State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Koscak v. Agentry Employment Systems

CASE NO. 3438 CRB-06-96-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 9, 1998

DONALD KOSCAK

CLAIMANT-APPELLEE

v.

AGENTRY EMPLOYMENT SYSTEMS

EMPLOYER

and

AETNA CASUALTY & SURETY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Robert Simpson, Esq., Updike, Kelly & Spellacy, P.C., One State Street, P. O. Box 231277, Hartford, CT 06123.

The respondents were represented by Nancy Limoncelli, Esq., Law Offices of Christine Harrigan, City Place, 185 Asylum St., Hartford, CT 06103-3402.

This Petition for Review from the October 11, 1996 Finding and Award of the Commissioner acting for the Sixth District was heard May 23, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the October 11, 1996 Finding and Award of the Commissioner acting for the Sixth District. They argue that the trier erred by concluding that the claimant was an employee of Agentry Employment Systems (Agentry), which is a temporary employment service. They have also filed a Motion to Submit Additional Evidence seeking to admit a Superior Court decision in which Mott Metallurgical Corp. (Mott), the company who obtained the claimant’s services through Agentry, successfully moved for summary judgment against the claimant in a civil suit on the ground that it was his employer, and could not be sued based on the exclusivity provision in the Workers’ Compensation Act. Our ruling on the Motion to Submit Additional Evidence precludes the need for a ruling on the merits of this appeal at this time.

The claimant suffered mercury poisoning after a September 13, 1993 chemical spill at the Mott plant. He suffered various maladies as a result of the poisoning, and missed considerable time from work. The issue presented to the trier at the formal hearing was whether the claimant was an employee of Agentry. After considering the details of the claimant’s involvement with both Agentry and Mott and making findings accordingly, the trier concluded that no persuasive evidence was introduced that Mott ever hired the claimant, and ordered Agentry and its workers’ compensation insurer to pay benefits. The trier also ruled that § 31-292 C.G.S., the “lent employee” statute, was inapplicable here. Agentry and its insurer have appealed that decision.

Concurrent with the filing of their appeal, the respondents filed a motion to introduce as additional evidence a copy of Judge Hennessey’s Superior Court decision that held Mott exempt from civil liability for the claimant’s injuries on the ground that it was an employer pursuant to the Workers’ Compensation Act, and could not be sued as per the exclusivity provision of § 31-284(a) C.G.S. Her June 28, 1996 decision officially constitutes the granting of Mott’s motion for summary judgment against the claimant. Meanwhile, the trier’s decision in the instant workers’ compensation matter was not issued until October 11, 1996. The inconsistency between these two rulings is manifest.

Admin. Reg. § 31-301-9 allows this board to consider motions to submit additional evidence where the moving party alleges that the new evidence is material and that there were good reasons for their failure to introduce such evidence at trial. The claimant objects that the Superior Court decision is not material evidence, but case law that has no place on the factual record. We profoundly disagree with the claimant’s suggestion that a Superior Court decision is nothing more than a legal argument that a party should have presented at trial.

In a system in which the concept of stare decisis “is the most important application of a theory of decisionmaking consistency in our legal culture,” Hall v. Gilbert & Bennett Mfg. Co., Inc., 241 Conn. 282, 296 (1997) (internal quotation marks omitted), we can hardly say that Judge Hennessey’s decision on a matter integral to the merits of this proceeding fails to rise to the level of admissible evidence. In fact, we have gone so far as to reopen proceedings to admit as additional evidence the decisions of other courts that were likely to be binding on workers’ compensation proceedings. Ross v. Swift, 15 Conn. Workers’ Comp. Rev. Op. 210, 2292 CRB-6-95-2 (April 23, 1996) (even though the alleged bankruptcy discharge order was available at the time of the formal hearing, CRB reopened the case to allow its admission because a judgment against the respondent employer would be null and void if its debt were discharged in bankruptcy court). It would create chaos within our judicial system if this Commission were to ignore the decisions of other state courts that involved and were directly on point to cases pending before the workers’ compensation forum. Clearly, the Superior Court decision holding that Mott was the claimant’s employer in this case is highly relevant, and should be admitted into evidence and/or accorded judicial notice if possible.

The claimant also argues that the respondents could have presented this evidence at trial, because the record remained open for the filing of briefs until August 16, 1996. The respondents contend that the record was closed on June 17, 1996, eleven days before the Superior Court decision was issued. First, we note that there is no evidence that the respondents were made aware of the Superior Court decision before August 16, 1996, as they are not a party to that case. The claimant sued Mott, not Agentry, in Superior Court. Second, the trier left the record open until August 16, 1996, only for the filing of briefs and proposed findings. He stated that the trial itself was technically over as of June 17th, which would imply to the parties that no additional evidence should be offered. See Transcript, p. 37-38. We cannot assume from this that the respondents had a sufficient opportunity to bring Judge Hennessey’s decision to the trial commissioner before the record was closed. Given the importance of consistency in the adjudication of the rights of parties, as the doctrines of res judicata and collateral estoppel exemplify, we grant the respondents’ Motion to Submit Additional Evidence, and remand this case to the trier for consideration of the Superior Court decision holding Mott to be an employer.

Commissioners James J. Metro and John A. Mastropietro concur.

Workers’ Compensation Commission

Page last revised: June 29, 2005

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