Giaimo v. New Haven

Citation257 Conn. 481,778 A.2d 33
Decision Date14 August 2001
Docket Number(SC 16460)
CourtConnecticut Supreme Court

Sullivan, C. J., and Borden, Norcott, Katz and Vertefeuille, JS. Jason M. Dodge, for the appellants (named defendant et al.).

Gregory T. D'Auria, associate attorney general, with whom were William J. McCullough, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Mee C. Wong, assistant attorney general, for the appellee (defendant second injury fund).



This is an appeal from a decision by the compensation review board (board) involving an attempt of the defendant employer, the city of New Haven (city), to transfer liability for a workers' compensation claim to the defendant second injury fund (fund) pursuant to General Statutes (Rev. to 1987) § 31-349, as amended by Public Acts 1988, No. 88-40.1 The principal issue to be resolved is whether Public Acts 1995, No. 95-277, § 4 (a) (P.A. 95-277), codified at General Statutes § 31-349c (a),2 violates the employer's right to due process under the fourteenth amendment to the United States constitution3 and article first, §§ 84 and 10,5 of the constitution of Connecticut. We conclude that it violates both the federal constitution and the state constitution.6 Accordingly, we reverse the board's decision affirming the denial by the workers' compensation commissioner (commissioner) of the city's motion for a formal hearing, and remand the case to the board with direction to remand it to the commissioner for a hearing consistent with the requirements of due process.

The record reveals the following relevant facts: The plaintiff, Joseph Giaimo, sustained a compensable acute anteroseptal myocardial infarction (heart attack) on December 28, 1987, while employed by the city as a police officer. The plaintiff and the city subsequently entered into a voluntary agreement establishing the compensability of the injury, which was approved by the commissioner on June 22, 1988. On June 1, 1989, a permanent partial disability award for 50 percent of the heart was entered by the commissioner.

In June, 1988, the city gave notice to the fund of its claim seeking a transfer of liability to the fund pursuant to § 31-349. The city claimed that the fund was liable because the plaintiff had a previous heart condition that had contributed to his heart injury. The fund denied the claim and, pursuant to the statute, the city submitted the claim to the workers' compensation commission (commission).

After the city had submitted the claim to the commission, but before the commissioner had issued a decision on the claim, the legislature enacted P.A. 95-277, which made several changes to § 31-349 as it then existed, including the elimination of the parties' rights to a formal hearing before the commissioner to determine the transferability of a claim and to appeal an adverse decision rendered in that proceeding. Specifically, P.A. 95-277, § 4, codified at § 31-349c (a), provides in relevant part: "The custodian of the Second Injury Fund and an insurer or self-insured employer seeking to transfer a claim to the fund shall submit all controverted issues regarding the existence of a previous disability under section 31-349 ... to the chairman of the Workers' Compensation Commission. The chairman shall appoint a panel of three physicians, as defined in subdivision (17) of section 31-275 ... and submit such dispute to the panel, along with whatever evidence and materials he deems necessary for consideration in the matter. The panel may examine the claimant, who shall submit to any examination such panel may require. Within sixty days of receiving the submission, the panel shall file its opinion, in writing, with the chairman, who shall forward it, along with any records generated by the panel's work on the case, to the commissioner having jurisdiction over the claim in which the dispute arose. The panel's opinion shall be determined by a majority vote of the three members. Such opinion shall be binding on all parties to the claim and may not be appealed to the Compensation Review Board pursuant to section 31-301...."

Pursuant to P.A. 95-277, § 4, the chairman of the commission assigned the pending claim to a panel of three physicians, consisting of Leonard Kemler, a cardiovascular and thoracic surgeon, John Basile, a neurosurgeon, and Leo Willett, an orthopedic surgeon. The city submitted medical records to the panel along with a memorandum in which it argued that the records showed that the plaintiff had preexisting coronary artery disease that had materially and substantially affected his disability. Included in the records was a June 7, 1992 report from the plaintiffs treating physician, Andrew Drakonakis, stating that "[he] specifically disagree[d] with the notion that [his] letter [dated September 24, 1992] implied that there was a `remote' relationship between the pre-existing coronary artery disease and the work activities which precipitated the heart attack. On the contrary, [his] opinion [was] that the pre-existence of coronary artery disease was the necessary substrate upon which the work activities acted as a catalyst that precipitated the heart attack." Also included was an April 18, 1997 report from Drakonakis stating that "[he] would therefore agree that the term `material and substantial' can be used to describe the contribution of [the plaintiffs] preexisting coronary artery disease to the precipitation of his heart attack."

Basile and Willett conducted a physical examination of the plaintiff on November 12, 1998. Kemler was unable to attend the examination because he had been called away on an emergency. On the same day as the examination, the panel issued its report. The report stated that the panel had reviewed "[a] report from Andrew C. Drakonakis, M.D. of Branford, Connecticut, dated June 7, 1990 [sic], which notes, `there was a "remote" relationship between the pre-existing coronary artery disease and the work activities which precipitated the heart attack.'" The report concluded that "[i]t is our expert professional opinion that the [plaintiff] did not have a previous medical condition at the time of his injury on December 28, 1987, therefore, there was no prior injury to cause a materially and substantially greater disability, combined with the injury of December 28, 1987, than that which would have occurred due to the subsequent injury alone.

"Although arthrosclerosis is a slowly progressive condition, the claimant had no symptoms prior to the episode culminating in his myocardial infarction on December 28, 1987. We believe the claimant had no previous disability or pre-existing physical impairment. We believe his clinical condition is due solely to the injury of December 28, 1987."

On March 9, 1999, the city filed a motion for a formal hearing with the commission, in which it argued that the claim should be governed by the version of § 31-349 in place at the time of the injury, and, therefore, that the city was entitled to a formal hearing before the commissioner on the question of whether the plaintiff had incurred a second injury for purposes of the statute.7 The city also argued that a denial of a hearing would constitute a deprivation of property without due process in violation of the federal and state constitutions.

On April 12, 1999, the fund filed a motion to dismiss the city's motion for a formal hearing, arguing that P.A. 95-277 applied retroactively, and that the commission lacked jurisdiction to rule on the city's constitutional claim. On April 14, 1999, the commissioner held a hearing on the city's motion for a formal hearing and denied the motion.

On April 20, 1999, the city filed a petition for review of the commissioner's ruling with the board. The board affirmed the commissioner's ruling on May 22, 2000, holding that it had no authority to determine constitutional issues. The city appealed from the board's ruling to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).8 The city argues on appeal that: (1) § 31-349c (a) deprives it of a protected property interest without due process of law in violation of both the federal and state constitutions; and (2) the statute is unconstitutionally vague and overbroad in violation of due process requirements of both the federal and state constitutions. The fund counters that the statute is constitutionally sound and argues that this appeal should be dismissed as moot under General Statutes § 31-349h.9 We conclude that the appeal is not moot, and we agree with the city that the procedures provided by § 31-349c (a) violate the city's due process rights under the federal and state constitutions. Accordingly, we do not reach the city's second claim.


We first address the fund's claim that this appeal is moot. The fund argues that, under § 31-349h, the commissioner lacks subject matter jurisdiction to order a transfer to the fund after July 1, 1999. Since that date has passed, the fund argues, this court can grant no practical relief to the city, and its claim is, therefore, moot. We disagree.

"Mootness implicates [this] court's subject matter jurisdiction and is thus a threshold matter for us to resolve.... It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.... An actual controversy must exist not only at the time the appeal is taken, but also throughout the pendency of the appeal.... When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its...

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