Kovalik v. E. Stiewing Movers, Inc.

The respondents have filed a petition for review from a July 17, 2002 Memorandum of Decision by the Commissioner acting for the Seventh District. This memorandum was issued prior to an informal hearing that was held on August 6, 2002, concerning the subject of the claimant’s compensation rate under § 31-310 C.G.S. No formal hearings have yet been held on this matter, and no evidence has been entered into the record.

The parties to this action seem to agree that there are two injury dates involved: a September 13, 2000 incident, and a March 12, 2001 incident that occurred after the claimant returned to light duty work for his employer. The claimant became totally disabled following the second incident. The question of whether the March 2001 injury is a new injury, an exacerbation of the prior injury, or an aggravation of that injury has not yet been resolved. The memorandum does not purport to settle the issue of whether the claimant’s wage calculation should be based upon his wages during the 52 weeks preceding March 12, 2001 (an average weekly wage of $179 per week), or the 52 weeks preceding September 13, 2000 (an average of $289 per week). However, it does contain a ruling that the claimant will be entitled to “either the rate he was entitled to on the date of his original injury on September 13, 2000, i.e. $289.00, or all earnings together with his supplemental temporary partial disability benefits should be considered his average weekly wage from which his compensation rate can be derived.” According to the memorandum, the parties agreed that this matter was in dispute, and they submitted this issue for the trier’s consideration prior to the taking of evidence.

In his August 5, 2002 Motion for Extension of Time to File Reasons for Appeal, the respondents state their intent to file a Motion to Articulate Findings and a Motion to Correct, “the ruling[s] on which may impact or obviate the need for the Respondent’s Reasons for Appeal.” We would take this notion one step further: we do not believe that this matter is yet ripe for appeal, and we dismiss the respondents’ petition for review. First, there is no record upon which the Compensation Review Board may consider this appeal under § 31-301(b) C.G.S. Without a formal hearing that would allow the creation of transcripts and the admission of exhibits into the record, there is nothing for this board to examine. Iciak v. Cary Insulation/New England Building Products, 4539 CRB-8-02-6 (July 17, 2002); Woomer v. Home Depot, 4507 CBR-2-02-3 (April 25, 2002); Lirot v. Mashantucket Pequot Gaming, 3400 CRB-2-96-8 (April 7, 1997).

Second, the trier’s memorandum is essentially a statement of his intent to interpret the law in a certain manner should the facts establish that the claimant’s March 12, 2001 injury prove to be a new injury rather than a recurrence. This interpretation of law has not yet evolved into a binding judgment by virtue of its inclusion in an order, and no action need be taken by either party on the memorandum alone. An appellate body such as this board may not render an advisory opinion where no practical relief may be awarded to either party. Thus, we do not believe it is appropriate for this matter to remain before us as a pending appeal. See Pantanella v. Enfield Ford, 4129 CRB-1-99-9 (Dec. 19, 2000). If and when the trier issues a decision awarding the claimant benefits based upon a new injury date of March 12, 2001, this case will then be ripe for the filing of a petition for review, as this board will be able to review the propriety of those concrete findings and award. Until that time, an appeal is premature. The trier’s memorandum has no binding legal effect in and of itself.

Kovalik v. E. Stiewing Movers, Inc.

DISMISSAL ORDER