State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Rogers v. C.N. Flagg Power

CASE NO. 3809 CRB-06-96-05

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 23, 2000

GARY ROGERS

CLAIMANT-APPELLANT

v.

C.N. FLAGG POWER

EMPLOYER

and

TRAVELERS PROPERTY CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by William Gallagher, Esq., Gallagher, Gallagher & Calistro, 1377 Boulevard, P.O. Box 1925, New Haven, CT 06509.

The respondents were represented by Theodore M. Pappas, Esq., Law Offices of Scott B. Clendaniel, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145.

The Second Injury Fund was represented by Jeremy Booty, Esq., P.O. Box 1109, New London, CT 06320, who did not appear at oral argument.

Notice sent to: Second Injury Fund, William McCullough, Esq., Assistant Attorney General, P. O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.

This Petition for Review from the April 22, 1998 Letter issued by the then Commission Chairman Jesse M. Frankl was heard June 18, 1999 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, John A. Mastropietro1 and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the April 22, 1998 Letter by the then Commission Chairman Jesse M. Frankl (hereinafter “Chairman”). In that letter, the Chairman responded to the claimant’s Motion to Vacate Transfer, and explained his reasons for ordering the transfer of the claimant’s case from the Third District to the Sixth District. In support of his appeal, the claimant alleges that the Chairman’s transfer of the case was the functional equivalent of a determination that the two commissioners in the Third District were biased, and as such the transfer was not within the chairman’s administrative authority. Although we do not agree that any determination — functional or otherwise — was made concerning actual bias of the two commissioners in the Third District, we do agree that the matter should be remanded for the reasons stated hereinafter.

A brief review of the record is in order. In a February 27, 1998 Motion to Disqualify, the attorney for the respondent employer and Travelers Property Casualty (hereinafter “respondents”) requested that Commissioner Waldron and Commissioner Waller disqualify themselves on the basis that they had both heard prior evidence in the case.2 The claimant by a motion dated March 5, 1998, objected to the disqualification of either commissioner, contending that “Neither Commissioner Waller nor Commissioner Waldron have heard evidence in this case.” On March 18, 1998, the Chairman issued a memorandum transferring the case to the Sixth District. On March 20, 1998, the claimant sent a letter to the Chairman objecting to said transfer. In a letter dated April 22, 1998, the Chairman explained as follows:

The records in our computer system indicate that Commissioner Waldron has presided over five informal hearings in this case since 1994, including two proceedings concerning approval of a Form 36. Our records also show that Commissioner Waller presided over two pre-formal hearings in August of 1997. It is the policy of this commission that a commissioner who rules on a Form 36 at an informal hearing (see Stryczek v. State of Connecticut/ Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 34-35, 1765 CRB-2-93-6 (May 4, 1995)) cannot preside over a subsequent formal hearing on that issue. It is also the policy of this commission that, in districts where more than one commissioner sits on a regular basis, a commissioner who presides over a pre-formal hearing should not preside over the formal hearings that often follow….
I understand your argument that there should have been a hearing on the issue of the transfer of this case to the Sixth District, and your contention that there was no actual bias in this case because neither Commissioner Waller or Commissioner Waldron ever heard any evidence. If the issue here were whether one of those commissioners actually was biased, you would be correct in arguing that, under Dixon v. United Illuminating Co., 232 Conn. 758 (1995), my authority to administer the workers’ compensation system pursuant to § 31-280 would not encompass the right to decide whether bias actually existed…..
However, the issue in this matter is not whether one or both of the commissioners… were biased in any way. Instead, it implicates this commission’s policy regarding commissioners presiding over cases with which they have already become involved. Whether or not actual bias or prejudice or prejudgment of the facts exists in this case, the records of this commission demonstrate that both Commissioners Waller and Waldron have presided over certain stages of the proceedings in Mr. Rogers’ case that would preclude them under the internal rules of this agency from presiding over further proceedings. Thus, it is necessary for another commissioner to hear this case. In order for that to occur, this case must be transferred out of the New Haven office, as no other commissioners are currently sitting in the Third District….

The court in Dixon v. United Illuminating Co., 232 Conn. 758 (1995) explained that the powers granted to the chairman pursuant to § 31-280(b)3 indicate “clearly the extensive administrative authority granted to the chairman to manage the workers’ compensation system so that cases are processed in a timely and efficient manner.” Id. at 774. Furthermore, the court opined that there “can be no doubt, moreover, that this authority includes the general power to transfer a case or cases from one district to another for that administrative purpose.” Id (emphasis added). The court held in Dixon that “when the chairman transfers a case or cases pursuant to his administrative power under § 31-280(b), no hearing is required.” Id. at 775.

