State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Vetre v. State of Connecticut/Department of Children & Families

CASE NO. 4848 CRB-6-04-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 19, 2005

FRANCIS VETRE

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPARTMENT OF CHILDREN & FAMILIES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

BERKLEY ADMINISTRATORS

ADMINISTRATOR

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Richard H. Kosinski, Esq., 106 Farmington Ave., Suite 2B, New Britain, CT 06053.

The respondents were represented by Diane Duhamel, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the August 13, 2004 Finding and Dismissal of the Commissioner acting for the Sixth District was heard February 18, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Michelle D. Truglia and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Francis Vetre, has appealed from the August 13, 2004 Finding and Dismissal of the Commissioner acting for the Sixth District.1 We affirm the decision of the trial commissioner.

We begin with a review of relevant procedural history in this case. On August 27, 2003 the claimant filed a Motion to Disqualify Commissioner Jesse M. Frankl from presiding over the formal hearings at issue on this appeal. The claimant made this request because the Commissioner had presided over informal hearings on a Form 36 in the case. On September 2, 2003 Commissioner Frankl denied the claimant’s Motion to Disqualify. On September 22, 2003 the claimant requested an articulation of the Commissioner’s ruling. The claimant also appealed the denial of the Motion to Disqualify to this board on that date. In response to the claimant’s Motion for Articulation, on September 29, 2003 Commissioner Frankl issued a Memorandum of Decision in which he explained that the Commission had an informal policy that whenever possible a Commissioner who had been involved in a pre-formal hearing would not preside at a subsequent formal hearing. He explained in this case there was no pre-formal hearing and the informal hearing over which he presided was on a different issue than that which had been noticed for the October 14, 2003 formal hearing. On October 8, 2003 this board remanded the case to the trial commissioner because the ruling denying the claimant’s Motion to Disqualify was made absent a formal hearing on the record. We held that “absent a record this board cannot properly consider this appeal pursuant to Sec. 31-301.” Vetre v. State/Dept. of Administrative Services, 4728 CRB-6-03-9 (October 8, 2003). The case was remanded for a formal hearing or other appropriate action.

On October 14, 2003, December 4, 2003 and March 17, 2004 formal hearings were held on this case on the issues of medical bills, an award of interest and attorney fees for undue delay and cost of living adjustments to the compensation rate. Additionally, the claimant renewed his motion to have the trial commissioner recuse himself at that time. On August 13, 2004 the trial commissioner issued a Finding and Dismissal of this case which the claimant appealed on August 30, 2004. That Finding and Dismissal is the subject of this appeal.

On November 12, 2004 the claimant filed a Motion to Submit Additional Evidence in reference to the appeal. Administrative Regulation § 31-301-9 allows parties to submit additional evidence or testimony to this board provided that the evidence is “material and that there were good reasons for failure to present it in the proceedings before the commissioner.” Under this regulation the petitioning party must indicate the “nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner.”

The claimant has asked for unusual relief as part of his Motion to Submit Additional Evidence. The claimant is seeking appointment of a special counsel to conduct an inquiry regarding whether the trial commissioner was unduly influenced. Additionally, he requests that we summon the production of evidence, review evidence and take testimony which do not relate to the underlying claim, but instead are intended to prove an allegation that the trier was unfairly biased against the claimant. The claimant appears to be seeking such evidence in an attempt to persuade this board that the trial commissioner was unlawfully persuaded in his decision making or in some way acted in an improper manner. Furthermore, because the claimant has not yet obtained the evidence he seeks to introduce, he has not indicated the nature of the evidence. The board therefore, lacks sufficient information to grant the claimant’s motion under Admin. Reg. § 31-301-9. See Bailey v. Stripling Auto Sales, Inc. d/b/a Willimantic Dodge/Nissan, 3095 CRB-2-95-6 (June 28, 1996). Additionally, as discussed below, we believe the trial commissioner was justified in his decision not to recuse himself. We find no error in his rulings or findings. The claimant has not provided any other specific argument that we deem persuasive enough for this board to take the actions the claimant is requesting. Furthermore, we see no authority under § 31-301-9 to grant the claimant’s requests. For these reasons we deny the claimant’s Motion to Submit Additional Evidence in its entirety.

The claimant’s claims were the subject of several previous formal hearings before a Commissioner acting for the Sixth District. The claimant sustained a compensable injury to his left knee on March 29, 1977. Additionally, he was diagnosed with depression and emotional problems which were determined to be related to the 1977 knee injury. The claimant has received and continues to receive temporary total disability benefits pursuant to a prior Finding and Award.

