CASE NO. 126 CRD-3-82Workers’ Compensation Commission
NOVEMBER 13, 1986
The claimant was represented by Charles L. Flynn, Esq.
The respondent was represented by Edward Gallant, Esq., and Keith Bradoc Gallant, Esq.
This Petition for Review from the Third District Commissioner’s January 18, 1982 Denial of the Motion To Reopen and Vacate Award was argued May 27, 1983 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners A. Paul Berte and Gerald Kolinsky.
OPINION
GERALD KOLINSKY, Commissioner.
This matter came before the trial Commissioner on an agreed stipulation of facts by the parties substantially as follows: On January 14, 1977, the claimant was a member of the paid municipal police department of the City of West Haven; upon entry into such service, the claimant had successfully undergone a physical examination which failed to reveal any evidence of hypertension or heart disease; on January 14, 1977, he suffered from hypertensive vascular disease and severe malignant hypertension; he underwent surgery for the correction of an abdominal aortic aneurysm by resection and aortic bilateral common iliac graft and for removal of the left kidney on October 26, 1977; he had been retired on September 1, 1977 and is totally disabled. Said stipulation also dealt with the claimant’s marital status, and fixed his average weekly wage and compensation rate, and concluded with the following sentence: “The respondent City has claimed and is claiming that the insurance company providing coverage to the City of West Haven has been and is obligated to pay the liability of the respondent City under 7-433(c) (sic), that such claim was opposed by the respondent insurance company and that from the claimant’s point of view, the claimant has viewed such dispute as one between said company and the City.”
Incorporating the said stipulation into his Award, on October 20, 1978, the Commissioner ordered that compensation benefits be paid by the respondent City of West Haven and that said City also pay all medical, medicine and hospital bills, and that any further benefits be subject to further agreement.
From such Award, the respondent-appellant appealed to the Superior Court, the then proper appellate forum. On April 28, 1980, that court dismissed the appeal, whereupon said City moved before the Workers’ Compensation Commissioner to Open the Award and to Receive Additional Evidence. On January 18, 1982, the Commissioner denied the City’s Motion, and this appeal was taken to the Compensation Review Division.
The respondent-appellant, West Haven, gives as its Reasons for Appeal among others the following: a) the claimant failed to file notice of claim within the allowable statutory period, and thus, the Commissioner had no jurisdiction to hear the claim, b) the Commissioner failed to specify under what provisions of law, i.e. whether 7-433(c) or Chapter 568, C.G.S., his Award was made.
We have allowed a determined respondent’s counsel to beguile us with rhetoric camouflaging fundamental flaws behind the flurry of legal maneuvering occurring since October 20, 1978. Between 1978 and 1982, the Superior Court appeal was based upon the following stated “Reasons of Appeal From the Compensation Commissioner:
1. The Commissioner exceeded his statutory authority in rendering of said Award.
2. That said Award is clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.
3. That said Award is arbitrary or capricious or characterized by abusive discretion or is clearly an unwarranted exercise of that discretion.
4. That said Award is in violation of the statutory provisions.
5. That said Award was affected by error of law.
6. That in the rendering of said Award, said Commissioner, in Paragraphs 1, 2 and 3 thereof, failed to make a ruling that the insurance carrier, Liberty Mutual Insurance Company, was responsible for the payment of said Award, and that said ruling should have been made by said Commissioner.
7. That the conclusions of the Commissioner are legally inconsistent with the subordinate facts stipulated to by the claimant and respondent.”
Following dismissal of the appeal by the Superior Court, the claimant obtained an execution issued pursuant to 31-300, C.G.S. to enforce the Award. Respondent City moved to stay the issuance of said Award contending that the Award was defective and a nullity.
A hearing on the said Motion to Stay the Award was heard by Hon. James T. Healey, and in his Memorandum of Decision on the Motion to Vacate Stay of Execution, Judge Healey first reviews the facts of the compensation case before the Commissioner and cites the stipulated facts, as well as the Commissioner’s Award, and then the appellate history.
His memorandum continues:
“The City urges that because neither the stipulation nor the award states in so many words that the claimant was disabled by reason of hypertension it follows that the Commissioner was without subject matter jurisdiction and accordingly his action was nullity; therefore the Court may intervene at any time, citing Broaca v. Broaca, 42 Conn. L.J. (July 8, 1980) 5. I cannot go that far. The stipulation does recite the hypertension and total disability, as noted earlier. However, it also refers to the city’s liability under Connecticut General Statutes 7-433(c), the section providing for benefits for policemen disabled by hypertension or heart disease. I feel it is reasonable to infer from the combination of the factual admissions and the admission as to the legal basis for the liability that the Award was based on disability caused by the heart condition. Therefore, I conclude that he did have jurisdiction of the subject matter.
It is also argued that the clerk would be faced by varying formulas for the determination of benefits and various alternatives as to the mechanics of payment, which selection would have to be made by the Commissioner before the Clerk could go through the necessary arithmetic to compute the amount due. The answer to that is the Commissioner had to make the selection when he adopted that part of the stipulation setting forth a compensation rate of $135.00 per week.
The City further asserts that insofar as it does not affirmatively appear that notice of the condition was given to the City within one year of its manifestation the Commissioner had no subject matter jurisdiction, citing such cases as Walsh v. Waldron Sons, 112 Conn. 579, which hold that timely notice cannot be waived . . .”
