LOVIE DECHIO v. RAYMARK INDUSTRIES, INC., et al., SC 18413

Compensation Review Board

 

      Workers' Compensation; Whether Motion to Dismiss Second Injury Fund's Appeal from Order to Pay Workers' Compensation Benefits was Properly Granted on Ground that Appeal was not Filed Within Time Period Set Forth in General Statutes § 31-301 (a).  The plaintiff filed a workers' compensation claim alleging that her husband died from lung cancer resulting from his exposure to asbestos during the course of his employment with defendant Raymark Industries, Inc.  The workers' compensation commissioner rendered a finding and award in which he determined that the plaintiff was entitled to benefits.  Raymark subsequently commenced bankruptcy proceedings.  After the bankruptcy court lifted the automatic stay, which allowed the plaintiff to pursue her claim, the second injury fund was cited in as a party to the matter.  On September 29, 2006, after multiple hearings, the commissioner issued a finding and award directing Raymark to pay the plaintiff the benefits found due.  When Raymark failed to do so, the commissioner issued a supplemental order on October 25, 2006, directing the fund to pay the plaintiff.  The fund filed a petition for review with the compensation review board on November 14, 2006.  On November 20, 2006, the plaintiff timely filed a motion to dismiss on the ground that the fund's petition was not filed "within twenty days after entry of an award by the commissioner" as required by General Statutes § 31-301 (a).  The board granted the motion and dismissed the petition.  The fund appealed from the decision, claiming that because no order was specifically issued against it until the October 25, 2006 supplemental order, it could appeal from the supplemental order and assail each of the commissioner's preceding findings and awards through its appeal from the supplemental order.  The Appellate Court disagreed, determining that the September 29, 2006 finding and award was a final judgment for purposes of appeal by the fund and that the board's dismissal of the petition was proper because the petition was not filed within twenty days of that decision.  The court observed that the October 25, 2006 supplemental order resulted from further proceedings that were merely ministerial in nature, as the commissioner, prior to issuing the supplemental order, was not required to exercise independent judgment or discretion or to take evidence but, rather, had to determine only whether Raymark had compensated the plaintiff in the intervening days since the September 29, 2006 finding and award.  In this appeal, the Supreme Court will decide whether the Appellate Court properly affirmed the board's dismissal of the fund's appeal from an order to pay workers' compensation benefits on the ground that the fund's appeal was untimely.