In the Finding and Dismissal here, the trial commissioner denied the claimant’s Motion to Disqualify and referred the claimant to his Memorandum of Decision dated September 29, 2003. In that memorandum the trier explained that the informal hearings he had previously presided over were in reference to a Form 36. He explained that the issues dealt with at prior informal hearings were separate from the issues of the formal hearings (i.e. medical bills, interest and attorneys fees for undue delay and cost of living adjustments). The trier explained that because the issues were dissimilar and there had been no pre-formal hearing on these issues he denied the claimant’s Motion to Disqualify.

In Rogers v. C.N. Flagg Power, 3809 CRB-6-96-5 (June 23, 2000), a claimant appealed a case to this board based on the Chairman’s transfer of the case from the Third District to the Sixth District. The respondents had requested the transfer because the two commissioners acting for the Third District had previously presided over informal hearings and/or pre-formal hearings on the claimant’s case and had therefore heard evidence in the case. This board remanded the case to the trial commissioners in the Third District in order for them to have the opportunity to consider recusal. The board explained, “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.” (Emphasis added). In Rogers, id. we explained that unlike the more expansive judiciary of the superior court, the Workers’ Compensation Commission has only fifteen commissioners available to preside over formal hearing in the eight district offices. Therefore, it would be impracticable to never allow the same commissioner to preside over subsequent hearings involving the same parties. For this reason, we reiterated our policy regarding cases where a trial commissioner has presided over prior hearings involving the same parties:

[T]rial 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. Id.

Here, Commissioner Frankl considered the claimant’s Motion to Disqualify as evidenced by the articulation of his reasoning in the September 29, 2003 Memorandum. We give a significant amount of deference to the trial commissioner’s decision. The trial commissioner was admittedly involved with an informal hearing dealing with both the Form 36 and settlement discussions. We agree with the trier’s view that the Form 36 issues discussed at prior informal hearings were different and distinct from the issues involved in the formal hearings over which he presided.2 Here the trial commissioner provided justification for his decision and clearly believed that he could fairly preside over the case.3 We see no reason to overturn this discretionary ruling.

The claimant also contends that the trial commissioner erred in various evidentiary and procedural rulings. In Paige v. The Hartford Insurance Group, 4594 CRB-2-02-12 (January 9, 2004), we discussed the trial commissioner’s discretion regarding the admission of evidence and witness testimony. We explained,

[s]trict adherence to the rules of evidence or procedure is not mandatory in workers’ compensation proceedings. LaPia v. Stratford, 47 Conn. App. 391, 400 (1997); Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 740 (2001). However, a case should proceed in a manner consistent with upholding the parties’ basic due process rights. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 542 (1987). The workers’ compensation commissioner has broad discretion to determine admissibility of evidence and his judgment will not be set aside without evidence of abuse of his discretion. Cruz v. State/Dept. of Correction, 4168 CRB-1-00-1 (February 9, 2001); Nelson v. Deb’s Inc., 15 Conn. Workers’ Comp. Rev. Op. 274, 2228 CRB-3-94-12 (June 20, 1996), aff’d, 45 Conn. App. 909 (1997) (per curiam), appeal dismissed, 244 Conn. 349 (1998). Unlike the case of a jury trial, the workers’ compensation commissioner acts as the fact-finder and has the legal background to filter out any irrelevant evidence when making his decision. Gibbs v. New England Home Care, 3291 CRB-3-96-2 (February 2, 1998); Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995).

We see no indication here that the trial commissioner abused his discretion in his evidentiary or procedural rulings. Furthermore, although the claimant contends we should view the trial commissioner’s rulings as evidence that the trier was biased against the claimant there are numerous instances during the proceedings where the trial commissioner ruled in the claimant’s favor in evidentiary matters. See, e.g. March 17, 2004 Transcript, p. 47; October 14, 2003 Transcript, pp. 30, 64; December 4, 2003 Transcript, p. 48. We see no evidence of unfair bias based on the trier’s rulings in the record before us.

