Kay v. Hubbard-Hall, Inc.

The claimant was represented by Daniel B. Scott, Esq., Watstein & Watstein, 685 Middle Street, P.O. Box 1360, Bristol, CT 06011.

The respondents were represented by Theodore M. Pappas, Esq., Law Offices of Scott B. Clendaniel, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145-2138.

This Petition for Review from the July 14, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District was heard January 21, 2000 before a Compensation Review Board panel consisting of Commissioners Robin L. Wilson, Angelo L. dos Santos, and Leonard S. Paoletta.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The claimant has petitioned for review from the July 14, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District. In that decision the trial commissioner found that the decedent’s fatal myocardial infarction was not caused by his employment. In support of her appeal, the claimant (dependent widow) contends, inter alia, that the Finding and Dismissal is void because it was not issued within 120 days after the submission of the last trial brief as required by § 31-300.

In the instant case, the record indicates that the last trial brief (the claimant’s) was filed on March 15, 1999.1 The 120th day following the March 15, 1999 filing of the claimant’s trial brief was July 13, 1999. On July 14, 1999, the trial commissioner issued his Finding and Dismissal which was mailed to the parties via certified mail, return receipt requested, on July 14, 1999. On July 15, 1999, claimant’s counsel mailed2 to the trial commissioner a request for a new hearing pursuant to § 31-300, which alleged that the “mandatory 120-day requirement ran from March 15, 1999, and expired July 13, 1999 without a Finding and Award” and which requested “a new formal hearing before a different Commissioner.” As evidenced by certified mail receipts in the record, the claimant’s attorney received the trial commissioner’s decision on July 16, 1999 and the claimant received said decision on July 19, 1999.

Section 31-300 provides in pertinent part: “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award.” Our Supreme Court has held that the time period in § 31-300 is mandatory, and that prejudice need not be demonstrated to invalidate a late decision. Stewart v Tunxis Service Center, 237 Conn. 71, 76-80 (1996). However, the parties may waive a trial commissioner’s noncompliance with § 31-300, either explicitly or implicitly by conduct. Id. at p. 80. Whether the claimant waived the 120-day rule is a question of fact which this board must determine. Stewart, 237 Conn. at 81, fn. 7.

We must first determine the date on which the 120-day period commenced running. In Fenn v. Hospital of St. Raphael, 3444 CRB-3-96-10 (February 25, 1998), the board held that the 120-day period in § 31-300 begins running on the date the last trial brief is seasonably filed. The board explained as follows:

In the case at hand, the respondents contend that the 120-day period did not begin running until April 20, 1999, the date that a settlement conference4 was held. On the other hand, the claimant contends that it commenced March 15, 1999, when the last trial brief (the claimant’s) was filed. We agree with the claimant, as we have no reason to overturn our recent holding, which was well reasoned, that “the 120-day period in § 31-300 begins running on the date the last trial brief is seasonably filed.” Fenn, supra; see also Frank v. Streeter, 192 Conn. 601, 605 (1984) (120-day period for a trial court to render a decision under § 51-183b encompasses the filing of briefs after the conclusion of testimony, as necessary to provide the trial court with the opportunity to deliberate and reach a thoughtful and reasoned conclusion).

Regarding the respondents’ argument that the 120-day period started running anew on the date of the settlement conference, we note that the Appellate Court addressed a similar issue in Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89 (1996). In that case, the court held that the trial court failed to issue its judgment within 120 days following the completion of the trial as required by § 51-183b. The plaintiff in that case argued that the 120 days commenced upon the June 4, 1993 filing of the plaintiff’s reply brief and proposed findings of fact. Approximately three months later, the trial court met with counsel and requested an extension of 60 days to render its decision, and requested that counsel participate in a settlement conference with another judge to try to settle the case. The parties agreed, and a settlement conference was held on October 12, 1993, and was attended by both counsel who each submitted pretrial memorandums during the conference.

The Appellate Court in Building Supply Corp., supra, held that the 120 days commenced on June 4, 1993, and was extended 60 days by the agreement of the parties. However, the court did not accept the defendants’ argument that the 120 days should commence upon the filing of briefs at the settlement conference. The court noted that the briefs filed by the parties during the settlement conference were, of course, not meant for the original trial court judge to use in rendering his decision. Id. at 103. The defendants argued that the claimant’s participation in the settlement conference “undoubtedly implied approval of a delay in the rendering of a decision on the merits of the case.” Id. at 98. However, the court was not persuaded by the defendants’ argument regarding “implied consent” by the claimant due to participating in the settlement conference. Id. at 101.

