Opinion
CASE NO. 585-CRD-5-87
FEBRUARY 23, 1989
The claimant was represented by Louis Kocsis, Esq. However, claimant's representative did not participate in the appeal as the dispute was between respondent-employer and the Second Injury Fund.
The respondent Transport Insurance was represented by John Keefe, Esq., and Michael McClary, Esq., of Lynch, Traub, Keefe and Errante.
The respondent Second Injury Fund was represented by Morton Greenblatt. Esq., and Michael Belzer, Esq., Assistant Attorneys General.
These Petitions for Review from the March 31, 1987 Finding and Dismissal and the April 13, 1987 ruling on a Motion for Articulation of the Commissioner for the Fifth District were heard August 19, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and A. Thomas White, Jr.
OPINION
Issues disputed in this appeal concern the Employer Respondent and its insurance carrier and their claim for transfer of liability to the Second Injury and Compensation Assurance Fund. The Fifth District March 31, 1987 decision simply held there was "no evidence indicating compliance with the requirements of Sec. 31-349 to transfer to the Second Injury Fund."
Before reaching such conclusion the Finding related claimant had an injury in 1979 and another one in 1981. Sec. 31-349 requires inter alia that before liability may be transferred to the Fund, there must be a previous injury or permanent physical impairment and a subsequent injury "resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury above." The section also provides that proper notice to the Fund is a condition precedent to transfer.
The respondent-Transport Insurance Co. argues that it is impossible to determine from the short four paragraph Finding, the portions of Sec. 31-349 on which the commissioner relies. We agree. Due process and fair hearing considerations require that parties be apprised of the ratio decidendi, the exact basis for a decision, such a basis preferably to be included in the Finding.
Factual Findings of the Trial Commissioner were:
1) It is found that the Claimant suffered compensable injuries while in the employ of the Respondent Lombard Brothers on January 11, 1978 and March 12, 1980, as evidenced by voluntary agreements.
2) It is found that in 1979 the Claimant had a back problem after falling from the Respondent's truck while in the course of his employment.
3) It is found that in 1981 the Claimant was involved in a work-related jack-knife incident hurting his mid-back.
4) It is found that there is no evidence indicating compliance with the requirements of Sec. 31-349 to transfer to the Second Injury Fund.
The appeal is sustained and the matter is remanded to the Fifth District for further proceedings consistent herewith.
Commissioners Andrew Denuzze and A. Thomas White, Jr. concur.