Opinion
CASE NO. 1244 CRD-2-91-6
FEBRUARY 26, 1993
The claimant was represented by John Collins, III, Esq.
The respondent, General Dynamics/Electric Boat Division was represented by Booth M. Kelly, Jr., Esq., Murphy and Beane.
The respondent, Second Injury Fund was represented by Yinxia Long, Esq. and Gerard Rucci, Esq., Michael Belzer, Esq., Brewster Blackall, Esq., Assistant Attorneys General.
This Petition for Review from the June 5, 1991 Finding and Award and June 14, 1991 Corrected Finding and Award of the Commissioner for the Second District was heard April 24, 1992 before Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Darius Spain and Angelo L. dos Santos.
OPINION
Respondent Second Injury Fund seeks review of the Second District June 5, 1991 Finding and Award and also the corrected June 14, 1991 ruling. Both these decisions stated they were based on a hearing of April 24, 1991. On March 5, 1986 claimant sustained a compensable back injury. Prior to that claimant incurred a permanent physical impairment of the lower back due to injuries September 14, 1970, April 1, 1981 and February 12, 1985. As a result he had a thirty (30%) percent (30%) permanent disability of the back. His March 5, 1986 injury caused an additional five (5%) percent permanent partial disability of the back creating potential Second Injury Fund liability for the 1986 injury under Sec. 31-349 C.G.S.
The respondent employer, basing its request on a September 16, 1987 opinion of claimant's treating physician, Dr. Christopher Glenney, filed a Form 36 notice of intention to discontinue benefits contending that claimant's treating physician had released the claimant for light duty work. Claimant disputed those contentions. Pursuant to its obligation in Sec. 31-296 C.G.S., respondent nonetheless continued to pay benefits for a long period in anticipation of the commissioner's approving the Form 36.
By a Voluntary Agreement approved in the Second District May 2, 1986 the parties agreed the March, 1986 injury was compensable. A second Agreement approved October 13, 1988 indicated claimant reached maximum medical improvement December 21, 1987. Subsequently the parties agreed December 14, 1987 the correct maximum improvement date and requested a correction of the Agreement to reflect that.
It appears from the Second Injury Fund's brief that the respondent employer gave the Fund Sec. 31-349 notice of request to transfer liability on January 13, 1988. As a condition precedent to the transfer of liability, the employer or its insurer must make such request "ninety days prior to the expiration of the one-hundred-four-week period" of the payment of benefits. The Fund argues that the employer and the claimant without the Fund's consent reached agreement at the April 1991 hearing that benefits paid claimant for the six and two-sevenths weeks from September 16, 1987 to October 30, 1987 were to be considered as paid in error and therefore voided. See Finding, paragraph #10. This seemed to cure any defect in the timeliness of respondent's Sec. 31-349 notice to the Fund.
That April hearing on which the commissioner relied for Finding was not itself a formal evidentiary hearing although the respondent and the claimant did then stipulate to certain facts afterwards included in the commissioner's decision. Before April, 1991 there had been transcribed formal evidentiary hearings October 11, 1989 and October 16, 1990, but facts adduced from testimony at these hearings were not those to which the commissioner referred in his June, 1991 rulings. The Fund received notice and was present at the April 24, 1991 informal hearing, but it did not consent to the factual stipulations of the other parties.
On appeal the Fund contends, absent its consent to the parties' stipulated facts, the commissioner could not render a decision based on them. Because Sec. 31-349's time deadlines are an essential prerequisite to the Fund's liability, any factual stipulations as to weeks of benefits paid altered those deadlines and seriously affected the Fund's interests. Therefore, the Fund's lack of consent made the issues involved contested issues which could only be resolved by a formal evidentiary hearing with opportunity for all parties in interest to participate. As the Fund was such a party in interest and had not consented, due process required such a formal hearing. See Kluttz v. Howard, 8 Conn. Workers' Comp. Rev. Op. 51, 664 CRD-4-87 (1990). Moreover, the absence of an evidentiary record does not permit any adequate appellate review. See Nevers v. Environmental Waste Removal, 10 Conn. Workers' Comp. Rev. Op. 96, 1166 CRD-5-91-1, (1992), Palmer v. UTC/Pratt and Whitney, 9 Conn. Workers' Comp. Rev. Op., 150, 1079 CRD-8-90-7 (1991).
The appeal of the Second Injury Fund is sustained, and the matter is remanded to the Second District for further proceedings consistent with this opinion.
Commissioners Darius Spain and Angelo L. dos Santos concur.