CASE NO. 3937 CRB-01-98-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 7, 2000
ST. PAUL INSURANCE CO.
MATHOG & MONIELLO
UTICA MUTUAL INSURANCE CO.
AMERICAN MUTUAL INSURANCE/CONNECTICUT INSURANCE GUARANTY ASSOCIATION
The claimant was represented Patrick Tomasiewicz, Esq., Fazzano & Tomasiewicz, L.L.C., Corporate Center West, Suite 215, 433 South Main Street, West Hartford, CT 06110.
The respondent employer and Mathog & Moniello were represented by Colette Griffin, Esq., Forino & Griffin, One Century Tower, 265 Church Street, Suite 404, New Haven, CT 06510-7011.
The respondent employer and St. Paul Insurance were represented by Timothy G. Zych, Esq., Smith, Ketainek, Zito & Musco, 9 Washington Avenue, Suite 3-A, P. O. Box 5035, Hamden, CT 06518-0035.
The respondent employer and Utica Mutual Insurance were not represented at oral argument. Notice sent to Avery & Crone, 25 Third Street, Stamford, CT 06905.
The respondent-appellant CIGA was represented by David A. Kelly, Esq., Montstream & May, L.L.P., 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033.
This Petition for Review from the November 20, 1998 Finding and Award of the Commissioner acting for the First District was heard June 18, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
JESSE M. FRANKL, COMMISSIONER. The respondent Connecticut Insurance Guaranty Association (CIGA) has petitioned for review from the November 20, 1998 Finding and Award of the Commissioner acting for the First District. It raises several claims of error on appeal, often touching upon issues that were addressed in a previous decision by this board. Pantanella v. Enfield Ford, 3377 CRB-1-96-7 (January 28, 1998).1 We can identify no error in the trier’s decision, and emphatically affirm his findings and orders regarding notice, the introduction of evidence, and undue delay.
As we stated in Pantanella I, the relevant facts underlying this case are not complex. The claimant suffered four compensable back injuries during his years of employment with Enfield Ford: in 1977, 1986, 1992, and 1994. Pursuant to workers’ compensation insurance policies, St. Paul Fire and Marine Insurance Company was liable for the first injury, and TIG for the last two, while the 1986 injury was the responsibility of the American Mutual Insurance Company. The claimant’s physician, Dr. Mazzara, opined that the claimant had a 12% permanent partial disability of the spine, with 40% of her disability due to the 1986 injury. The trial commissioner found accordingly in a July 3, 1996 Finding and Award. Because American Mutual has become insolvent within the meaning of § 38a-838 C.G.S., the respondent CIGA is now obligated to the extent of its covered claims under §§ 38-838 and 38-841 C.G.S. CIGA had refused to pay its apportioned share of the permanency, however, for which the trier found that it was indeed liable. Accordingly, he ordered them to pay the 40% share of the permanency award, along with interest and attorney’s fees for undue delay under § 31-300.
CIGA appealed that decision to this board. In Pantanella I, we addressed numerous points of alleged error, including the threshold issue of subject matter jurisdiction2, the applicability of § 38a-836(6) to this particular claim, and the sufficiency of the medical testimony in establishing proportionate liability as found by the trier. Those issues need not be reopened here. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293-94 (1999) (appellate tribunal such as CRB may decline to readdress issues that have been previously decided absent unusual circumstances that render “law of the case” doctrine inapplicable).3 Though we affirmed many of the commissioner’s conclusions, we remanded the case for further findings and/or proceedings on three of the issues raised: the timeliness of notice to CIGA under § 38a-841(1)(a)(ii)(B), CIGA’s § 31-315 Motion to Reopen the record based on TIG’s alleged withholding of evidence, and the underlying basis for the trier’s award of attorney’s fees and interest under § 31-300.
Following the remand, the trial commissioner observed the instructions of the CRB by holding a hearing on the Motion to Reopen in order to afford CIGA a chance to present argument. He then prepared a supplemental decision whose subject matter was tightly restricted to the topics that this board had asked him to address. With respect to the Motion to Reopen, the trier found no merit to CIGA’s claim that it was denied access to a July 27, 1994 report by Dr. Mazzara, the claimant’s treating physician. He reiterated much of what he had found previously, as discussed by this board in Pantanella I: that CIGA’s counsel had waited an unacceptable amount of time before attempting to depose Dr. Mazzara; that its request to continue the proceedings to take said deposition should be denied; that CIGA’s counsel had disobeyed the trier’s ruling by deposing Dr. Mazzara anyway; and that CIGA’s subsequent attempt to introduce this deposition into evidence was “repetitious, untimely, and a further dilatory act on the part of this Respondent.” Findings, ¶ 15. The commissioner found CIGA’s Motion to Reopen to be without merit, as CIGA had introduced no new evidence at the post-remand hearing to justify either the reconsideration of this evidentiary issue or the reopening of the case.
