Summary
In Chapo v. Westport, 3 Conn. Workers' Comp. Rev. Op. 14, 17. 170 CRD-4-82 (1985) this tribunal noted, "The first requirement that must be met for additional evidence to be presented before the Compensation Review Division [Board] is that it be material.
Summary of this case from McNulty v. City of StamfordOpinion
CASE NO. 170 CRD-4-82
AUGUST 20, 1985
The claimant-appellee was represented by Charles Flynn, Esq.
The respondents-appellants were represented by Robert Montstream, Esq.
The Second Injury and Compensation Assurance Fund was represented by Robert Murphy, Esq., Assistant Attorney General.
This Petition for Review from the September 9, 1982 Finding and Award of the Chairman of the Workers' Compensation Commission, acting for the Fourth District, was argued October 28, 1983 before a Compensation Review Division panel consisting of Commissioners A. Paul Berte, Rhoda Loeb and Frank J. Verrilli.
FINDING AND AWARD
The Finding and Award of the Chairman of the Workers' Compensation Commission is affirmed and adopted as the Finding and Award of the Compensation Review Division.
OPINION
This is an appeal from a September 9, 1982 Finding and Award of the Chairman of the Workers' Compensation Commission (hereinafter the Commissioner). The appeal was timely filed by the respondents Town of Westport and Covenant Insurance Company. The three paragraph Reasons of Appeal narrow to one claim of error — that the Commissioner erred in denying the respondents' Motion to Correct.
The facts as disclosed by the Finding and Award of the Commissioner are not in dispute. Andrew Chapo, the claimant, was injured on February 4, 1976, when, while in the course of his work as a policeman, he fell down a flight of stairs at the site of a fire, and sustained compensable injury to his right upper extremity and neck. Claimant was treated by a Norwalk neurosurgeon, and subsequently had an anterior cervical fusion of the C-4, C-5 level at Yale-New Haven Hospital. He was temporarily totally disabled from work from March 6, 1976 until November 14, 1978 when he reached maximum medical improvement. At the time of maximum medical improvement claimant had a 50% permanent partial disability of the cervical spine for which the Commissioner awarded him benefits.
The first paragraph of the respondents' three paragraph Motion to Correct moves that the Finding be corrected as follows: "10. The Second Injury Fund has been duly noticed of their responsibility under 31-349." The other two paragraphs of the Motion to Correct request the Commissioner add facts that are related to Sec. 31-349 and are only relevant if the first Paragraph is added to the Finding.
Sec. 31-349. Compensation for second disability The fact that an employee has suffered previous disability, or received compensation therefor, shall not preclude him from compensation for a later injury, nor preclude compensation for death resulting therefrom. If an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of; or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, and necessary medical care, as elsewhere provided in this chapter, notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer by whom the employee is employed at the time of the injury, or his insurance carrier, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire. Failure on the part of the employer or the carrier to comply does not relieve the employer or carrier of its obligation to continue furnishing benefits under the provisions of the act. In the event the custodian shall reject the claim of the employer and its insurer, the question shall be submitted to the commissioner having jurisdiction, as promptly as possible, and the employer or carrier shall continue furnishing benefits until the outcome is finally decided, and if the employer or carrier prevails all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or carrier by the second injury fund. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation and medical bills have been paid for the one-hundred-four-week period, and indicating thereon the date the custodian was notified of the pending case. Thereafter all responsibility for compensation and medical treatment shall be with the custodian of the second injury fund. If the subsequent injury of such an employee resulting from an accident arising out of and in the course of his employment shall result in the death of the employee, and it shall be determined that either the injury or death would not have occurred except for such preexisting permanent physical impairment, the employer or his insurance carrier shall, in the first instance, pay the funeral expense described in this chapter, and shall pay death benefits as may be due for the first one hundred four weeks. Ninety days prior to the expiration of the one-hundred-four-week period, the employer or his insurance carrier shall notify the custodian of the second injury fund the pending case and shall furnish to said custodian a copy of the agreement or award. After the employer or its insurer has completed the payment for the one-hundred-four-week period, he shall file with the commissioner having jurisdiction, and with the custodian of the second injury fund, a form indicating that all compensation has been paid for the one-hundred-four-week period, and indicating thereon the date that the custodian was notified of the pending case. Thereafter all responsibility for compensation shall be with the custodian of, the second injury fund. Employees shall not be denied any of the benefits provided by any provisions of this chapter by reason of the execution of a waiver, but the benefits specified in this chapter which would be payable except for the execution of such waiver shall be paid entirely out off the second injury fund. Claims for such benefits shall be filed with the commissioner, who shall refer such claims to the custodian of the second injury fund as specified above. The custodian of the second injury fund may make payment by way off final settlement in any matter concerning the fund, subject to the approval of the commissioner, when it is for the best interests of the injured employee.
The Commissioner held two formal hearings in this matter, on January 24, 1980, and March 4, 1981. The Second Injury Fund is not listed on the first notice of formal hearing, and was listed on the second. In neither notice were any issues stated which involved the Second Injury Fund. We have also reviewed the entire record certified to us in this matter, and our review disclosed no notice to the Second Injury Fund concerning any claims to be considered at either formal hearing involving Second Injury Fund Liability. We are satisfied that there was no issue of Second Injury Fund liability before the Commissioner at the hearings.
Our Supreme Court has held that it is unconstitutional for a Commissioner to act on an aspect of a claim, unless the parties have legally sufficient notice. Osterlund v. State, 129 Conn. 591 (1943); Adams v. New Haven, 1 Conn. Workers' Comp. Rev. Op. 121, 124 (1982).
Since there were no issues concerning Second Injury Fund liability before him, the Commissioner quite properly denied the respondents' Motion to Correct since the additions requested were irrelevant to the issue before the Commissioner.
The respondents also filed with this Division a MOTION TO PRESENT ADDITIONAL EVIDENCE dated October 7, 1983. The additional evidence sought to be presented also relates the respondents' contentions that there is Second Injury Fund liability in this matter. Sec. 31-301-9, Administrative Regulations, provides as follows:
"If any party to an appeal shall allege that [additional evidence or testimony is material] and that there were good reasons for failure to present it in the proceedings before the Commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal." (underlining ours)
The first requirement that must be met for additional evidence to be presented before the Compensation Review Division is that it be material. The test of materiality is whether or not it is necessary to the determination of the issue before us. BLACK'S LAW DICTIONARY 1128 (Rev. Ed. 1968). It is clear in this case that the additional evidence is not material as a matter of law since the additional evidence relates to an issue that is not before us. Accordingly, the Motion is denied.
Therefore, the appeal is dismissed and the decision of the Commissioner is affirmed.
Commissioners Rhoda Loeb and Frank J. Verrilli concur in this opinion.