Mackiewiecz v. Aetna Life & Casualty

The respondent-appellant, Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, Connecticut, 06141.

The respondents-appellees were represented by Lucas Strunk, Esq., of Pomeranz, Drayton and Stabnick, 95 Glastonbury Boulevard, Glastonbury, Connecticut, 06141.

This Petition for Review from the July 31, 2002 Finding and Award of the Commissioner acting for the Eighth District was heard March 28, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro, and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent-appellant Second Injury Fund [hereafter Fund] appeals from the July 31, 2002 Finding and Award of the Commissioner acting for the Eighth District. In that Finding and Award the trial commissioner ordered the Fund to reimburse the respondents-appellees for concurrent employment benefits paid pursuant to § 31-310.

The pertinent facts are as follows. On December 15, 1997 the claimant sustained an injury to her right hand when it was struck by a door while she was on the course of her employment with the respondent employer, Aetna. At the time of the injury the claimant was concurrently employed by Home Depot. The claimant was subsequently diagnosed as having a right hand carpal tunnel problem resulting from the December 15, 1997 incident with the door. Finding ¶9.

The appellees paid indemnity benefits and then issued a Form 44 in which it requested reimbursement for that portion of claimant’s benefits attributable to her concurrent employment with Home Depot. That form was administratively approved October 25, 2000. However the Fund did not pay the amounts requested in the Form 44.

According to the findings of the trial commissioner, neither the claimant nor the respondents-appellees pursued a claim pursuant to § 31-299b on the basis of repetitive trauma. The Fund refused to pay the concurrent employment pursuant to § 31-310 contending that the claimant’s injury was the result of repetitive trauma stemming from her employment with Aetna and Home Depot.

The trier found that the claimant’s hand condition related to the December 15, 1997 incident with the door and rejected the Fund’s position that the claimant’s injury was due to repetitive trauma and thus, Home Depot was liable in part.1 The Fund filed the instant appeal and presents the following issues on review; (1) whether the trial commissioner erred in ordering the Fund to reimburse the respondents for concurrent employment benefits pursuant to § 31-310 and (2) whether the trial commissioner erred in his denial of the Motion To Correct filed by the Fund.

The premise of the Fund’s argument on appeal is that the only medical evidence presented reflected that both the claimant’s employment with Aetna and Home Depot contributed to claimant’s carpal tunnel problem. At the outset we note that the record presented on review fails to include the transcript(s) of the formal hearing proceedings before the trial commissioner.2

As the Fund’s appeal, in part, attacks the factual findings of the trial commissioner it is impossible to pass on the legal appropriateness of those findings and ultimate conclusion in the absence of an adequate record. Drew v. Sears Roebuck & Co., 4400 CRB-7-01-5 (May 2, 2002), Palma v. Manuel A. Pinho Landscaping, Inc., 4047 CRB-7-99-5 (July 18, 2000). Thus, as no transcript of the formal hearing proceedings has been provided, the appeal is dismissed.3

We therefore dismiss this appeal from the July 31, 2002 Finding and Award of the Commissioner acting for the Eighth District.

Commissioners James J. Metro and Howard H. Belkin concur.

1 We note the respondents-appellees sought a claim for interest and attorneys fees pursuant to § 31-300 and § 31-303. As no appeal petition was filed by the appellees, we need not review the legal appropriateness of the trier’s denial of those claims. BACK TO TEXT

2 We note that the Petition For Review filed by the appellant reflects that a transcript was not requested. We also note a review of our electronic claims data processing system fails to reflect the appellant’s request for the production of a transcript. BACK TO TEXT

3 While the above reflects our decision and consideration in this matter, we note that as part of its legal argument the Fund contends that it cannot be held to a Voluntary Agreement, i.e., a Voluntary Agreement in which the respondent-appellees accepted liability for the claimant’s injury without apportionment with Home Depot, in which the Fund did not participate. However, we note that it appears that an Informal Hearing notice issued September 20, 1999 for an Informal Hearing scheduled for October 28, 1999 was directed to the Fund. Also that Informal hearing notice reflected that the issues to be considered were “§ 31-299b-Apportionment and § 31-310 Comp. Rate/Average Weekly Wage.” As this Informal Hearing notice precedes the March 28, 2000 approval date of the Voluntary Agreement by the Commissioner, we can only infer that the Fund should have been on notice as to the litigation course of the claim and the possible resolution to the apportionment issue. BACK TO TEXT