Schick v. Windsor Airmotive Division Barnes Group Inc.

CASE NO. 1033 CRD-1-90-6

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 16, 1993

ANDREW SCHICK

CLAIMANT-APPELLANT

v.

WINDSOR AIRMOTIVE DIVISION BARNES GROUP INC.

EMPLOYER

and

TRAVELERS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Jonathan L. Gould, Esq., Gould, Livingston, Adler and Pulda, 606 Farmington Avenue, Hartford, CT 06105.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett and Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the June 5, 1990 Finding and Denial of Claim of the Commissioner for the First District was heard April 26, 1991 before a Compensation Review Division panel consisting of the then Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Angelo L. dos Santos.

OPINION

JOHN ARCUDI, COMMISSIONER. Claimant’s appeal from the First District June 5, 1990 ruling includes a Motion to Correct. The trial commissioner resigned shortly after the appeal was filed and never ruled on that motion. Claimant then requested a remand for a new hearing to which the respondents objected.

Our rulings in Gavin v. City of New Britain, 1 Conn. Workers’ Comp. Rev. Op. 151, 46 CRD-6-81 (1982) and Foley v. City of New Britain, 1 Conn. Workers’ Comp. Rev. Op. 147, 47 CRD-6-81 (1982) are applicable. In Foley and Gavin the trial commissioner died before ruling on appellants’ Motions to Correct. We held that due process required that appellants be given a “full bite at the apple” and granted a de novo hearing. Id. at 150. Those opinions also noted that due process principles may be satisfied “if the parties agree to submit the evidential transcripts and exhibits of the [trial commissioner's] hearings together with his [the trial commissioner's] Finding and Award and the claimant’s Motion to Correct to the District Commissioner or his designee for completion...” Id. See also, Stevens v. Hartford Accident and Indemnity Co., 29 Conn. App. 378 (1992); Kasarauskas v. McLaughlin, 25 Conn. Sup. 60 (1963).

Those due process concerns considered in Foley and Gavin are also present here. Sec. 31-278 provides, “Any compensation commissioner, after ceasing to hold office as such compensation commissioner, may settle and dispose of all matters relating to appealed cases, including correcting findings and certifying records, as well as any other unfinished matters pertaining to causes theretofore tried by him, to the same extent as if he were still a compensation commissioner.” We do not have the authority to compel a commissioner to act in these circumstances. The use of the term “may” in the above quoted portion of Sec. 31-278 indicates a commissioner’s acting after ceasing to hold office is discretionary. Ridgeway v. Ridgeway, 180 Conn. 533, 540 (1980). See also, Daily v. New Britain Machine Co., 200 Conn. 562, 572 (1986); Shulman v. Zoning Board of Appeals, 154 Conn. 426 (1967).

We therefore remand the matter to the First District for further proceedings.

Commissioners Gerald Kolinsky and Angelo L. dos Santos concur.