author: BERDON, J., with whom MCDONALD, J.,

text:
    STANLEY DORSEY v. UNITED TECHNOLOGIES CORPORATION/NORDEN SYSTEMS ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 45 Conn. App. 707 (AC 16378), is granted. The case is remanded to the Appellate Court for reconsideration in light of Discuillo v. Stone & Webster, 242 Conn. 570 (1997).

In view of our remand without further proceedings in this court, the provisions of Practice Book § 4138 are waived.

BERDON, J., with whom MCDONALD, J.,

joins, concurring. I agree that the petition by the plaintiff, Stanley Dorsey, for certification for appeal from the judgment of the Appellate Court in this workers’ compensation case should be granted, the judgment of the Appellate Court should be vacated and the case remanded to that court for reconsideration in light of Discuillo v. Stone & Webster, 242 Conn. 570, 698 A.2d 873 (1997). Although the majority assumes that this direction to the Appellate Court provides sufficient guidance, I write separately to expound on Discuillo.

In Discuillo, we were faced with determining the time limitation period within which an employee must file a notice of claim with respect to a repetitive trauma injury. A majority of the court held that because the legislature failed to provide for such a time limitation, but did so for an accidental injury and occupational disease, repetitive trauma injury must “be read broadly enough so [as to] be deemed to fall into one of the two extant jurisdictional categories, as appropriate to the specific facts of each particular claim.” (Emphasis in original.) Id., 578. This means that the employee must give written notice of a claim for compensation if the injury is classified as — that is, closely related to — an accidental injury “within one year from the date of the accident,” and, if it is classified as an occupational disease, “within three years from the first manifestation of a symptom of the occupational disease . . . .” General Statutes (Rev. to 1981) § 31-294.

This rule set forth in Discuillo not only will cause confusion, uncertainty and injustice, but it also overturned ten years of precedent of the workers’ compensation review board. See Discuillo v. Stone & Webster, supra, 242 Conn. 591-92 (Berdon, J., dissenting). That precedent required that repetitive trauma claimants must give notice within one year, but that year limitation “is subject to a discovery rule — that is, the one year period is tolled until the employee discovers, or should have discovered through the exercise of reasonable care, that he or she has been injured and that the injury is causally connected to his or her employment.” Id., 591.

The consequence of classifying repetitive trauma as an accident, under the Discuillo rule, could require the employee to give notice either before he knew he suffered an injury or before he knew that the injury was causally connected with his employment. For example, if an employee, as a result of repetitive trauma, developed cancer, which manifests itself one year and a day after he left his employment and that repetitive trauma is classified as an accidental injury, the employee, his widow or dependent child would be barred from making a claim because the filing period would have passed prior to the time the employee became aware of the cancer. Likewise, in the present case, if the plaintiffs repetitive injury is classified for notice purposes as an accidental injury, his claim will have been time barred because more than one year had elapsed before he became aware of his injuries. The plaintiff retired on March 11, 1990, and he did not give his former employer notice of his claim until January 14, 1993, because “[t]he first time that he was aware he was suffering a hearing loss and that it could have been caused by his work was on or about January 5, 1993,” nine days before he gave the notice. Dorsey v. United Technologies Corp., 45 Conn. App. 707, 709, 697 A.2d 713 (1997). Nevertheless, I recognize that Discuillo, for the time being, is our law.

On remand to the Appellate Court, this case should be remanded to the workers’ compensation commissioner for a factual determination of whether the plaintiffs hearing loss caused by the repetitive trauma, for notice purposes, is to be classified as an accidental injury or as an occupational disease. Although the majority in Discuillo curiously made this factual determination, it is not for an appellate court to determine the underlying facts.

David A. Shaw, in support of the petition.

Jason M. Dodge, in opposition.

Decided October 9, 1997

         Dorsey v. United Technologies Corp., 45 Conn. App. 707, 697 A.2d 713 (1997).

       At the time of the plaintiffs injury, General Statutes (Rev. to 1981) § 31-294 provided in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury, provided, if death has resulted within two years from the date of the accident or first manifestation of a symptom of the occupational disease, a dependent or dependents, or the legal representative of the deceased employee, may make claim for compensation within such two-year period or within one year from the date of death, whichever is later. ...” This language is presently codified at General Statutes § 31-294c (a).

       The plaintiff in Discuillo pointed out in his motion for reconsideration that the rule, which was never argued below or in this court by either party, but which was adopted by the majority in Discuillo, will cause great confusion and injustice. First, claimants who have suffered repetitive trauma injuries, as well as their employers, will not know which limitation period applies or when the limitation period began to run until a hearing has been held on the issue of whether the claimant’s particular injury is more like an accidental injury or more like an occupational disease. Because the resolution of this issue will require a workers’ compensation commissioner to engage in a complicated factual analysis in each case based on medical expert testimony, the rule does not provide any guidance to claimants as to when they must file their claims. Second, unless a claimant has satisfied both limitation periods by filing his claim within one year of the last date of exposure and within three years of the date of awareness, the issue of timeliness can be resolved only by a trial. Because that is a jurisdictional issue, many claims that would normally have been accepted by the employer will now be denied until litigation on the issue has concluded. As a result, claimants will be denied necessary medical treatment and compensation while fire issue is being litigated at great additional expense. Third, since the majority does not provide any standards for commissioners to apply in determining whether an injury is more like an occupational disease or more like an accidental injury, different commissioners, faced with the same evidence pertaining to the same injury, may reach opposite conclusions on tliis issue.

       In doing so, the majority ignored our long-standing rule of construction with respect to workers’ compensation law: broad and liberal construction in order “to accomplish its humanitarian purpose”; Dubois v. General Dynamics Corp., 222 Conn. 62, 67, 607 A.2d 431 (1992); and our usual “great deference to the construction given to [workers’ compensation law] by the commissioner and the review [board] because they are both charged with its enforcement." Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993).


source: Caselaw Access Project

license: Public Domain

text:
    JOHN J. PITCHELL v. CITY OF HARTFORD ET AL.
    Supreme Court docket number is SC 15835.

      Timothy Brignole, in support of the petition.

      Henry C. Ide, in opposition.
    Decided December 2, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 46 Conn. App. 799 (AC 16267), is granted, limited to the following issue:

“Did the Appellate Court properly hold that the appearance of the attorney for the city of Hartford on behalf of the defendant police officer did not waive the employee’s right to claim insufficient service of process by way of a motion to dismiss after judgment enters against him for failure to appear? See Practice Book §§ 142 and 144.”


author: BERDON, J.,

text:
    STATE OF CONNECTICUT v. KEITH BRASWELL
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 904 (AC 15025), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.

Lori Welch-Rubin, in support of the petition.

Mary H. Lesser, assistant state’s attorney, in opposition.

Decided December 2, 1997


text:
    FIDELITY AND DEPOSIT COMPANY OF MARYLAND v. STEVEN G. CANNA ET AL.

      John J. Robacynski, in support of the petition.

