CASE NO. 3152 CRB-5-95-8Workers’ Compensation Commission

The claimant was represented by Brian Prucker, Esq., Fitzgerald Prucker.

The respondent was represented by Michael Belzer, Esq., Assistant Attorney General.

This Petition for Review from the August 14, 1995 Supplemental Finding and Award of the Commissioner acting for the Fifth District was heard February 23, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.



The respondent State of Connecticut has petitioned for review from the August 14, 1995 Supplemental Finding and Award of the Commissioner acting for the Fifth District. The state argues on appeal that the commissioner erroneously found the claimant to be totally incapacitated despite insufficient evidence to establish that claim. The claimant has also filed a Motion to Dismiss the appeal, and a Motion for Payment Pursuant to C.G.S. 31-301 (d). We will address the Motion to Dismiss first.

Section 31-301 (a) C.G.S. gives a party ten days from the entry of a decision “to appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award . . . originated an appeal petition and five copies thereof” The record in this case shows that the commissioner’s award was dated August 14, 1995, and that the state filed a petition for review precisely ten days later. However, the appeal was hand-delivered to the First District office in Hartford rather than the Fifth District office in Waterbury, where the decision originated. The claimant has filed a timely motion to dismiss the appeal on that ground.

As a tribunal of limited authority, this board cannot address the merits of an appeal unless the requirements of § 31-301
(a) have been substantially satisfied. Trinkley v. Ella GrassoRegional Center, 220 Conn. 739, 744 (1992); Freeman v. Hull DyePrint, 39 Conn. App. 717, 720 (1995). If a party fails to file a petition for review within ten days after meaningful notice of the decision has been sent, for example, this board lacks subject matter jurisdiction over the appeal. Id., citing Conaci v.Hartford Hospital, 36 Conn. App. 298, 303 (1994). In reading § 31-301 (a), however, we note that the language requiring the appeal to be filed in the office from where the award originated dates back to a time when each commissioner was required to reside in the district in which he or she was appointed, and was specifically given “jurisdiction of all claims and questions arising in such district under this chapter.” Section 31-298 C.G.S. (rev. 1989). Thus, an appeal filed outside of that district office would accordingly have been filed in a forum which did not have jurisdiction over the claim.

Public Act 91-339 has changed this system substantially. Commissioners are no longer required to live in a particular region, and restricted to a particular geographic district. Under the current framework, the chairman of the Workers’ Compensation Commission has statewide jurisdiction to establish districts and assign commissioners to those districts. Section 31-280 (b)(1). Commissioners now rotate among different district offices, and often continue to preside over cases despite being reassigned. Jurisdiction over a particular claim is more accurately described now as being vested in the Workers’ Compensation Commission in general, rather than in a particular district office. See Dixonv. United Illuminating Co., 232 Conn. 758, 774 (1995) (chairman has general power to transfer cases among districts for administrative purposes). Thus, appeals that have been filed with the chairman instead of the district office have been held to have substantially satisfied § 31-301 (a). Tessier v. KogutFlorist, 9 Conn. Workers’ Comp. Rev. Op. 288, 1088 CRD-8-90-7
(Dec. 27, 1991); see also Ward v. Chesebrough-Ponds, Inc.,10 Conn. Workers’ Comp. Rev. Op. 111, 1161 CRD-7-91-1 (May 8, 1992).

In this case, not only was the claimant employed at the Greater Hartford Community College in Hartford at the time of her injury, but all of the formal hearings through April 4, 1994 occurred in the Hartford district office before Commissioner Spain. When he was reassigned to Waterbury in May 1995, further proceedings in this case occurred there as well. Although the language of § 31-301 (a) clearly contemplates that an appeal should have been filed in the Waterbury office, we are not blind to the fact that the claim actually arose in the First District and was pending in Hartford for over two years. Given the changes in this Commission’s administration of claims since § 31-301
(a) was enacted and the procedural circumstances of this case, we believe it appropriate to deny the claimant’s Motion to Dismiss.

