237 Conn. 71 | Conn. | 1996
The dispositive issue in this appeal is whether the workers’ compensation review board (board) properly determined that the failure of a workers’ compensation commissioner (commissioner) to issue his finding and award within 120 days of a hearing, as set forth in General Statutes § 31-300,
The following facts and procedural history are not in dispute. On May 14, 1985, while employed as an auto mechanic by the named defendant, Tunxis Service Center (Tunxis),
For several years after being discharged from Tunxis, the plaintiff collected discretionary benefits under § 31-308a, participated in vocational training, and engaged in job searches, but he was unable to hold down a regular job. The plaintiff subsequently moved for a hearing in order to determine whether he was permanently and totally disabled and thus eligible for workers’ compensation benefits pursuant to General Statutes § 31-307
Hearings were held before the commissioner on December 4,1991, and on March 5,1992, and the record
The board concluded that the plaintiff was entitled to a new hearing only if he could establish prejudice due to the delayed issuance of the commissioner’s decision. The board further determined that the plaintiff had not demonstrated the requisite prejudice and, accordingly, upheld the commissioner’s decision. This appeal followed.
The plaintiff claims that the board’s decision was incorrect because it failed to recognize that the commissioner’s late decision was invalid. The fund responds that the time period in § 31-300 is a directory provision, and that unless the plaintiff can demonstrate prejudice resulting from the untimely decision, the commissioner’s decision remains valid. We disagree with the fund’s contention that the legislature intended the time period in § 31-300 to be directory. We conclude that § 31-300 involves a mandatory time period. We also conclude, however, that any lack of timeliness may be waived, either expressly or by conduct.
“Well established principles of statutory construction govern our determination of whether a statutory time period is mandatory or directory. Our fundamental objective is to ascertain and give effect to the apparent
We begin with the language of the statute. In urging that we conclude that the time period in § 31-300 is directory, the fund relies on the legislature’s use of the word “shall,” and argues that our cases have held that “shall” may have a meaning that is directory rather than mandatory.
Furthermore, the legislature, rather than phrasing the amendment to § 31-300 in affirmative terms unaccompanied by negative words, as is often done with directory provisions; see, e.g., Winslow v. Zoning Board, 143 Conn. 381, 387-88, 122 A.2d 789 (1956) (statutory provision that “petition shall be scheduled for at least one public hearing to be held within sixty days” held directory because time limitation stated in affirmative terms); instead chose the negative phrasing “but no later than one hundred twenty days.” The legislature’s use of such negative terminology suggests that it intended § 31-300 to be mandatory.
The legislative genealogy and the legislative history of § 31-300 reinforce this linguistic interpretation. Prior to 1985, § 31-300 did not specify the time period within which a workers’ compensation commissioner was required to issue an award. The relevant provision in that statute provided that “[a]s soon as may be after the conclusion of any hearing, the commissioner shall send to each party a written copy ofhis award.” General Statutes (Rev. to 1985) § 31-300. In a case decided under that statute, the Appellate Court determined that a judgment rendered by a commissioner more than one year after the conclusion of a hearing was valid because, unlike other statutes that set a specific time period within which judgment must be rendered, § 31-300 did
Shortly after the Appellate Court decided Sullivan, the legislature added the specific time period to § 31-300. As amended by No. 85-64, § 1, of the 1985 Public Acts, the relevant provision of § 31-300 reads: “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 award.” (Emphasis added.) Although there is nothing in the legislative history of Public Act 85-64 to indicate that the amendment was specifically intended to address the Appellate Court’s decision in Sullivan, the addition of a specific time period to § 31-300 so soon after the Appellate Court based a decision on the lack of such a time period suggests that the amendment was, indeed, a response to Sullivan.