In Dixon, supra, the chairman had transferred a case from one district to another “in response to a claim that the defendant was ‘not being treated fairly.’” Id. at 777. The court held that said allegation of unfair treatment did not invoke administrative considerations, but rather the court explained that it “read that claim, and the chairman’s subsequent action transferring the case, as a claim by the defendant and a determination by the chairman that, in some respect, the commissioner considering the matter was biased, or was acting in a biased manner…. That is not the type of claim that falls within the chairman’s administrative authority to determine. Rather, such a claim is subject to resolution pursuant to § 31-278.” Id. at 777.

In the instant case, the former Chairman’s decision was based on what he termed to be Commission policy, which was designed to avoid potential conflict or the appearance thereof. No determination of bias or lack thereof was made. Rather, the decision was based upon the application of a long-standing Commission policy. The underlying rationale for the policy requiring transfer is substantially premised on the assumption that a commissioner who presides over a Form 36 hearing will have, or will appear to have, prejudged the facts. See Krattenstein v. G. Fox & Co., 155 Conn. 609, 614-15 (1967).4 However, the decision to transfer the instant matter out of the Third District did not involve an adjudication or determination as to whether the trial commissioners had prejudged the case.

We recognize the validity of a policy, as articulated in the former Chairman’s letter, regarding commissioners not presiding over cases with which they have already become involved. See Krattenstein, supra. However, the determination of whether a commissioner has heard prior evidence in a matter, and whether having heard such evidence may affect his or her ability to hear the case, is solely within the discretion of the trial commissioner. Section 31-278 makes it the prerogative of the trial commissioner, and not the administrative rules of this agency, to decide whether considerations of actual or potential bias mandate recusal in any given instance. Only the trial commissioner can know whether what he or she has heard will impact his or her ability to fairly preside over the formal hearing.

As stated above, we recognize the wisdom of the court in Krattenstein, supra, regarding the appearance of possible bias when a judge conducts a settlement conference and is then called upon to try the case. However, unlike the superior court, which employs over 160 judges, the workers’ compensation commission has only fifteen commissioners to hear formal hearings in the eight district offices. Accordingly, the judiciary has the ability to maintain a strict policy of recusal, whereas here it is an impracticality. We now reiterate our policy: trial commissioners, whenever possible, should as a matter of course make every effort not to preside over a formal hearing if they have presided over the pre-formal settlement hearing. If a party requests that the commissioner recuse himself or herself from presiding over the formal where the commissioner has also presided over the pre-formal, the commissioner’s decision whether or not to preside should seriously consider the policy established by the Commission. However, the policy should be only one factor in the equation, and not the absolute conclusion. If the trial commissioner chooses to hear the formal over the objection of a party, the decision may be an element of appeal to the Compensation Review Board. See § 31-278; see also Dixon, supra, at 777; Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (April 12, 1995), appeal dismissed June 29, 1995, A.C. 14747; Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 1720 CRB-4-93-5 (April 21, 1995).

In the instant case, because the commissioners in the Third District were not given the opportunity to consider recusal on the basis that they had heard evidence, in accordance with the above, the matter must be remanded for the commissioners to decide.

Commissioners Angelo L. dos Santos and Ernie R. Walker concur.

1 Commissioner John A. Mastropietro subsequently became Chairman of the Workers’ Compensation Commission. BACK TO TEXT

2 That Motion states: “Respondent, C.N. Flagg Power and Traveler’s (sic) Property Casualty hereby request that the Honorable Commissioners Waldron and Waller disqualify themselves from the above case and that this case be transferred to another district for further hearings. Respondent further states that both Commissioners have heard prior evidence in this case prior to the formal and request that this matter be transferred for the Formal Hearing. Wherefore, Respondents request that Commissioner Waldron and Commissioner Waller disqualify themselves from this claim and this matter be reassigned.” BACK TO TEXT

3 Section 31-280(b)(6) provides that the Chairman shall: “Allocate the resources of the commission to carry out the purposes of this chapter”; § 31-280(b)(14) provides that the Chairman shall: “Control the hearing calendars of the compensation commissioners...”; and § 31-280(b)(16) provides that the Chairman shall: “Direct and supervise all administrative affairs of the commission.” BACK TO TEXT

4 Our Supreme Court has explained as follows: “When a jury are ultimately to determine the issues of liability and damages, a question is not likely to arise as to the disqualification of the judge who conducted the pretrial hearing and who thereafter presides over the trial of the case. When, however, a judge engages in a chambers conference looking to the settlement of a case which he is about to try as a court and in which he will be called upon to decide the issues of liability and damages, quite a different situation prevails. It is then impossible to avoid questions as to whether the judge can disregard, on the trial, matters disclosed in the conference but unmentioned during the trial and whether a preliminary judgment, formed at the conference and predicated on unsubstantiated claims of proof, may have some subtle influence on a final judgment after a full hearing. It is inevitable that the basis is laid for suspicion, no matter how unfounded or unjustified it may be….” Krattenstein v. G. Fox & Co., 155 Conn. 609, 614-15 (1967). BACK TO TEXT

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