CASE NO. 2296 CRB-2-95-1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 20, 1996
UNITED NUCLEAR CORP.
TRAVELERS INSURANCE CO.
The claimant was represented by Robert Fitzgerald, Esq., Fitzgerald & Prucker, 1127 Tolland Turnpike., Manchester, CT 06040.
The respondents were represented by Jason Dodge, Esq., and Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.
These Petitions for Review from the Commissioner acting for the Second District’s January 25, 1995 denials of the Claimant’s Motion for Scheduling of a Formal Proceeding, Motion to Recuse, and Motion to Disqualify Pomeranz, Drayton & Stabnick, and her March 28, 1995 Memorandum of Decision on Claimant’s Motion to Open the Agreement, as well as the Chairman’s oral ruling on the Claimant’s February 9, 1995 letter, were heard February 23, 1996 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Robin L. Wilson and Amado J. Vargas.
GEORGE A. WALDRON, COMMISSIONER. The claimant has filed five separate petitions for review in this matter. Four are appeals from decisions of the Commissioner acting for the Second District, and one is from an oral decision of the Chairman. After considering the claimant’s arguments on those appeals, we affirm the underlying rulings.
The claimant suffered a compensable injury to her right wrist and arm on May 17, 1983, and has been through numerous proceedings regarding this matter over the past 13 years. The issues before us here arise from a formal proceeding concerning the claimant’s entitlement to permanency and/or § 31-308a benefits that was scheduled for November 17, 1993 with Commissioner Miles in the Second District. At that time, the claimant was represented by Attorney Nathan Shafner, while the respondents were represented by Attorney Lucas Strunk. Apparently, the parties discussed settling the case prior to the hearing, and reported to the commissioner that they were attempting to negotiate an agreement. After discussion, the commissioner’s recommendations were reduced to writing and signed as an agreement by the claimant, Attorneys Shafner and Strunk, and Commissioner Miles.
Subsequently, the claimant refused to sign a Stipulation to Date that was prepared by Attorney Strunk to reflect the prior agreement. Instead, she sought to reopen the agreement in accord with § 31-315 C.G.S. The case came before the trial commissioner, who granted a motion by the respondents to disqualify another attorney from Shafner’s firm from continuing to represent the claimant. Because Attorney Shafner would be a necessary witness to the pending proceedings, the commissioner ruled that neither he nor anyone from his firm could continue to represent the claimant under Rule 3.7 of the Rules of Professional Conduct. After a notice of formal hearing was issued concerning the claimant’s request to open the agreement, the claimant retained as counsel Attorney Robert Fitzgerald.
Upon assuming representation of the claimant, Attorney Fitzgerald requested that the case be assigned to a different commissioner, and filed a motion to recuse the trial commissioner on September 13, 1994. This motion was based on the fact that the trial commissioner had filed a grievance against Attorney Fitzgerald’s partner for his conduct in an unrelated matter, and that her impartiality might therefore be questioned. The trial commissioner examined the Code of Ethics for Workers’ Compensation Commissioners and related caselaw involving judges, and concluded that recusal is only warranted when antipathy is alleged toward a client, not an attorney. She thus declined to recuse herself from the proceedings. The claimant appeals that decision.
According to the Code of Ethics for Workers’ Compensation Commissioners, a commissioner’s conduct “should be free from even the appearance of impropriety,” and disqualification is appropriate when a commissioner’s impartiality might reasonably be questioned. Id., §§ 4, 18. This includes situations where “the Commissioner has a personal bias or prejudice against a party, or personal knowledge concerning disputed evidence.” Id., § 18(A). These provisions mirror language in Canons 2 and 3(C)(1)(a) of the Code of Judicial Conduct. Although the “appearance of impropriety” provisions have yet to be explored in a workers’ compensation setting, our appellate tribunals have had many opportunities to discuss them in other proceedings. See, e.g., Bonelli v. Bonelli, 214 Conn. 14 (1990); Dubaldo v. Dubaldo, 14 Conn. App. 645 (1988).
