State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Mohamed v. Domino’s Pizza

CASE NO. 5352 CRB-6-08-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 22, 2009

OMER E. MOHAMED

CLAIMANT-APPELLEE

v.

DOMINO’S PIZZA

EMPLOYER

and

AMERICAN HOME ASSURANCE CO.

AIG CLAIMS SERVICES, INC.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by John Pirina, Esq., Law Offices of Arnaldo J. Sierra, LLC, 215 Washington Street, Hartford, CT 06106 and Jon L. Schoenhorn, Esq., Schoenhorn & Favreau, Attorneys at Law, 108 Oak Street, Hartford, CT 06106-1514.

The respondents were represented by John Majewski, Esq., Bai, Pollock, Blueweiss & Mulcahey, P.C., One Corporate Drive, 5th Floor, Shelton, CT 06484.

This Petition for Review from the May 20, 2008 Ruling on Respondent’s Motion to Dismiss of the Commissioner acting for the Sixth District was heard December 12, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Jack R. Goldberg.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal is the result of interlocutory orders responsive to the efforts of the respondent, AIG Claims Services, Inc., (“AIG”) to void a stipulation reached between the claimant and the respondent. AIG obtained ex parte relief and the claimant later sought to have a formal hearing convened to rule on AIG’s request. AIG now argues that the claimant’s failure to immediately appeal the ex parte decision to this board makes that decision final. The trial commissioner did not agree and we concur. In the absence of a formal hearing, we cannot entertain an appeal on the issues presented herein. The appeal is dismissed and the matter remanded for a formal hearing on the merits.

The dispute is the result of efforts to resolve issues emanating from the claimant’s June 25, 2004 motor vehicle accident, which the claimant asserts is a compensable injury. The claimant pursued remedies before this commission and also brought a personal injury action. The respondent asserted a lien against recovery in the tort action. The parties acknowledge they held discussions as to compromising the amount of the lien prior to the claimant executing a stipulation for his compensable injury. On November 13, 2006 the parties presented an executed stipulation to the Commission for approval, in which AIG agreed to pay the claimant $20,000 to resolve this claim against his employer. The stipulation included handwritten additions to the original document in which AIG agreed to waive any lien rights and reimbursement rights to the claimant’s settlement of a third party action. The stipulation also crossed out language referring to the statutory right of reimbursement against tortfeasers or other insurers. Commissioner Ernie R. Walker approved this stipulation on November 13, 2006.

On December 4, 2006 counsel for AIG filed a Motion to Void Stipulation with Commissioner Walker. The motion asserted that pursuant to § 31-315 C.G.S. the approved stipulation should now be voided because “the Stipulation did not represent a full and complete meeting of the minds concerning a material fact.” The motion further asserted that counsel at the hearing did not have authority from AIG to “change the terms of the original agreement” by adding the lien waiver language. Without notice to the claimant, Commissioner Walker approved this motion on December 5, 2006.

Subsequent to that decision, the claimant sought a formal hearing on the issue of whether or not to void the approved agreement. AIG then filed a Motion to Dismiss dated November 28, 2007 asserting that since the claimant failed to appeal Commissioner Walker’s ex parte order within the time limitation of § 31-301 (a) C.G.S. , the claimant was barred from seeking any relief from that order. The claimant objected to the Motion to Dismiss, and a formal hearing was held before Commissioner Mlynarczyk on May 20, 2008. Following the conclusion of that hearing, Commissioner Mlynarczyk denied the Motion to Dismiss. AIG has appealed that decision to this board.

AIG’s basis for contesting the previously approved stipulation is it argues that it should never have executed the stipulation when it was presented to the Commission for approval in 2006. Since they are seeking to set aside which alleges on its face to be a binding agreement, the moving party must satisfy the statutory requirements of § 31-315 C.G.S.

Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.

To invoke the statutory remedy available under § 31-315 C.G.S. to void the stipulation AIG needed to provide evidence of “changed conditions of fact” or a cogent equitable argument. The Appellate Court discussed the necessary requirements to reopen a stipulation in some detail in the case of O’Neil v. Honeywell, 66 Conn. App. 332, 337-38 (2001).

Section 31-315 allows the commission to modify an award in three situations. First, modification is permitted where the incapacity of an injured employee has increased, decreased or ceased, or . . . the measure of dependence on account of which the compensation is paid has changed. . . Second, the award may be modified when changed conditions of fact have arisen which necessitate a change of [the award]. . . . Third, [t]he commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court.

The O’Neil court also pointed out “[e]quity will not, save in rare and extreme cases, relieve against a judgment rendered as a result of a mistake on the part of a party or his [or her] counsel, unless the mistake is unmixed with negligence, or. . . unconnected with any negligence or inattention on the part of the judgment debtor”. Id. 338. In order to provide sufficient grounds to satisfy the standard delineated in O’Neil to open a stipulation, we believe the moving party must present a substantive factual argument.

