Opinion
CASE NO. 610 CRD-8-87
JUNE 9, 1988
The claimant was represented by Philip French, Esq.
The respondents were represented by Jason Dodge, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the June 22, 1987 Ruling on Claimant's Motion to Reargue the Finding and Award of the Commissioner for the Eighth District acting for the Seventh District was heard December 4, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew Denuzze.
FINDING AND AWARD
The Finding and Award of the Commissioner For the Eighth District acting for the Seventh District is affirmed and adopted as the Finding and Award of this Division.
OPINION
During her employment with the Stamford Hospital on September 15, 1979 Claimant sustained a compensable injury to her left forearm. A Stamford orthopedist, Dr. Allan Chamberlin, operated on her arm in November and December, 1980. He also performed cervical surgery at the C4-C5 level on February 24, 1982.
The May 11, 1987 Finding and Award by Commissioner Gerald Kolinsky concluded that Claimant developed a conversion hysteria due to the September, 1979 accident. Claimant's mental state worsened after the 1982 cervical procedures, but the commissioner held that the 1982 surgery was not related to the 1979 injury. He therefore concluded that Respondents were responsible for psychiatric care necessary to restore the claimant to the mental status existing before the February 24, 1982 cervical surgery. He left undecided the other issues, i.e. permanent partial disability, attorney's fees and interest due to unreasonable contest, and acceptance or denial of Form 36.
Claimant filed a Motion to Correct May 22, 1987, eleven days after the commissioner's Finding and Award. On June 1, 1987 she also filed a Request for Reargument, Modification and/or Reopening. The commissioner denied both motions June 22. A Petition for Review was mailed June 29 and received July 1 in the Eighth District office as Commissioner Kolinsky was then located in that office of the Commission. Claimant on July 10 also filed her Reasons of Appeal and a Motion to Correct subsequent to the Petition for Review. All motions were denied by the trial Commissioner.
Respondents objected to all the pleadings filed by Claimant subsequent to the May 11 Finding. Their objections are based on the language of Sec. 31-300, C.G.S.: "If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the superior court."
We agree that the Motion to Correct filed on the eleventh day after the award is not timely filed and has no effect in arrest of judgment. Had it been filed on the tenth day it would have had such an effect.
Claimant's June 1 Request For modification and reopening, however, was timely filed as Sec. 31-315, C.G.S. grants the commissioner continuing jurisdiction "during the whole compensation period applicable to the injury in question". The compensation period here could well be the entire life of the claimant. However, mere timeliness of filing does not guarantee acquiescence in the relief sought. Here despite Claimant's statement in the June 1 filing, "Such reopening is also expressly provided for in the penultimate sentence of C.G.S. 31-315 . . .", the motion itself does not contain any of the elements listed in Sec. 31-315 as necessary to support modification. Neither does the motion include any offer of new evidence. There is therefore no basis to overrule the commissioner's denial of the request for modification and reopening.
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.
If the July 1 Petition for Review is an appeal from the May 11 Finding and Award, then it was not timely filed by the tenth day after the commissioner's decision. The fact that it was filed within ten days after the June 22 denial of the motion for reargument cannot avail Claimant or permit her to enter an appeal by the back door as it were.
If instead the Petition for Review is considered as an appeal from the commissioner's June 22 denial of the Motion for Reargument, Modification and/or Reopening, then it was timely filed. However, for the reasons stated above we do not find any basis for reversing the commissioner's decision in that regard.
During the course of appellate proceedings, Claimant has moved that Respondents comply with the undisputed portion of the commissioner's award. In particular, paragraph 14 of the Award finds that Respondents are to provide psychiatric care sufficient to restore Claimant to her mental status before the 1982 cervical surgery. That motion is granted.
The decision of the commissioner is affirmed and the appeal is dismissed.
Commissioners Robin Waller and Andrew Denuzze concur.