      Mark S. Baldwin and Kara J. Lane, in opposition.
    Decided December 2, 1997
   The petition of the defendant Frank Perotti, Jr., for certification for appeal from the Appellate Court, 47 Conn. App. 908 (AC 16580), is denied.


text:
    LAURENCE Z. COHEN v. AMERICAN SAW AND MANUFACTURING COMPANY ET AL.

      Laurence Z. Cohen, pro se, in support of the petition.

      Michael C. Ryan, in opposition.
    Decided December 2, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 47 Conn. App. 907 (AC 16617), is denied.

MCDONALD, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. EDWARD RADZVILOWICZ

      Lewis H. Chimes, special public defender, in support of the petition.

      Rita M. Shair, assistant state’s attorney, in opposition.
    Decided December 10, 1997
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 1 (AC 14734), is denied.


text:
    STATE OF CONNECTICUT v. JASON B.
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 68 (AC 15323), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that the defendant was ‘more than two years older’ than the complainant within the meaning of General Statutes § 53a-71 (a) (1) where the defendant on the date of the incident was sixteen years old and the complainant was fourteen years old?

“2. Did the Appellate Court properly conclude that the meaning of the term ‘year’ in General Statutes § 53a-71 (a) (1) was not unconstitutionally vague and/or violative of the equal protection clause of the United States constitution as applied to the facts of this case?

“3. Did the Appellate Court properly conclude that the state adequately charged the defendant with a violation of General Statutes (Rev. to 1993) § 53-21 (Risk of Injury) under the facts of this case, where a minor may lawfully engage in sexual intercourse in certain circumstances?

The Supreme Court docket number is SC 15841.

Jon L. Schoenhom, in support of the petition.

Carolyn K. Longstreth, assistant state’s attorney, in opposition.

Decided December 10, 1997

“4. Assuming the state properly charged the defendant with a violation of General Statutes (Rev. to 1993) § 53-21, did the Appellate Court properly conclude that it was not unconstitutionally vague as applied to the facts of this case?”


text:
    MICHELLE MURPHY, CONSERVATOR (ESTATE OF PAUL SYLVAN) v. GEORGE WAKELEE

      A. Paul Spinella, in support of the petition.

      James E. Coyne, in opposition.
    Decided December 10, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 46 Conn. App. 425 (AC 15849), is, on reconsideration, granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court properly instructed the jury regarding the parties’ burden of proof with respect to the duties of the defendant fiduciary?”

MCDONALD, J., did not participate in the consideration or decision of this petition.


text:
    ANTHONY HOPKINS v. COMMISSIONER OF CORRECTION
   The petition by the petitioner Anthony Hopkins for certification for appeal from the Appellate Court, 47 Conn. App. 910 (AC 16191), is denied.

David B. Rozwaski, in support of the petition.

Richard F. Jacobson, assistant state’s attorney, in opposition.

Decided December 10, 1997


text:
    PHILIP F. WIELER II v. COMMISSIONER OF CORRECTION

      John R. Williams, in support of the petition.

      Ronald G. Weller, assistant state’s attorney, in opposition.
    Decided December 10, 1997
   The petition by the petitioner Philip F. Wieler II for certification for appeal from the Appellate Court, 47 Conn. App. 59 (AC 16403), is denied.


text:
    ELIZABETH C. DOLGNER v. JON M. ALANDER, COMMISSIONER OF HUMAN RESOURCES

      Joseph P. Secóla, in support of the petition.

      Nyle K. Davey, assistant attorney general, in opposition.
    Decided December 10, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 47 Conn. App. 911 (AC 16595), is denied.

BERDON, J.,

dissenting. I would grant the plaintiffs petition for certification to appeal.


text:
    DANIEL LUCE v. UNITED TECHNOLOGIES CORPORATION/PRATT AND WHITNEY AIRCRAFT DIVISION ET AL.
    The Supreme Court docket number is SC 15839.

      Francis X. Drapeau, in support of the petition.

      Michael J. McAuliffe, in opposition.
    Decided December 10, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court, 47 Conn. App. 909 (AC 16725), is granted, limited to the following issue:

“Whether, under the circumstances of this case, the Appellate Court properly excluded from the calculation of the workers’ compensation weekly benefit rate the value of the following forms of remuneration: medical, dental, life, accident/death and dismemberment and disability insurances; pension benefits; vacation and sick pay?”


text:
    REYNALDO RAMOS v. COMMISSIONER OF CORRECTION
    The Supreme Court docket number is SC 15840.
   The petition by the petitioner Reynaldo Ramos for certification for appeal from the Appellate Court (AC 17363) is granted, limited to the following issue:

“In the circumstances of this case, did the Appellate Court properly dismiss the petitioner’s appeal from the habeas court’s denial of his petition on grounds of untimeliness?”

NORCOTT and KATZ, Js., did not participate in the consideration or decision of this petition.

G. Douglas Nash, public defender, in support of the petition.

SusannE. Gill, supervisory assistant state’s attorney, in opposition.

Decided December 10, 1997


text:
    MARGARET MAUNDER v. ANDERSON-WILCOX BUILDERS, INC.

      Margaret Maunder, pro se, in support of the petition.

      Carl M. Porto II, in opposition.
    Decided December 10, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 17422) is denied.


text:
    CITY OF WEST HAVEN v. M. J. DALY AND SONS, INC.

      William J. Egan, in support of the petition.

      John B. Farley, in opposition.
    Decided December 10, 1997
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 17569) is denied.


text:
    STATEWIDE GRIEVANCE COMMITTEE v. ALAN SPIRER
   The defendant’s petition for certification for appeal from the Appellate Court, 46 Conn. App. 450 (AC 15852), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that General Statutes § 51-91a should be applied to attorneys convicted of felonies in federal courts or other states’ courts?

The Supreme Court docket number is SC 15853.

Wesley W. Horton, in support of the petition.

Daniel B. Horwitch, statewide bar counsel, in opposition.

Decided January 8, 1998

“2. In light of the judiciary’s power over the practice of law, does the application of § 51-91a in this case violate the separation of powers doctrine?

“3. Did the Appellate Court properly conclude that Practice Book §§ 28B and 28B.1 do not provide guidance for the disposition of this case.”

NORCOTT, J., did not participate in the consideration or decision of this petition.


author: NORCOTT, J.,

text:
    STATE OF CONNECTICUT v. FELIX RODRIGUEZ

      Michael J. McAndrews, special public defender, in support of the petition.

      Lisa Herskowitz, assistant state’s attorney, in opposition.
    Decided January 8, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 91 (AC 13915), is denied.

NORCOTT, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    STATE OF CONNECTICUT v. RONALD BENTON

      Arnold V. Amore II, special public defender, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
    Decided January 8, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 86 (AC 15434), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    STATE OF CONNECTICUT v. ARTHUR BRANNEN, JR.

      Adele V. Patterson, special assistant public defender, in support of the petition.

      Eileen McCarthy Geel, deputy assistant state’s attorney, in opposition.
    Decided January 8, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 910 (AC 15945), is denied.


text:
    BENJAMIN GYADU v. D’ADDARIO INDUSTRIES ET AL.