The evidence presented was in the form of an affidavit which was acted on without providing the claimant an opportunity to rebut the averments. “Our precedent also holds that both parties should be given an opportunity to cross-examine material evidence central to a commissioner’s ultimate factual findings, Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974); this did not occur in this proceeding.” Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007). The ex parte order herein also lacks findings of fact. As Chief Justice Wheeler pointed out in the early years of Workers’ Compensation law in Connecticut, this poses a situation where the matter should be referred back to the trier of fact.

No case under this Act should be finally determined when the trial court, or this court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment. When this appears, the case must be returned to the commissioner for a finding in accordance with the suggestions made by the trial court or this court, and for an award to be based upon the corrected finding.

Cormican v. McMahon, 102 Conn. 234, 238 (1925).1

We also look to the statute governing the conduct of hearings. Section 31-298 C.G.S. outlines the statutory requirements necessary to adjudicate questions of fact and law presented to this Commission. It states, in part:

Conduct of hearings. Both parties may appear at any hearing, either in person or by attorney or other accredited representative, and no formal pleadings shall be required, beyond any informal notices that the commission approves. In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He 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.

The statute requires a trial commissioner to “make inquiry” prior to rendering a binding, final decision. The record as of the issuance of Commissioner Walker’s December 5, 2006 order indicates no inquiry had been made.2 The first opportunity the claimant had to address the issues herein before a trial commissioner was the May 20, 2008 hearing before Commissioner Mlynarczyk, in which he determined that the issue should be heard on the merits. May 20, 2008 Transcript, p. 13.

Commissioner Mlynarczyk’s rationale in denying the Motion to Dismiss was that in the absence of a record, any appeal to this board would have been premature and there would have been no basis upon which this board would be able to render a decision. We agree with the trial commissioner. Our precedent in Dixon v. United Illuminating Co., 14 Conn. Workers’ Comp. Rev. Op. 215, 1996 CRB-4-94-3 (August 4, 1995) and Murphy v. Highfield Country Club, 5117 CRB-5-05-7 (August 22, 2006) is dispositive of these issues. We have consistently refused to hold appellate hearings in the absence of a factual record. Had the claimant appealed the ex parte order stare decisis would have required this panel to have sent the issue back to the trial commissioner. This would have constituted a waste of time and resources.

Nonetheless, AIG stands on their argument that the appeal statute, § 31-301(a) C.G.S. requires the claimant to file an appeal. They also argue that since the aggrieved party in Murphy, supra, filed a futile appeal that the claimant should have done likewise. We are not persuaded.

The relevant statute says as follows.

At any time within twenty days after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b, either party may appeal therefrom to the Compensation Review Board by filing in the office of the commissioner from which the award or the decision on a motion originated an appeal petition and five copies thereof. The commissioner within three days thereafter shall mail the petition and three copies thereof to the chief of the Compensation Review Board and a copy thereof to the adverse party or parties.

AIG makes the somewhat derivative argument that since the ex parte order of Commissioner Walker was a “decision upon a motion” that the claimant was obligated to file an appeal, notwithstanding its futility. This concept is inconsistent with the Supreme Court’s reasoning in Hummel v. Marten Transport, 282 Conn. 477 (2007). The Supreme Court in construing § 31-301a C.G.S. and § 31-301b C.G.S. concluded that a “final judgment” was required to trigger the ability of appellate courts to hear appeals from this board. In construing § 31-301 (a) C.G.S. we find that ex parte orders are legally akin to decisions of this panel which are not final judgments. Since an ex parte order is subject to the further consideration of a formal hearing at the trial level, it is not a determination which becomes final and binding in the absence of an appeal.3

We also reject the argument AIG presents that the “plain meaning” rule of § 1-2z C.G.S. mandates that ex parte orders be appealed. Hummel, supra, clearly states that the enactment of § 1-2z C.G.S. was not intended to overrule existing precedent. “There is nothing in the legislative history to suggest that the legislature also intended to overrule every other case in which our courts, prior to the passage of § 1-2z, had interpreted a statute in a manner inconsistent with the plain meaning rule. . . .” Id., at 501. Binding precedent inconsistent with AIG’s position predates this statute.4 We also find that attempting to apply the “plain meaning” rule to this situation would lead to the sort of “bizarre or absurd results” which cannot be endorsed by an appellate panel. Forcing parties to appeal to this panel only to have the matter referred back to the trial commissioner would “yield absurd or unworkable results.” First Union National Bank v. Hi Ho Mall Shopping Ventures, Inc., 273 Conn. 287, 291 (2005) and Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008). It would be adverse to our public mission to provide a “prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.” Pietraroia v. Northeast Utilities, 254 Conn. 60, 74 (2000).5

