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CASE NO. 5317 CRB-2-08-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 27, 2009
TOWN OF ANDOVER
WEBSTER INSURANCE COMPANY
HARTFORD INSURANCE GROUP
The claimant was represented by Benjamin M. Massa, Esq., 221 Main Street, Hartford, CT 06106. However, as the issues did not involve the claimant, he did not appear.
The respondents Town of Andover and Webster Insurance Company were represented by David C. Davis, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
The respondents Town of Andover and Hartford Insurance Group were represented by John W. Greiner, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.
This Petition for Review from the January 17, 2008 Finding and Award of the Commissioner acting for the Second District was heard August 29, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent Webster Risk Services [hereafter Webster] filed this appeal from the January 17, 2008 Finding and Award of the Commissioner acting for Second District. In that Finding and Award the trial commissioner ordered the appellant to reimburse the respondent, Hartford Insurance Group, [hereafter Hartford] 51.1 weeks of § 31-308a benefits paid by the Hartford to the claimant. At the outset, we note that this is not the first time this tribunal has considered an appeal pertaining to the administration of the instant claim. Our earlier consideration of this matter resulted in our opinion in Houghton v. Andover, 4949 CRB-2-05-6 (May 18, 2006) [hereafter Houghton I]. The pertinent facts giving rise to the claim and this appeal are as follows.
The claimant sustained a compensable injury to his back on March 2, 1995. The carrier on the risk at the time of this injury was the Hartford. The claimant underwent surgery and returned to work without any physical restrictions. On October 31, 1995 a Voluntary Agreement was approved providing the claimant with 56.1 weeks of permanent partial disability for a 15% permanent partial disability. The claimant continued to work for the Town of Andover and on May 8, 2002 sustained a second injury to his back. At the time of the May 8, 2002 injury, the employer was insured by Webster. As a result of the second injury the claimant again underwent surgery and was found to have suffered an additional 6% permanent partial disability. A Voluntary Agreement was approved December 21, 2004 and the claimant was paid an additional 22.44 weeks of permanent partial disability. The claimant was unable to return to his employment with the Town of Andover following the May 8, 2002 injury.
Thereafter, the claimant sought § 31-308a benefits contending any such benefits should be capped at 78.54, the cumulative sum of the claimant’s permanent partial disability benefits from the 1995 and 2002 injuries. The trial commissioner agreed with the claimant and in the May 26, 2005 Finding and Award the respondent Hartford was ordered to pay 56.1 weeks of benefits and the respondent Webster to pay 22. 44 weeks of same. The respondent Hartford took an appeal with the Compensation Review Board from the May 26, 2005 Finding and Award.
In Houghton I, the Hartford argued that the trial commissioner erred in finding that any liability for § 31-308a benefits existed with the Hartford as (1) the claimant was able to return to work with no physical restrictions after reaching maximum medical improvement following the March 2, 1995 injury and (2) apportionment of liability for § 31-308a benefits was inconsistent with the Supreme Court’s opinion in Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). In Houghton I, we noted that the trial commissioner specifically found that the May 8, 2002 injury was a “new injury.” As the May 8, 2002 injury was a separate and distinct injury from that suffered on March 2, 1995, no right of apportionment existed. Thus, we held the respondent Webster was solely liable for payment of § 31-308a benefits.
The respondent Webster appealed Houghton I to the Appellate Court and subsequently withdrew its appeal. The respondent Hartford then sought reimbursement from Webster for the §31-308a benefits it paid to the claimant. To that end, the trial commissioner heard the instant matter and following the filing of briefs, ordered in the January 17, 2008 Finding and Award that Webster reimburse the Hartford. Following the trial commissioner’s January 17, 2008 Finding and Award the respondent Webster filed a Motion for Articulation and a Motion to Correct both of which were denied by the trial commissioner. The appellant’s reasons for appeal present the following issues; (1) whether the trial commissioner erred in failing to grant its Motion for Articulation, (2) whether the trial commissioner erred in failing to grant its Motion to Correct and, (3) whether the trial commissioner erred in ordering the appellant to reimburse the respondent Hartford for payment of 56.1 weeks of § 31-308a benefits.
In essence, the appellant Webster seeks to challenge the legal appropriateness of our conclusion in Houghton I that it was liable for all of the § 31-308a benefits awarded by the trial commissioner. We believe that the appropriate procedure to challenge our conclusion was the appellant’s appeal to the Appellate Court following our decision in Houghton I. For whatever reason, the appellant subsequently withdrew its appeal of Houghton I. Having withdrawn its appeal of Houghton I, the respondent has waived its right to appeal issues flowing from our holding therein. We believe the appeal from the January 17, 2008 Finding and Award is nothing more than a collateral attack on a prior judgment. As our Supreme Court reuttered in Gerte v. Logistec Connecticut, Inc., 283 Conn. 60, 63 (2007):
“Unless a litigant can show an absence of subject matter jurisdiction that makes the prior judgment of a tribunal entirely invalid, he or she must resort to direct proceedings to correct perceived wrongs. . . . A collateral attack on a judgment is a procedurally impermissible substitute for an appeal. . . .”
Id., quoting In re Shamika F., 256 Conn. 383, 407-08 (2001).
We therefore affirm the January 17, 2008 Finding and Award of the Commissioner acting for Second District.
Commissioners Ernie R. Walker and Charles F. Senich concur.
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