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Jimenez v. Walter Montero

CASE NO. 1826 CRB-4-93-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 4, 1995

GUSTAVO JIMENEZ

CLAIMANT-APPELLEE

v.

WALTER MONTERO

EMPLOYER

RESPONDENT-APPELLANT

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Charles A. Piro III, Esq., 120 East Avenue, P. O. Box 487, Norwalk, CT 06852.

The respondent employer was represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was represented at the formal hearing by Yinxia Long, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120. The Fund was not represented at oral argument.

This Petition for Review from the August 20, 1993 Denial of respondent’s Motion to Reopen by the Commissioner acting for the Fourth District was heard August 26, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer has petitioned for review from the Fourth District Commissioner’s August 20, 1993 denial of his Motion to Reopen a Finding and Award dated October 6, 1987. The respondent argues that the commissioner improperly found that he had attempted to avoid service of process, and improperly concluded that the claimant had complied with the notice provision of § 31-321 C.G.S. with respect to the July 21, 1987 formal hearing. We affirm the trial commissioner’s decision.

The claimant suffered an injury to his right knee while in the employ of the respondent on October 18, 1986. A formal hearing was held on July 21, 1987, at which the employer was not represented. The commissioner’s October 6, 1987 Finding and Award held that the claimant’s injury was compensable, and that the employer was uninsured. The Second Injury Fund was subsequently ordered pursuant to § 31-355 C.G.S. to pay the benefits due the claimant. The Fund then recorded a lien against the employer’s Fairfield residence.

The employer moved to reopen the Finding and Award in 1993 on the grounds that he received no notice of the formal hearing on July 21, 1987. The commissioner found that the respondent had quitclaimed his one-half interest in his residence to his wife on December 9, 1986, in anticipation of a possible compensation claim. He found that a Notice of Claim was served upon the respondent at the respondent’s residence on April 11, 1987, after several notices sent by certified mail had been returned. He also found that on May 23, 1987, the respondent’s wife signed for a certified letter containing notice of a July 14, 1987 formal hearing, and that the respondent forced her to return that notice to the Workers’ Compensation Commission. The formal hearing scheduled for that date was rescheduled to July 21, 1987, and notice of that hearing was again sent via certified mail to the respondent’s residence. That notice was also returned unclaimed on July 8, 1987 after several delivery attempts.

The commissioner concluded that § 31-321 was satisfied by the sending of notice of the July 21, 1987 formal hearing to the respondent’s residence. He further found that the respondent had attempted to avoid service of process by instructing his wife and children not to open the door to process servers, or to sign for certified or registered mail. The commissioner denied the Motion to Reopen the Finding and Award, from which judgment the respondent appealed. The respondent’s motion to correct was granted in part by the commissioner, adding findings that the respondent was vacationing with his family in Peru on July 21, 1987, and that the respondent’s wife returned the May 23, 1987 certified letter because it was not addressed to her.

First, we quickly address the respondent’s argument that the commissioner made inconsistent findings in support of his conclusion that the respondent avoided service of process. The commissioner initially found that the respondent grew angry when he was told that his wife had signed for a certified letter containing notice of the July 14, 1987 formal hearing, and made her return the notice along with a letter that he forced her to write. The commissioner later granted the respondent’s corrected finding stating that the respondent’s wife returned the notice because it was not addressed to her. We do not believe that these findings are inconsistent. They simply indicate that the respondent forced his wife to return the notice along with a note stating that she was returning the certified letter because it was not directed to her.1 The commissioner’s conclusion that the respondent attempted to avoid notice is supported by these findings and therefore must stand. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Next, we address the respondent’s contention that there is no causal link between the finding that the respondent avoided process and his failure to be present at the July 21, 1987 hearing. The notice returned by the respondent’s wife was for a formal hearing scheduled for July 14, 1987. The commissioner found that the notice of the rescheduled July 21, 1987 hearing was returned unclaimed on July 8, 1987 after multiple delivery attempts in accordance with § 31-321. He also found that the respondent was vacationing in Peru on the date of the July 21, 1987 formal hearing. The respondent argues that these facts do not lead to the conclusion that the respondent avoided notice for the July 21, 1987 formal hearing. He asserts that the Motion to Reopen should have been granted because he did not have notice of that hearing.