“Disqualification of a trial judge is not dependent on proof of actual bias. . . . The controlling standard is whether a reasonable person who is aware of all the circumstances surrounding the judicial proceeding would question the judge’s impartiality.” LaBow v. LaBow, 13 Conn. App. 330, 334 (1988) (internal citation omitted), citing Papa v. New Haven Federation of Teachers, 186 Conn. 725, 745-46 (1982). The question is not whether the judge could actually render an impartial decision, or subjectively believes that she could do so, but whether an observer would reasonably question her impartiality under the circumstances. Dubaldo, supra, 649-50; Keppel v. BaRoss Builders, Inc., 7 Conn. App. 435, 440-41 (1986). Just as is the case with a trial judge, a commissioner’s conduct must be characterized by the absence of bias; any departure from that standard would cast a shadow on the workers’ compensation system. See Postemski v. Landon, 9 Conn. App. 320, 322 (1986), citing Cameron v. Cameron, 187 Conn. 163 (1982).
Our courts have discerned violations of Canon 3 in several cases. In Papa, supra, our high court held that a judge who had been quoted in a Hartford Courant article as strongly criticizing teachers’ strikes while he was sitting on a trial involving such a strike had violated Canon 3(A)(6) [now 3(A)(7)], which provides that a judge should not publicly comment about a pending proceeding. Id., 747. “It does not necessarily follow that if a judge makes any public comments whatsoever about a pending case that he must be disqualified. . . . [It] depends on the content of the comments.” Id., 747-48. Although the judge denied a motion for recusal from the bench, stating that he had been misquoted, he also made findings concerning the errors in the article that were unsupported by evidence in the record. Not only were those findings improper, “[b]ut the more significant thing is that such findings indicate that [the judge] became so personally involved that he felt the need to defend himself from allegations based on the article by trying to repudiate [its] substance. . . . Applying the objective standard, we conclude that the article and [the judge’s] response to it clearly raise a reasonable question about [his] ability to remain fair and impartial through the remainder of the proceedings.” Id., 753.
Also noteworthy is Cameron, supra, a case involving a trial judge who required a defendant in a divorce action to produce a deposit slip. The judge stated that failure to comply would place the defendant or his attorney “in serious trouble in perpetrating a fraud upon this Court.” Id., 165. The judge proceeded to chastise the defendant’s attorney for trouble he had had in prior cases “in some of [his] clients absconding.” When counsel stated in response that he had never done anything unprofessional, the judge responded, “that’s questionable.” Id. The judge denied having a personal bias against the attorney, stating instead that he was upset because the defendant had lied under oath. Id., 165-66 n.2. The defendant later produced a deposit slip on which the date had been crossed out and an earlier date written in ink and initialed. The judge opined that the slip had been tampered with, and when counsel stated that he could not identify the initials and attempted to make a statement, the judge found him in contempt of court. The judge then invited the defendant to take the witness stand; after he was sworn in, the judge immediately stated that he was also being held in contempt.
The Supreme Court reviewed this issue, even though disqualification was not requested at trial. Although some of the judge’s criticisms of counsel were justified, the court held that “once [the judge] declares that he believes a party or a witness has been deceitful, . . . he cannot continue to preside in his role of impartial arbiter.” Id., 170. The judge’s statements that the defendant had lied and that he or his counsel was “attempting to perpetrate a fraud on the court,” as well as his remarks about prior clients of said counsel who had absconded, marred the appearance of impartiality. “These expressions of a preconceived view of the credibility of a witness who had not yet testified before the trier and of an attitude of skepticism concerning any person represented by his counsel must have been devastating to the defendant and astounding to any observer schooled in the simple faith that the court is an instrument of justice.” Id. See also Dubaldo, supra (judge violated Canon 3(C)(1) by calling an attorney-witness into chambers to express condolences over personal troubles, including death of spouse, in a private conversation; observers could infer impropriety from such conduct).
When the circumstances of the instant case are juxtaposed with those of the above cases, the grounds for suspecting bias on the part of the decisionmaker in our case seem far less evident. Section 18 of the Code of Ethics recommends disqualification when the Commissioner has a personal bias against a party, but does not mention other attorneys. Furthermore, the fact that the commissioner filed a grievance against the partner of the claimant’s counsel does not imply a bias against Attorney Fitzgerald--nor, indeed, does it signify a bias against the grieved attorney. Our courts have held that a judge’s finding a defendant in contempt of court does not, by itself, signify personal bias against the defendant. Hartford Federal Savings & Loan Assn. v. Tucker, 192 Conn. 1, 7-8 (1984); LaBow, supra, 337-38, 341 (judge’s statements noting defendant’s dilatory action and questioning sincerity of defendant’s attorney did not indicate an opinion as to the defendant’s untruthfulnss, or prejudice in considering the evidence); Postemski, supra, 323. Given that, there is no reason why a dispute with a claimant’s attorney’s partner would be more likely an earmark of bias.
