Summary
In Foley v. City of New Britain, 1 Conn. Workers' Comp. Rev. Op. 147, 47-CRD-6-81 (1982) and Gavin v. City of New Britain, 1 Conn. Workers' Comp. Rev. Op. 151, 46 CRD-6-81 (1982) we held that where the commissioner died before ruling on a Motion to correct the movant had a right to de novo proceeding.
Summary of this case from KICA v. MATTATUCK MANUFACTURING COOpinion
CASE NO. 47-CRD-6-81
AUGUST 3, 1982
The Claimant-Appellant was represented by Harold Geragosian, Esq.
The Employer-Appellee, City of New Britain, was represented by Joseph Skelly, Esq., Assistant Corporation Counsel.
The Insurer-Appellee, Aetna Life Casualty Company, was represented by James L. Pomeranz, Esq.
This Petition for Review from the January 8, 1981 Decision of the Commissioner for the Sixth District was argued February 19, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, A. Paul Berte and Darius Spain.
OPINION
Claimant-Appellant here was a regular uniformed member of the New Britain Fire Department on August 3, 1969. On that day he suffered a disabling cardiac event and was eventually retired due to this disability November 1, 1970. He seeks benefits on two alternative theories, one under the presumption of work relatedness, Section 7-433a, C.G.S. and the second under Chapter 568, alleging that his disabling cardiac condition arose out of and in the course of employment.
Section 7-433a. Disability or death of policemen or firemen caused by hypertension or heart disease. Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance, for the purpose of the adjudication of claims for the payment of benefits under the provisions of chapter 568 and the contributory or noncontributory retirement systems of any municipality or the state, any condition or impairment of health occurring on duty or off duty, caused by hypertension or heart disease resulting in death or temporary or permanent, total or partial disability to a uniformed member of a paid fire department or a regular member of a paid police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of such condition, shall be conclusively presumed to be a personal injury which arose out of and in the course of his employment, and which was suffered in the line of duty and within the scope of his employment, and if passage of such an examination was, at the time of his employment, required for such employment, no record of such examination shall be required as evidence in the maintenance of a claim under this section, or under such contributory or noncontributory retirement systems and under chapter 568. As used in this section, "municipality" means any town, city, borough, fire district or other municipal corporation or taxing district which provides police or fire protection to its inhabitants.
It should be noted Section 7-433c relief is not available to claimant as that Statute did not become effective until June 28, 1971.
The Commissioner denied his claim under both theories finding that the 7-433a presumption had been rebutted by credible medical evidence presented by the municipal employer, and that the Claimant had failed to prove any injury arising out of and in the course of employment. The Commissioner's Finding and Dismissal of Claim was issued January 8, 1981. A Petition for Review was filed January 16, 1981.
At that time Appellant ordered a transcript which did not become available for some time. In the interim the Commissioner who had heard the case, retired as of February 1, 1981. The successor Commissioner on August 27, 1981 granted Appellant an extension until October 23, 1981 to file his Motion to Correct. He also extended the time for filing additional "Reasons of Appeal" until that date, but Regulation, Section 31-301-2 does not vest any power in the district Commissioner to act on matters concerning Reasons of Appeal. Commissioner Edward D. O'Brien, Sr. died October 9, 1981.
Regulation, Section 31-301-2. Reasons of appeal: Within ten days after the filing of the appeal petition, the appellant shall file with the Compensation Review Division his reasons of appeal Where the reasons of appeal present an issue of fact for determination by the division, issue must be joined by a pleading filed in accordance with the rules applicable in ordinary civil actions; but where the issue is to be determined upon the basis of the finding of the Commissioner and the evidence before him, no pleadings by the appellee are necessary. (Effective 6/24/80).
His successor continued to grant claimant extensions of time to file a Motion to Correct and additional Reasons of Appeal. The final such extension expired December 30, and on that date, the Appellant filed a Motion to Commissioner to Correct Finding and Award. Due to the untimely death of Commissioner O'Brien, this pleading has not been acted upon.
Claimant argues that he is entitled to a decision on that Motion by a Commissioner below before the appellate panel can decide the matter on its merits. The Respondent-Appellee argues that a final decision was reached by a Commissioner below and that the appellate panel can decide the Motion to Correct as part of its decision on the entire res.
We agree with Appellee that the 1979 amendments creating the Compensation Review Division did cloak its panels with some power to hear evidence, but this was a limited power to hear additional evidence only. It did not permit a de novo evidentiary hearing before the panel, nor did it permit the appellate panel to substitute its factual conclusions on the evidence for those of the Commissioner below, Bielik vs. Scovill Manufacturing Company, 52-CRD-5-81, 8 C.L.T. No 29, July 19, 1982.
The situation here presented is almost analogous to Kasarauskas vs. McLaughlin, 25 Conn. Sup. 60 (1963). There the trial judge had directed a verdict for the defendant. Plaintiff's motion to set aside the verdict had been argued and was awaiting decision when the trial judge died. The court ruled that without a decision on the motion to set aside the verdict, no final judgment had been rendered. It therefore granted plaintiff's motion for a new trial.
In practice before the Workers' Compensation Commission, a motion to correct the finding serves much the same purpose as does a motion to set aside the verdict in the courts. Certainly, in the instant matter, if claimant's motion were granted, it would in effect set aside the verdict of dismissal and award benefits to the claimant.
We realize that when the legislature created the administrative law remedy in 1913 and when it created the intra-agency administrative appeal in 1979, it was attempting to provide a procedure for a more expeditious adjudication of injured workers' claims. Sending this matter back for completion of district level adjudication may at first blush seem inconsistent with that legislative purpose. However, neither the 1913 nor the 1979 legislature intended to abolish constitutionally mandated due process principles.
We are therefore convinced that the initial jurisdiction to determine a motion to correct the finding is pendent upon and comprehended within the jurisdiction of the trier of the facts, the district Commissioner. The claimant is entitled to a full bite of the apple at the district level. This may be accomplished by a de novo hearing before the Sixth District Commissioner or his designee, if in fact he disqualifies himself as the parties indicated in oral argument. But we suppose it may also be done if the parties agree to submit the evidential transcripts and exhibits of the Commissioner O'Brien hearings together with his Finding and Award and the Claimant's Motion to Correct to the district Commissioner or his designee for completion of the district adjudication.
The matter is therefore remanded to the Sixth District for proceedings in conformity with this opinion.