Now that we have determined that the 120-day period commenced upon the filing of the last trial brief on March 15, 1999, we must now make a factual determination regarding whether the claimant waived her right to have a decision issued within 120 days. Stewart, 237 Conn. at 81, fn. 7. The court explained in Stewart, supra, as follows: “Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied… In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” Id. at 81, quoting Hensley v. Commissioner of Transportation, 211 Conn. 173, 179 (1989). Initially, we conclude that the claimant’s July 15, 1999 letter clearly indicates that the claimant did not waive the 120-day requirement, as the letter specifically states that the 120-day period “expired July 13, 1999 without a Finding and Award” and that the claimant therefore “requests a new formal hearing before a different Commissioner.” However, the timeliness of said letter must be examined.

In the Stewart case, on remand from our Supreme Court this board stated that “when the 120-day time limit has long passed, and a party has made no indication that it has an objection to the lateness of a decision, this board is inclined to interpret that inaction as an intent to waive the 120-day time limit. A party shall not be allowed to choose to enforce its right to invalidate a ruling only after the party reviews the decision and decides that it is adverse to its interests, barring special circumstances.” Stewart v. Tunxis Service Center, 16 Conn. Workers’ Comp. Rev. Op. 69, 71, 1684 CRB-6-93-4 (Oct. 30, 1996).

We have repeatedly held that an objection that is first raised after the late decision has been issued is tantamount to waiver. Saporoso v. Aetna Life & Casualty, 3759 CRB-1-98-11 (September 3, 1999); Lalanne v. Town of Greenwich, 3914 CRB-7-98-10 (September 2, 1999); Wilson v. Stamford, 3268 CRB-7-96-2 (Nov. 7, 1997); Zering v. UTC/ Pratt & Whitney, 3321 CRB-6-96-4 (Aug. 8, 1997); Soto v. Swank Crestline, Inc., 3255 CRB-7-96-1 (July 24, 1997); Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (Dec. 13, 1996), aff’d., 47 Conn. App. 913 (1997)(per curiam), cert. denied, 243 Conn. 962 (1998). Thus, if the claimant’s letter was received by the trial commissioner prior to his issuing of the Finding and Dismissal, we would likely find that the claimant had not waived the 120-day requirement. See Holland, supra. Here, however, because the claimant first objected to the lateness after the trial commissioner’s decision had been issued, we must conclude that the claimant waived any objection to the lateness of said decision.

Specifically, in the instant case, the claimant’s letter was received by the District Office on July 19, 1999, as indicated by the date stamp, which was five days after the Finding and Dismissal had been issued. Indeed, the certified mail receipts in the record indicate that the Finding and Dismissal had already been received by the respondent insurer, Travelers, on July 15, 1999. Significantly, the trier’s decision was issued prior to the claimant’s letter being mailed on July 15th, and indeed was received by one of the parties on July 15th. Although the claimant registered her protest promptly, the trier’s decision had already been issued, and had been received by one of the parties on the day the claimant mailed her letter. Under these circumstances, we conclude that the claimant waived her right to enforce the 120-day time limit in § 31-300, and we will not invalidate the trial commissioner’s decision.5

We will now address the respondents’ argument that the 120-day rule of § 31-300 does not apply to Finding and Dismissals as opposed to Finding and Awards, because the statute specifically states, in pertinent part, as follows: “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his finding and award.” Sec. 31-300 (emphasis added). We find no merit to this argument. Our Supreme Court has explained:

In the instant case, the language of § 31-300 refers to a “finding and award” but subsequently states: “If no appeal from his decision is taken by either party within ten days thereafter, such award shall be final and may be enforced in the same manner as a judgment of the superior court.” Sec. 31-300 (emphasis added). In order to read § 31-300 in a harmonious manner, and in order to ensure a just and rational result, the initial reference to a “finding and award” must be read to refer to the trial commissioner’s decision—whether an award or a dismissal—so as to give effect to the later sentence allowing either party to appeal. Moreover, it is certainly significant that § 31-301 provides that “within ten days after entry of an award by the commissioner” the parties may appeal to this board, and this section has always been construed to govern appeals from dismissals as well as awards.

We now turn to the merits of the claimant’s appeal. The trial commissioner found the following relevant facts. The claimant widow claims that her husband died due to work stress and/or physical exertion on May 31, 1995 while in the course of playing golf at a function on Cape Cod sponsored by the employer. The decedent had been offered the opportunity to attend a dinner party at his manager’s house on Cape Cod on the evening of May 30, 1995 and to play golf the next morning with some of the chemical suppliers of the respondent employer. The decedent’s attendance at the Cape Cod function was voluntary, and in fact no business was discussed while he was there. (Finding ¶ 6 and 9).

The decedent had a fatal heart attack on the morning of May 31, 1995 while on the twelfth hole of a golf course on Cape Cod, after he stepped out of the golf cart. He was 58 years old, and a heavy (two pack per day) smoker, who had no regular medical check-ups. The decedent was employed as a purchasing manager for the respondent employer. He basically worked from 8:00 A.M. to 5:00 P.M., five days per week, and was rarely required to work evenings or weekends. There was a consensus of the decedent’s fellow workers that he was not under stress in his job. The trier found that there was no direct evidence that the decedent was under any particular job stress at the Cape Cod functions.