Although the filing of a grievance is an action of a fairly serious nature against an attorney, we would not presume it to be an indicator of a judge’s personal feelings about that individual, nor would we expect it to taint a judge’s ability to remain impartial in future cases involving that attorney or his firm. See Commonwealth v. Edgerly, 375 N.E.2d 1, 16 (Mass. App. 1978) (judge’s reporting of defense counsel to Board of Bar Overseers did not require judge to disqualify himself from sentencing proceedings); Flamm, Judicial Disqualification, § 4.4.3 (1996). Indeed, one of the underlying principles of the American judicial system is our faith in a judge’s ability to set his or her personal feelings aside regarding a host of issues when deciding a case. Thus, even where there is evidence of judicial bias against an attorney, it does not generally or presumptively constitute bias against that attorney’s client. Id., 7 4.4.4 (1996). We also note that even in jurisdictions where disqualification for bias against an attorney is statutorily prescribed, a party is not ordinarily permitted to bring an attorney into a case after it has been assigned to a judge, and then move to disqualify the judge for bias. To allow otherwise would encourage parties to engage in judge-shopping by forcing recusals as a litigation strategy. See In re Martin-Trigona, 573 F.Supp 1237, 1243 (D. Conn. 1983). Yet, that is what the claimant effectively seeks to do here. Id., § 4.4.3.
The commissioner stated in her decision on the motion to recuse that she was mindful of the high standard of impartiality, and assured the litigants “that prior conduct of counsel in other matters has no impact on Ms. Costa’s claim.” The claimant has not offered any evidence to indicate that she was unable to do so. The fact that the commissioner had earlier considered recusing herself when the respondents filed a similar motion on the ground that she was biased toward the claimant is hardly evidence of bias against the claimant now; the commissioner was certainly entitled to change her mind about that issue before making a final decision.
The claimant also suggests that the commissioner was substantially involved with the case prior to trial, and should have disqualified herself on that ground. Not only was this not mentioned in their motion to recuse, but the claimant has not directed this board to any evidence in the record to support that claim. A Motion to Submit Additional Evidence was also not filed pursuant to Admin. Reg. § 31-301-9. Without more, we cannot consider that contention on appeal. Thus, we hold that the trial commissioner did not abuse her discretion in denying the Motion to Recuse; nor was plain error evident from the record. See Cameron, supra, 168 (court invoked plain error doctrine to review unpreserved claim of error); Todd v. Jazlowiecki, 6 Conn. Workers’ Comp. Rev. Op. 9, 11, 493 CRD-6-86 (Aug. 26, 1988) (issue of recusal is normally at trier’s discretion).
The claimant next argues that the trial commissioner lacked jurisdiction to consider the Motion to Reopen because of the appeals on her three rulings of January 25, 1994. (Along with the denial of the claimant’s Motion to Recuse, the Commissioner denied a motion to disqualify the law firm of Pomeranz, Drayton and Stabnick from representing the respondents, and denied a motion to schedule a formal hearing for lack of a final settlement in this case.) The claimant argues that the appealed decisions are so interwoven with the heart of this case that the commissioner should not have considered the Motion to Reopen. We disagree. As the respondents aptly point out, Wysocki v. Bradley & Hubbard Co., 113 Conn. 170 (1931), explained that a workers’ compensation commissioner is not only allowed, but required, to rule on a motion to reopen or modify an award, regardless of whether his earlier ruling on the same issue is being appealed. “It has been the policy of this State . . . to recognize a continuous jurisdiction of an award by the commissioner, during the whole compensable period, a jurisdiction which is necessary and vital, for the protection of the interests of all parties under our Act.” Id., 173. The claimant has advanced no argument on appeal to distinguish Wysocki. We note that relatively recent changes in the Workers’ Compensation Act have made it possible for claims to be heard before different commissioners as a routine matter. See § 31-298 C.G.S. However, this does not invalidate the applicability of the reasoning in Wysocki to this situation.
The claimant contends that both the trial commissioner and the Chairman of the Workers’ Compensation Commission erred by denying her requests for a formal hearing. The premise behind those requests is that the November 17, 1993 agreement has no legal effect under the Act, and that in the absence of a valid settlement, the claimant is entitled to a formal hearing on the merits of her case.