This Board recognizes the due process right of a party to be notified of workers’ compensation proceedings. See Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314 (1949). “The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.” Id. (Citations omitted.) “But if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied.” Id., 314-15. Generally, therefore, a personal judgment may be obtained against a state resident upon substituted or constructive service of process. See § 52-54 C.G.S.; Moore v. Moore, 15 Conn. Sup. 17, 18-19 (1947) (service on defendant domiciled within state but absent from state at time of service sufficient for personal judgment).

Section 31-321 provides that “any notice required under this chapter to be served upon an employer, employee or commissioner shall be by written or printed notice, service personally or by registered or certified mail addressed to the person upon whom it is to be served at his last known residence or place of business.” The constitutionality of this statute is not questioned. See Black v. London & Egazarian Associates, Inc., 30 Conn. App. 295, 299-301 (1993). The commissioner specifically found that notice of the July 14, 1987 and July 21, 1987 formal hearings was sent by certified mail to the respondent at his residence. Notice of the first hearing was opened and returned by the respondent’s wife at his direction; notice of the second hearing came back unopened.

The Workers’ Compensation Commission clearly complied with the requirements of § 31-321 in attempting to notify the respondent of both formal hearings. It is also clear from the testimony of the respondent’s wife, which the commissioner accepted, that the respondent did what he could to avoid the receipt of notice for those hearings, including ordering his family not to accept any certified mail. The commissioner’s findings demonstrate that the respondent had no intention of submitting to the jurisdiction of the Workers’ Compensation Commission, and the fact that the July 14, 1987 hearing was moved forward one week should not be used as an escape hatch by the respondent.

Although our research has uncovered no Connecticut cases discussing defendants’ intentional attempts to avoid service, other states’ courts have addressed the issue. “While personal service of process does not require “in hand” delivery, it should not become a game of wiles and tricks and a defendant should not be able to defeat service simply by refusing to accept the papers or by instructing others to reject service.” 62B Am. Jur. 2d Process § 204, citing Wood v. Weenig, 736 P.2d 1053 (Utah App. 1987). Similarly, where service by certified mail is permitted by statute, such service of process is complete upon mailing. Id., § 228, citing Nikwei v. Ross School of Aviation, Inc., 822 F.2d 939 (10th Cir. 1987); see also Moore, supra, 15 Conn. Sup. 19. Thus, a defendant may not avoid the service of process by refusing to accept a certified letter containing the process, resulting in the return of the unopened envelope to its sender. Id., § 229, citing Moore v. Moore, 424 So. 2d 1312 (Ala. App. 1982); Patel v. Southern Brokers, Ltd., 289 SE 2d 642 (S.C. 1982). We hold that the reasoning behind those cases is applicable here.

The respondent’s attempts to avoid service of the notice of the formal hearing, his attempt to transfer title of his property to his wife in contemplation of the claimant’s workers’ compensation claim, and his failure to obtain workers’ compensation insurance in the first place all demonstrate a remarkable lack of respect for the laws of this state and the authority of this agency, as well as an indifference to the humanitarian purpose of the Workers’ Compensation Act. Adzima v. UAC/Norden Division, 177 Conn. 107, 117 (1979). We will not allow his shenanigans to assist him any further in evading responsibility for the claimant’s injuries. The commissioner’s findings make it abundantly clear that the respondent was completely aware of the claim pending against him and the efforts of the Workers’ Compensation Commission to notify him of the date and time of the proceedings. The respondent is hardly in a position now to claim that an injustice has been done to him, and that he has been denied due process of the law.

The trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 The district file contains a note written in Spanish and signed by Aura Montero, the respondent’s wife. The note, which was received on June 1, 1987 by the Fourth District Commissioner’s office, states that Mrs. Montero sent back the certified letter because it was not directed to her. BACK TO TEXT

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