      Benjamin Gyadu, pro se, in support of the petition.
    Decided January 8, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 17260) is denied.


text:
    STATE OF CONNECTICUT v. GEORGE EASON

      Lisa J. Steele, special public defender, in support of the petition.

      Ellen A. Jawitz, deputy assistant state’s attorney, in opposition.
    Decided January 8, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 117 (AC 16062), is denied.


text:
    DIME SAVINGS BANK OF NEW YORK, FSB v. BARBARA A. WHITING ET AL.

      Lori Welch-Rubin, in support of the petition.

      Christopher H. McCormick, in opposition.
    Decided January 8, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 910 (AC 16497), is denied.


text:
    KATHLEEN O. MINNEMAN v. BOARD OF EDUCATION OF THE CITY OF NORWICH ET AL.

      Kathleen O. Minneman, pro se, in support of the petition.

      Timothy E. Welsh, in opposition.
    Decided January 8, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 47 Conn. App. 913 (AC 16746), is denied.


text:
    STONE AND STONE PENSION FUND PLAN ET AL. v. PATRICIA MCKENNA ET AL.

      Patricia McKenna, pro se, and Ahmed A. Dadi, pro se, in support of the petition.
    Decided January 8, 1998
   The petition by the defendants Patricia McKenna and Ahmed A. Dadi for certification for appeal from the Appellate Court (AC 17478) is denied.


text:
    DEBORAH AMODIO v. VINCENT AMODIO
    The Supreme Court docket number is SC 15856.

      Donald J. Altschuler, in support of the petition.
    Decided January 15, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 45 Conn. App. 737 (AC 15692), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the trial court had no subject matter jurisdiction to modify the child support award?”


text:
    STATE OF CONNECTICUT v. VICTOR TORRES

      Susan M. Hankins, assistant public defender, in support of the petition.
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 149 (AC 14279), is denied.

KATZ, J., did not participate in the consideration or decision of this petition.

Harry Weller, assistant state’s attorney, in opposition.

Decided January 15, 1998


text:
    STATE OF CONNECTICUT v. MARK PERUCCIO

      Kimball Haines Hunt, in support of the petition.

      Mitchell S. Brody, assistant state’s attorney, in opposition.
    Decided January 15, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 188 (AC 15626), is denied.


text:
    FRANK VANDEVER v. COMMISSIONER OF CORRECTION

      David B. Rozwaski, in support of the petition.
    Decided January 15, 1998
   The petitioner Frank Vandever’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 914 (AC 15988), is denied.


text:
    STATE OF CONNECTICUT v. ANTHONY SINCHAK
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 134 (AC 16557), is granted, limited to the following issues:

“1. Whether the rule set forth in State v. McPhail, 213 Conn. 161 (1989), should be overruled and a midline approach should be used to decide whether one has been deprived of a fair and valid probable cause hearing?

The Supreme Court docket number is SC 15854.

Pamela S. Nagy, assistant public defender, in support of the petition.

John A. East III, assistant state’s attorney, in opposition.

Decided January 15, 1998

“2. Whether the Appellate Court correctly determined the state’s nondisclosure of exculpatory documents prior to or at the probable cause hearing did not deprive the defendant of a fair trial?”


text:
    STATE OF CONNECTICUT v. INDE FARIA

      Paul E. Murray, supervisory assistant state’s attorney, in support of the petition.

      Mark Rademacher, assistant public defender, in opposition.
    Decided January 15, 1998
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 47 Conn. App. 159 (AC 16684), is denied.


text:
    ANTONIO DEOLIVERIA v. ROSS AND ROBERTS, INC., ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 47 Conn. App. 919 (AC 16726), is denied.

BERDON, J.,

dissenting. I would grant the plaintiffs petition for certification to appeal.

Laurence V. Pamoff, in support of the petition.

James D. Moran, Jr., in opposition.

Decided January 15, 1998


text:
    F. B. MATTSON COMPANY, INC. v. CONRAD TARTE ET AL.
    The Supreme Court docket number is SC 15857.

      Thomas A. Kaelin, in support of the petition.

      Robert Hanahan and Stephen R. Griffin, in opposition.
    Decided January 15, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 47 Conn. App. 265 (AC 16993/ 17049), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that the plaintiffs mechanic hen was untimely filed?”


text:
    JOSEPH TYC v. CALABRESE CONSTRUCTION COMPANY ET AL.

      Taka Iwashita, assistant attorney general, in support of the petition.

      William J. Shea, in opposition.
    Decided January 15, 1998
   The petition by the defendant second injury fund for certification for appeal from the Appellate Court (AC 16999) is denied.


text:
    GLP ACQUISITION CORPORATION v. CADWELL HOERLE ET AL.

    The Supreme Court docket number is SC 15855.

      Kimball Haines Hunt, in support of the petition.

      John H. Bums, in opposition.
    Decided January 15, 1998

       The appeal was withdrawn, with the permission of the court, after oral argument.

   The plaintiffs petition for certification for appeal from the Appellate Court (AC 17654) is granted, limited to the following issue:

“Did the Appellate Court properly dismiss this appeal for untimeliness of filing?”


text:
    STATE OF CONNECTICUT v. JUANITA MARTIN

      Juanita H. Martin, pro se, in support of the petition.

      Lisa Herskowitz, assistant state’s attorney, in opposition.
    Decided January 22, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 913 (AC 12071), is denied.


text:
    MARVIN BEASLEY v. COMMISSIONER OF CORRECTION
   The petitioner Marvin Beasley’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 253 (AC 16381), is denied.

BERDON, J.,

dissenting. I would grant certification on the following issues: Did the Appellate Court correctly conclude that the petitioner, acquitted of murder and convicted of reckless manslaughter in the first degree, received effective assistance of trial counsel despite trial counsel’s failure to request instructions on other lesser, unintentional homicide offenses that were supported by the evidence before the jury, consistent with the petitioner’s trial testimony, and available under the doctrine of State v. Whistnant, 179 Conn. 576 (1980), and its progeny?

Timothy H. Everett, in support of the petition.

Lawrence J. Tytla, senior assistant state’s attorney, in opposition.

Decided January 22, 1998


text:
    RONALD GEDNEY v. BOARD OF EDUCATION OF THE TOWN OF GROTON

      William J. Dolan, in support of the petition.
    Decided January 22, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 47 Conn. App. 297 (AC 16398), is denied.

BERDON, J.,

dissenting. I would grant certification on the following issue: Whether the Appellate Court correctly concluded that, for purposes of § 504 of the federal Rehabilitation Act of 1973 and article twenty-one of the amendments to the Connecticut constitution, the plaintiffs employment termination was not “solely by reason of his disability.”


text:
    NORTHEAST PARKING, INC., ET AL. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WINDSOR LOCKS BRADLEY AIRPORT VALET PARKING, INC. v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WINDSOR LOCKS

      William J. Sweeney, Jr., in support of the petition.

      Thomas W. Fahey, Jr., in opposition.
    Decided February 3, 1998
   The plaintiffs’ petition for certification for appeal from the Appellate Court, 47 Conn. App. 284 (AC 15684), is denied.


text:
    WILLIAM F. BENNETT v. DAVID A. GIBSON

      William F. Bennett, pro se, in support of the petition.

