Opinion
CASE NO. 567 CRD-6-87
AUGUST 12, 1988
The claimant was represented by John A. Barbieri, Esq.
The respondent-employer was represented at the trial level by Frederick A. Hitt, Esq., Hitt, Sachmer Coleman. No appearance was made at oral argument nor was a brief filed by the respondent-employer.
The respondent Second Injury Fund was represented by Morton Greenblatt, Esq. and Michael Belzer, Esq., Assistant Attorneys General.
This Petition for Review from the February 17, 1987 Finding and Award of the Commissioner for the Sixth District was heard June 24, 1988 before a Compensation Review Division panel consisting the Commission Chairman, John Arcudi, and Commissioners A. Paul Berte and Robin Waller.
OPINION
Appellant here is the Second Injury and Compensation Assurance Fund. The Fund became the real party in interest under Sec. 31-355, C.G.S., because the other named respondent, the employer, was actually a dissolved corporation which had no insurance at the date of the accident, August 24, 1983. However, the Commissioner made no order against the Fund as such. He did give notice in accordance with Sec. 31-351, C.G.S., to it at the April 2, 1986 hearing; but it does not appear the Fund received any notice of the October 17, 1984 hearing.
Elegantia juris usually requires before a party may have an appealable interest there must be an order, an award or a judgment against it which it is appealing. However, both Secs. 31-351 and 31-355 give the Fund standing even before a matter is in such a posture that an order for payment may issue against it. To hold otherwise would permit the ten-day appeal period after a decision against the employer to elapse and permit the award to become final. The Commissioner cannot issue an order of payment against the Fund unless the award is final. Thus, by the time an order was issued against the Fund the basic underlying decision against the employer would be unappealable.
Sec. 31-301. Appeals to compensation review division. Payment of award during pendency of appeal. (a) At any time within ten days after entry of such award by the commissioner, . . . either party may appeal therefrom. . . . Sec. 31-300. Award as judgment. Interest. Procedure on discontinuance. ". . . If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final. . . ."
The Finding and Award in the present matter was issued February 17, 1987. The Fund's appeal was filed February 26, nine days later. At the time of oral argument June 24, 1988, despite numerous requests that it be prepared, there was no transcript of the October 17, 1984 hearing. Without such a transcript it is impossible fairly to evaluate the contending arguments of the parties. The matter must be remanded.
If it is possible to transcribe the October 17, 1984 hearing that should be done and the parties may then return to the Compensation Review Division for disposition of the appeal on the merits. If for whatever reason such a transcript cannot be produced, then the matter must be reheard.
The matter is remanded to the District for further proceedings consistent with this opinion.
Commissioners A. Paul Berte and Robin Waller concur.