Chesson v. Eastern Fuels, Inc. ( 1997 )

After the Opinion and Award was entered in this case plaintiff, through counsel gave Notice of Appeal to the Full Commission on January 16, 1996.

Thereafter, plaintiff's counsel withdrew from the case on February 22, 1996. Defendant filed a Motion to Dismiss on March 27, 1996 alleging the failure of plaintiff to timely file a Form 44. Defendant's motion was held in abeyance until such time as it could be argued at the Full Commission in an Order by Coy M. Vance, Commissioner, dated April 22, 1996.

And it appearing to the undersigned upon a review of the record in this case and after hearing oral arguments of defendant and the pro se plaintiff that the parties have stipulated that plaintiff sustained an admittedly compensable injury by accident to his left shoulder and neck on November 16, 1991. Defendant-carrier, Cigna accepted liability and paid temporary total disability benefits to plaintiff from September 9, 1992 to February 3, 1993 and permanent partial disability compensation in a lump sum on October 27, 1993 for the 20 percent permanent partial disability rating to his back. Plaintiff returned to work earning the same or greater wages in January 1993 and on April 15, 1994 he sustained another back injury at work which has been filed with the Industrial Commission under another claim number (I.C. 435035). At the time of the April 15, 1994 injury defendant-employer had another carrier. As a result of the two injuries plaintiff has a number of complaints. It is likely that the two carriers will not be able to agree upon which is liable for plaintiff's current injuries.

The Full Commission is therefore of the opinion that the rights of the parties cannot be fully determined unless the cases are consolidated for decision. The hearing on plaintiff's April 15, 1994 injury was held before Deputy Commissioner Mary Hoag on August 29, 1995. A decision has not been rendered in that file as the Full Commission has held the deputy commissioner's file pending issuance of this Order.

It is THEREFORE ORDERED that the Opinion and Award by Deputy Commissioner William C. Bost is VACATED. It is FURTHER ORDERED that this file, I.C. Number 218366 is REMANDED to Deputy Commissioner Hoag for consolidation with I.C. Number 435035 for a decision based upon evidence of record if the parties so agree.

It is ALSO ORDERED that the parties shall have 30 days from the filing of this Order to notify Deputy Commissioner Hoag in writing if they object to a decision being rendered herein based solely upon the record.

This the ______ day of February, 1997.

S/ _________________________ BERNADINE S. BALLANCE COMMISSIONER

CONCURRING:

S/ ___________________________ J. RANDOLPH WARD COMMISSIONER

S/ ___________________________ COY M. VANCE COMMISSIONER

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