Opinion
CASE NO. 664 CRD-4-87
MARCH 8, 1990
The Claimant was represented by Eddie Rodriguez, Jr., Esq.
The Second Injury and Compensation Assurance Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General.
This Petition For Review from the August 15, 1985 Finding and Award and the November 9, 1987 Supplemental Finding and Award of the Commissioner for the Fourth District, was heard on October 28, 1988 before a Compensation Review Division panel consisting of Commissioners Gerald Kolinsky, Robin Waller and Darius Spain.
OPINION
In this appeal by the Second Injury Fund (hereinafter referred to as the Fund), the Respondent-Employer has not participated, nor did it appear at the Formal Hearings scheduled before the Commissioner. On August 15, 1985, the Fourth District Commissioner entered his Finding and Award, in which the salient facts were stated as follows: The Claimant, a North Carolina resident, was hired in 1982 by Respondent-Employer, a North Carolina company, as an interstate truck driver, dropping off and picking up various products in different states, including Connecticut.
On January 19, 1983, the Claimant, while in the course of his employment was involved in a serious motor vehicle accident at the toll booth on Interstate Route 95 at Stratford. Connecticut, and suffered permanent injuries.
The Commissioner further found that prior to the date of said accident, the Claimant had made regular stops during the course of his employment in Windsor Locks and in Cheshire, and made stops in other Connecticut towns prior to January 19, 1983.
The Respondent-Employer, who was not insured for Workers' Compensation insurance coverage, did not appear at the Formal Hearings scheduled in the case, and pursuant to Sec. 31-351 C.G.S., the Commissioner gave notice to the Second Injury Fund; however he did not permit the Second Injury Fund to take part in the proceedings by allowing the Fund's representative to cross examine or to submit, evidence.
Sec. 31-351. Hearings; awards. The commissioner shall give notice to the treasurer of all hearings of matters which may involve payment from the fund, and may make award directing the treasurer to make payment from the fund.
In paragraph 21 of the August 15, 1985 Finding and Award the Commissioner stated: "The hearing by agreement of the claimant and the Commissioner was limited to the issues of jurisdiction, compensability and the role of the Second Injury and Compensation Assurance Fund."
The Commissioner found that the Claimant had sustained a compensable injury on January 19, 1983, arising out of and during the course of his employment with the Respondent-Employer, that he had jurisdiction to hear the Claimant's claim for Workers' Compensation benefits and in paragraph 23 of his Finding and Award stated ". . .that the Second Injury and Compensation Assurance Fund is to be given notice of the hearing. However, they are not permitted to cross-examine the claimant or to submit evidence at the hearing", and thereupon ordered the Respondent-Employer to pay certain Workers' Compensation benefits, some of which were to be determined at a future hearing, and further entered an order pursuant to Section 31-355, C.G.S., ordering the Fund to make payment in the event that the employer failed to do so.
Subsequent hearings were thereafter held culminating in a Supplemental Finding and Award #1, issued on November 9, 1987, ordering that numerous medical and hospital bills were to be paid, establishing the Claimant's average weekly wage and applicable weekly compensation rate, ordering the payment of temporary total weekly benefits, scarring award, and reserved the question of permanent partial disability benefits to a future hearing, again indicating that if the employer failed to make the ordered payments within ten (10) days, a further hearing would be held ". . .ordering the Treasurer of the State of Connecticut, as Custodian of the Second Injury and Compensation Assurance Fund, to pay all benefits". On November 20, 1987, the Commissioner issued an Order directing the Fund to pay the items ordered in the November 9, 1987 Supplemental Finding and Award, since no appeal had been filed by the employer and no payments had been made to the Claimant.
It is from the August 15, 1985 Finding and Award and the November 9, 1987 Supplemental Finding and Award, that the Fund has appealed, as well as from the November 19 (sic), 1987 Order, assigning the following Reasons of Appeal: 1) that the Commissioner had erred in finding that Connecticut had jurisdiction over the matter, 2) in denying the Fund the opportunity to raise issues concerning jurisdiction and compensability even though the Fund was a party in interest, 3) in applying the Workers' Compensation Act to this case, 4), in finding the existence of an employer-employee relationship under the Connecticut Act, 5) in permitting Dr. Calabrese's bill for $6,000., 6) in not permitting the Fund to introduce evidence concerning the Claimant's Workers' Compensation claim in North Carolina as it would affect his right to Compensation under the Connecticut Act, 7) and in denying the Fund's Motion to Correct.
Further Reasons of Appeal from the November 20, 2987 [1987] Finding and Award included all of the Reasons of Appeal taken from the November 9, 1987 Finding and Award, and in addition, that the November 9, 1987 Supplemental Finding and Award, from which the November 20, 1987 Order followed was not in accordance with the Connecticut Workers' Compensation Act, and that the Fund "was denied due process before the orders were entered".
The mandate of Section 31-351, C.G.S., requiring that notice shall be given to the State Treasurer in hearings which may involve payment from the Second Injury Fund evinces a clear legislative intent that the Fund is, or potentially may become, the real party in interest in the proceedings, and as such it would seem pointless to have that party present, yet compelled by the Commissioner to remain mute, particularly on issues involving the very essence of basic jurisdictional questions. As the employer failed to appear at the hearing, the questions as to whether or not the State of Connecticut had jurisdiction over this claim was never scrutinized by a real party in interest, as to whether or not the claim was compensable or not, as to whether or not an employer-employee relationship existed, etc.
It is fundamental to our system of jurisprudence that the real party in interest in any litigation be permitted to give evidence in support of its claims and contentions, and for such reason, we are of the view and it is hereby ordered that this matter be reversed and remanded to the Fourth District Commissioner for further proceedings in accordance with this opinion.
Commissioners Robin Waller and Darius Spain concur.