      Christopher L. Brigham and Karen K. Clark, in opposition.
    Decided February 3, 1998
   The plaintiffs petition for certification for appeal from the Appellate Court, 47 Conn. App. 916 (AC 16608), is denied.

CALLAHAN, C. J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. WILLIE JOSEPH FULLER
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 917 (AC 16061), is denied.

Laila M. Ghabrial, in support of the petition.

James M. Ralls, assistant state’s attorney, in opposition.

Decided February 3, 1998


text:
    STATE OF CONNECTICUT v. JAMES M. STERBINSKY

      Michael J. Melly, in support of the petition.

      Eileen McCarthy Geel, deputy assistant state’s attorney, in opposition.
    Decided February 3, 1998
   The defendant’s petition for certification for appeal from the Appellate Court, 47 Conn. App. 918 (AC 15934), is denied.


text:
    STATE OF CONNECTICUT v. GREGORY MOODY

      Glen W. Falk, special public defender, in support of the petition.

      Rita M. Shair, assistant state’s attorney, in opposition.
    Decided February 3, 1998
   The defendant’s petition for certification for appeal fromthe Appellate Court, 47 Conn. App. 922 (AC 16550), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    STATE OF CONNECTICUT v. MUHDYASIM ABDALAZIZ

      Susan M. Hankins, assistant public defender, in support of the petition.

      Paul J. Ferencek assistant state’s attorney, in opposition.
    Decided February 3, 1998
   The defendant’s petition for certification for appeal from the Appellate Court (AC 14625) is denied.

KATZ, J., did not participate in the consideration or decision of this petition.


text:
    CENTRAL BANK v. LEE S. BRADY ET AL.

      Lee S. Brady, pro se, in support of the petition.
    Decided February 3, 1998
   The named defendant’s petition for certification for appeal from the Appellate Court (AC 17523) is denied.


author: KATZ, J. BERDON, J., MCDONALD, J.,

text:
    VINCENT MARONE v. CITY OF WATERBURY
    (SC 15659)
    Callahan, C. J., and Borden, Berdon, Norcott, Katz, Palmer and McDonald, Js.

      Argued October 1, 1997
    officially released March 10, 1998

      Robert G. Golger, for the appellant (plaintiff).

      Charles E. Oman III, assistant corporation counsel, with whom, on the brief, were James J. Moynihan and Mary C. Pokorski, assistant corporation counsel, for the appellee (defendant).

      Frank A. May filed a brief for the city of Hartford et al. as amici curiae.

       This case was originally heard by a five justice panel. Pursuant to Practice Book § 4112 (b), we are considering the case en banc without further briefing or oral argument.

   Opinion

KATZ, J.

The principal issue in this appeal is whether the plaintiff is entitled to retroactive recalculation of disability benefits awarded pursuant to what is commonly referred to as the Heart and Hypertension Act (act), General Statutes § § 7-433c and 7-433b (b), following this court’s decision in Szudora v. Fairfield, 214 Conn. 552, 573 A.2d 1 (1990), in which we expanded the definition of maximum cumulative “weekly compensation” available under § 7-433b (b) to include overtime payments. Id., 559. Prior to the decision in that case, the plaintiff here had been receiving benefits in an amount equal to Ms base compensation. He now seeks retroactive recalculation of that award m accordance with Szudora.

The following facts are pertinent to tMs appeal. The plaintiff, Vincent Marone, a Waterbury police officer, was diagnosed on September 9,1980, as suffering from hypertension that resulted in a 10 percent disability of Ms cardiovascular system. He reached maximum medical improvement on April 15, 1982, and retired on that date with a pension of $272.59 per week. On July 14, 1983, the plaintiff was awarded disability benefits pursuant to § 7-433c m an amount eqmvalent to the base pay for Ms position. The award was retroactive to April 15, 1982. On April 17, 1990, tMs court decided Szudora. In September, 1993, the defendant, the city of Waterbury, voluntarily adjusted Marone’s benefit cap to include overtime pay. On June 21,1994, the plaintiff requested a recalculation, in accordance with Szudora, of his weekly compensation from April 15, 1982, the date he became entitled to disability benefits. On July 12, 1995, the workers’ compensation commissioner for the fifth district (commissioner) declmed to apply Szudora retroactively because (1) the plaintiffs case was not pending at the time Szudora was decided, and (2) retroactive application would impose a new and significant burden on municipalities and taxpayers. On July 20, 1995, the plaintiff petitioned for review of the commissioner’s decision. The compensation review board (board) affirmed the commissioner’s decision on January 10, 1997, determining that: (1) retroactive application of Szudora was inappropriate under Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971); (2) the action was no longer pending; and (3) such a result would be unduly burdensome to municipalities. Without explaining the basis for its reasoning, the board further stated that Szudora could be applied prospectively to the plaintiffs future benefits and that such a claim would be cognizable by the workers’ compensation commission (commission).5 The plaintiff appealed from the judgment 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).

The plaintiff argues that Szudora, should be applied retroactively and that his benefits should, therefore, be recalculated to include overtime payments because: (1) judicial decisions are presumed to apply retroactively; (2) the circumstances of this case do not satisfy the three part test outlined in Chevron Oil Co. so as to overcome the presumption of retroactivity because the legislative history and remedial purpose of the act indicate that the Szudora decision was clearly foreshadowed, retroactive application of Szudora will further the remedial purpose of the act, and the equitable considerations weigh in favor of allowing the plaintiff the measure of benefits to which he became entitled from the date of his injury; and (3) the commissioner mistakenly relied on Adams v. New Haven, 39 Conn. Sup. 321, 464 A.2d 70 (1983), for the proposition that § 7-433c should not be applied retroactively.

The defendant argues that in affirming the commission’s decision to reject the plaintiffs claim of retroactive benefits the board correctly applied Chevron Oil Co. because Szudora was a case of first impression and the decision had not been clearly foreshadowed, a recalculation would not further the remedial purposes of the act because the plaintiff had not, in fact, earned overtime compensation while employed, and. retroactive application of Szudora to cases such as this one would be extremely burdensome to municipalities. The defendant further argues that even if Szudora should apply retroactively, it is inapplicable to the present case because it was not pending when Szudora was decided.

The amici curiae, the cities of Bridgeport and Hartford, argue that the plaintiff is not entitled to a recalculation of his benefits because: (1) reopening the original award based on a change of law such as that represented by Szudora would violate General Statutes § 31-315, which governs the commission’s power to modify workers’ compensation awards; (2) the equitable doctrines of laches and estoppel prevent retroactive application of Szudora-, and (3) the public policy favoring finality of judgments forbids the recalculation of awards in nonpending cases.

