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Doe v. State/Dept. of Correction

CASE NO. 4841 CRB-4-04-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 7, 2005

JOHN DOE

CLAIMANT-APPELLEE

v.

STATE/DEPT. OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Joel T. Faxon, Esq., Stratton Faxon Law Firm, 59 Elm Street, New Haven, CT 06510.

The respondent was represented by Lisa Guttenberg Weiss, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the July 19, 2004 and August 2, 2004 orders of the Commissioner acting for the Fourth District was heard September 24, 2004 before a Compensation Review Board panel consisting of Commissioners A. Thomas White, Jr., Charles F. Senich and Donald H. Doyle, Jr.

OPINION

A. THOMAS WHITE, JR., COMMISSIONER. The respondent has petitioned for review from the July 19, 2004 and August 2, 2004 orders of the Commissioner acting for the Fourth District. It contends on appeal that the trial commissioner erred by recusing himself from the instant case without sufficient reason to justify that action. We find no error, and affirm the trial commissioner’s decision.

The background of this case is as follows. The claimant, the estate of the decedent, sought benefits following the decedent’s death from acquired immune deficiency syndrome (AIDS). The claimant sought to prove that the decedent had contracted the human immunodeficiency virus (HIV) during the course of his employment as a correctional officer, in order to bring the workers’ compensation claim within the three-year statute of limitations for occupational diseases under § 31-294c(a) C.G.S. At trial, the commissioner heard evidence regarding the possible mechanisms of HIV transmission and the lack of actual incidents of HIV being contracted at the workplace by correctional officers. The decedent’s deposition was also introduced into evidence, in which the decedent had talked about the particular instances in which he was exposed to inmates’ blood. After considering the evidence, the trier determined that HIV infection is not peculiar to the occupation of correctional officers, nor is it due to causes in excess of the ordinary hazards of such employment. This led to the trier’s legal conclusion that HIV and AIDS are not occupational diseases for correction officers, and his dismissal of the claim.

The claimant then appealed to this board, which affirmed the trial commissioner’s decision. The board held that “the claimant’s case seems to have faltered in the trial commissioner’s eyes with respect to the presence of a transmission modality for HIV. Though the virus may be enough of a perceived threat to warrant the training of correctional officers in techniques that reduce the risk of being exposed to blood-borne pathogens . . . , the trier was not persuaded that such officers were in fact likely to contract the virus by virtue of coming into high-risk contact with infected fluids, thereby elevating HIV to the level of an occupational disease.” Doe v. State/Dept. of Correction, 4401 CRB-4-01-6 (May 16, 2002), 268 Conn. 753 (2004). In light of certain testimony by Dr. Shanley, the Director of Infectious Diseases at UConn Health Center, regarding the lack of documented incidents of transferred infection through “splash contact,” the board stated that “we cannot fault the factfinder for concluding that the risk of HIV exposure through a ‘blood splash’ was so minimal that it did not amount to an increased occupational hazard for correctional officers peculiar to that employment.” Id.

In that decision, it was also noted that the decedent was a former member of a special team of correctional officers that responded to major disturbances and riots, which had resulted in the decedent’s occasional exposure to blood while intervening in fights and involving himself with inmate medical emergencies. This fact became important in the claimant’s appeal to our Supreme Court, which reversed the holdings of the trial commissioner and this board. The Court concluded that “HIV is an occupational disease for correction officers who, like the decedent, are members of the defendant’s correctional emergency response unit, and that, therefore, the plaintiff’s notice of claim was timely filed under § 31-294c.” Estate of John Doe v. Dept. of Correction, 268 Conn. 753, 755 (2004). Among the rationales expressed by the Court was that “[b]reaking up altercations and riots in an inmate population with an HIV infection level of 1 in 20, more than seventy times greater than the infection rate of the nonincarcerated population, is 1`peculiar to’ the decedent’s occupation as a correction officer in the emergency response unit.” Id., 761-62. “[T]he specific duties of employment for correction officers who are members of the emergency response unit required them not just to be in the presence of inmates with a high HIV infection rate, but to interact with them in a manner that greatly increases their risk of contracting the disease—including breaking up fights, dealing with homemade weapons, and responding to medical emergencies.” Id., 762.

The Court’s reversal on the occupational disease status of HIV did not result in a finding of compensability, however. The Court stated that, on remand to the trial commissioner, the claimant still had to establish that the decedent’s HIV infection arose out of and in the course of his employment as a correction officer. The case was then sent back to this board, which reversed the trier’s decision and remanded the case for further proceedings pursuant to the Supreme Court’s instruction.

