Summary
In Chase, the Board had issued a decision regarding a Motion to Preclude, which was appealed and dismissed for lack of final judgment by the Appellate Court, and subsequently a Supreme Court decision was issued which possibly affected the Board's decision.
Summary of this case from Liano v. City of BridgeportOpinion
CASE NO. 2185 CRB-2-94-9
JUNE 20, 1996
The claimant was represented by Robert Fitzgerald, Esq.
The respondent was represented by Michael J. Belzer, Esq.
This Petition for Review from the September 7, 1994 Finding and Dismissal of the Commissioner acting for the Second District was heard September 22, 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 claimant has petitioned for review from the September 7, 1994 Finding and Dismissal of the Commissioner acting for the Second District. He argues on appeal that the trial commissioner improperly denied his Motion to Preclude, and that the commissioner erroneously found that the claimant failed to prove the existence of a compensable injury. We affirm the trial commissioner's decision.
The trial commissioner found that the claimant had been a long-term employee with the state, and that he had a history of low back pain. He claimed that he tripped over a board and injured his back while working in the basement of the Norwich office of the Department of Motor Vehicles. According to the claimant, the injury occurred on July 19, 1989, and he reported it to his supervisor by phone, along with mentioning it to a fellow worker. He missed two days of work immediately following the injury, and about 18 days of work in August of 1989, after which he was released to return to work by his treating physician. The doctor rated him with a permanent partial disability "giving substantial weight to a pain factor."
The commissioner cited facts unfavorable to the claimant as well. He noted that the claimant told a fellow worker who testified in the case that he fell in the summer of 1989, and that there were no witnesses or department reports documenting the claimed injury. The report of the claimant's first visit to the doctor on August 8, 1989 contains an inaccurate date of injury. The commissioner also opined that the claimant was a poor historian with regard to the instant back injury claim. He concluded that the claimant had not established his case with sufficient credible evidence, and dismissed the claim.
The claimant has appealed from that decision. He has also raised an issue that we addressed in a prior appeal, but which the Appellate Court dismissed upon motion because a final judgment had not yet been rendered on the merits. Chase v. State of Connecticut/Dept. of Motor Vehicles, 10 Conn. Workers' Comp. Rev. Op. 181, 1305 CRD-2-91-9 (Sept. 1, 1992), appeal dismissed, A.C. 11739 (May 11, 1993). The claimant sent his notice of claim to the "Department of Motor Vehicles" on July 26, 1989. At the time, § 31-297 (b) [now § 31-294c(b)] C.G.S. provided the respondent with twenty days to file a disclaimer. This was not done until September 1, 1989. The claimant filed a Motion to Preclude, but the commissioner denied it on the ground that the notice failed to identify the employer as "State of Connecticut, Department of Motor Vehicles." We affirmed that denial in our opinion, relying on Pereira v. State of Connecticut, 9 Conn. Workers' Comp. Rev. Op. 9, 906 CRD-7-89-8 (Jan. 8, 1991).
Subsequent to our decision in Chase, and the Appellate Court's granting of the Motion to Dismiss the appeal from that decision, our Supreme Court issued a ruling in the Pereira matter. They affirmed the Pereira commissioner's denial of the claimant's Motion to Preclude, the same result that had been reached by this Board. However, the Court also said that, with respect to the standard used to judge the sufficiency of a notice of claim to trigger an employer's obligation to respond, "[t]he rule of strict compliance adopted by the review division is not supported by either the plain language or the legislative history of § 31-297 (b). To the contrary, § 31-297 (b) is remedial legislation that should be liberally construed. . . . [I]f the notice of claim is sufficient to allow the employer to make a timely investigation of the claim, it triggers the employer's obligation to file a disclaimer." Pereira v. State, 228 Conn. 535, 543 n. 8 (1994).
Since the Pereira decision, this Board has abandoned the rule of strict compliance in favor of a more relaxed sufficiency of notice requirement. Bell v. Dow Corning STI, Inc., 13 Conn. Workers' Comp. Rev. Op. 109, 111, 1777 CRB-4-93-7 (Jan. 31, 1995); see also Knapp v. UTC/Sikorsky Aircraft, 2016 CRB-4-94-4 (decided April 28, 1995). The claimant argues that in light of those cases, the trial commissioner's ruling on the Motion to Preclude should be reversed. To do so, however, would require this Board to overrule its prior decision in Chase. We doubt that such an action would be appropriate.
