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Hirth v. United Parcel Service

CASE NO. 1497 CRB-1-92-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 2, 1994

RAYMOND HIRTH

CLAIMANT-APPELLEE

CROSS-APPELLANT

v.

UNITED PARCEL SERVICE

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

CROSS-APPELLEES

APPEARANCES:

The claimant was represented by George F. Murray, Esq., Murray & Murray, 737 Farmington Avenue, West Hartford, CT 06119.

The respondents were represented by Debra S. Dee, Esq., Law Offices of Rosenbaum & Brennan, 655 Winding Brook Drive, P.O. Box 695, Glastonbury, CT 06033.

This Petition for Review from the August 13, 1992 Finding and Award of the Commissioner for the First District was heard April 30, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, James J. Metro and Angelo L. dos Santos.

OPINION

JOHN A. ARCUDI, COMMISSIONER. Respondents’ appeal seeks a reversal of the award and a remand on the grounds that they were denied due process. They contend the trial commissioner improperly closed the hearing on April 20, 1992.1 The commissioner refused to hold open the evidentiary record so that the deposition of Dr. James Hardy, scheduled for April 24, might be entered into evidence. Claimant filed a cross appeal which was not pursued and therefore considered abandoned.

The first district scheduled a formal hearing in the matter for 8:00 a.m. to 9:00 a.m. April 20, 1992.2 On that date claimant testified and both parties presented documentary evidence. At the conclusion of claimant’s testimony respondents’ attorney asserted she had noticed a deposition of Dr. James Hardy, claimant’s treating physician, on April 24, four days later, and wished to have the record held open for the admission of that deposition into evidence. The commissioner explained that both parties had been informed at a November 4, 1991 informal hearing that all discovery was to be completed prior to the formal hearing. The respondents had known of the April 20 hearing date for at least a month. As shown in note 2 below, they had also known by the end of November, 1991 that the formal hearing was to be held in the early spring of 1992. No offer of proof was made to indicate what factual evidence would be presented in the Hardy deposition.

Respondents argue “[t]here is a failure of due process whenever . . . [a] hearing . . . has been so defective that a party has not . . . had the opportunity to contest the [claim made] against him.” Hart Twin Volvo Coporation v. Commissioner of Motor Vehicles, 165 Conn. 42, 46 (1973). Yet, “[i]t is not every denial of a request for a continuance that violates due process.” State v. Williams, 200 Conn. 310, 320 (1986).

“The decision to grant or deny a motion for a continuance lies within the discretion of the trial court. . . . There are no clear tests to decide when a denial of a continuance is an abuse of discretion or a violation of due process. . . . The issue is decided on a case by case basis in view of the circumstances at the time the request is made. . . . This court, however, must make every reasonable presumption in favor of the trial court’s discretion. . . . Moreover, the defendant must show that the trial court acted arbitrarily and substantially impaired his ability to defend himself, before this court will conclude that an abuse of discretion has occurred.” State v. McCulloch, 24 Conn. App. 146, 148-149 (1991).

Since the April 20 hearing had only a one hour time slot allotted, respondents contend that there would be no time for them to present live testimony. Therefore they could not have anticipated that the hearing would be completed on April 20. In fact, the claimant’s testimony that day was not completed until after 9:00 a.m., and the commissioner had a full docket of other cases starting at 9:00 or after. Besides, respondents argue it was a long standing practice of the commission to grant continuances and to hear cases seriatim with limited time allocations for each hearing until the case was completed.

The fact that the one hour allotted April 20 could not have permitted an opportunity for any respondents’ witnesses to testify is really irrelevant. The testimony which respondents wished to present was by deposition not by live witnesses. Introduction of a deposition transcript into evidence would not take much time. Further, as footnote 2 shows, respondents had ample time between the end of November, 1991 and April 20, 1992 to prepare and obtain any depositions deemed necessary. If, in that time span, they had discovered that they needed to present witnesses at the formal hearing or could not schedule a doctor’s deposition before such a hearing, they should have notified the first district well before the time of actual trial. Instead they made the request at trial April 20.

Respondents next argue that continuances in such instances were routinely granted as part of the commission’s prevailing practice. Administrative Regulation Sec. 31-279-4 provides: “Unless prior approval for cause is secured from the commissioner, a claim assigned for a formal hearing shall be decided on the basis of the evidence adduced by the parties at the time and place designated. No party can assume the granting of a continuance to produce witnesses at a later date, or for any other reason not regularly recognized in a judicial proceeding.” (Emphasis added.) In this case there was attached to the November 26, 1991 notice of a December 3, 1991 informal hearing commission and district memoranda highlighting the policy enunciated in the Regulation.

Statewide Grievance Committee v. Friedland, 222 Conn. 131 (1992) involved a situation somewhat analogous to this matter in that the defendant attorney sought a continuance on the date of trial. There the defendant argued that since the previous scheduled hearing had become a status conference, he expected the next scheduled hearing would be similarly treated. The Friedland court rejected this argument pointing out that whatever the previous understanding or practice may have been, the defendant had been advised by the attorney for the grievance committee in a telephone conversation more than two weeks before the scheduled April 10, 1990 trial date that she was going forward with the evidentiary hearing on April 10. Here, too, the respondents had ample notice that the commissioner intended to conclude the trial on the April 20 scheduled date.

Finally, respondents have failed to show how evidence from Dr. Hardy, claimant’s treating physician, could have aided their case. For all that appears on the record, the April 24 Hardy deposition may have simply been a fishing expedition. There had already been sufficient time between November, 1991 and April, 1992 for such angling exploits. Absent any indication that the Hardy testimony could have aided the defense of the claim, respondents have failed to show how they were prejudiced by the denial of the continuance.

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

Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.

Commissioners James J. Metro and Angelo L. dos Santos concur.

1 All other issues which were raised in the respondents’ Reasons of Appeal are deemed abandoned as they were not briefed. Reale v. Carducci d/b/a Carducci Builders, 9 Conn. Workers’ Comp. Rev. Op. 31, 32 n. 1, 901 CRD-1-89-8 (1991). BACK TO TEXT

2 In fact, a November 26, 1991 notice regarding a December 3, 1991 informal (pre-formal) hearing notified the parties that “THE TENTATIVE FORMAL HEARING DATE WILL BE SCHEDULED THE 3RD/4TH WEEK OF MARCH 1992.” BACK TO TEXT

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