The respondent City appealed the vacating of the stay of execution to the Connecticut Supreme Court, raising the issues which it stated in a Preliminary Statement of Issues, as follows: “The Defendant intends to present the following issues on this appeal:
1. Did the court err in concluding that the Workers’ Compensation Commissioner’s Award and the Stipulation incorporated therein were adequate in law for the clerk of the court to issue an Execution thereon?
2. Did the court err in applying case law governing liability for a section 7-433(c) Award to the requisite procedure, established by case law, for determining eligibility for a section 7-433(c) Award?
3. Did the court err in vacating the Stay of Execution while a motion to open and modify the Award based upon a challenge to subject matter jurisdiction was pending before the original tribunal?
4. Did the court err in concluding that a disability due to hypertension or heart disease, which may entitle a claimant to compensation pursuant to section 7-433(c), existed in the present case when the Commissioner neither made nor incorporated such a finding in his Award?
Quite aside from the fact that the respondent-appellant has raised the issues of 1) lack of notice of claim and thus lack of jurisdiction and 2) Commissioner’s failure to specify grounds for his Award in both its appeal to the Superior Court from said Award, and to the Supreme Court from the vacation of the stay of execution, and in effect, has had two Appellate Courts rule on those very issues, it seeks yet another bite at the apple which it ought not have pursuant to the legal maxim “Interest reipublicae ut sit finis litium” — it is the concern of the State that there be an end of lawsuits, Hayden v. Wallace Sons Mfg. Co., 100 Conn. 180, 187 (1923).
In many respects, counsel for the respondent-appellant is making the identical argument he made in the companion cases of Cuccuro v. City of West Haven and Spragg v. City of West Haven, 6 Conn. App. 265 (1986). Cuccuro states at p. 268, “neither the commissioner nor the review division found that a notice of claim was filed within the statutory period . . . Section 31-294 of the General Statutes, however, contains an exception to the one year notice requirement: `[I]f within the applicable period the employee has been furnished . . . with medical or surgical care . . . no want of such notice of claim shall be a bar to the maintenance of proceedings. . .'”
“The defendant has not established that it did not furnish medical care to the plaintiffs. That alternative method of notice could have conferred jurisdiction on the commissioner . . . When Jurisdiction is possible, and the court has taken jurisdiction over a cause, every presumption supports the judgment which it renders . . . (citations omitted). This presumption is strengthened by the fact that the parties stipulated to the award and that none contested the jurisdiction of the commissioner.”
In the present case the respondent municipality admitted in the jointly submitted stipulation of facts that the manifestation of claimant’s hypertensive vascular disease occurred in January, 1977. It further admitted that there were no medical bills outstanding for the major surgery performed in October, 1977 less than a year after that manifestation. If in fact, as alleged by the respondent there had been no written notice of claim, such admissions would have constituted a sufficient basis for the trier of fact to draw the adverse inference that respondent had furnished medical care within the year, Secondine vs. New Haven Gas Co., 147 Conn. 672, 675, (1960) Grabowski v. Fruehauf Trailer Corporation, 2 Conn. App. 167
(1984).
Such an inferential conclusion from the admitted facts would have satisfied the medical care exception to the written notice requirement of Sec. 31-294 and hence be an adequate basis for the Commissioner’s Jurisdiction ever the claim as indicated in the Cuccuro language cited above.
Thus the Commissioner’s denial of the Motion to Open the Award and Receive Additional Evidence may be sustained on the narrow ground that the respondent failed to negate the existence of jurisdiction based on the medical care exception to the notice requirement. But we believe our holding must be broader than that. The respondent had actually admitted liability for the claim in the stipulation submitted to the first Commissioner in 1978. The only contest there was whether the municipality or its insurer should pay the admittedly compensable claim.
In such a situation the only power to modify or open the Award derives from Sec. 31-315, C.G.S.[1] Since there is no allegation that “the incapacity of (the) . . . employee has increased, decreased or ceased, or that the measure of dependence . . . has changed,” then the only justification for opening the Award must be in the latter part of that statute i.e. “the same power to open and modify an award as any court . . . to open and modify a judgment” or” . . . for any proper action . . . during the . . . period applicable to the injury in question.” This was substantially the same statute as existed in 1923 when Hayden v. Wallace Sons Manufacturing Co., supra, was decided by Chief Justice Wheeler in 1923. That decision has never been overruled, Kabnich v. Collins Co., 116 Conn. 1
(1932) Wootteon v. National Hatters, Inc., 128 Conn. 1 (1941). It was last cited approvingly in a case not relating to Workers’ Compensation, Stocking v. Ives, 156 Conn. 70 (1968).
In Stocking one of the parties was seeking to open a court Judgment. It cited as the basis for the reopening a factual situation which had not been brought to the attention of the court rendering the previous judgment. The Connecticut Supreme Court held that such allegedly new facts would have been ascertainable by the exercise of “prior due diligence” on the part of the moving party. The failure to exercise such prior due diligence was no basis on which to grant a motion to open the judgment. On the contrary it was an affirmative reason to deny the motion.
Is this not the case in the instant matter? Not only did the respondent municipality fail to exercise prior due diligence in the matter. It went far beyond that posture, it admitted liability in 1978. Then in 1982 after a change of counsel and many rebuffs by the courts, it attempted to welch on the submitted agreement. Isn’t it time to repeat the question Cicero posed to Catiline, “How long will you continue to abuse our patience?”
The 1923 Hayden decision is still good law. There must indeed be an end to litigation sometime. The Appeal of the respondent-appellant is hereby dismissed.
Commissioners Arcudi and Berte concur in this decision.