The commissioner was also asked by the CRB to elaborate on his findings regarding notice to CIGA and undue delay. Rather than make an express finding as to the date CIGA was first notified of the instant claim, the trier found that CIGA’s attorney had stated on the record that, based on evidence produced by the claimant, there was no statute of limitations bar asserted by CIGA. September 28, 1995 Transcript, p 20. The trier relied upon this statement as evidence to show that there was no jurisdictional defense to this claim, and construed CIGA’s inclusion of this issue in its appellate brief as “further evidence of undue delay.” Concerning that delay, the trial commissioner also referred to the deposition CIGA took of Dr. Mazzara after the record had been closed, and its attempt to introduce that deposition into evidence. He further cited as an example of CIGA’s “misstatement[s] and specious argument[s]” its contention that a bill for services rendered in August 1991 ought to be the responsibility of TIG, the carrier on the risk for the 1992 and 1994 injuries. Accordingly, he reaffirmed his award of interest and attorney’s fees under § 31-300. CIGA then filed a petition for review from that decision with this board.
The appellant first argues that the trier erred by failing to find the specific date that notice of the present claim was provided to CIGA. Though the language of our previous remand superficially contemplated that the commissioner would identify a specific date in his findings, he did not err by citing the representations of CIGA’s counsel at oral argument as a means of resolving that issue. Counsel stated on the record that the claimant had “met our jurisdictional requirements of doing something in writing within a year of the accident,” and that there was “no statute of limitations bar asserted by CIGA vis-à-vis Mr. Pantanella.” September 28, 1995 Transcript, p. 20. In that exchange with the commissioner and the counsel for TIG, the appellant was contrasting the notice provided by the claimant with its position “that the claim brought by TIG Insurance for apportionment is time barred.” Id., 19.
CIGA’s counsel appears to have been referring specifically to § 31-294 when he was discussing the claimant’s notice, as he mentioned its one-year statute of limitations, and did not speak of the two-year notice period discussed in § 38a-841(1)(a)(ii)(B). However, he did not restrict his language as such, and did not attempt to preserve a notice claim against the claimant on the record. Instead, he referred to a nonclaim defense against TIG. Under these facts, there is no apportionment claim by TIG against CIGA, because there is no provision of the Workers’ Compensation Act (such as § 31-299b) that makes TIG responsible for the portion of the claimant’s disability attributable to his 1986 injury. See n.3, supra. The claim for benefits against CIGA belongs to the claimant. Based on the language used by CIGA at the formal hearing and its subsequent failure to raise a § 38a-841 notice claim against the claimant, the commissioner could reasonably have determined that all nonclaim defenses against the claimant were waived by CIGA’s counsel. Thus, he did not err in denying the appellant’s Motion to Correct.
CIGA’s next argument is that it was unfairly prejudiced by the trier’s denial of its Motion to Reopen the record, a motion whose history was outlined in Pantanella I. There, we observed that CIGA had failed to mark the deposition of Dr. Mazzara as an exhibit, which precluded us from reviewing its contents (on remand, it was marked for identification as Exhibit 12). We affirmed the factfinder’s authority to find that CIGA had failed to avail itself of opportunities to depose Dr. Mazzara in the past, which justified both his denial of CIGA’s belated request to depose the doctor, and his exclusion of that deposition from evidence when CIGA attempted to introduce it as an exhibit at the pro forma hearing to close the record. We also held that the trier was justified in relying upon Dr. Mazzara’s medical opinion in assigning liability for the claimant’s injury. We continue to stand by those decisions, and need not reexamine them here.
Though we required the trial commissioner to hold a hearing on the motion due to the procedural requirements of § 31-315, we made no attempt to insinuate that his factual findings were inconsistent with the record. He subsequently conducted that hearing, and found that CIGA offered no new information tending to demonstrate that its attempt to introduce Dr. Mazzara’s deposition was reasonable. Findings, ¶ 16. The trier detected no merit in the central allegation of the Motion to Reopen: that a July 27, 1994 report of Dr. Mazzara was withheld from CIGA. ¶ 11. Such a finding was within his prerogative as the presiding commissioner under both § 31-298 and § 31-315, and we will not reverse his decision on appeal. The relaxation of the rules of evidence under § 31-298 does not provide a party with an absolute right to introduce all relevant items, no matter how dilatorily it conducts itself or how blatantly it disregards the trier’s orders along the way.
