779 A.2d 78
(SC 16458)Supreme Court of Connecticut
Sullivan, C.J., and Borden, Norcott, Katz and Vertefeuille, Js.
The named defendant employer appealed from the decision of the compensation review board affirming the decision of a worker’s compensation commissioner denying the employer’s claim to transfer to the defendant second injury fund liability for a certain workers’ compensation claim. For the reasons set forth by this court in Giaimo
v. New Haven (257 Conn. 481), held that transfer of the claim was not barred by the statute (§ 31-349h) requiring that transfers of claims to the second injury fund be effected by July 1, 1999, and that, as applied to the facts of the present case, the statute (§ 31-349c [a]) requiring that controverted issues concerning the existence of a previous disability for purposes of transfer of a claim to the fund be referred to a panel of physicians appointed by the chairman of the workers’ compensation commission violates the fourteenth amendment to the federal constitution and article first, §§ 8 and 10 of the Connecticut constitution.
Argued March 20, 2001
Officially released August 14, 2001
Appeal by the named defendant from a decision by the workers’ compensation commissioner for the seventh district affirming the finding of a statutorily authorized medical panel that the plaintiff did not have a preexisting condition and, thereafter, denying the named defendant’s request to transfer to the defendant second injury fund the liability for disability benefits payable to the plaintiff, brought to the compensation review board, which affirmed the commissioner’s decision, and the named defendant appealed. Affirmed in part; reversed in part; further proceedings.
James M. Hughes, with whom, on the brief, was Thomas A. Mulligan, Jr., for the appellant (named defendant).
Gregory T. D’Auria, associate attorney general, with whom were William J. McCullough, assistant attorney
general, and, on the brief, Richard Blumenthal, attorney general, and J. Sarah Posner, assistant attorney general, for the appellee (defendant second injury fund).
This appeal presents two issues concerning the transfer of a workers’ compensation claim to the defendant second injury fund (fund) that are identical to those decided by this court today in the case of Giaimo v New Haven, 257 Conn. 481, 778 A.2d 33 (2001). Specifically, the named defendant, Norwalk Hospital (hospital), claims that General Statutes § 31-349c (a) violates the fourteenth amendment to the United States constitution and article first, §§ 8 and 10, of the Connecticut constitution. The fund argues
that the hospital’s claim is moot in light of General Statutes §31-349h. In Giaimo, we concluded that § 31-349c (a) is unconstitutional under the state and federal constitutions, as applied to the facts of that case; id., 516; and that § 31-349h does not bar the transfer of claims that were eligible for transfer prior to July 1, 1999, and that ultimately are found to be transferable. Id., 498. We conclude that § 31-349c (a) is also unconstitutional as applied to the facts of this case.
The record reveals the following relevant facts. The plaintiff, Jean Zeoli, injured her back on March 26, 1995, during the course of her employment with the hospital. The injury was found to be compensable under the workers’ compensation act (act), and compensation was paid by the hospital and its insurer. The hospital subsequently sought to transfer the claim to the fund, claiming that the plaintiff had a preexisting physical disability to her back that had caused her disability from the second injury to be materially and substantially greater than it otherwise would have been.
Pursuant to § 31-349c (a), the chairman of the workers’ compensation commission assigned the claim to a panel of three physicians, consisting of Leo Willett, an orthopedic surgeon, John Basile, a neurosurgeon, and Robert Stern, a chiropractor. The panel examined the plaintiff and issued its report on February 5, 1998, concluding that the claim did not qualify for a transfer to the fund. On March 17, 1998, and again on April 29, 1998, the hospital wrote to the commissioner requesting that the commissioner enter a finding or order concerning the panel’s decision so that the hospital would have a ruling from which to appeal to the compensation
review board (board). When the commissioner took no action, the hospital, on October 14, 1998, requested a hearing on the panel’s decision and again requested that the commissioner take some action with respect to the decision. A formal hearing was held on January 27, 1999, and on February 3, 1999, the commissioner issued a finding and dismissal, ruling that the panel’s decision, that the plaintiff’s preexisting condition had not caused her disability to be materially and substantially greater than it otherwise would have been, controlled, and denying the claim for a transfer.
On February 11, 1999, the hospital filed a motion to correct, which the commissioner denied on the same date. The hospital also filed with the board a petition for review and a motion for expedited reservation of the case to the Appellate Court pursuant to General Statutes § 31-324.
The fund moved to dismiss the hospital’s petition for review and motion to correct on the grounds that the board had no subject matter jurisdiction in light of § 31-349h. The board issued its opinion on March 13, 2000, concluding that it could not reserve the constitutional question to the Appellate Court
because it was not justiciable by the board in the first instance.
The board held that the transfer of the claim was not barred by §31-349h and affirmed the commissioner’s February 3, 1999 decision. The hospital appealed to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).
For the reasons set forth in Giaimo v. New Haven, supra, 257 Conn. 498, the decision of the board is affirmed with respect to the board’s ruling that the transfer of the claim was not barred by § 31-349h. The decision of the board is reversed in part, and the case is remanded to the board with direction to remand it to the commissioner for further proceedings according to law.
In this opinion the other justices concurred.