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Weglarz v. State of Connecticut Department of Corrections

CASE NO. 1648 CRB-4-93-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 8, 1994

JOHN WEGLARZ

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT DEPARTMENT OF CORRECTIONS

EMPLOYER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Richard K. Mulroney, Esq., Law Offices of Joseph Mirsky, P.C., 1115 Main St., Suite 408, Bridgeport, CT 06604.

The respondent was represented by Loida John, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141.

This Petition for Review from the February 5, 1993 Finding and Dismissal of the Commissioner for the Fourth District was heard February 25, 1994 before a Compensation Review Board Panel consisting of Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 5, 1993 Finding and Dismissal of the Commissioner for the Fourth District. The claimant argues on appeal (1) that the commissioner’s decision should be declared null and void because it was issued more than 120 days after the formal hearing, and (2) that the commissioner improperly went forward with the formal hearing on May 27, 1992 despite the absence of the claimant and claimant’s counsel. We affirm the decision of the trial commissioner.

The claimant correctly asserts that General Statutes § 31-300 requires the commissioner to send each party a written copy of his findings and award no later than one hundred twenty days after the conclusion of the final hearing. Here, the commissioner’s decision was issued on February 5, 1993, over eight months after the formal hearing. The claimant has not alleged that any prejudice was suffered as a result of that delay, however. Without a showing of prejudice, we will not order a new hearing on the ground that the commissioner’s decision was issued late. Fletcher v. UTC/Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 182, 183, 1322 CRD-8-91-10 (1993); Stevens v. City of Hartford, 8 Conn. Workers’ Comp. Rev. Op. 134, 136, 831 CRD-1-89-2 (1990).

The claimant also alleges that the commissioner improperly held the formal hearing in the absence of the claimant or his attorney, thus denying him the opportunity to present his claim. The commissioner noted in the finding and dismissal that despite many calls to the claimant’s attorney notifying him that the case was going forward, no one was present on the claimant’s behalf at the May 27, 1992 formal hearing. The claimant’s attorney did not give timely notice of his intent not to go forth as scheduled. Rather, he called the Workers’ Compensation office the morning of the formal hearing to inform them that he was on trial in another case and could not appear. Furthermore, prior formal hearings had been repeatedly cancelled and rescheduled on this matter. The commissioner noted for the record that there were “five notices of Formal hearing and on five occasions, starting with September the 11th, 1991, [the claimant’s attorney] did not show and the formal proceedings had to be reassigned.” (May 27, 1992 Transcript, Page 2) It does not appear from this record that the claimant’s attorney was “unfairly penalized” by the commissioner’s decision to proceed with the case as scheduled. See Lindholm v. Moscowitz, 6 Conn. Workers’ Comp. Rev. Op. 7, 8, 527 CRD-7-86 (1988) (counsel’s failure to appear due to mistake regarding date of formal hearing does not constitute good reason to reopen hearing for introduction of further evidence).

The trial commissioner is affirmed.

Commissioners Michael S. Miles and Nancy A. Brouillet concur.

Workers’ Compensation Commission

Page last revised: October 6, 2004

Page URL: http://wcc.state.ct.us/crb/1994/1648crb.htm

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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