State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Kuban v. Bridgeport Hospital

CASE NO. 3926 CRB-04-98-11



SEPTEMBER 23, 1999














The claimant was not represented at oral argument. Notice sent to Weinstein, Weiner, Ignal, Napolitano & Shapiro, 350 Fairfield Avenue, P. O. Box 9177, Bridgeport, CT 06601.

The respondents were represented by James Hughes, Esq., McNamara & Kenney, 75 Kings Highway Cut-off, P. O. Box 8187, Fairfield, CT 06430.

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

This Petition for Review from the November 3, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District was heard March 26, 1999 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Angelo L. dos Santos and John A. Mastropietro.


GEORGE A. WALDRON, COMMISSIONER. The respondents have petitioned for review from the November 3, 1998 Finding and Dismissal of the Commissioner acting for the Fourth District. The trier dismissed their attempt to transfer liability for the claimant’s injury to the Second Injury Fund, which decision the respondents are appealing on the ground that certain portions of § 31-349, as amended by P.A. 95-277, are unconstitutional. Recognizing that this board does not have the authority to determine the constitutionality of a statute such as P.A. 95-277, the respondents request reservation of those issues to the Appellate Court pursuant to § 31-324 C.G.S.1Bass v. Chesebrough-Ponds, USA, 3709 CRB-3-97-10 (Nov. 27, 1998).

This matter concerns the attempt of the respondents to transfer liability for the claimant’s April 20, 1992 injury to the Second Injury Fund. Prior to July 1, 1995, the facts surrounding this issue would have been fully determined by a trial commissioner pursuant to § 31-349, including whether or not the claimant suffered from a lumbar spine condition that preexisted her 1992 compensable injury. On July 1, 1995, however, the legislature enacted P.A. 95-277 in an effort to consolidate the outstanding financial liability of the Second Injury Fund and to curtail its exposure to future claims. Said amendment included § 4(a), now codified at § 31-349c, which provides:

(a) 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 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.
(b) The chairman of the Workers’ Compensation Commission shall adopt regulations in accordance with the provisions of chapter 54 to establish a fee schedule for payment of medical panel members. Any fees paid pursuant to the provisions of this section shall be paid by the self-insured employer or insurer seeking fund reimbursement.

This statute removes the preexisting disability issue from the purview of the trial commissioner, and places it before a three-physician medical panel for resolution. Our Supreme Court has determined that the statute applies retroactively to all pending transfer claims in which the claimant’s injury occurred before the July 1, 1995 effective date of P.A. 95-277. Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997).

The parties conducted the proceedings below in accordance with § 31-349c. The respondents and the Fund initially submitted documents regarding transfer at a November 1997 pre-formal hearing (Findings, ¶ 2), and the claimant submitted to a medical examination on February 5, 1998 at the medical panel’s request. The panel then issued a report to the Chairman of this Commission opining that the April 20, 1992 claim did not qualify for transfer to the Fund because the claimant did not have a previous lumbar spine medical condition. The respondents requested that an order be issued concerning the underlying case, because they wanted to appeal this matter on constitutional grounds. They also continued to maintain that liability should be transferred to the Fund; among their exhibits was a 1996 award (by a different commissioner) that favored transfer. The parties stipulated to the facts, and submitted their claims on the papers at an August 25, 1998 formal hearing. As § 31-349c ostensibly required him to do, the trier accepted the medical panel’s finding that a preexisting medical condition did not materially and substantially worsen the claimant’s disability. The trial commissioner thus dismissed the respondents’ claim for transfer, which led to the instant appeal.

Initially, we address the topic of subject matter jurisdiction. Though the substantive issues raised on this appeal are not within the scope of this board’s review, we believe that the appeal itself is properly before us under § 31-301(a) as a matter of procedure. The respondents’ petition for review is in response to a Finding and Dismissal of a trial commissioner, rather than the opinion of the medical panel itself. Compare Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999) (CRB has no jurisdiction over appeal from medical panel opinion before it is integrated into a commissioner’s order). Section 31-301(a) requires this board to accept timely appeals from the entry of a commissioner’s award. See Hall, supra, 289-92. Once the petition for review is properly before us, we may then discuss whether any of the issues raised are reviewable by this board, and proceed accordingly. We also note that, as the trier dismissed the respondents’ claim for transfer, his decision would appear to be a final judgment within the meaning of Hall, supra, and Cleveland v. U.S. Printing Ink, Inc., 218 Conn. 181 (1991).

