State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Zeoli v. Norwalk Hospital Association

CASE NO. 3974 CRB-07-99-02



MARCH 13, 2000












The claimant was not represented at oral argument. Notice sent to Ottomano & Johnson, 1071 Post Road East, P. O. Box 5142, Westport, CT 06881.

The respondent employer was represented by James Hughes, Esq., McNamara & Kenney, 375 Bridgeport Avenue, Shelton, CT 06484.

The Second Injury Fund was not represented at oral argument, and requested that its case be considered on the papers. Notice sent to J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the February 3, 1999 Finding and Dismissal of the Commissioner acting for the Seventh District was heard November 19, 1999 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Stephen B. Delaney and George A. Waldron.


GEORGE A. WALDRON, COMMISSIONER. The respondents have petitioned for review from the February 3, 1999 Finding and Dismissal Re: 31-349 Medical Panel Findings of the Commissioner acting for the Seventh District. They approach this board with a similar posture to the respondent-appellants in Kuban v. Bridgeport Hospital, 3926 CRB-4-98-11 (Sept. 23, 1999), a recent decision whose pertinent facts are substantially identical to those before us today, and which controls our disposition of this case.

Like the respondents in Kuban, the employer and insurer in this matter sought to transfer liability for the claimant’s compensable injury to the Second Injury Fund pursuant to § 31-349 C.G.S. As required by P.A. 95-277, the claimant submitted herself to an examination by a three-physician panel for resolution of controverted issues surrounding the existence of a previous disability. The panel subsequently determined that the March 26, 1995 compensable injury did not medically qualify for transfer to the Fund, as her “past history of minor degenerative changes has not caused a materially and substantially greater disability . . . than that which would have occurred due to [the March 26, 1995] injury alone.” Findings, § 3. Section 31-349c(a) states that the opinion of such a medical panel “shall be binding on all parties to the claim and may not be appealed to the Compensation Review Board pursuant to section 31-301.” The trial commissioner consequently dismissed the respondents’ claim that liability should be transferred.

The respondents quickly filed a petition for review from the trier’s decision. Their appeal was accompanied by a motion requesting reservation of the instant case for consideration by the Appellate Court pursuant to § 31-324, as the respondents sought to raise constitutional objections to the medical panel provisions of § 31-349c. All parties recognize that this board is not empowered to debate the constitutionality of statutes. Kuban, supra; Bass v. Chesebrough-Ponds USA, 3709 CRB-3-97-10 (Nov. 27, 1998). The Second Injury Fund also filed a Motion to Dismiss the appeal on the ground that transfer had not been effected by July 1, 1999, as required by § 31-349h, thereby divesting this board of subject matter jurisdiction over the instant case.

With respect to the question of reservation, we simply reiterate our position in Kuban. “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 Electrical Contractors, Inc., 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.” The same reasoning applies to the instant case.

With respect to the Fund’s Motion to Dismiss, we begin by noting that in Kuban, this board discussed § 31-349(f), which states, “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.” We explained that this provision does not require all cases to be finally adjudicated by July 1, 1999. Rather, it states that eligibility for transfer must be established by July 1, 1999, meaning that the party seeking transfer must have completed all preliminary requirements by that date. “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.” Id. We opined that, by imposing the restriction that the decision making or appeal process must be completed by July 1, 1999, not only would employers and insurers have been unfairly burdened, but untenable time constraints would also have been placed on workers’ compensation commissioners, this board, the Appellate Court and the Supreme Court, depriving the parties of thoughtful, well-considered decisions. Our position has not changed regarding the proper interpretation of § 31-349(f).

The Fund nonetheless contends that Kuban is inapposite to the instant motion, which is based upon § 31-349h rather than § 31-349(f).1 Like § 31-349(f), § 31-349h was enacted by P.A. 96-242. However, instead of providing that eligibility for transfer be established by July 1, 1999, § 31-349h states that, “All transfers of claims to the Second Injury Fund with a date of injury prior to July 1, 1995, shall be effected no later than July 1, 1999. All claims not transferred to the Second Injury Fund, on or before July 1, 1999, shall remain the responsibility of the employer or insurer.” (Emphasis added.) The Fund asserts that, under this statute, no transfers may occur after July 1, 1999, irrespective of the reason. Because the present case was not transferred before that date, dismissal of this appeal for lack of subject matter jurisdiction is allegedly required by law.