CIGA’s final argument is that the trier erred by ordering it to pay the claimant interest and attorney’s fees pursuant to § 31-300 on the ground of undue delay. In CIGA’s opinion, its defense was clearly justified given the alleged weakness of the medical evidence, and any delays in the progress of this case were caused by TIG or this Commission. This argument is spurious because it ignores the conduct that the trier specifically cited in his award, and the delays that were obviously occasioned by that conduct. For example, it was outrageous for CIGA’s counsel to ignore the trial commissioner’s order regarding Dr. Mazzara’s deposition at the September 28, 1995 formal hearing, and to offer that prohibited deposition into evidence at the May 2, 1996 pro forma hearing. Naturally, countless hours have subsequently been wasted by all parties debating the propriety of this ruling on appeal. CIGA’s Motion to Reopen the record was accompanied by no new evidence or argument, and yet much time was spent on that matter as well. The examples cited by the trier in his decision in and of themselves adequately justify an award of interest and attorney’s fees under § 31-300. We will not disturb the trier’s judgment on that count.
The decision of the trial commissioner is hereby affirmed in its entirety.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
1 This opinion is a revision of the original decision that was released on December 11, 1997. Because we inadvertently failed to address the issue of CIGA’s Motion to Reopen in our initial ruling on that appeal, we released another version of that ruling once the oversight was brought to our attention. BACK TO TEXT
2 We held that § 31-355(e) implies that this board has jurisdiction to consider claims against CIGA that concern its potential liability for workers’ compensation payments due from insolvent insurers. This holding was affirmed shortly thereafter in Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 445-47 (1997). BACK TO TEXT
3 CIGA argued in Pantanella I that any sum due to an insurer cannot be a covered claim under the statute because of the enumerated exception regarding amounts “due to an insurer as subrogation recovery or otherwise.” There were two legal bases for our holding that liability for the instant workers’ compensation claim constituted a “covered claim” pursuant to § 38-836(6). First, consistent with our previous decision in Hunnihan v. Mattatuck Mfg. Co., 16 Conn. Workers’ Comp. Rev. Op. 72, 2297 CRB-5-95-2 (Oct. 30, 1996), we stated that the nature of apportionment under § 31-299b is based on firsthand liability rather than subrogation or indemnity. Second, we observed that the apportionment in this case was based upon four separate instances of accidental injury rather than one indivisible period of repetitive trauma, making § 31-299b technically inapplicable to this case. See Jolicoeur v. L.H. Duncklee Refrigeration, Inc., 14 Conn. Workers’ Comp. Rev. Op. 24, 26-27, 1842 CRB-2-93-9 (May 3, 1995). Fewer than three weeks after our decision was issued, our Supreme Court released its opinion in Hunnihan, supra, and held that the words “or otherwise” in § 38-838(6) preclude an insurer from seeking reimbursement from CIGA for any amount paid on a workers’ compensation claim, including amounts paid under § 31-299b. We declined to readdress that issue during our preparation of the revised opinion approximately one month later because our decision had already been appealed to the Appellate Court, and it was unclear that we retained jurisdiction over matters that had been decided by our previous opinion.
Recently, our Appellate Court has explained that the doctrine of “law of the case” does not technically divest an appellate body of jurisdiction over an issue that has been addressed in a previous appeal to the same body; rather, it is a procedural device designed to prevent parties from trying to relitigate issues that have been decided already. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 292-94 (1999). We note that this case differs slightly from the situation before the Bowman court, in that an appeal has already been filed with the Appellate Court from our prior decision. However, presuming that this board has jurisdiction to revisit the “covered claim” issue, we do not believe that the reasoning of Hunnihan militates reconsideration of our ruling in Pantanella I. The liability of CIGA in this case flows from the liability of American Mutual for the claimant’s 1986 back injury—a responsibility that is not shared with any other insurer. In contrast to a repetitive trauma claim that is apportioned under § 31-299b, the Workers’ Compensation Act does not make any other party initially liable for the direct effects of a previous accidental injury, subject to a right of reimbursement or an adjudication of joint liability against the successor of American Mutual’s liability. Instead, CIGA is responsible for the direct compensation of the claimant, Daniel Pantanella, for the portion of his permanent partial disability caused by his 1986 injury. Should CIGA fail to pay, no other insurer can be ordered to assume liability for the disabling effects of this incident. Therefore, the Court’s Hunnihan analysis remains inapposite to these facts. BACK TO TEXT