Stewart v. Tunxis Service Center

• Decision Date: 21 May 1996
• Docket Number: No. 15249,15249
• Citation: 676 A.2d 819,237 Conn. 71
• Court: Connecticut Supreme Court
• Parties: Paul STEWART v. TUNXIS SERVICE CENTER et al.

Page 819

676 A.2d 819

237 Conn. 71

Paul STEWART v. TUNXIS SERVICE CENTER et al.

No. 15249.

Supreme Court of Connecticut.

Argued Jan. 11, 1996.

Decided May 21, 1996.

David M. Reilly, New Haven, with whom was Allen J. Segal, Plainville, for appellant (plaintiff).

Loida John-Nicholson, Assistant Attorney General, with whom, on the brief, were Richard Blumenthal, Attorney General, and William J. McCullough, Assistant Attorney General, for appellee (defendant second injury fund).

Before PETERS, C.J., and BORDEN, NORCOTT, KATZ and PALMER, JJ.

BORDEN, Judge.

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, ¹ did not invalidate the commissioner's decision. The plaintiff, Paul Stewart, appeals ² from a decision of the board concluding that (1) the commissioner's decision was valid despite his failure to comply with the 120 day time period set forth in § 31-300, and (2) the plaintiff was not permanently and totally disabled. The plaintiff claims that he is entitled to a new hearing because the commissioner had failed to issue an opinion within the statutory time period. The defendant second injury fund (fund) responds that the time period in § 31-300 is directory and that, in the absence of a showing of prejudice due to the delayed award, the plaintiff is not entitled to a new hearing. We conclude that the time period is mandatory and that the commissioner's decision was invalid because of its untimeliness, but that the invalidity was subject to waiver by the plaintiff. Accordingly, we reverse the decision of the board and remand the case for a determination of whether the plaintiff waived his right to challenge the commissioner's untimely issuance of his decision.

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), ³ the plaintiff suffered a work-related injury to his right foot. On September 25, 1987, he injured his right wrist, as a result of a fall caused by the prior injury to his foot. The plaintiff received an impairment rating of 35 percent permanent partial disability of his foot and 22 percent permanent partial disability of his wrist, and collected permanent partial disability benefits pursuant to General Statutes § 31-308a. ⁴ After recuperating from the injury to his foot, the plaintiff returned to work at Tunxis, but was discharged on November 18, 1987.

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 ⁵ or, in the alternative, was entitled to additional discretionary benefits under § 31-308a. The fund contested the plaintiff's claim that he was totally disabled.

Hearings were held before the commissioner on December 4, 1991, and on March 5, 1992, and the record was closed on May 26, 1992. On March 26, 1993, which date was beyond the 120 day time period set forth in § 31-300; see footnote 1; the commissioner issued his finding and award, concluding that the plaintiff had not established that he was totally disabled, but also concluding that the plaintiff was entitled to discretionary benefits for an additional six months. The plaintiff appealed to the board from the commissioner's decision, claiming that the commissioner's failure to issue his decision within 120 days of the conclusion of the hearing had rendered the decision invalid.

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 intent of the legislature. Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757, 764, 628 A.2d 1303 (1993); Iovieno v. Commissioner of Correction, 222 Conn. 254, 258, 608 A.2d 1174 (1992); Chairman v. Freedom of Information Commission, 217 Conn. 193, 200, 585 A.2d 96 (1991). In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter...." (Citations omitted; internal quotation marks omitted.) State v. Metz, 230 Conn. 400, 409, 645 A.2d 965 (1994). "The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience.... If it is a matter of substance, the statutory provision is mandatory. If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words." (Internal quotation marks omitted.) Katz v. Commissioner of Revenue Services, 234 Conn. 614, 617, 662 A.2d 762 (1995). Under this analysis, if a statutory time period is mandatory in nature, a showing of prejudice is not necessary to a conclusion that a failure to comply with the time period will invalidate the untimely action.

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.

The fund is correct that we have concluded that the "use of the word 'shall,' though significant, does not invariably create a mandatory duty." Hall Manor Owner's Assn. v. West Haven, 212 Conn. 147, 152, 561 A.2d 1373 (1989). The usual rule, however, is that "[t]he legislature's use of the word 'shall' generally evidences an intent that the statute be interpreted as mandatory." Todd v. Glines, 217 Conn. 1, 8, 583 A.2d 1287 (1991). The legislature's use of the word "shall" in § 31-300, therefore, although not conclusive, suggests that the time period was intended to be 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 of his 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 not contain a specific time period. Because the legislature could have included a specific time period, but had chosen not to do so, the Appellate Court concluded that the commissioner's decision was valid. Sullivan v. Northwind Energy Insulators, Inc., 2 Conn.App. 689, 690-91, 483 A.2d 618 (1984), cert. denied, 195 Conn. 801, 487 A.2d 564 (1985).

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 S...