Determining whether the plaintiff is entitled to a recalculation of his benefits requires the resolution of two separate but related questions. First, we must determine whether the original award was a pending matter for the purpose of recalculation of benefits. If it was pending, we must next decide whether the presumption in favor of retroactivity has been overcome according to the terms of our decision in Szudora and the criteria set forth in Chevron Oil Co. If we were to conclude that retroactive application of Szudora is appropriate, we would then order a recalculation of the plaintiffs benefits to April 15, 1982, to include overtime. Second, we must determine whether the interpretation of § 7-433b (b) in Szudora constitutes proper grounds, pursuant to § 31-315, for modifying the original award and, if so, whether and to what extent such a modification should be applied retroactively. We agree with the defendant, the commission and the board that the 1983 award was not a pending matter when Szudora was decided. We also agree with the amici curiae that the commission lacked the statutory authority to modify the award on the basis of our decision is Szudora, either prospectively or retroactively. Thus, we need not determine whether Szudora requires the retroactive recalculation of benefits with regard to a claimant whose case was pending when Szudora was decided.

I

We must first determine the standard of review applicable to this appeal. Decisions of administrative agencies are generally accorded considerable deference by this court. Lieberman v. State Board of Labor Relations, 216 Conn. 253, 263, 579 A.2d 505 (1990). This is particularly true where the issue on appeal involves questions of fact. See Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996); Tomlinson v. Board of Education, 226 Conn. 704, 712-13, 629 A.2d 333 (1993); Crochiere v. Board of Education, 227 Conn. 333, 347, 630 A.2d 1027 (1993). It is the function of the courts, however, rather than of administrative agencies, to “expound and apply governing principles of law.” (Internal quotation marks omitted.) Lieberman v. State Board of Labor Relations, supra, 262; see National Labor Relations Board v. Brown, 380 U.S. 278, 291, 85 S. Ct. 980, 13 L. Ed. 2d 839 (1965). The question presented by this appeal concerns the applicability of a decision by this court altering the manner in which benefits are determined to a claimant whose workers’ compensation award has already been adjudicated. This question implicates both the finality of the award and the commission’s statutory authority to modify it.

We generally accord “deference to . . . time-tested agency interpretation of a statute, but only when the agency has consistently followed its construction over a long period of time, the statutory language is ambiguous, and the agency’s interpretation is reasonable.” State Medical Society v. Board of Examiners in Podiatry, 208 Conn. 709, 719, 546 A.2d 830 (1988); see also Schieffelin & Co. v. Dept. of Liquor Control, 194 Conn. 165, 174, 479 A.2d 1191 (1984). The plaintiff has not claimed that the commission’s time-tested interpretation of the law allows retroactive recalculation of the 1983 award. “[W]hen a state agency’s determination of a question of law has not previously been subject to judicial scrutiny . . . the agency is not entitled to special deference.” Starr v. Commissioner of Environmental Protection, 236 Conn. 722, 736, 675 A.2d 430 (1996). The finality of workers’ compensation awards and the scope and extent of the commission’s power to modify those awards are issues that the commission and this court have addressed in the past. See, e.g., Besade v. Interstate Security Services, 212 Conn. 441, 445, 562 A.2d 1086 (1989) (workers’ compensation awards, although subject to modification, are final judgments); Kalinick v. Collins Co., 116 Conn. 1, 4-5, 163 A. 460 (1932) (commission lacks power to modify award based on mistake of law). To the extent that issues of law have been previously decided by this court, the commission is bound to apply them. The question of law at issue in this appeal is, therefore, one to which the customary deference accorded the agency’s determinations is not appropriate. SLI International v. Crystal, 236 Conn. 156, 170, 671 A.2d 813 (1996); State Medical Society v. Board of Examiners in Podiatry, supra, 718. Thus, we apply “a broader standard of review than is ordinarily involved in deciding whether, in light of the evidence, the agency has acted unreasonably, arbitrarily, illegally or in abuse of its discretion.” Lieberman v. State Board of Labor Relations, supra, 216 Conn. 263.

II

The commission and the board both concluded that the plaintiffs 1983 claim was no longer pending when Szudora was decided and that it was, therefore, inappropriate to recalculate his benefits retroactively. We agree. Although it is true that judgments that are not by their terms limited to prospective application are presumed to apply retroactively; State v. Ryerson, 201 Conn. 333, 339, 514 A.2d 337 (1986); this general rule applies to cases that are pending and not to cases that have resulted in final judgments. The plaintiff has acknowledged that judgments that apply retroactively do so only with respect to pending decisions. He argues, however, that workers’ compensation claims are continuously pending because they always are subject to modification. We, therefore, begin our analysis with a discussion of the principle of finality.

It has long been accepted that a system of laws upon which individuals, governments and organizations rely to resolve disputes is dependent upon according finality to judicial decisions. “Indefinite continuation of a dispute is a social burden. It consumes time and energy that may be put to other use, not only of the parties, but of the community as a whole. It rewards the disputatious. It renders uncertain the working premises upon which the transactions of the day are to be conducted. . . . The convention concerning finality of judgments has to be accepted if the idea of law is to be accepted, certainly if there is to be practical meaning to the idea that legal disputes can be resolved by judicial process.” I Restatement (Second), Judgments, Introduction, p. II (1982). “[A] party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest.” (Citations omitted.) In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983); see Delahunty v. Massachusetts Mutual Life Ins. Co., 236 Conn. 582, 589, 674 A.2d 1290 (1996).

While there is a distinction between finality for purposes of appeal and for purposes of res judicata, the two often overlap. 1 Restatement (Second), supra, § 13. In limited circumstances, a decision may be appealable and yet not be final for purposes of res judicata. Id.; see State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). On the other hand, once the time limit for appeal has passed, a judgment generally has preclusive effect with respect to subsequent actions. As noted in the Restatement, the trial court may entertain a request for relief from judgment based upon a change in law occurring during the appeal period. 2 Restatement (Second), supra, § 71, comment (f). This power is, however, “not a substitute for an appeal.” Id. “For res judicata purposes, a judgment is ‘final’ if no further judicial action by [the] court rendering judgment is required to determine [the] matter litigated.” Black’s Law Dictionary (6th Ed. 1990). A final award is “[o]ne which conclusively determines the matter submitted and leaves nothing to be done except to execute and carry out the terms of [the] award.” Id.

Whether a judgment is final depends upon the governing statute. “[T]he line that separates lower court judgments that are pending on appeal (or may still be appealed), from lower court judgments that are final, is determined by statute .... Having achieved finality ... a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy . . . .” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 227, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995). Principles of finality are equally applicable to administrative decisions, such as workers’ compensation awards, that are appealable to the Superior Court. Both employers and their injured employees must be able to depend on the finality of administrative decisions and the appeals taken therefrom in order to regulate their future behavior. General Statutes §§ 31-301a and 31-301b govern the finality of workers’ compensation awards, which become final when and if the parties fail to appeal within the statutory time period. In the present case, the plaintiff began receiving benefits pursuant to the 1983 award once the appeal period lapsed without either party having appealed the commission’s determination. Because neither the plaintiff nor the defendant appealed the original award, it became final and was, accordingly, no longer pending when Szudora was decided.