Turning to the merits of the case, the claimant was found to have suffered a compensable psychiatric condition in an earlier Finding and Award. The parties also stipulated to a base compensation rate and payment of medical expenses. In the Supplemental Finding and Award, the trial commissioner found that Dr. Zariphes and Dr. Purcell were the claimant’s authorized treating physicians. The latter, a general practitioner, opined that the claimant suffered from workplace stress, and referred her to Dr. Zariphes for treatment of anxiety and depression. Dr. Zariphes first saw the claimant on May 17, 1991, and opined that she was disabled from that date through January 20, 1994, with part-time employment capability after that date. The commissioner found that no evidence was presented regarding subsequent temporary partial disability, nor was any evidence presented to challenge Dr. Zariphes’ opinion. The commissioner thus accepted that diagnosis, and awarded temporary total disability benefits accordingly.

The state’s basic argument is that the claimant did not meet her burden of proving the existence of work-related temporary total disability. In its Motion to Correct, the state asserted that the claimant offered no live testimony in support of her claim at the two formal hearings concerning the period of disability, instead relying solely on a letter from Dr. Zariphes that merely assigned a 33-month period of disability without giving an underlying cause for that diagnosis. The state also pointed to the fact that the claimant had been attending school during the period in question, and had been student teaching. (See Nov. 12, 1993 Tr., p. 27). The trial commissioner denied the Motion to Correct.

The state’s performance in pursuing this appeal has hardly been exemplary. Aside from the problem with the filing of the petition for review discussed above, the state indicated on the appeal form that it would not require transcripts. Later, however, the state filed a motion for extension of time with the trial commissioner, stating that a copy of the transcripts would be necessary before a motion to correct could be filed. The claimant filed a motion in opposition to that extension, asserting that the state had already indicated that transcripts would not be necessary, and that the findings revolved around stipulated facts. The commissioner sustained that objection. Thus, this board does not have a copy of the transcripts from the two formal hearings that led to the Supplemental Finding and Award, and is unable to verify the state’s contention that no evidence supporting disability was offered at those formal hearings. See Sorbello v. Gagnon,6 Conn. Workers’ Comp. Rev. Op. 3, 567 CRD-6-87 (Aug. 12, 1988) (matter must be reheard if transcript cannot be produced, as review is otherwise not possible).

Ordinarily, the absence of a complete record in a case like this would be deemed the fault of the appellant, and the appeal would be denied. However, the claimant does not attempt to argue that the missing transcripts would support her claim; indeed, in her motion opposing the extension of time to file a motion to correct, she represented to the trial commissioner that the findings revolved around stipulated facts. Our review of the record discloses no evidence that the state ever stipulated to the term of the claimant’s temporary total disability.

In fact, as the state has asserted, the only exhibit supporting the finding of total disability is an October 18, 1994 report from Dr. Zariphes that says “the above named patient was totally disabled from 4/29/91 to 1/20/94. On 1/29/94 patient was advised to seek employment on a part time basis. Patient is presently working part time.” None of the other medical reports in evidence were produced recently enough to support the 33-month disability period. A review of the transcripts from the 1992 and 1993 formal hearings associated with the prior Finding and Award provides little support for this finding as well. Although Dr. Zariphes stated that, as of June 1992, he did not believe that the claimant had a work capacity, he also stated that the last time he had seen her, in October 1993, she “had started student teaching, and apparently was doing very well.” He went on to say that he thought at that point (November 12, 1993), he would probably terminate her from disability. (Nov. 12, 1993 Tr., pp. 23-29.)

Taking the commissioner’s fact-finding authority into account, see Webb v. Pfizer, Inc.,14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995) this board still cannot find sufficient evidence in the record to establish a reasonably medically probable relationship between the claimant’s medical condition and her total disability through January 1994. See Rogers v. Laidlaw Transit, 2154 CRB-3-94-9 (decided June 24, 1996). Given the circumstances here, we believe that the appropriate solution is to reverse the trial commissioner’s decision, and remand this matter to the First District for new proceedings concerning the extent of disability.[1]

Chairman Jesse M. Frankl and Commissioner George A. Waldron concur.

Lorraine Lockery, Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission

[1] The claimant’s Motion for Payment Pursuant to C.G.S. 31-301(d) is rendered moot by this holding.