Furthermore, because ordinarily “no part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . and no word in a statute is to be treated as superfluous”; (citation omitted; internal quotation marks omitted) State v. Anderson, 227 Conn. 518, 528, 631 A.2d 1149 (1993); we must attempt to give independent meaning to the 120 day time period that was added to § 31-300 by the amendment. If, prior to the amendment, the statutory directive that “[a]s soon as maybe after the conclusion of any hearing, the commissioner shall send to each party a written copy of his award” was merely directory, then the commissioner was required, within a reasonable time after the hearing, to send a copy of his award, but failure to
Moreover, when the bill that ultimately became the amendment was considered in the legislature, Senator Kenneth T. Hampton remarked that “[t]his bill would require the Workers’ Compensation Commissioner’s decisions on tested claims to be issued within 120 days after the conclusion of the hearing.” (Emphasis added.) 28 S. Proc., Pt. 4, 1985 Sess., p. 1106. Representative Jacob P. Rudolf made a similar remark: “[T]he bill provides new language requiring the Commissioner to submit a written decision of his results, no later than 120 days.” (Emphasis added.) 28 H.R. Proc., Pt. 6, 1985 Sess., p. 2100. These remarks, in combination with the foregoing analysis, lead us to conclude that the legislature intended as the essence of the thing to be done, not simply the issuance of a decision, but the issuance of a timely decision. This legislative history supports our conclusion that the time period in § 31-300 is mandatory.
Although a mandatory statutory provision typically must be strictly complied with, the parties may waive noncompliance, either explicitly or implicitly by conduct. Federal Deposit Ins. Corp. v. Hillerest Associates, 233 Conn. 153, 173, 659 A.2d 138 (1995). “Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In
Our conclusion that the commissioner was required to observe the mandatory time period in § 31-300 does not resolve the rights of the parties in this case because there has not been a determination of whether the plaintiff waived his right to challenge the commissioner’s untimely decision.
The decision of the board is reversed and the case is remanded to the board for further proceedings according to law.
In this opinion the other justices concurred.
General Statutes § 31-300 provides: “Award as judgment. Interest. Attorney’s fee. Procedure on discontinuance or reduction. 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. The commissioner shall, as part of the written award, inform the employee or his dependent, as the case may be, of any rights the individual may have to an annual cost-of-living adjustment or to participate in a rehabilitation program under the provisions of this chapter. He shall retain the original findings and award in his office. 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. The court may issue execution upon any uncontested or final award of a commissioner in the same manner as in cases of judgments rendered in the superior court; and, upon the filing of an application to the court for an execution, the commissioner in whose office the award is on file shall, upon the request of the clerk of said court, send to him a certified copy of such findings and award. In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee. Payments not commenced within thirty-five days after the filing of a written notice of claim shall be presumed to be unduly delayed unless a notice to contest the claim is filed in accordance with section 31-297. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed the rate prescribed in section 37-3a, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than the rate prescribed in section 37-3a to be upon the employer or insurer. In cases where the claimant prevails and the commis
The plaintiff appealed from the decision of the board to the Appellate Court and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
Although Tunxis is the named defendant in this action, it is not a party to this appeal. The fund is the only defendant participating in the appeal.
General Statutes § 31-308a provides: “Additional benefits for partial permanent disability, (a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partialpermanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of
“(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.”
General Statutes § 31-307 provides in relevant part: “Compensation for total incapacity, (a) If any injury lor which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of his average weekly earnings as of the date of the injury, calculated pursuant, to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310; but the compensation shall not be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred. No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided the minimum payment shall not exceed seventy-five per cent of the employee’s average
As to the issue of waiver, the fund points out that although six months had passed after the commissioner’s findings and award should have been issued, the plaintiff did not object and continued to collect benefits during that time. The fund contends that the plaintiff must be deemed to have waived noncompliance with the 120 day time period because it was only when the plaintiff received an adverse decision that he objected and challenged the untimeliness of the commissioner’s decision.
Although ordinarily it is the commissioner, rather than the board, that makes factual findings in a workers’ compensation case, in this instance it is more appropriately the board that must determine whether there was a waiver of the right to challenge an untimely decision of the commissioner. Cf. Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 669 A.2d 620 (1996) (Appellate Court decided issue of whether plaintiff had waived untimely judgment by trial court).