The plaintiff argues that workers’ compensation awards are always interlocutory because they are subject to modification. See, e.g., Wysocki v. Bradley & Hubbard Co., 113 Conn. 170, 178, 154 A. 431 (1931) (award is “more nearly an interlocutory than a final judgment”); Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541, 612 A.2d 1222 (1992) (characterizing workers’ compensation awards as interlocutory but noting that § 31-315 limits commission’s authority to modify). As we stated in Wysocki, however, “[a] motion to open [an award] under such changed conditions is . . . virtually a new proceeding.” Wysocki v. Bradley & Hubbard Co., supra, 178. Therefore, while workers’ compensation awards may bear some resemblance to interlocutory decrees, that similarity does not mean that such an award is, in fact, interlocutory. For example, a workers’ compensation award conclusively establishes the employer’s liability and precludes relitigation of that issue in a subsequent action brought in a court of general jurisdiction. See, e.g., Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 603 A.2d 1160 (1992), overruled on other grounds, Santopietro v. New Haven, 239 Conn. 207, 214-15, 682 A.2d 106 (1996). Although § 31-315 authorizes the commission to retain jurisdiction over the award during the entire disability period, that provision serves the purpose of preventing the claim from being challenged or modified in a court of general jurisdiction after the appeal period has lapsed; Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 255 A.2d 627 (1969); and does not render the award any less final. Workers’ compensation awards are “final judgments] as to benefits through the date of the hearing .... If such an award were not a final judgment because it was subject to such modification, no workers’ compensation award could ever be final, and therefore appealable, until the claimant either died or recovered . . . .” Besade v. Interstate Security Services, supra, 212 Conn. 445. The plaintiffs claim was, therefore, final and not pending at the time Szudora was decided. Thus, it is irrelevant to the plaintiffs situation whether Szudora should be applied retroactively to pending cases.

Ill

Although the initial award is not a pending action, final judgments may be modified pursuant to statutory authority. The amici curiae argue that § 31-315, which governs the workers’ compensation commission’s authority to modify otherwise final awards, does not authorize modifications based on a new interpretation of law such as that contained in Szudora. We agree. Although the commission may modify awards under certain circumstances, its power to do so is strictly limited by statute. We conclude that § 31-315 does not permit recalculation of the plaintiffs award.

Although strict finality is strongly favored, there are certain situations that demand a flexible approach allowing for modifications. Two examples of such situations are custody and family maintenance actions, and workers’ compensation awards. The statutory framework in each of these areas permits final awards to be modified in a subsequent action when certain criteria are satisfied. In the family law context, alimony and support awards and child custody and visitation orders are subject to modification but, nevertheless, are considered to be final appealable judgments. See General Statutes § 46b-86 (a) (permitting modification of alimony and support awards); General Statutes § 46b-56 (permitting modification of child custody and visitation awards). Workers’ compensation awards are modifiable pursuant to § 31-315. Modifications pursuant to § 31-315 are, however, separate actions, brought in accordance with the procedures required for original workers’ compensation claims and are themselves subject to the finality restrictions of §§ 31-301a and 31-301b.

The power of the commission to hear modification requests is determined by the provisions of § 31-315. “It is clear that an administrative body must act strictly within its statutory authority, within its constitutional limitations and in a lawful manner.” Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). The parties to a claim cannot, by agreement, endow the commission with the authority to decide that claim. Jester v. Thompson, 99 Conn. 236, 238, 121 A. 470 (1923). Additionally, a decision of an administrative agency cannot be “set aside upon the sole ground that it is erroneous in matter of law, except by a court exercising appellate or revisory jurisdiction, unless authorized by statute, or unless the error is one going to the jurisdiction.” (Internal quotation marks omitted.) Kalinick v. Collins Co., supra, 116 Conn. 8. The defendant’s decision voluntarily to recalculate the plaintiffs future benefits cannot, therefore, confer authority upon the commission retroactively to modify the award. Unless the commission had such authority, pursuant to § 31-315, it lacked the power to recalculate the plaintiffs benefits, either retroactively or prospectively.

Section 31-315 allows the commission to modify an award in three situations. First, modification is permitted where “the incapacity of an injured employee has increased, decreased or ceased, or . . . the measure of dependence on account of which the compensation is paid has changed . . . .” The plaintiff has not alleged that either of these contingencies has occurred. Second, the award may be modified when “changed conditions of fact have arisen which necessitate a change of [the award].” The plaintiff has pointed to no change of fact necessitating a change in the original award. Third, “[t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court.” This provision extends the commission’s power to open and modify judgments to cases of accident; Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180, 188, 123 A. 9 (1923); to mistakes of fact; Fair v. Hartford Rubber Works Co., 95 Conn. 350, 355, 111 A. 193 (1920); and to fraud; Grabowski v. Miskell, 97 Conn. 76, 84, 115 A. 691 (1921); but not to mistakes of law. Kalinick v. Collins Co., supra, 116 Conn. 4-5. The final clause of § 31-315 allows the commission to retain jurisdiction over claims during the entire compensable period. This provision, however, does not independently confer authority to modify awards for reasons not otherwise enumerated in § 31-315. Id., 7-8.

In Kalinick, a case very similar to the present one, this court determined that the commission lacked the power to recalculate an award when the basis for the recalculation was a change of law. Id., 8. The plaintiff in Kalinick had been receiving benefits based upon his average weekly wage during the twenty-six week period next preceding his cessation of the work that caused his disability. After the original award in Kalinick was issued, this court subsequently decided that, for the type of disability in question, the appropriate measure was the average weekly wage during the twenty-six week period next preceding the onset of incapacity. See Rousu v. Collins Co., 114 Conn. 24, 30, 157 A. 264 (1931). In Kalinick, the employer and its insurer sought to open and modify the award based on the decision in Rousu. This court concluded that “a reopening and modification based upon a mistake of law, as here, would not be permissible unless the control over its award for correction of errors of law, as distinguished from mistakes of fact, which a court possesses over its judgment only during the term in which it is rendered, is held to continue in the commissioner during the entire compensation period. Such an extension would be inconsistent with and subversive of the considerations which have actuated the generally recognized limitations of the powers of courts over their judgments.” Kalinick v. Collins Co., supra, 116 Conn. 8.

Our decision in Szudora represents a new interpretation of law similar to that in Rousu, and only can be retroactively applied, if at all, to pending cases. We conclude, therefore, that § 31-315 does not permit the commission to modify an award based upon the definition of “weekly compensation” set forth in Szudora. Our conclusion is further supported by consideration of the consequences of allowing retroactive recalculations of awards in nonpending cases. Such a ruling would plunge the workers’ compensation system into a state of paralytic uncertainty. Employers and insurers, as well as injured employees, would find it difficult, if not impossible, to plan for the future if judgments could be opened and retroactively modified on the basis of unanticipated changes in the law.

The judgment of the board is affirmed.

In this opinion CALLAHAN, C. J., and BORDEN, NOR-COTT and PALMER, Js., concurred.