Following the entry of that order, the claimant filed a motion requesting that the trial commissioner recuse himself from this case, and that the file be transferred from the Bridgeport District office to either the Stamford or the New Haven office. The respondent filed an objection on the ground that the claimant had not explained the basis for the requested recusal. The respondent also asserted that the trial commissioner had bifurcated the jurisdictional issue and the merits of the claim at the formal hearing, but at the claimant’s request, heard evidence at trial that went beyond the scope of the jurisdictional question with the understanding that he would consider this evidence if and when he reached the merits of the claim. Nevertheless, the trial commissioner granted the claimant’s motion to recuse, and ordered the transfer of the case to the Stamford office for administrative reasons. This was done pursuant to § 31-278, which states, “If a commissioner is disqualified or temporarily incapacitated from hearing any matter, or if the parties shall so request and the chairman of the Workers’ Compensation Commission finds that it will facilitate a speedier disposition of the claim, he shall designate some other commissioner to hear and decide such matter.”

The respondent then filed a formal request for reconsideration of these decisions, pointing out that the Supreme Court had directed a remand to the trial commissioner “for further proceedings.” (Emphasis in original.) The respondent also cited the interest of judicial economy, explaining that “No other trier can judge the credibility of the witnesses who have already testified by reading the transcript. If you maintain your recusal, the evidence would have to be presented again live.” The trial commissioner confirmed his decision to recuse himself (though he did not expressly address his transfer of the case to the Stamford District office)1, from which the instant appeal followed.

The standards for judicial review of a workers’ compensation commissioner’s recusal are not new. As long ago as 1920, our Supreme Court stated with regard to a trial commissioner’s decision to recuse himself from a subsequent formal hearing, “It was unfortunate that the matter had to be heard by another commissioner. Every effort should be made to avoid disqualification, so that the same Commissioner may conduct the subsequent hearing, or the hearing for a modification of the original award.” Saddlemire v. American Bridge Co., 94 Conn. 618, 627 (1920). The Court nevertheless recognized that self-disqualification was within the commissioner’s power. This was elaborated upon in Glodenis v. American Brass Co., 118 Conn. 29 (1934), where the Court stated that a compensation commissioner, like a Superior Court judge, “should be scrupulous to refrain from hearing matters which he feels he cannot approach in the utmost spirit of fairness and to avoid the appearance of prejudice as regards either the parties or the issues before him. . . . If the acting commissioner feels that he is not reasonably open to persuasion as to the probative value of [any given] evidence we are sure that he will decline to proceed further with the matter.” Id., 39-40.

The modern standard for a commissioner’s recusal is codified within the Code of Judicial Conduct, Canon 3(C)(1)(a). This section of the Code states in part, “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Though this language can be read very broadly, there is also some flexibility to the disqualification policy based on case-specific circumstances. See Romeo v. H & L Chevrolet, Inc., 10 Conn. Workers’ Comp. Rev. Op. 72, 1149 CRD-7-90-12 (March 31, 1992) (where claim was held to be time-barred under § 31-294 C.G.S., failure of trier to recuse self based on personal knowledge that district office did not have notice of claim in file was not “plain error” where commissioner was legally required by Act to perform administrative duty of supervising filing of necessary forms).

Following the filing of the respondent’s appeal, the claimant filed a motion to dismiss that appeal based on the exigency of her financial circumstances and this board’s holding in Rogers v. C. N. Flagg Power, 3809 CRB-6-96-5 (June 23, 2000). In Rogers, this board held that “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. . . . 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.” Based on that holding, the instant claimant argued in the Motion to Dismiss that the correct approach had been taken here.2 The trial commissioner had considered the issue of recusal, had opted to recuse himself, and had confirmed that decision following the State’s motion to reconsider.

The respondent has asked this board to consider the applicability of Practice Book § 1-23, which states, “A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith.” The claimant’s motion here did not meet that standard. In contemplating the potential application of P.B. § 1-23 here, we observe that § 31-298 states, in conducting hearings under the Workers’ Compensation Act, “no formal pleadings shall be required, beyond any informal notices that the commission approves. . . . [The commissioner] shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” Though the raising of the issue of disqualification for bias under § 31-278 has been described as “consistent with the rules that govern the disqualification of judges;” Dixon v. United Illuminating Co., 232 Conn. 758, 778 (1995); we also observe that no court has held that this Commission is bound in that regard by the Practice Book procedural rules.

This board frequently relies upon provisions in the Practice Book as supportive authority for setting the appropriate standards of conduct for parties, and often cites the Practice Book as a direct ground for certain rulings, such as dismissal orders for failure to prosecute an appeal under Practice Book § 85-1. See, e.g., Porter v. Wallingford, 4273 CRB-8-00-7 (June 21, 2001)(parties’ entitlement to speedy determination of liabilities and rights is the basis for rules like P.B. § 85-1); see also, DeFelippi v. Wal-Mart Stores, Inc., 4349 CRB-5-01-1 (January 15, 2002)(CRB noted that allowing parties to preserve appeal rights by faxing certain papers was consistent with Practice Book § 4-4, allowing filing of papers by electronic means). However, this board is not strictly bound by every procedural rule in the Practice Book, and has declined to apply certain provisions where a less restrictive approach seems more appropriate. Casman v. Lego Systems, 12 Conn. Workers’ Comp. Rev. Op. 178, 1520 CRB-3-92-10 (May 2, 1994)(procedural rules regarding civil actions do not apply in workers’ compensation forum); Fortin v. State/UConn Health Center, 2 Conn. Workers’ Comp. Rev. Op. 30, 138 CRD-6-82 (September 19, 1983)(legislature intended cases under Workers’ Compensation Act to be distinct from civil actions in Superior Court, and different court procedures apply); see also, Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001)(specific rules regarding disclosure of witnesses in Practice Book § 13-4 do not technically apply to workers’ compensation proceedings under the more liberal evidentiary rules of § 31-298).

