CASE NO. 235 CRD-5-83Workers’ Compensation Commission
JUNE 1, 1984
The Claimant-Appellant was represented by Eddi Z. Zyko, Esq.
The Respondent-Appellee was represented by Robert G. Girard, Esq., Assistant Attorney General.
This Petition for Review from the May 4, 1983 Denial of Motion For Reinstatement As Employee of the Commissioner for the Fifth District was argued May 25, 1984 before a Compensation Review Division Panel consisting of the Commission Chairman, John Arcudi and Commissioners A. Paul Berte and Rhoda Loeb.
OPINION
JOHN ARCUDI, Chairman.
No Finding and Award was issued by the Trial Commissioner in this matter as the appeal arose from the denial of claimant’s “Motion For Reinstatement As Employee.” However, an examination of the District file reveals that claimant suffered a compensable injury or injuries to his back, right groin and right thigh while in the employ of the State of Connecticut, Department of Transportation, August 4, 1978.
Thereafter he received disability payments and medical treatment provided by the State. The Voluntary Agreement filed by the parties and approved September 11, 1978 shows he earned an average weekly wage of $221.01 entitling him to the then maximum compensation rate of $147.00 per week. Because of allowance for three dependents his rate for total disability was $165.76.
The State of Connecticut sent claimant a letter showing his effective date of termination of employment was February 19, 1981. On June 2, 1981 another Voluntary Agreement between the parties was approved by the Fifth District Commissioner. This provided that claimant had suffered a ten per cent permanent partial disability of the back and was entitled to 52 weeks of compensation at $147.00 per week. This ten per cent permanent partial disability of the back had caused his orthopedic surgeon to conclude claimant could no longer do the heavy work he used to do before the injury and that he should be retrained to do sedentary work. It was because of this opinion by the doctor that the claimant was terminated by the State as he could no longer perform the full duties and responsibilities of his job.
Claimant contended before the Commissioner below that Section 31-313 required the State to assign him to other available suitable full-time work. It was in that context that the claimant filed his “Motion For Reinstatement As Employee.'” The Commissioner denied the Motion without any evidentiary hearing on the factual issues raised thereunder and under Section 31-313(b), i.e. (1) existence of full-time work as an employee of the State of Connecticut for this claimant, (2) existence of suitable full-time work, and (3) availability of such work with respect to location, training of employee, etc. The Commissioner apparently concluded Section 5-244, C.G.S. gave the State the authority to terminate the employee and that therefore the matter was not within his jurisdiction.
However, the Commissioner failed to note the limitations upon Section 5-244, C.G.S. placed by Section 31-313. Under Section 31-313 the Commissioner has jurisdiction to order that claimant be reemployed providing the facts warranted it. Under our Administrative Regulations, Section 31-279-1 through 31-279-6, claimant’s “Motion For Reinstatement As Employee” was equivalent to a request for a hearing. Both those Administrative Regulations and constitutional due process requirements made it incumbent upon the Commissioner to assign an evidentiary hearing to determine whether the facts warranted an exercise of the Commissioner’s power under Section 31-313.
The matter is REMANDED to the District Commissioner to hold such a hearing and make the necessary findings of fact to determine whether or not rehiring should be ordered.
Commissioners Berte and Loeb join in this opinion.