At the request of the respondents, an independent medical examination of the decedent’s medical records was performed by Dr. Dougherty, who referenced the various risk factors for heart disease and noted that smoking was a substantial factor. Dr. Dougherty opined that the decedent’s activities while playing golf on May 31, 1995 were unrelated to his sudden cardiac event, and further opined that the myocardial infarction would have occurred whether or not he was at the golf outing. On the other hand, the claimant’s medical expert, Dr. Revkin, opined that the decedent’s golf activity was the cause of his death. The trial commissioner concluded that the claimant had failed to establish that either the decedent’s employment or his physical activities while attending the golf outing was a substantial factor in causing the myocardial infarction. However, the trial commissioner concluded that the claimant was in the course and scope of his employment while attending the social functions on Cape Cod.6

In support of her appeal, the claimant contends that the medical opinion of Dr. Revkin supports the conclusion that the claimant’s work stress and/or his physical exertion while playing golf on May 31, 1995 caused his death. Moreover, the claimant contends that the trier erred in denying her Motion to Correct in which she sought to add facts which indicate that the decedent’s “work and related work stress and/or physical activities while attending the golf outing on the morning of May 31, 1995 were a substantial factor in triggering a myocardial infarction….” (Claimant’s Brief at p. 23). As we have repeatedly stated, the trial commissioner “is the sole arbiter of the weight of the evidence and the credibility of witnesses in workers’ compensation cases.” Keenan v. Union Camp Corp., 49 Conn. App. 280, 286 (1998). It was within the trier’s discretion to accept the opinion of Dr. Dougherty regarding the causation of the decedent’s myocardial infarction. In their appeal, the claimant is essentially seeking to retry the facts of this case, which this Board may not do. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999). As the trial commissioner’s decision regarding causation is fully supported by the evidence, and is not based on impermissible or unreasonable factual inferences or contrary to law, it must be upheld. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118 (1987) (claimant must prove causation by a reasonable medical probability).

Finally, we will briefly discuss the respondents’ cross appeal, in which the respondents contend that the decedent’s participation in the golf outing on May 31, 1995 constituted participation in a social or recreational event which is excluded from the definition of “injury” pursuant to § 31-275(16)(B)(i). That section provides that a “personal injury” or “injury” shall not include:

In the instant case, because the trial commissioner concluded that the decedent’s injury was not caused by either his employment or by his participation in the functions on Cape Cod, and that conclusion is fully supported by the record, we need not address the issue of whether § 31-275(16)(B)(i) also bars the claim.7

The trial commissioner’s decision is affirmed.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 The claimant has filed a Motion to Submit Additional Evidence in which she seeks to present evidence regarding the date the last brief was filed (March 15, 1999); that the Finding and Award was rendered beyond 120-ays of said date; and that the claimant timely requested a new hearing. Because these dates are contained in the record and are not disputed by the respondents, we need not address the motion. BACK TO TEXT

2 The record contains the letter which includes a certification signed by claimant’s counsel indicating that the letter was “mailed, postage prepaid, this 15th day of July, 1999….”; and the respondents do not dispute this certification of mailing. BACK TO TEXT

3 Black’s Law Dictionary defines “pro forma” to mean “As a matter of form or for the sake of form.” Thus, a pro forma hearing is held in order to satisfy the requirements of procedural form rather than because an evidentiary hearing is necessary to discuss a disputed issue. BACK TO TEXT

4 The respondents state in their brief that “a hearing was held on April 20, 1999 to discuss settlement of the case.” (Respondents’ Brief at p. 5). The record indicates that on said date an informal hearing was held before a different trial commissioner with the issue listed as “31-297- Settlement Discussion” and that both parties attended. BACK TO TEXT

5 We note that even though the claimant had not yet received a copy of the decision, nevertheless the claimant’s counsel (or the claimant) could have easily learned of the decision dismissing her claim by calling the District Office or speaking to a representative of Travelers, which had already received a copy. This theoretical possibility supports the requirement that an objection be registered prior to the issuance (rather than the receipt of) the decision. BACK TO TEXT

6 We also note that the claimant contends that the trial commissioner erred in denying her Motion to Correct in which she sought to include facts which indicate that the decedent “was in the course and scope of his employment while attending the functions on Cape Cod on May 30, 1995 and May 31, 1995.” (Claimant’s Brief at p. 19). BACK TO TEXT

7 We note that the trier did not make a specific finding of fact as to whether the golf outing was an activity “the major purpose of which [was] social or recreational” and that such a finding is necessary to determine whether § 31-275(16)(B)(i) applies. BACK TO TEXT