BERDON, J.,

I disagree with the dicta in part III of the majority opinion, wherein the majority reaches an issue — indeed goes out of its way to do so — that is not before this court: that issue is the prospective application of this court’s decision in Szudora. The retroactive recalculation of the plaintiffs award pursuant to the act, not the prospective recalculation of the award, in accordance with Szudora was the only issue before the commissioner and the board, from which the defendant, the city of Waterbury, appealed. Without the benefit of briefing from either the plaintiff or the defendant, or even the amici curiae, the majority violates all principles of justiciability by deciding the issue of prospectivity.

More importantly, I totally disagree with the majority’s conclusion that the commissioner does not have jurisdiction to modify an award during the entire period in which an employee receives compensation. General Statutes § 31-315, which gives the commissioner jurisdiction to modify an award or voluntary agreement for workers’ compensation benefits, provides in relevant part that “ [t]he compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.” I read § 31-315 literally as we are required to do. American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). It simply means that while the employee is receiving benefits, the commissioner has jurisdiction over the award for any proper action, which would include the increase of compensation as a result of interpretation of the Workers’ Compensation Act by the commissioner, the board or the courts. Indeed, in 1920, this court made this point crystal clear when it held that the commissioner has jurisdiction to increase the compensation for a condition that the worker had when the original award was entered but, due to the neglect of the worker, was not called to the attention of the commissioner. Fair v. Hartford Rubber Works Co., 95 Conn. 350, 356-57, 111 A. 193 (1920). The court in Fair held that the modification statute, General Statutes (1918 Rev.) § 5355 (now § 31-315), “expressly provides that [awards] shall be open to revision until completely performed . . . ,” Id., 356; Besade v. Interstate Security Services, 212 Conn. 441, 445, 562 A.2d 1086 (1989) (“any workers’ compensation award, although a final judgment as to benefits through the date of the hearing, is always subject to further proceedings, such as those ordered in the present case, to determine whether the award should be modified”); Welch v. Arthur A. Fogarty, Inc., 157 Conn. 538, 546, 255 A.2d 627 (1969) (“[i]ncreased incapacity of the plaintiff, a change in conditions, a mutual mistake in procuring the award pursuant to the stipulation ... all fall within the terms of . . . [§ 31-315], and proof of any of them might call for a revision of the award by the commissioner” [internal quotation marks omitted]). The commissioner is not precluded by any rule of public policy from modifying the award because “ [t]he rule of public policy applicable to such cases as this is to carry out the spirit of [the Workers’ Compensation Act].” (Internal quotation marks omitted.) Fair v. Hartford Rubber Works Co., supra, 357.

Section 31-315 must be liberally and broadly “construed to effectuate the purpose of providing compensation for an injury arising out of and in the course of the employment regardless of fault.” (Internal quotation marks omitted.) Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985). Allowing an injured employee to receive prospectively increased compensation as a result of a court’s clarification of the law that was in effect when the employee was injured is consistent with the beneficent purposes of the Workers’ Compensation Act. This construction of § 31-315 also takes into account that many injured workers are not represented by counsel when they appear before the commissioner, but, rather, depend upon the commissioner to protect their rights with respect to those matters that are undisputed at the time of the award.

Accordingly, I agree that Szudora should not be applied retroactively. I would not reach the issue of its prospective application. Being pressed to do so as a result of the majority opinion, however, I would hold that a commissioner has jurisdiction to adjust prospectively a claimant’s disability award as a result of the Szudora decision.

MCDONALD, J.,

concurring in part and dissenting in part. I concur with the result reached by the majority that Szudora v. Fairfield, 214 Conn. 552, 573 A.2d 1 (1990), should not be applied retroactively. I agree with Justice Berdon, however, that the majority should not have reached and decided Szudora's application prospectively. This was not an issue raised by Waterbury at any time.

Our jurisdiction is limited to “any question or questions of law” decided before the compensation review board. General Statutes § 31-301b. We do not have a roving commission to affect people’s rights. It will therefore come as an unpleasant surprise to the plaintiff and his counsel that because he persisted in asking for contested past benefits he may now lose uncontested future benefits.

       General Statutes § 7-433c provides: “Benefits for policemen or firemen disabled or dead as a result of hypertension or heart disease, (a) Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injury which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case may be, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.
      “(b) Notwithstanding the provisions of subsection (a) of this section, those persons who began employment on or after July 1, 1996, shall not be eligible for any benefits pursuant to this section.”
      General Statutes § 7-433b (b) provides: “Notwithstanding the provisions of any general statute, charter or special act to the contrary affecting the noncontributory or contributory retirement systems of any municipality of the state, or any special act providing for a police or firemen benefit fund or other retirement system, the cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be adjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his death or retirement. Nothing contained herein shall prevent any town, city or borough from paying money from its general fund to any such member or his dependents or survivors, provided the total of such cumulative payments shall not exceed said one hundred per cent of the weekly compensation.”

       In his initial request for modification, in 1993, the plaintiff argued before the commissioner that he was “entitled to a retroactive lump sum payment for benefits due from July 14, 1983, to date.” This was a request for both retroactive and prospective relief. Thereafter, in 1997, the compensation review board acknowledged that the plaintiff and the defendant had reached a voluntary agreement in September of 1993, whereby the defendant agreed to recalculate the award prospectively from the date of the Szudora decision. The defendant has not challenged this voluntary agreement.

       In Chevron Oil Co., the United States Supreme Court outlined a three factor test for overcoming the presumption of retroactivity of judgments. “First, the decision to be applied nonretroactively must establish a new principle of law .... Second [the court must determine] . . . whether retrospective operation will further or retard [the] operation [of the rule]. . . . Finally [the court must weigh] the inequity imposed by retroactive application . . . .” (Citations omitted.) Chevron Oil Co. v. Huson, supra, 404 U.S. 106-107; see also Neyland v. Board of Education, 195 Conn. 174, 179, 487 A.2d 181 (1985).

       The board made this statement in the context of its discussion of Chevron Oil Co., perhaps assuming that the equitable considerations of the third prong of that case would tend to weigh in favor of prospective recalculation of benefits because municipalities would be able to plan for such a future liability.

        in. Adams v. New Haven, supra, 39 Conn. Sup. 323, the Appellate Session of the Superior Court determined that § 7-433c was inapplicable where the plaintiffs disability had been diagnosed and he and his spouse had executed a stipulated settlement in lieu of any workers’ compensation claim before the statute was enacted. Adams is inapposite to the plaintiffs situation here because Adams was based on the conclusion that § 7-433c did not apply to that claimant rather than on a determination that an otherwise applicable statute could not be given retroactive effect.

       General Statutes § 31-315 provides: “Modification of award or voluntary agreement. Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the iqjury in question.”

       In their discussion of the commission’s authority pursuant to § 31-315, the amici curiae do not distinguish expressly between prospective and retroactive modifications of workers’ compensation awards. They argue, rather, that “[i]t is beyond the authority of a Commissioner to malee any modification” based upon our decision in Szudora. (Emphasis added.) We recognize that, in their conclusion, they request that the board’s decision be affirmed and that we hold that Szudora should be applied in a “prospective-only manner” to this plaintiff. On the basis of the absence of any such distinction in their brief, however, we interpret this statement in light of the plaintiffs request for relief in this case and the voluntary agreement between the parties. See footnote 3 of this opinion. We, therefore, conclude that the amici curiae’s request for prospective application of Szudora is not based on the argument that § 31-315 requires or permits such a distinction but, instead, recognizes that the defendant’s voluntary decision to provide prospective relief eliminated this plaintiffs need to request it. The existence of this agreement between the parties does not, however, relieve us of our responsibility to interpret § 31-315 correctly. Our decision regarding whether the commission had the authority, pursuant to § 31-315, to modify the award does not turn on the fact that this particular claimant, for reasons independent of the commission’s statutory authority, had no need for prospective relief.