We strongly question whether the word “transferred” carries the absolute meaning proposed here by the Fund. The legislative history of P.A. 96-242 provides scant guidance, making only a cursory reference to the extension of the “drop dead date for transferring claims to the fund” from July 1, 1998 to July 1, 1999. 39 H.R. Proc., Pt.18, 1996 Sess., p. 6342, remarks of Rep. O’Rourke. In no way does the history reflect that the employer and insurer are expected to bear a very unusual burden: the consequences of any delays in completing Fund transfers that may have been caused by our judicial system (or, indeed, by another party). The Fund effectively seeks to deny the respondents their right to an appeal by imposing an all-encompassing July 1, 1999 deadline on transfers. This would be a harsh result for this board to sanction, absent an express legislative intent to curtail these appellate rights.

We also observe that the interpretation of § 31-349h advocated by the Fund creates a conflict with § 31-349(f). As noted above, these statutes were enacted simultaneously. There is a presumption that the legislature has a purpose for each sentence, clause or phrase in a legislative enactment, and that it does not intend to enact meaningless provisions. Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303 (1997). Principles of statutory construction mandate that, in addressing the arguably inconsistent requirements of two concurrently enacted statutes, effect must be given to both where possible. See In re Colonial Realty Co., 980 F.2d 125, 132 (2d. Cir. 1982) (repeal of earlier statute by implication only justifiable where two bankruptcy statutes were irreconcilable); Soares v. Max Services, Inc., 42 Conn. App. 147, 163 (1996). Yet, if we interpret § 31-349h as requiring all transfers of § 31-349 claims to be effected by July 1, 1999, we render § 31-349(f) a legal nullity, as any claim transferred by July 1, 1999 must also have been “eligible for transfer” by that date. Ineligible claims, by definition, cannot be successfully transferred to the Fund. The existence of § 31-349h would thus supersede any meaningful application of § 31-349(f) if the former law were to apply to claims allegedly eligible for transfer under § 31-349(a).

We do not attempt to resolve this conflict today, nor do we attempt to define the scope of § 31-349h. We do hold, however, that § 31-349h does not foreclose the respondents from appealing a final judgment of the trial commissioner on the ground that their request for a transfer of liability to the Fund was denied due to legal error (here, the unconstitutionality of § 31-349c).2 We therefore deny the Fund’s Motion to Dismiss, and affirm the trial commissioner’s decision on its merits without reserving any issues to the Appellate Court.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 Two days prior to the issuance of our decision in Kuban, the Fund filed a motion requesting that the matter be dismissed under § 31-349h because transfer had not yet been effected. We stated in a separate ruling that, for the reasons discussed in the primary Kuban opinion, we declined to construe either § 31-349h or § 31-349(f) “in a manner that places untenable time constraints on the processes of careful decisionmaking and appellate review. Common sense also counsels against such an interpretation, for the Second Injury Fund would then be placed in a position where, by merely forestalling a final judgment through July 1, 1999, it would ultimately avert any imposition of liability.” Ruling on Motion to Dismiss, October 15, 1999. BACK TO TEXT

2 We note that a literal reading of § 31-349h would have necessarily placed a responsibility upon this commission to ensure that all § 31-349 transfer cases be completed by July 1, 1999, regardless of whether such a practice was feasible or consistent with the remedial purpose of the Workers’ Compensation Act (which would generally disfavor expediting cases in which an insurer is seeking relief from a state-administered financial entity at the expense of cases in which injured workers are seeking benefits). Although the former Chairman of this commission did require that all § 31-349c medical panel examinations be completed by June 30, 1999, this agency determined that it would not be practical to attempt the final resolution of all such cases by that date. In opinion of this board, parties who have no control over the administration of our trial dockets should not bear adverse consequences for the reluctance of this commission to transform itself into an accounting machine whose top priority was the speedy quantification of the Second Injury Fund’s unfunded debt. BACK TO TEXT

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