In this instance, the Workers’ Compensation Act does not require adherence to the Practice Book rule concerning motions for disqualification of commissioners. A party need only move that a commissioner disqualify himself under § 31-278. No specific form or content for such a motion is demanded. This is supported by Osterlund v. State, 129 Conn. 591 (1943), in which a compensation commissioner disqualified himself from hearing certain motions that had been presented at a subsequent hearing regarding the claimant’s request for an increase in his compensation rate. The appropriate base compensation rate had been a contested issue at a previous hearing. The Court stated on review, “If the commissioner, on adequate grounds, considered himself disqualified, it was his duty to designate another commissioner to hear the matter, and, the record being silent as to the grounds for this action, we must assume them to have been sufficient.” Id., 594 (emphasis added; internal citations omitted).

Osterlund implies both that a commissioner may use significant discretion in matters concerning recusal, and that an explicit articulation of the grounds for recusal is not necessary. Indeed, if commissioners were always required to disclose an explicit basis for self-disqualification, it could have a chilling effect. A trier might opt to hear a case where disqualification might be more appropriate, for fear of having to pry open personal relationships or sentiments for public view in order to explain the recusal.

That is not to say that, in this forum, it is no longer the best practice to file a written motion stating the basis for a requested disqualification, as is required in Superior Court by virtue of the Practice Book and related case law. See, e,g., Szypula v. Szypula, 2 Conn. App. 650 (1984)(oral motion to disqualify judge was supported by earlier written motion for new trial on ground that judge was biased in favor of opposing party). All we are saying here is that, in this venue, we favor relaxed procedural rules where possible. Due process does not require that we adopt more formal procedures for a motion to disqualify, as a party has no constitutionally protected interest in having a claim adjudicated by one commissioner rather than another. Dixon, supra, 775. Given the breadth of a commissioner’s discretion to act in a manner “calculated to ascertain the substantial rights of the parties” under § 31-298, we decline to apply the formal rules and procedures of Practice Book § 1-23 to motions to disqualify a commissioner.

Moreover, there is little practical relief we could afford the respondent here even if we were to hold that the Practice Book strictly applies. Once a trial commissioner has made a determination that he or she should be disqualified from hearing a case, it is not the place of an appellate board to second-guess that decision. We have no basis upon which to question a trier’s assessment that he or she might be, or might appear to be, predisposed toward a particular outcome, or a particular assessment of credibility with respect to certain evidence. Part of the recusal process involves an exercise in self-examination that is peculiarly the province of the decisionmaker.

We respect the fact that the respondent here may have justifiably expected that the trial commissioner would take some of the testimony he heard during the first set of formal hearings, and apply it to both an initial determination regarding occupational disease, as well as a subsequent consideration of the compensability of the claimant’s injury. This expectation may have been based simply on notions of judicial economy. Nonetheless, a trial commissioner under Rogers, supra, has an unqualified right to disqualify himself or herself from a case, if that commissioner believes that recusal is appropriate. We must respect that right on review.

The trial commissioner’s recusal is accordingly affirmed. The case is remanded to the Fourth District for immediate reassignment to a new trial commissioner.

Commissioners Charles F. Senich and Donald H. Doyle, Jr., concur.

1 By restricting his ruling to an affirmance of his previous decision to recuse himself, the trial commissioner appears to have implicitly granted the respondent’s objection regarding the transfer of the case to another district. That is the assumption we will make for purposes of this appeal. We note, too, that it appears under § 31-278 and § 31-280 C.G.S. that the chairman of this Commission is primarily responsible for these transfers. See Dixon v. United Illuminating Co., 232 Conn. 758, 769-76 (1995)(discussing chairman’s power to transfer cases among districts pursuant to administrative authority). BACK TO TEXT

2 We see no meaningful distinction between the consideration of this issue via a Motion to Dismiss the appeal, and the consideration of this issue as part of the merits of the appeal. In either case, the crux of the claimant’s argument is that it was appropriate for the trial commissioner to recuse himself under the circumstances. Thus, the Motion to Dismiss need not be ruled on separately. BACK TO TEXT

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Page last revised: July 25, 2005

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