Opinion
CASE NO. 597 CRD-5-87
MARCH 10, 1989
The claimant was represented by John Ambrozaitis, Esq., FitzMaurice Ambrozaitis.
The respondents were represented by Frank Russo, Esq. and Brian Prindle, Esq., Berman, Curry, Russo Prindle.
This Petition for Review from the May 15, 1987 Finding and Award of the Commissioner for the Fifth District was heard September 16, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Frank Verrilli.
OPINION
Respondents' appeal contends the Fifth District May 15, 1987 Finding and Award was deficient as it failed properly to set out the issue to be resolved and failed to make appropriate findings to support the legal conclusions reached.
Administrative Regulation Sec. 31-301-3 prescribes the elements necessary to be included in a Finding. The trial Commissioner's Finding described the legal issue thus "Was the Form 36 received by the Commissioner May 20, 1986 approved and if not should temporary total payments be continued at least until September 24, 1986 as claimed." But the record shows that a Voluntary Agreement concerning a compensable left shoulder injury was filed and approved October 15, 1984. Subsequently, temporary total benefits were paid until December 4, 1984. No Form 36 was filed until May, 1986. The claimant sought benefits from December, 1984 until such time as a Form 36 was approved. Consequently, the Finding's statement of the legal issue was incomplete at best. The trial Commissioner's Finding "should contain all the subordinate facts which are pertinent to the inquiry and the conclusions of the commissioner therefrom. . ." McQuade v. Ashford, 130 Conn. 478, 482 (1944) quoting Rossi v. Jackson Co., 117 Conn. 603 (1933). See also Platt v. UTC/Pratt Whitney Aircraft Division, 3 Conn. Workers' Comp. Rev. Op. 3, 9, 11-12, 164 CRD-6-82 (1985).
Sec. 31-301-3. Finding. The finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions. The opinions, beliefs, reasons and argument of the commissioner should be expressed in the memorandum of decision, if any be filed, so far as they may be helpful in the decision of the case.
In addition the May 15, 1987 Finding contains apparent inconsistencies. Paragraph #4 states, "It is found that there was no testimony addressing the work capacity of the claimant as of May 22, 1986. Paragraph #5 states, "It is found that the claimant was owner or part owner of Diana's Cafe and at times was present there." Without additional factual findings it is impossible to find support for the ultimate legal conclusion reached by the trial Commissioner. "No case under this act should be finally determined when the trial court, or this court, is of the opinion that though inadvertence or otherwise, the facts have not been sufficiently found to render a just judgment." Dombach v. Olkon Corp., 163 Conn. 216 (1972).
Claimants have moved for the dismissal of the Petition for Review on the grounds that it was untimely filed. Sec. 31-301(a) provides that the Petition for Review should be filed "within ten days after entry of . . . [the] award by the commissioner." Also relevant is Administrative Regulation Sec. 31-301-1. Here the tenth day, May 25, 1987, fell on Memorial Day, a legal holiday, and the Commission's offices were closed. We recently addressed this issue in Faraci v. Connecticut Light Power Co., 5 Conn. Workers' Comp. Rev. Op. 160, 508 CRD-2-86 (1988) where we held an appeal filed on the next business day after the legal holiday was timely, Alderman Bros. Co. v. Westinghouse Air Brake Co., 91 Conn. 383 (1917) (per curiam).
Sec. 31-301-1. Appeal. An appeal from an award, a finding and award, or a decision of the commissioner upon a motion shall be made to the compensation review division by filing in the office of the commissioner from which such award or such decision on a motion originated an appeal petition and five copies thereof. Such appeal shall be filed within ten days after the entry of such award or decision and shall be in substantial conformity with the forms approved by said division. Such commissioner within three days thereafter shall mail such petition and three copies thereof to the chairman of the compensation review division and a copy thereof to the adverse party or parties, and shall thereupon, or as soon thereafter as shall be practicable, cause to be filed with the chairman of the compensation review division a certified copy of the award or of the decision upon a motion together with a finding upon which the award was predicated, with such other parts of the record as are necessary for a proper consideration of the appeal. The commissioner shall, upon order of the compensation review division, file a certified copy of any other document comprising a part of the record which the division deems necessary for the proper disposition of the appeal.
The claimant's Motion to Dismiss is denied; respondents' appeal is sustained, and the matter is remanded for further proceedings consistent with this opinion including a retrial of all issues if found necessary.
Commissioners Andrew Denuzze and Frank Verrilli concur.