Opinion
CASE NO. 3107 CRB-7-95-7
FEBRUARY 13, 1996
The claimant was represented by Brian Prucker, Esq., Fitzgerald Prucker.
The respondents were represented by Kevin J. Maher, Esq., Maher Williams, who did not attend oral argument.
The Second Injury Fund was represented by Michelle D. Truglia, Esq., Assistant Attorney General.
This Petition for Review from the 31-301(f) Order issued on June 27, 1995 by the Commissioner acting for the Seventh District was heard November 17, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.
OPINION
The Second Injury Fund ("Fund") has petitioned for review from the § 31-301(f) Order issued on June 27, 1995 by the Commissioner acting for the Seventh District. In that Order, the commissioner ordered the Fund to make payments to the claimant based upon the Finding and Award issued by another commissioner on February 4, 1994. The February 4, 1994 Finding and Award has been appealed by the employer and its insurer. The only issue presently before this Board is the Fund's appeal from the 31-301(f) Order.
The Compensation Review Board affirmed the trial commissioner's Finding and Award in a decision issued on July 27, 1995. On August 15, 1995 the employer and its insurer filed an appeal of that decision to the Appellate Court, which is presently pending.
The Fund contends on appeal that the commissioner's order that the Fund pay compensation benefits pursuant to § 31-301(f) C.G.S is not proper as it is not supported by the record. Specifically, the Fund contends that there was no underlying order that the employer or its insurer ("respondents") pay the claimant any specified benefits. Thus, the Fund contends that an order that the Fund make payments pursuant to a § 31-301(f) is improper. We agree.
Section 31-301(f) provides:
During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of the award. The compensation and medical treatment shall be paid from the Second Injury Fund pursuant to § 31-354. (Emphasis added).
The language of the statute clearly requires that an order against the insurer or employer is required before a 31-301(f) order may be entered against the Fund. In the instant case, the Finding and Award issued on February 4, 1994 did not include an order specifying the benefits to be paid by the respondents. As there is no written order against the respondents to pay specified benefits, the § 31-301(f) order against the Fund is improper.
We note that the claimant contends that the respondents stipulated to the claimant's benefit rate and the period of disability during a formal hearing on June 27, 1995. However, there is no transcript of that hearing, and the commissioner made no findings of fact. This Board has stated: "No case under this Act should be finally determined when the . . . court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment." Charette v. Jensen Mobile Home, 10 Conn. Workers' Comp. Rev. Op. 1, 3, 936 CRD-6-89-11 (March 19, 1991) (quoting Cormican v. McMahon, 102 Conn. 234, 238 (1925)). Moreover, "(t)his Board is powerless to perform any meaningful review under General Statutes § 31-301 without a record or transcript of evidence of the proceedings." Hebert v. RWA Roofing Sheet Metal, 13 Conn. Workers' Comp. Rev. Op. 43, 44, 1750 CRB-2-93-6 (Dec. 6, 1994) (citations omitted). As there is no transcript in the instant case and the commissioner did not make any findings of fact, we are unable to adequately review the Fund's appeal. Therefore, we must remand this matter.
The 31-301(f) Order is set aside, and the issue is remanded to another trial commissioner in order to conduct a formal hearing and to issue a decision.
Commissioners Roberta Smith Tracy and Amado J. Vargas concur.