Opinion
CASE NO. 823 CRD-6-89-2
APRIL 17, 1990
The claimant was represented by Gerald Stevens, Esq.
The respondent-insurer was represented by Angelo Sevarino, Esq. However no brief was filed on behalf of the respondent-employer at oral argument.
The respondent-insurer was represented by Robert Beach, Jr., and Marjorie Drake, Esq., both of Naab Danforth.
This Petition for Review from the February 6, 1989 Finding and Award of the Commissioner of the Eighth District acting for the Sixth District was heard February 2, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners James J. Metro and George Waldron.
OPINION
Survivor benefits under Sec. 31-306(b)(2) for the dependent widow are at issue in this appeal. Claimant's decedent, an attorney, died as a result of an automobile accident December 23, 1987 on Interstate 84 in Plainville. His law firm had secured workers' compensation insurance from the respondent Travelers Insurance Co. A written notice of claim on behalf of the widow served in accordance with Sec. 31-321 was received by the employer August 16, 1988. The employer respondent filed no notice of contest until October 25, 1988 long after the twenty day period provided in Sec. 31-297(b) had expired. Consequently, the trial commissioner granted claimant's Motion to Preclude defenses and found a conclusive presumption of compensability.
Respondents' appeal from that ruling is an attack on the constitutionality of Sec. 31-297(b). Specifically they claim that the statutory twenty day limit for contestment was so brief that it constitutes an arbitrary forfeiture and violates Fourteenth Amendment due process requirements.
We are a tribunal of limited jurisdiction. As such we are not cloaked with the plenary authority necessary to rule on the constitutionality of Sec. 31-297(b). See Caldor, Inc. v. Thornton, 191 Conn. 336 (1983) cert. granted Estate of Thornton v. Caldor, Inc., 465 U.S. 1078 (1984) aff'd 472 U.S. 703 (1985). See also, Lustig v. C.N. Flagg Co., 7 Conn. Workers' Comp. Rev. Op. 38, 658 CRD-1-87 (1989); Faraci v. Conn. Light and Power Co., 5 Conn. Workers' Comp. Rev. Op. 160, 508 CRD-2-86 (1988), Repasi v. Jenkins Bros., 4 Conn. Workers' Comp. Rev. Op. 82, 227 CRD-4-83 (1987), dism'd on other grounds, 16 Conn. App. 121 (1988), cert. denied 209 Conn. 817 (1988). Further even if we had authority to decide constitutionality we are unable to distinguish the issue here from that decided in DeLeon v. Jacob Bros., Inc., 38 Conn. Sup. 331 (1981). DeLeon concluded that the statute in question was economic in nature and articulated "a legitimate legislative purpose and that the means adopted to produce the result bear a rational relationship to the stated purposed (sic) of the statute." Id. at 335.
Claimant as part of her Motion for Attorney's Fees argues the issue of constitutionality is being raised for the first time on appeal and therefore; (1) should not be considered by this panel and (2) constitutes unreasonable delay on the part of the respondents. The filing of an appeal on the basis of an issue not raised at the trial level is a matter controlled by Practice Book Sec. 4185. Practice Book Sec. 4185 applies not only in appeals to the Supreme court but to our own appeals as well. Sec. 31-301(a) C.G.S. Cf. Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987). As we lack the jurisdiction to determine the constitutional issue raised by the respondents, we need not decide the procedural issue either.
Practice Book Sec. 4185 Provides: The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interest of justice notice plain error not brought to the attention of the trial court.
However, whether a ruling of unreasonable delay applies is a factual determination to be decided by the trial commissioner. See also, Marino v. West Haven, 4 Conn. Workers' Comp. Rev. Op. 34, 240 CRD-3-83 (1987); Robinson v. Allied Grocers Cooperative, Inc., 1 Conn. Workers' Comp. Rev. Op. 132, 68 CRD-1-81 (1982) aff'd 39 Conn. Sup. 386 (1983); Graf v. Genovese Massaro, Inc., 1 Conn. Workers' Comp. Rev. Op. 129, 59-CRD-3-81 (1982). We therefore remand the issue of attorney's fees on the basis of unreasonable contest to the trial commissioner for his consideration. Bailey v. Guilford, 5 Conn. Workers' Comp. Rev. Op. 47, 464 CRD-3-86 (1988).
We dismiss the respondents' appeal and pursuant to Sec. 31-301c(b) grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal. We also remand for a ruling below on Claimant's Motion for Attorney's fees.
Commissioners James J. Metro and George Waldron concur.