Normally, this Board will not address questions which were or could have been answered in a previous appeal. Peters v. State of Connecticut/Southern Connecticut State University, 13 Conn. Workers' Comp. Rev. Op. 131, 134, 1616 CRB-5-92-12 (Feb. 1, 1995), citing Hartford National Bank Trust Co. v. Tucker, 195 Conn. 218, 222 (1985). The issues surrounding the Motion to Preclude fall into that category. Once we released our decision affirming the denial of the Motion to Preclude, it became the law of the case, subject to a right of appeal to the Appellate Court. See Mingrone v. Burndy Corp., 12 Conn. Workers' Comp. Rev. Op. 19, 22, 1403 CRB-7-92-3 (Jan. 13, 1994); §§ 31-301a, 31-301 b C.G.S. The Appellate Court's dismissal of the appeal for lack of final judgment would not foreclose a future appeal including that issue once the case becomes final for purposes of appeal. SeeMingrone, supra, 21. Legally, therefore, our decision on the Motion to Preclude has been issued, and still awaits appeal to the next level.
The fact that a subsequent decision of the Supreme Court has caused this Board to change its interpretation of § 31-294c adds an interesting twist to this particular situation. As the respondent points out, though, the language in Pereira that led to this change is not the holding of that case, but dicta expressly included to "clarify a misconception" of this Board.Pereira, supra, 542-43 n. 8. The Supreme Court's apparent intent to guide future decisions of this Board would not automatically provide us with license to reopen prior decisions as well simply because other issues in those matters come before us on appeal. Even though the Appellate Court has not yet considered the denial of the Motion to Preclude, the ball is still in their court, so to speak. We decline the claimant's invitation to re-address our previous decision at this stage of the proceedings.
Turning to the merits, the claimant argues that the commissioner committed error in finding that the claimant was a "poor historian" and that no reports were submitted to his employer to document his injury. He also objects to the commissioner's reliance on the testimony of Michael Brodeur and his mention of the claimant's former activities as a race car driver in the Finding and Dismissal. Determining whether a claimant has suffered a compensable injury is a factual issue for the trial commissioner, on which issue the claimant has the initial burden of proof. Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979); Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). The credibility of witnesses and the persuasiveness of the evidence is for the commissioner to judge, and this Board will not second-guess his or her decisions in that area. Webb, supra.
Before we can address the claimant's specific challenges to the findings, we note that no Motion to Correct was filed in accordance with Admin. Reg. § 31-301-4. Without such a motion, we cannot question the factual findings. Krajewski v. Atlantic Aerospace Textron, 2120 CRB-6-94-8 (decided Nov. 28, 1995); Spindler v. Med-Center Home Health Center, 12 Conn. Workers' Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994). The claimant filed a Motion for Extension of Time in which to file his Motion to Correct on September 14, 1994, which was not explicitly ruled on. His grounds for the motion was that he was waiting to receive the transcripts of the case. Nothing more was filed, save the parties' briefs, before oral argument on September 22, 1995.
The claimant's July 14, 1995 brief does not directly address the absence of a Motion to Correct. The brief does note that "[a]pparently the transcript of October 9, 1992 in which the claimant testified was not found." In fact, said transcript is in the record, having been completed by the hearing reporter on September 19, 1995, and filed the next day. No discussion of this fact, or of the absence of a Motion to Correct in general, was subsequently presented to this Board. At oral argument, the parties concentrated primarily on the issues surrounding the Motion to Preclude.
The claimant's failure to file a Motion to Correct given the tardiness of the transcript is understandable, as a transcript is usually necessary for proper review. See, e.g., Hebert v. RWA Roofing Sheet Metal, 13 Conn. Workers' Comp. Rev. Op. 43, 44, 2129 CRB-2-94-8 (Dec. 6, 1994). However, the claimant took no steps to raise that issue to this Board, other than a casual mention of the transcript's absence in his brief The fact that the transcript is now available has not been accounted for by the claimant. No request has been made to file a Motion to Correct and reargue the appeal, nor was a postponement requested beforehand. Without some action on the claimant's part, we are forced to treat this appeal as one in which no Motion to Correct was filed. Therefore, the factual findings of the commissioner must remain intact. Once accepted as accurate, those findings provide adequate support for the commissioner's conclusion that the claimant did not sufficiently prove his claim.
The trial commissioner's decision is affirmed.
Commissioners Roberta Smith Tracy and Amado J. Vargas concur.