CASE NO. 89-CRD-2-81Workers’ Compensation Commission
AUGUST 30, 1982
The Claimant-Appellee was represented by Robert McGann, Esq., and Paul B. Groobert, Esq.
The Respondents-Appellants were represented by Gerald Stevens, Esq., and Edward D. O’Brien, Jr., Esq.
This Petition for Review from the Order of the Commissioner for the Second District was argued April 23, 1982 before a Compensation Review Division Panel consisting of Commissioners John Arcudi, Edward Bradley and Rhoda Loeb.
OPINION
On file in the Second District there is a Voluntary Agreement executed between the Claimant, Thomas Smith and the Respondents. The signature block for the Respondents has the following typewritten information:
“Safeway Truck Lines Carriers Insurance Company J. Neale MacDonald Company, Inc. Rodney L. Oliver, Manager”
The written signature although difficult to decipher seems to be Ray O. The Agreement describes a compensable injury to claimant January 23, 1981 in Hebron while operating his vehicle. He went off the road and struck a tree. Incapacity resulted beginning January 24, 1981. Claimant’s compensation rate was $285.00 per week. Claimant signed the Agreement with his mark and this was witnessed by a social worker at Hartford Hospital where claimant was still confined at the end of March due to his injuries.
Respondent-Appellant, Carriers Insurance Company paid temporary total disability benefits pursuant to its obligation under the Agreement from January 24 to March 28, 1981 when it suspended payments without notice. On May 1, 1981 Attorney Steven M. Nassau acting on behalf of Safeway Truck Lines and Carriers Insurance Company filed a Motion to Reopen because of new information which had come to Respondents’ attention. It had been impossible for Respondents to interview Claimant due to the serious nature of his injuries. Later, Attorney Nassau withdrew this motion.
On June 12, 1981 Attorney Edward D. O’Brien, Jr. of Hartford for Safeway Truck Lines and its agent J. Neale MacDonald Company, Inc. and Attorney Gerald F. Stevens for Carriers Insurance Company filed another Motion to Reopen. The gravamen of that Motion was that Claimant’s actual employer was F. W. Sonstrom Transportation, Inc., the lessor of the vehicle being operated by Claimant at the time of injury, and not Safeway Truck Lines, Inc., the lessee. On September 22, 1981 the Honorable Robin W. Waller, Commissioner for the Second District issued an order to Safeway Truck Lines and Carrier Insurance Company to reinstate the payments of benefits to claimant “retroactive to the date of discontinuance” and thereafter “until such time as a Form 36 is approved or a decision on the motion is forthcoming.” The reference to the motion was apparently to the June 12 submission. Respondents filed a Petition for Review, received September 29, 1981.
The issues raised on appeal are that (1) the Commissioner’s order was a violation of procedural due process in that it was issued without prior notice and hearing and while a Motion to Reopen was pending; and (2) there was no Voluntary Agreement between the Claimant and his employer. The Respondents agree that they have failed to file a Notice of Discontinuance, Form 36, as required by Section 31-296, C.G.S., but they argue that 31-296 obligating employers to continue paying injured employees under a Voluntary Agreement until a Notice of Discontinuance is filed and approved by the Commissioner is not applicable to the instant matter.
Neither did the Respondents file any disclaimer of liability within twenty days of the March 26, 1981 Voluntary Agreement. Under Section 31-297(b) C.G.S. liability is presumed unless a disclaimer is filed within twenty days of written notice. The Voluntary Agreement signed by Claimant would seem to qualify as such written notice. It is a document much more complete in the details it furnishes than the Form 30-C Notice approved by the Commission for Section 31-294 notices.
The facts here resemble somewhat those in Hayden vs. Wallace Sons Manufacturing Company, 100 Conn. 180 (1923). There too a Voluntary Agreement was entered into January 19, 1922 by the defendant Wallace, but the Motion to Reopen on November 10, 1922 alleged that the true employer was one Fitzpatrick. Chief Justice Wheeler writing for a unanimous court refused the request citing the Latin maxim “interest rei publicae ut sit finis litium.” The opinion held that an initial negligent investigation of the facts leading to the execution of the Voluntary Agreement was not remediable by a later discovery ascertained through more careful investigation. In other words, new information was discoverable at the time of the initial Voluntary Agreement. It was not new evidence undiscoverable at the time Wallace first assumed liability. How much more binding is the Hayden holding now that the 1967 legislature limited the employer’s investigation time to twenty days after receipt of written notice in Section 31-297(b).
But we are not now deciding Respondents’ Motion to Reopen. That matter is the subject of continued hearings in the Second District; and the Respondents may well present other evidence than that so far apparent in the record before us. The rationale of the Hayden holding is however relevant to the due process issue interposed as an objection to the Commissioner’s order. The Respondents seem to be saying that once an employer on its own motion decides to stop paying under a Voluntary Agreement, then the Commissioner is powerless to order continuation of payments without hearing evidence and issuing a Finding and Award. If this were so, it would make a mockery of the 1967 amendments limiting an employer’s investigation time to twenty days or the 1979 language in Section 31-300 making a delay of more than four weeks an undue delay.
The law does not contemplate an order only after a hearing. In fact 31-301 provides for an appeal from a decision on a motion by the Commissioner. Here, Commissioner Waller’s order seems to have been prompted by some request from Claimant’s counsel. Section 31-294 provides: “The Commissioner may, without hearing, at the request of the employer or the injured employee, when a good reason exists, or on his own motion, authorize or direct a change of such physician . . .” Kirsten vs. B. F. Goodrich Sponge Products Company, 178 Conn. 401 (1979) emphasizes the informal nature of most of the Commission proceedings. It also recalls the many administrative and executive functions as well as the quasi-judicial ones performed. The Act since its inception has recognized the need for speedy delivery of benefits to injured employees.
Once the Voluntary Agreement is executed and approved, it has the same force as an award, and an award has the same force as a judgment, Section 31-300, C.G.S. There is no evidence that needs to be taken except the Agreement itself. After that a Form 36 needs to be filed and approved before payment can be discontinued or a notice to contest liability needs to be filed within twenty days. These are the only two methods provided by the statute for nonpayment.
Of course, Respondents are entitled to a hearing on their Motion to Reopen, but until the Motion is heard and granted, the Agreement stands as the law of the case. Until that time the matter is res adjudicata subject only to being vacated in very special instances. There is no need to retry a matter with a new hearing where there had been a “finis litium” when the Voluntary Agreement was filed.
The Order of the Commissioner is affirmed.
John Arcudi, Chairman, Edward Bradley, Commissioner, Rhoda Loeb, Commissioner