At oral argument before this Board, counsel for AIG argued that recent precedent did support their position that a failure to comply with § 31-301(a) C.G.S. barred further relief from this Commission. They cited Bergin v. State/Department of Correction, 4200 CRB-8-00-3 (August 23, 2001), aff’d, 75 Conn. App. 591 (2003), cert. denied, 264 Conn. 903 (2003) for this proposition and in their brief cited Chambers v. General Dynamics Corp./Electric Boat Div., 4952 CRB-8-05-6 (June 7, 2006), aff’d, 283 Conn. 840 (2007) as also standing for this proposition. We find neither case supports AIG’s position regarding the appeal of an interlocutory motion, thus this argument is unmeritorious.

In Bergin, supra, the appeal was based on the argument the trial commissioner “failed to make any finding in his December 3, 1999 decision regarding the claimant’s claim for benefits under Chapter 568.” There was no dispute in Bergin that a formal hearing was held to consider the claim; the dispute centered on the adequacy of the findings the commissioner reached at the conclusion of the hearing. On appeal, the Appellate Court discussed the appeal of § 31-315 C.G.S. orders and discussed appeals from decisions reached at formal hearings. Neither this board nor the Appellate Court considered the issue present herein—an interlocutory appeal from an ex parte decision. Indeed the Appellate Court stated the claimant in Bergin could have either decided “to file a motion to correct the commissioner’s findings or to file a direct appeal from the commissioner’s dismissal of the claim for benefits.” Id., at 600. (Emphasis added) This is at odds with AIG’s position that an appeal under § 31-301(a) C.G.S. was the sole remedy available to the claimant following issuance of the ex parte order.

The Chambers case is also unsupportive of AIG’s claims on appeal. Chambers involved the denial of a claim which was not filed in a timely fashion under § 31-294c(a) C.G.S. The issue of proper notice to commence a claim is irrelevant to the issues before this tribunal in this case, and we are puzzled as to how counsel believes this case is analogous to the present case. See Respondent’s Brief, p. 6. Chambers had nothing to do with interlocutory appeals.

We believe our precedent and due process require this Commission to hold a hearing on the merits of whether the stipulation herein should be voided. The appeal is dismissed and this matter is remanded to the trial commissioner for further proceedings.

Commissioners Charles F. Senich and Jack R. Goldberg concur in this opinion.

1 We note that in Mason v. Dale Construction, 4354 CRB-3-01-1 (November 7, 2001) we did consider an interlocutory appeal in the absence of factual findings. That ruling however, came as the result of a formal hearing, not an ex parte decision. BACK TO TEXT

2 AIG argues that in civil court issues can be determined without an actual hearing. May 20, 2008 Transcript, p. 8. We note that the terms of Chapter 568 govern over precedent involving civil jurisdiction. In any event, this argument is unsupportive of AIG’s claims. While ex parte actions such as default judgments under § 52-84 C.G.S. or prejudgment remedies under § 52-278e C.G.S. are a common practice in Connecticut civil jurisdiction such remedies are subject to being reopened by the trial court to permit the defendant an opportunity to contest the relief sought by the plaintiff. AIG argues that under Chapter 568 the claimant should have appealed an ex parte order to this panel and in the absence of such an appeal, is foreclosed from any further remedy. As we discussed in greater detail, this theory is legally unsound. BACK TO TEXT

3 We again distinguish Mason v. Dale Construction, Inc., 4354 CRB-3-01-1 (November 7, 2001) from this matter as the facts are dissimilar. Mason involved a decision reached after a formal hearing had occurred. BACK TO TEXT

4 Murphy v. Highfield Country Club, 5117 CRB-5-05-7 (August 22, 2006) cites case law predating the enactment of § 1-2z C.G.S. such as Mele v. Hartford, 4453 CRB-1-01-9 (November 30, 2001); Mele cited older precedent such as Muldoon v. New England Installation, 3415 CRB-4-96-8 (November 3, 1997). Muldoon cited case law reaching back to Kempesta v. Hendels Gas and Oil Co., 9 Conn. Workers’ Comp. Rev. Op. 152, 998 CRD-2-90-4 (June 5, 1991). AIG’s “plain meaning” arguments cannot overcome the weight of two decades of binding precedent. BACK TO TEXT

5 We do not suggest that parties that choose to bring an appeal to this board under those circumstances as opposed to seeking relief before the trial commissioner should be penalized. While this may be the inappropriate venue to resolve interlocutory issues, we have held a timely appeal does serve to preserve one’s rights. Rinaldi v. Tilcon Connecticut, Incorporated, 4981 CRB-3-05-7 (August 30, 2006). BACK TO TEXT

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