       The majority of our decisions on workers’ compensation law have required us to determine whether the compensation review board properly reviewed factual determinations made by the commissioner. See, e.g., Fair v. People’s Savings Bank, 207 Conn. 535, 538-42, 542 A.2d 1118 (1988), and cases cited therein. Although the context of these cases has not required us to set forth the standard of review for questions of law, we see no reason to differentiate the standard of review applicable to legal decisions of the workers’ compensation commission from those of other administrative agencies. The essential principles, as we have applied them, are the same. See, e.g., Mathurin v. Putnam, 136 Conn. 361, 366, 71 A.2d 599 (1950) (“award must stand unless it results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them”); Wysocki v. Bradley & Hubbard Co., 113 Conn. 170, 177, 154 A. 431 (1931) (question of law not within discretion of commissioner).

      Allowing re1 reactive application of judgments to nonpending cases would violate the principles of res judicata and collateral estoppel. See Crochierev. Board of Education, supra, 227 Conn. 342-43. Courts, therefore, have only a limited equitable power to open and modify judgments in the absence of express statutory authority to do so. See footnote 11 of this opinion. Implicit in our decisions that have discussed the retroactive application of judgments is the presumption that retroactivity is limited to pending cases. See, e.g., State v. Ryerson, supra, 201 Conn. 339-40; State v. Castle, 161 Conn. 570, 571-72, 287 A.2d 744 (1971).

       General Statutes § 31-301a provides: “Decision of Compensation Review Board. Any decision of the Compensation Review Board, in the absence of an appeal therefrom, shall become final after a period of twenty days has expired from the issuance of notice of the rendition of the judgment or decision.”

       General Statutes § 31-301b provides: “Appeal of decision of Compensation Review Board. Any party aggrieved by the decision of the Compensation Review Board upon any question or questions of law arising in the proceedings may appeal the decision of the Compensation Review Board to the Appellate Court.”

       The final judgment of a court is likewise subject to modification pursuant to the equitable powers of the court. See, e.g., Potter v. Prudential Ins. Co., 108 Conn. 271, 282, 142 A. 891 (1928); Brown v. Clark, 81 Conn. 562, 566-67, 71 A. 727 (1909). Although administrative agencies do not inherently possess the same power as do courts of general jurisdiction to modify their decisions, they may be authorized by statute to do so. Section 31-315 confers such authority upon the workers’ compensation commission.

       See, e.g., 1 Restatement (Second), supra, § 24, comment (f), which provides: “Change of Circumstances. Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves, or taken in conjunction with the antecedent facts, comprise a transaction which may be made the basis of a second action not precluded by the first.” (Emphasis added.) The Restatement provides the following example: “A judgment of divorce awards custody of a minor child of the marriage to the wife after a contest over her suitability as a mother. Upon a later demonstration by the husband, on the basis of subsequent experience, that the wife is in fact unsuitable, custody may be awarded to the husband.” Id., illustration 11.

       See footnote 7 of this opinion.

       See footnotes 11 and 12 of this opinion.

       These cases construe General Statutes §§ 5355 and 5240, the statutory predecessors to § 31-315. The language of the current statute is, in all respects material to this appeal, unchanged from when those cases were decided.

       In his concurring and dissenting opinion, Justice Berdon states that he would allow the award to be modified pursuant to § 31-315 prospectively but not retroactively. He provides no basis for this distinction and nothing in § 31-315 suggests one. Section 31-315 permits modification in certain situations and does not, on its face, distinguish between retroactive and prospective application. See Morisi v. Ansonia Mfg. Co., 108 Conn. 31, 33-34, 142 A. 393 (1928) (allowing retroactive modification to the date disability ceases); Gagliardi v. Downing & Perkins, Inc., 152 Conn. 475, 481-82, 208 A.2d 334 (1965) (date dependency ceases controls amount of award). In fact, the right to an award “arises by operation of law as soon as the incapacity for the statutory period exists and it continues during the incapacity of the employee and only ends with his decease.” Greenwood v. Luby, 105 Conn. 398, 400, 135 A. 578 (1926). We see no principled basis upon which to distinguish the vesting date for increases in awards based on modifications from the date applicable to original awards. Moreover, because we have determined that § 31-315 does not permit modification of this plaintiffs award, we need not reach the question of whether a modification permitted pursuant § 31-315 should not be applied retroactively based upon considerations such as those set out in Chevron Oil Co. v. Huson, supra, 404 U.S. 106-107.

       Although the “commission[er] and the board both concluded that the plaintiffs 1983 claim was no longer pending when Szudora was decided and that it was . . . inappropriate to recalculate his benefits retroactively,” their decision was not based on whether the claim was pending, as the majority implies. Both the commissioner and the board referred to the pendency of the claim only to indicate that if it was pending when Szudora was decided, the plaintiff would have been entitled to retroactive application of the rule. Rather, the commissioner’s and the board’s decision not to extend Szudora retroactively was predicated on the “substantial inequitable result” prong of Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971) (“First, the decision to be applied nonretroac-tively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed .... Second, it has been stressed that [the court] must . . . weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation. . . . Finally, [the court must weigh] the inequity imposed by retroactive application, for [w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship by a holding of nonretroactivity.” [Citations omitted; emphasis added; internal quotation marks omitted.]).

       The majority’s claim in footnote 8 of its opinion that the amici argued that the commissioner lacked the statutory authority to modify the award on the basis of our decision in Szudora, either prospectively or retroactively, is simply wrong. Indeed, the amici argued that “Szudora be held to apply in a prospective-only manner from the date of the Claimant’s first request for modification in 1993.”

       The Fair court, further commented that workers’ compensation awards “resemble interlocutory decrees for the future payment of alimony, rather than final judgments.” Fair v. Hartford Rubber Works Co., supra, 95 Conn. 356.

       I recognize that this court stated in Kalinick v. Collins Co., 116 Conn. 1, 8, 163 A. 460 (1932), that it “would be inconsistent with and subversive of the considerations which have actuated the generally recognized limitations of the powers of courts over their judgments” to hold that the commissioner’s control over its award for corrections of errors of law continues during the entire compensation period. I believe that decision, however, conflicts with prior precedent; Fair v. Hartford Rubber Works Co., supra, 95 Conn. 350; subsequent precedent; Besade v. Interstate Security Services, supra, 212 Conn. 441, and Welch v. Arthur A. Fogarty, Inc., supra, 157 Conn. 538; and the long-standing rule that our Workers’ Compensation Act should be construed broadly to facilitate its purposes.