 CRB-7-96-7 (Dec. 29, 1997).

The motions to dismiss the respondents’ petition for review rest upon the premise that this board does not have subject matter jurisdiction over this appeal. In resolving this matter, we begin with a self-description. The Workers’ Compensation Commission is an administrative body whose powers and responsibilities are prescribed by the language of the Workers’ Compensation Act. Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 290-91 (1997). The Compensation Review Board is a part of that Commission, and a creature of that Act. It is neither an Article III court under the United States Constitution, nor a tribunal that exists pursuant to Article Fifth, §1 of the Connecticut Constitution. Thus, the CRB has no residual discretion to confer jurisdiction upon itself in cases that fall outside the definition of its limited appellate jurisdiction. Hall, supra, 291.

The appellate authority of the CRB essentially springs from a single statutory source: § 31-301(a). That section affords parties the right to appeal from three distinct actions of a commissioner: (1) an entry of an award; (2) a decision upon a motion; or (3) an order according to the provisions of § 31-299b. Hall, supra, citing Dixon v. United Illuminating Co., 232 Conn. 758, 775-76 (1995). There has been no decision by a commissioner in this case. The instant appeal was filed in response to the opinion of a medical panel. Moreover, § 31-349c(a) asserts that such an 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.” This language precisely and pointedly contradicts the respondents’ contention that we may assert jurisdiction over their petition for review.

In attempting to dissuade us from dismissing their appeal, the respondents have waged a three-fronted attack against § 31-349c as it has been applied in this case. First, they stress that the medical panel confirmed the existence of a previous disability, which establishes the necessary factual predicate for transfer. Second, they contend that the medical panel went beyond the scope of § 31-349c by considering the claimant’s subsequent disability, and compounded its error by misapplying the legal standard in evaluating this inappropriate subject. Third, the respondents assert that § 31-349c violates due process because it is too vague, and omits necessary decisionmaking safeguards such as the right to a hearing and the requirement that a written decision be issued in accordance with legal rules. See Goldberg v. Kelly, 397 U.S. 254 (1970). The appellants insist that none of these arguments constitute a substantive challenge to the opinion of the medical panel, thus bringing them within this board’s jurisdiction.

As plausible as those distinctions may sound, the respondents still must surmount a greater barrier: a fundamental limitation on decisional reviewability that is implicit in, and created by, § 31-301(a). Which, if any, of these arguments may we address in the absence of a trial commissioner’s decision? Even if § 31-349c made no mention of the Compensation Review Board, we would be unable to conduct an appellate-level review of those issues that concern the meaning and effect of the medical panel’s opinion. There are neither factual findings nor legal conclusions for this board to review, as the panel’s opinion has not been evaluated by a trier of fact and integrated into the body of an order. At this stage of the proceedings, the panel’s report is a mere piece of evidence. If we were to “enforce” the medical panel’s decision, as the respondents request us to do, we would be improperly entering an order in the commissioner’s stead. That is not our role under § 31-301(a). See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

This board also lacks jurisdiction to deem a statute unconstitutional. Baribault v. Harben Flooring Co., Inc., 3579 CRB-7-97-3 (June 4, 1998). We could not make a determination, for example, that § 31-349c was too vague, or that due process was compromised by the language forbidding medical panel decisions to be appealed to this board. When considering issues of constitutional magnitude, we may go no further than to interpret existing statutes and cases in the manner most consistent with constitutional guarantees, and to instruct all parties concerned to conduct themselves accordingly. See, e.g., Pietraroia v. Northeast Utilities, 3597 CRB-8-97-4 (Sept. 8, 1997).

Recently, this board held that the § 31-349c phrase “all controverted issues regarding the existence of a previous disability” requires the medical panel to consider any issue whose resolution would essentially settle the existence of such a disability, including whether an event constitutes a new injury or a recurrence. Olsen, supra. There is little question that, by passing P.A. 95-277, §4(a), the legislature intended to expedite the resolution of disputes concerning medical qualification for transfer to the Fund. Hall, supra, 303-304. There is also little doubt that the medical panel procedure curtails many of the rights previously granted to parties seeking transfer, including the right to appeal findings regarding the existence of a previous disability to the CRB, and the right to present oral argument. However, as stated above, it is our duty to read that statute as consistently as possible with constitutional guarantees of due process. Having re-examined the language of the statute, we now realize that the language of Olsen suggests a broader interpretation of the term “previous disability” than is statutorily appropriate in light of the truncated procedures associated with the use of the medical panel.

Section 31-275(20) defines “previous disability” to mean “an employee’s preexisting condition caused by the total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye resulting from accidental injury, disease or congenital causes, or other permanent physical impairment.” Questions regarding the existence of a previous disability are therefore those that concern whether an employee has such a preexisting condition. In Olsen, the claimant had allegedly suffered injuries to her back on two separate dates. Whether the claimant had a previous disability was dependent upon the occurrence of a subsequent new injury or a recurrence of the first injury. The CRB consequently ruled that the issue of whether the Claimant suffered a new injury or a recurrence of the old injury belonged before the medical panel.

This panel agrees that there are medical aspects of that issue which would appropriately fall within the province of the medical panel. However, there are also facts and legal conclusions solely within the purview of a trial commissioner that cannot be delegated to the medical panel. See Colas v. Marriott Food Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 88-89, 939 CRD-7-89-11 (Feb. 26, 1991) (legal causation and medical causation are not identical concepts). In the instant case, there are issues surrounding the claimant’s disability subsequent to the second injury involving questions of fact and law which are not the subject of medical panel review. It would be inappropriate to cede these determinations to the medical panel, which, as noted above, reaches its conclusions without offering parties the opportunity for oral argument or appeal, when full procedural rights can be afforded to the parties by presenting this matter to a trial commissioner. Arguably, the fundamental nature of due process in our legal system counsels that the construction of “previous disability” in § 31-349c must be limited to disputes regarding the existence of a preexisting physical impairment only, which is essentially the extent of the holding in Olsen.

The instant case should thus be processed in the following manner. The opinion of the medical panel should be forwarded to a trial commissioner, as provided by § 31-349c, along with “any records generated by the panel’s work on the case.” At the request of one of the parties, the trier may then conduct a formal hearing, at which proceeding he will be able to gauge the importance of the medical panel’s failure to take into account the approved voluntary agreement between the parties for 25% permanent partial disability of the back. There is no dispute that the medical panel did not receive a copy of this document, and that their conclusion regarding the insignificance of the claimant’s 1993 injury vitiates the substance of that agreement. As noted above, the medical panel was not granted the authority by § 31-349c to determine the effect of the claimant’s subsequent compensable injury on her preexisting disability. That was an issue for the trier’s consideration. Though the medical panel’s opinion regarding the existence of a previous disability is binding on all parties pursuant to § 31-349c, the trier is not bound to give it tremendous credence insofar as it affects the issue of the 1993 injury in light of the panel’s failure to consider the voluntary agreement. Instead, he is free to make findings as to whether the claimant’s 1993 injury materially and substantially worsened her existing condition. The trier should then issue factual findings and conclusions, and base his order to grant or deny the respondents’ request for transfer on those findings. Of course, such a decision is fully appealable to the Compensation Review Board.

Meanwhile, we must dismiss this appeal for lack of subject matter jurisdiction.

Commissioners Michael S. Miles and Stephen B. Delaney concur.

1 §31-349c(a), which took effect on July 1, 1995 as part of P.A. 95-277, provides that “[t]he 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 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, 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.” BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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