State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Vetro v. Banton Dry Wall, Inc. et al.

CASE NO. 1316 CRD-3-91-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 22, 1994

JOHN VETRO

CLAIMANT-APPELLEE

v.

BANTON DRY WALL, INC.

EMPLOYER/NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

BANTON CONSTRUCTION COMPANY

EMPLOYER/NO RECORD OF INSURANCE

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by James F. McCann, Esq., P.O. Box 4577, Wallingford, CT 06492 who did not appear or file a brief.

The respondent, Banton Dry Wall, Inc. made default of appearance.

The respondent, Banton Construction Company was represented by Kevin Maher, Esq. and James D. Moran, Jr., Esq., Maher & Williams, P.O. Box 269, Bridgeport, CT 06601 and by Joel M. Jolles, Esq., P.O. Box 562, West Haven, CT 06516.

The Second Injury Fund was represented by Robin L. Wilson, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06101.

This Petition for Review from the September 30, 1991 Finding and Award of the Commissioner for the Third District was heard February 26, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John A. Arcudi and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The respondent-employer, Banton Construction Company, [hereinafter the appellant] petitioned for review from the Third District Commissioner’s September 30, 1991 Finding and Award in which the commissioner found that the claimant was entitled to chapter 568 compensation benefits as a result of a fall occurring February 22, 1990. At the time of the injury, the claimant was an employee of the respondent employer Banton Construction Company on loan to Banton Drywall, Inc.1 The commissioner additionally found that neither the appellant nor the respondent Banton Drywall, Inc. were insured for their Workers’ Compensation liability.

In the course of prosecuting its appeal, the appellant changed legal counsel. The appellant initially presented the following issue for review; whether the respondent-appellant, Banton Construction Company was denied an opportunity to participate in the hearing(s) before the trial commissioner. In pursuit of that claim, the appellant filed a Motion to Submit Additional Evidence and Testimony which was denied by this tribunal in its October 27, 1992 Order Re: Motion to Submit Additional Evidence and Testimony. The appellant argued in its Motion to Submit Additional Testimony and Evidence that it was denied an opportunity to present evidence in its behalf as “all correspondence, notices, pleadings and orders were certified to the Respondent, Banton Construction Company, Inc. care of John and Melanie Zizzo who are the principals of the defendant, Banton Drywall, Inc. All such notices, correspondence and pleadings were unopened by the Respondent, Banton Construction Company, Inc. and forwarded to the proper addressee, John Zizzo.” See Appellant’s Motion to Submit Additional Evidence and Testimony dated October 17, 1991 at 12. However, in its Memorandum of Law in Support of Motion for Reconsideration of Respondent-Appellant Banton Construction’s Motion to Submit Additional Evidence dated March 29, 1993 [hereinafter Appellant’s Memorandum of March 29, 1993] and filed after oral argument,2 the appellant contended that the principal for Banton Construction “did become cognizant of a formal proceedings (sic) pending against it, [and] a representative of Banton Construction Company was present at the Formal Hearing of June 5, 1991 but was precluded from testifying as to the nature of the relationship between the Claimant-Appellee and Respondent-Appellant.” See Appellant’s Memorandum of March 29, 1993 at 8-9.

We have reviewed both the transcripts of the June 5, 1991 and Sept. 23, 1991 Formal Hearings and nothing in these transcripts indicates that the appellant, respondent Banton Construction Company, was precluded from presenting evidence or in participating in the proceedings. Thus, more simply put, there is nothing in the record before us to support the appellant’s claim that they were precluded from participating in the proceedings below. Further, by virtue of counsel's representations in the Memorandum filed after oral argument, the appellant was aware of the proceedings. Thus, we can only infer on the basis of that representation and the record below that the appellant was given the opportunity to participate in the proceedings below.

Adding additional confusion to this appeal and the issue ultimately presented for review, is the appellant’s brief which asserts that it was error for the trier to grant the claimant’s Motion to Preclude dated June 5, 1991. Again, based on our review of the record, we are convinced that no such motion to preclude was acted on, much less granted, by the trial commissioner. At the commencement of the June 5, 1991 Formal Hearing, the commissioner noted that no motion to preclude had been filed and proceeded to take evidence regarding all aspects of the claim. Later in the same hearing the commissioner noted: “[I]t’s not an accepted claim, and he (the claimant) can claim anything he wants at this point. This is a contested matter. He can claim anything at this point but he has to prove it.” (Emphasis added.) Transcript of 6/5/91, p. 59. Finally, the Finding and Award makes no mention of the motion to preclude.

It is elementary that to appeal from the ruling of a trial court there must first be a ruling.” State v. Kim, 17 Conn. App. 156, 157 (1988). Since no motion to preclude was entertained by the trial commissioner, the respondent-employer Banton Construction Company’s appeal is without merit.

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners John A. Arcudi and Donald H. Doyle, Jr. concur.

1 See September 18, 1992 Order on Motion for Articulation and Motion for Correction of Finding. BACK TO TEXT

2 We note that the Motion for Reconsideration of Respondent-Appellant Banton Construction’s Motion to Submit Additional Evidence dated March 29, 1993 and filed March 30, 1993 was denied in our April 16, 1993 Order and again, in our April 22, 1993 Amended Order.BACK TO TEXT

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