The Workers’ Compensation Act does not specifically authorize general settlements of claims. However, courts have consistently upheld the ability of parties to compromise a compensation claim as a corollary of their power to make a voluntary agreement regarding workers’ compensation. Muldoon v. Homestead Insulation Co., 231 Conn. 469, 480 (1994). A stipulation may become binding once a commissioner has thoroughly reviewed it for fairness and comprehensiveness, determined that a claimant understands it, and approved it. Id., n.9; Fazzina v. Shepard Steel, 14 Conn. Workers’ Comp. Rev. Op. 253, 255, 1831 CRB-1-93-9 (Aug. 31, 1995). The ability to approve settlements is also consistent with a commissioner’s broad powers under § 31-278 C.G.S.
In addition to these general powers, a trial commissioner is also authorized under § 31-297a to make recommendations at any informal hearing that “shall be reduced to writing and, if the parties accept such recommendations, the recommendations shall be as binding upon both parties as an award by the commissioner or chairman.” Despite the fact that the proceeding scheduled for November 16, 1993 was actually a formal hearing, Commissioner Miles testified that § 31-297a most closely approximated his authority to make the agreement, although his primary concern was to reflect the parties’ agreement in writing “so that everyone would know what it was.” (Feb. 6, 1995 Tr., p. 68).
The agreement itself is largely handwritten, and specifies the claimant’s name, date of injury, body part affected, and compensation rate. It states that, pursuant to § 31-298, the claimant agrees “to receive payment of $6,000 as a settlement for all benefits claimed from April 19, 1990 through July 1, 1994 and through 50(fifty)% of the right arm. Respondents acknowledge 5% of the right hand only.” The agreement leaves medicals open, establishes the current treating physician as Dr. Toczylowski, gives the claimant’s attorney a fee, and states that the claimant is left to her proof with respect to any claimed medical conditions or future benefits. Finally, the agreement states that the respondents’ attorney is to draw up settlement documents. As noted above, the agreement was signed by representatives of both parties, including the claimant herself, as well as Commissioner Miles.
After reviewing this document, we do not believe that it falls outside the legal bounds of an enforceable stipulation to date. First, we do not believe that the commissioner’s authority to memorialize an agreement between parties as a binding stipulation is as closely circumscribed by the Workers’ Compensation Act as the claimant would have us hold. See Muldoon, supra. Our concerns are geared more toward whether a claimant understands the nature of an agreement and its scope than they are toward narrowly defining the proper place and time for an agreement to be made. Second, the fact that the hearing scheduled in this case was a formal rather than an informal would not prevent this document from taking effect under § 31-297a. The notice given to the parties before a formal hearing can hardly be said to be of lesser import than it is before an informal hearing; also, in this case, the procedure followed by the parties on November 16, 1993 in preparing this settlement was in accord with § 31-297a. The trial commissioner and the Chairman thus both acted properly in refusing to declare the stipulation a legal nullity by scheduling a formal hearing on the merits.
The claimant’s final assertion of error is the commissioner’s holding that the claimant had not proven mutual mistake justifying relief under § 31-315. She argues that she did not understand that she was signing a binding document, and that “confusion and mistake clearly abounded,” as the respondents’ counsel argued that the document was a Stipulation to Date, refusing to point to specific statutory authority for the settlement, while Commissioner Miles believed that the basis for the agreement was § 31-279a.
The decision to open a stipulation falls within the discretion of the trier of fact, and will not be disturbed unless such discretion has been abused. Fazzina, supra, 254. Here, the commissioner testified to circumstances that would indicate the claimant understood the terms of the agreement (Feb. 6, 1995 Tr., p. 55-57), as did Attorney Strunk (Id., p. 76). Further, the conduct of the claimant’s counsel in seeking to obtain the settlement check implies an understanding on the claimant’s part that a portion of the case had been settled. The trial commissioner had the authority as factfinder to accept that testimony and draw inferences from it regarding the claimant’s understanding of the agreement. Fazzina, supra, 255; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Confusion at a subsequent formal hearing over the proper terminology to describe the agreement does not lead to the inescapable conclusion that the claimant did not understand its terms. The claimant has not set forth in her brief reason for this board to question her understanding of the agreement, and certainly has not given us cause to reverse the trial commissioner’s decision. Therefore, we affirm the trial commissioner’s denial of the motion to reopen.
Commissioners Robin L. Wilson and Amado J. Vargas concur.