CASE NO. 760 CRD-6-88-8Workers’ Compensation Commission
DECEMBER 28, 1989
The claimant was represented by Edward Smoragiewicz, Esq., Cardwell, Cardwell Smoragiewicz.
The respondent-employer was unrepresented. The respondent-Second Injury Fund was represented by Brewster Blackall, Esq., and Michael J. Belzer, Esq., Assistant Attorneys General.
This Petition for Review from the August 5, 1988 Denial of a Motion to Reopen Judgment of the Commissioner for the Sixth District was heard September 29, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky, and Frank J. Verrilli.
OPINION
JOHN ARCUDI, CHAIRMAN.
In this Second Injury Fund appeal the employer respondent has not participated. The Sixth District ruled May 17, 1988 that claimant had suffered a compensable injury to his ear, eye and nervous system on April 6, 1986 and the employer was therefore ordered to pay all benefits due. As the employer was uninsured, the commissioner, pursuant to Sec. 31-355, added the following sentence to the award, “If payment is not made within ten days of this award, an order will be directed to the Second Injury Assurance and Compensation Fund, to assume responsibility.”
The May 17 award recited that the findings were based on an October 28, 1987 Formal Hearing. At that hearing the employer Ramon Sanchez failed to appear although notice of the hearing had been sent him. Despite the provisions of Sec. 31-351[1] no notice of that hearing had been communicated to the Fund. When the Fund learned of the commissioner’s award it filed a “Motion to Reopen Judgment” on May 26, 1988. This appeal results from the commissioner’s denial of that , May 26 motion.
It is the Fund’s contention that Sec. 31-351 requires that notice be given it in all proceedings where payment from the Fund may be involved. The use of the term “shall” in the statute’s language, the Fund argues, imposes a mandatory duty on a commissioner of give notice of hearings in matters which may ultimately result in Fund liability. We agree.
As the Fund points out, Sec. 1-1 C.G.S. states that words and phrases in a statute “shall be construed according to the commonly approved usage of the language.” The term “shall” generally connotes a mandatory rather than directory requirement. “In its ordinary usage, the word “shall” means that the directive in question is mandatory, absent legislative intent to the contrary.” Kiernan v. Roadway Express, Inc., 15 Conn. App. 625, 630 (1988) citing Farricielli v. Personnel Appeal Board, 186 Conn. 198, 203 (1982).
Apart from the statutory requirements, how can the commissioner order the Fund to pay benefits unless he first obtains in personam jurisdiction over the Fund? Notice is a necessary prerequisite of such jurisdiction.
We therefore sustain the Fund’s appeal and remand the instant matter for further proceedings consistent with this opinion.
Commissioners Gerald Kolinsky, and Frank J. Verrilli concur.