State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Surozenski v. Glass Container Corp.

CASE NO. 3753 CRB-02-97-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 23, 1999

ANNA SUROZENSKI

CLAIMANT-APPELLEE

v.

GLASS CONTAINER CORP.

EMPLOYER

SELF-INSURED

and

GAB ROBINS NORTH AMERICA

ADMINISTRATOR

RESPONDENT-APPELLANT

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondents were represented by Jean Molloy, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the December 9, 1997 Findings of Facts and Award of the Commissioner acting for the Second District was heard September 18, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

MICHAEL S. MILES, COMMISSIONER. The respondent GAB Robins North America and its counsel in this matter, the law firm of Montstream and May (Montstream), have petitioned for review from the December 9, 1997 Findings of Facts and Award of the Commissioner acting for the Second District. The appellants contend that the trial commissioner erred by denying Montstream’s Motion to Disappear from this claim. We affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to her left hip on June 27, 1980. She has continued to require medical treatment for this condition. The respondent employer Glass Container Corp. was self-insured on the date of the injury, and had no surety bond posted. The appellants represent that the employer has filed a Chapter 11 bankruptcy petition in Delaware. They explain that GAB Robins North America was a third-party administrator for the self-insured employer, and that Montstream had been hired by GAB to represent Glass Container. According to the appellants, this Commission was notified by the employer or its successor that neither GAB nor its assigned counsel was authorized to continue representing Glass Container. Despite Montstream’s attempt to withdraw from this case, the Second District notified the firm and GAB of a December 5, 1997 formal hearing regarding the claimant’s request for a surgical procedure.

The trier found that it is unclear whether the employer is still in existence. He also found that the Montstream firm had filed a Motion to Disappear from the claim, alleging that it only represented GAB, and not the employer. Findings, ¶ 9. However, the trier concluded that the firm had been unable to show by documentary evidence that there was a changed legal relationship between the employer and GAB. He thus denied the Motion to Disappear. Montstream and GAB have appealed that ruling, arguing that the evidence establishes that GAB and its counsel have been divested of authority to act on the employer’s behalf. In support of their position, they have moved to submit as additional evidence several letters, including the one from Anchor Glass Container (the employer) that states counsel did not have authority to continue representing the employer.

This board is empowered to act on motions to submit additional evidence when a party alleges that such evidence is material and that there were good reasons for failure to present it in the proceedings before the commissioner. Admin. Reg. § 31-301-9. The appellants explain that the four letters they seek to introduce at this juncture were omitted from prior proceedings because “there was no reason to believe that the Commissioner would continue to require GAB’s presence in the case absent any evidence establishing their liability.” Motion, p. 2. The failure to anticipate the necessity of a document is not normally considered a “good reason” for leaving it out. See, e.g., Pronovost v. UTC/Pratt & Whitney, 3166 CRB-6-95-9 (Feb. 11, 1997). Moreover, the materiality of those letters is questionable as well. Each of them essentially relates the unchallenged legal position of one party concerning its relationship to this case. We do not find sufficient grounds to grant the appellant’s Motion to Submit Additional Evidence here.

As for counsel’s request to withdraw, we appreciate the uncertain status of GAB, a self-insurance administrator, in this matter. However, there was no evidence introduced at the formal hearing to show that GAB was no longer the administrator for Glass Container Corp. Moreover, the Montstream firm admits that it has represented both GAB and Glass Container throughout most of the life of this claim. No substitute counsel has appeared to represent the self-insured employer. In a case featuring a pro se claimant and no other counsel for the defense, it would be inconsistent with the remedial purpose of the Workers’ Compensation Act to leave the claimant with no one to negotiate with on behalf of the respondents. Compare Dubret v. Fairfield Police Dept., 3495 CRB-4-96-12 (April 1, 1998) (attorney who files appeal to CRB may not withdraw appearance on his client’s behalf until substitute counsel has been arranged); see also, Vega v. Waltsco, Inc., 46 Conn. App. 298, 303 (1997) (rules of practice regarding filing of appearances do not pertain to workers’ compensation proceedings). We thus affirm the decision of the trial commissioner to deny the appellants’ Motion to Disappear.

Commissioner Stephen B. Delaney concurs.

JESSE M. FRANKL, CHAIRMAN, DISSENTING. I would reverse the trial commissioner’s decision, and grant the Motion to Submit Additional Evidence and the Motion to Disappear. The letters from Anchor Glass Container Corp. and Anchor Resolution Corp. are material insofar as they establish that neither the bankruptcy debtor nor the successor corporation is willing to accept liability for this case. They also establish that neither of those entities is represented by Montstream and May, or by GAB as an administrator. In light of that uncontradicted information, I believe that it is evident that the Montstream firm is no longer acting as counsel for Glass Container, and that it should be excused from this case.

Workers’ Compensation Commission

Page last revised: April 8, 2005

Page URL: http://wcc.state.ct.us/crb/1999/3753crb.htm

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