Opinion
CASE NO. 477 CRD-3-86
MAY 20, 1988
The claimant was represented on appeal by W. Paul Flynn, Esq., Flynn Flynn, P.C.
The respondent-municipality was represented on appeal by Robert P. Oakland, Esq., Keith B. Gallant, Esq., and Edward Gallant, Esq., Gallant Gallant.
The respondent-insurer was represented on appeal by Anne M. Kelly, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the April 14, 1986, Ruling on its Motion to Re-Open and Modify of the Commissioner for the Third District was heard June 26, 1987 before a Compensation Review Division panel consisting of the Commission Chairman. John Arcudi, and Commissioners Robin Waller and Andrew Denuzze.
OPINION
Claimant was awarded Sec. 7-433c, C.G.S. benefits in a Third District Finding and Award July 12, 1979. The respondent-municipality filed a Motion to Re-Open and Modify Finding and Award November 30, 1981 This was denied by the Third District Commissioner April 14, 1986. That denial is the subject of this appeal.
Claimant had filed a Form 30C Notice of Claim April 30, 1971 alleging "disability of policeman caused by hypertension or heart disease" occurring March 6, 1971. In her July 12, 1979 decision, the Commissioner awarded benefits under Sec. 7-433c, C.G.S. Sec. 7-433c did not become effective until several months after the alleged injury.
Motions to Re-Open and Modify are statutorily controlled by Sec. 31-315, C.G.S., Collins v. City of West Haven, CRD-3-86 (decided April 7, 1988), appeal filed. No. A.C. 6985 (Conn.App.Ct. April 22, 1988). As it did in Collins, the respondent relies on language in that section providing, "The commissioner shall . . . have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court" and on Practice Book Sec. 326 and Sec. 52-212a. C.G.S. defining the Superior Court's power to open judgments.
Sec. 31-315. Modification of Award or voluntary agreement. Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.
It also cites Gorman v. Waterbury, 4 Conn. App. 226 (1985) which held that Sec. 7-433c was not to be applied retrospectively, Leppert v. City of Hartford, 408 CRD-1-85 (decided April 8, 1988), appeal filed, Conn. App. Ct. Appeal No. A.C. 6995. and [And] Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646 (1975) which states "The rights and obligations of both parties . . . are determined by the contractual and statutory provisions in force at the time the employee was injured", Id. at 649.
Broaca v. Broaca, 181 Conn. 463 (1980), held that a court retains power to open and modify a judgment rendered without jurisdiction at any time. The court's decision there was based on the common law principle "[E]very thing under the judicial process of courts, not having jurisdiction are, ipso facto, void", Broaca at 468 quoting Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 364 (1816). See also, Meinket v. Levinson, 193 Conn. 110 (1984); Misinonile v. Misinonile, 190 Conn. 132 (1983); General Motors Acceptance Corp. v. Pumphrey, 13 Conn. App. 223 (1988); Morris v. Irwin, 4 Conn. App. 431 (1985).
The date of Claimant's disability clearly preceded the effective date of Sec. 7-433c as both parties stipulated Claimant's injury to be an inferior wall infarction suffered March 6, 1971, together with arteriosclerotic heart disease. Thus, the trial Commissioner's award of Sec. 7-433c benefits was without subject matter jurisdiction.
Section 7-433c, Public Act 71-524, effective June 28, 1971.
We do not decide whether the claim may be compensable under the law in existence March 6, 1971, but remand to the Third District for that determination. The July 12, 1979 Finding and Award is set aside. The appeal is sustained and the municipality's Motion to Reopen and Modify Proceedings is granted.
Commissioners Robin Wailer and Andrew Denuzze concur.