In the claimant’s view the trier erred in failing to find that the respondent unduly delayed payment of medical bills. The trial commissioner has broad discretion in making the determination of whether an award should be made for undue delay under § 31-300 C.G.S. Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974); Imbrogno v. Stamford Hospital, 967 CRD-7-90-1 (August 2, 1991). Here, the trial commissioner found any delay in payment of any medical bills was caused by Dr. Joseph Noonan’s office billing abnormalities and discrepancies. This was supported by testimony of Dr. Noonan and his staff. See, e.g. March 17, 2004 Transcript, pp. 15, 28, 45, 49. A portion of the bills were paid by the claimant’s group health insurer.4 Therefore, there is no evidence that the claimant was harmed by any late payment of bills. The trier also found that all medical bills were paid in full, well in advance of the first formal hearing. In fact, the trial commissioner found that there may have been double payments made on certain bills. Therefore, we find no error in the trier’s finding of no unreasonable delay.

The claimant also argues the trier erred in finding that the claimant owed the respondent monies for an overpayment of Cost of Living Adjustments (hereinafter “COLAs”) rather than finding that there was an underpayment. The parties are in disagreement about how to calculate the COLAs for the period of October 1, 1991 through July 1, 1998. See Claimant’s Exhibit N; Respondent’s Exhibit 1; Dec. 4, 2003 Transcript p. 34. Public Act 98-104 made a change which altered the method by which COLAs are calculated from 1991 forward for injuries which occurred prior to July 1, 1993. In the claimant’s view the method which Public Act 98-104 prescribed for calculating COLAs should be applied retroactively and the respondents owes these retroactive adjustments to the claimant.

However, Public Act 98-104, Sec. 4 specifically stated that the benefits should be recalculated to the effective date of the act. Section 4 then states in relevant part, “Not later than sixty days after the effective date of this act, any employer, insurer, or other such party responsible for providing weekly benefits pursuant to said sections shall begin providing such benefits at the recalculated rate.” (Emphasis added). Section 6 of the Public Act lists an effective date of July 1, 1998. Notably, there is no provision providing for retroactive payment of benefits as is the case with Public Acts 97-205 and 01-162, for example. The plain language of the act thus dictates that entitlement to the recalculated benefits under the act shall begin to be paid within sixty days of the act’s effective date, and not before. This is further explained in the Memorandum 98-09 issued by the Chairman of this Commission on June 15, 1998. Therefore, according to the figures that the parties have provided there does appear to be an overpayment.

The claimant further contends that the trier could not order the repayment of an overpayment in this case because the respondent had not filed a Form 36 to reduce the claimant’s benefits. We find this argument unpersuasive because the respondent here was not attempting to reduce the benefits, instead the respondent was seeking reimbursement for sums it was not obligated to pay. For this reason there was no need for the respondent to file a Form 36. See Vincent v. New Milford, 8 Conn. Workers’ Comp. Rev. Op. 27, 761 CRD-7-88-8 (February 5, 1990). The claimant raised the COLA issue at the formal hearing. The respondent had a right to defend that action and present evidence of and ask for reimbursement of the overpayment.

The trial commissioner found that there was no unreasonable delay in the payment of medical bills or COLAs, therefore, he did not award attorney’s fees or interest. We find no error in this determination.

Therefore, we affirm the decision of the trial commissioner.

Commissioners Michelle D. Truglia and Leonard S. Paoletta concur.

1 We note that numerous extensions of time were granted during the course of the appellate process. BACK TO TEXT

2 The claimant argues that work capacity was a noticed issue at the formal hearings and therefore the Form 36 informal issue does overlap with the proceedings at issue. The commission’s records indicate that on August 19, 2003 a hearing notice was issued listing the issues for the October 14, 2003 formal hearing as medical bills, award of interest and attorney’s fees for undue delay and cost of living adjustments to the compensation rate. Under the special instructions section of the notice “Work Capacity” is listed. On October 1, 2003 an Amended hearing notice was issued for the October 14, 2003 formal hearing with the identical issues listed. Under the special instructions section of the notice “Work Capacity & Unreasonable Contest - Amended Notice” is listed. Despite any notation on the hearing notices the respondent indicated on the record that it was not contesting work capacity, therefore, work capacity was not an issue addressed at the formal hearings at issue and was not dealt with by the trial commissioner’s Finding and Dismissal. See, Oct. 14, 2003 Transcript, p. 8. BACK TO TEXT

3 We note that this board recently explained in Doe v. State/Dept. of Corrections, 4841 CRB-4-04-8 (June 7, 2005) that a specific articulation of a commissioner’s grounds for deciding to recuse himself may not be necessary. BACK TO TEXT

4 The claimant’s group health insurer filed a lien in 2003, however, the lien was never pursued. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: September 1, 2005

Page URL: http://wcc.state.ct.us/crb/2005/4848crb.htm

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