With respect to the merits of this appeal, there is no dispute that all of the issues raised by the respondents directly question the constitutionality of § 31-349c, under both the state and federal constitutions. See Respondents’ Reasons of Appeal. As noted above, this board does not have the authority to determine the constitutionality of statutes. Bass, supra. Such issues remain within the province of the state superior court system established by Article Fifth, § 1 of the Connecticut constitution. We are not of the opinion that we ought to specifically reserve these matters for a determination by the Appellate Court under § 31-324, as they are not justiciable by this board to begin with. To frame them in the scope of a reserved question would only serve to limit the potential scope of further appellate review. See Barton v. Ducci, 248 Conn. 793 (1999). Our role is more appropriately to affirm the decision of the commissioner, as the respondents’ challenges to the constitutionality of P.A. 95-277, § 4(a) are the only grounds of appeal that have been raised before this panel.

As representatives of the governmental agency charged with administering this state’s workers’ compensation system, we can appreciate, however, that the constitutionality of § 31-349c is an issue of significant importance. No party ought to be deprived of its right to due process under the federal and state constitutions, and § 31-349c is the only workers’ compensation statute that fails to grant to the parties the right to a formal hearing and an appeal. See Fish, supra (given the curtailment of parties’ rights under medical panel procedure, CRB stated that the statutory term “previous disability” should be construed narrowly). We are also aware that the constitutionality of this statute, as applied, is an issue that has not yet been resolved (although other portions of P.A. 95-277 have been declared constitutional, such as the renotification provision in subsection (e) of that act; see Cece v. Felix Industries, Inc., 248 Conn. 457 (1999)).

The issue was broached when our Supreme Court was presented with a constitutional challenge to § 31-349c in Hall, supra, but the Court declined to declare § 31-349c unconstitutional on its face. The three-physician panel had not yet been given the opportunity to address the previous disability issue in that matter, and the Court refused to adjudicate the validity of § 31-349c absent an adequate factual record. “We do not give advisory opinions, nor do we sit as roving commissions assigned to pass judgment on the validity of legislative enactments. Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.” Id., 306-307. Thus, the constitutionality of P.A. 95-277, § 4(a) remains an open question.

Notably, the Hall Court also observed that there were “no weighty countervailing circumstances” that supported its immediate consideration of the appellants’ constitutional arguments, despite the legislature’s imposition of a July 1, 1999 deadline for the completion of all transfer claims. Id., 309. Specifically, § 31-349(f) states that “[n]o claim, where the custodian of the Second Injury Fund was served with a valid notice of intent to transfer under this section, shall be eligible for transfer to the Second Injury Fund unless all requirements for transfer, including payment of the one hundred and four weeks of benefits by the employer or its insurer, have been completed prior to July 1, 1999. All claims, pursuant to this section, not eligible for transfer to the fund on or before July 1, 1999, will remain the responsibility of the employer or its insurer.” The Hall Court described this deadline as insufficiently weighty to require the determination of serious constitutional questions absent a factual record to review.

Two years have now passed since the Hall decision, and various employers and insurers, including the appellants in this matter, have expressed concern that this provision requires their cases to be completely and finally adjudicated by July 1, 1999. We do not agree. The language of that statute requires that “all requirements for transfer” be completed by the employer prior to that date, thus making the claim “eligible for transfer” by July 1, 1999. This includes the payment of 104 weeks of benefits, the turning over of all reports, agreements and other documentation, and the submission of cases to the medical panel for evaluation, all of which are circumstances within the control of the employer or insurer. We do not read § 31-349(f) to require parties seeking transfer to ensure that the decisionmaking or appeal process has been completed by July 1, 1999, however. Imposing this restriction would unfairly burden not only employers or insurers; it would also place untenable time constraints on workers’ compensation commissioners, this board, the Appellate Court, and the Supreme Court, and would deprive the parties of thoughtful, well-considered decisions and appellate review. We doubt that the legislature intended to create such a difficult situation in the interest of expediting the final resolution of Second Injury Fund transfer cases.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and John A. Mastropietro concur.

1 The portion of § 31-324 relevant to this opinion provides that “[w]hen, in any case arising under the provisions of this chapter, the Compensation Review Board is of the opinion that the decision involves principles of law which are not free from reasonable doubt and which public interest requires shall be determined by the Appellate Court, in order that a definite rule be established applicable to future cases, said Compensation Review Board may, on its own motion and without any agreement or act of the parties or their counsel, reserve such case for the opinion of the Appellate Court. . . . Upon the filing of such a reservation, the question shall come before the Appellate Court as though an appeal had been taken, and said court shall thereupon reserve the case for the opinion of the Supreme Court in the manner herein indicated; but if, in the opinion of the Appellate Court, the principles of law involved in the decision are in fact free from reasonable doubt and the public interest does not in fact require that they be determined by the Supreme Court, the Appellate Court may, in its discretion, hear and determine the controversy as in other cases.” BACK TO TEXT

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