State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Omachel v. Sunshine Masonry Construction et al.

CASE NO. 5489 CRB-1-09-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 21, 2010

TOMASZ OMACHEL

CLAIMANT-APPELLEE

v.

SUNSHINE MASONRY CONSTRUCTION

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

and

O & G INDUSTRIES

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Francis X. Drapeau, Esq., Law Offices of Leighton, Katz & Drapeau, 20 East Main Street, P.O. Box 838, Rockville, CT 06066-0838. However, the issue on appeal did not involve the claimant, thus, the claimant did not participate in this appeal.

The respondent employer Sunshine Masonry Construction was represented by David L. Griffith, Esq., Nassau, Griffith & Kelly, LLC, 66 Cedar Street, Newington, CT 06111-2646. However, the issue on appeal did not involve the respondent employer, thus, the respondent employer did not participate in this appeal.

The respondent insurer Hartford Insurance Group was represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033. However, the issue on appeal did not involve the respondent insurer, thus, respondent insurer was present but did not participate in this appeal.

The respondents O & G Industries, and Travelers Property Casualty Company were represented by Sean Nourie, Esq., Conway & Stoughton, LLP, 818 Farmington Avenue, West Hartford, CT 06119.

The Second Injury Fund was represented by Donna H. Summers, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the July 2, 2009 Order and July 30, 2009 Ruling of the Commissioner acting for the First District were heard March 26, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal provides the board with a second opportunity to review issues arising from litigation in the above claim. In our prior opinion in Omachel v. Sunshine Masonry Construction, 5148 CRB-1-06-10 (October 22, 2007) [hereafter Omachel I] we were presented with a number of issues all which may be summarized as concerning which party is presently liable and which party may be ultimately liable for the payment of benefits.

The underlying factual circumstances giving rise to litigation in this matter are as follows. On May 20, 2005, the claimant fractured his left master arm while working for the employer Sunshine Masonry. At the time of the injury, the claimant was working as a mason on a public works project for the City of Hartford. In Omachel I, the trial commissioner1 determined, inter alia, the claim was compensable and that he lacked subject matter jurisdiction over the question of whether the respondent employer was insured for its Workers’ Compensation insurance liability at the time of the claimant’s injury.

In Omachel I, the only issue we addressed was whether the trial commissioner erred in concluding that he lacked subject matter jurisdiction over the question of whether the respondent employer had Workers’ Compensation insurance at the time of the claimant’s injury. We concluded that the trial commissioner misapplied the law and noted the following:

The commission’s authority to determine whether a workers’ compensation insurance policy was in place on a particular date has long been established and most recently acknowledged by this tribunal in Velez v. Domino’s Pizza, 5105 CRB-1-06-6 (September 26, 2007). See Piscitello v. Boscarello, 113 Conn. 128 (1931). See also, Rossini v. Morganti, 127 Conn. 706 (1940); DiBello v. Barnes Page Wire Products, Inc., 67 Conn. App. 361 (2001); Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440 (2001); DeGruchy v. Buy, Sell or Hold Co., 4676 CRB-7-03-6 (July 27, 2004); Degnan v. Employee Staffing of America, Inc., 4580 CRB-3-02-10 (October 27, 2003); Thibodeau v. Rizzitelli, 3373 CRB-4-96-7 (October 14, 1997); O’Connell v. Indian Neck General Store, 6 Conn. Workers’ Comp. Rev. Op. 42, 530 CRD-3-86 (October 6, 1988). Further, a commissioner’s inquiry is not limited to the records on file with the Workers’ Compensation Commission. See e.g.; Bell v. Lombardo, 4152 CRB-2-99-11, 4065 CRB-2-99-6 (November 27, 2000); Bruce v. Bert Miller Associates, 15 Conn. Workers’ Comp. Rev. Op. 47, 1872 CRB-1-93-10 (December 1, 1995); Vernon v. V.J.R. Builders, 11 Conn. Workers’ Comp. Rev. Op. 237, 1360 CRD-7-91-12 (November 8, 1993).

We then concluded that a remand for a determination as to whether the respondent employer had Workers’ Compensation insurance on the date of claimant’s injury was necessary and stated:

We therefore reverse the trial commissioner’s ruling in the October 10, 2006 Finding and Award as to the issue of subject matter jurisdiction and the commission’s authority to determine whether a workers’ compensation insurance policy was in existence at the time of the claimant’s date of injury. We suggest that the proceedings on remand be scheduled on an expedited basis. Having concluded as we have we need not consider any other issues raised by any of the parties as a future ruling on the issue of insurance coverage may render the issues moot.

Sometime thereafter, proceedings went forward for the purpose of determining whether the respondent employer had Workers’ Compensation insurance at the time of claimant’s injury.2 In the course of the trial commissioner’s consideration of that issue the respondent Second Injury Fund attempted to procure evidence on the issue of whether liability might lie against a principal employer pursuant to § 31-291. In the present appeal the Fund argues that the trial commissioner erred in her July 2, 2009 bench ruling as well as the July 30, 2009 ruling on a Motion for Articulation3 and a Motion for Reconsideration.4 The trial commissioner denied both motions and in her July 2, 2009 bench ruling denied the Fund’s request to consider the principal employer issue at that hearing.

The Fund argues that the trial commissioner’s July 2, 2009 bench ruling5 as well as her July 30, 2009 denial of the Fund’s Motion for Articulation and Motion for Reconsideration denied the Fund its due process rights as to issues relating to § 31-291 and the liability of a principal employer. In essence, the Fund asks us to clarify our remand order in Omachel I, and answer whether the remand order included a determination as to coverage under § 31-291, and therefore, determine whether the trier’s rulings of July 2, 2009 and July 30, 2009 were legally appropriate. In its brief the Fund states,

[H]ad the Board intended to deprive the Fund of its substantive and procedural due process rights to be heard on the principal employer’s liability, it certainly could have expressly limited the remand to a determination of insurance coverage just as to the direct employer, Sunshine Masonry. It did not do so. Rather the remand is broad, and includes a determination of coverage as to any of the potential employers in this matter. . . . Thus, the remand includes, rather than excludes, the hearing the Fund has been seeking. Nothing in the Board’s first remand should have been construed as an impediment to the Fund’s substantive and procedural due process rights to determination of the Section 31-291 issue so that Fund could be reimbursed and excused from this case if there is an insured general contractor.

Brief p. 9.

We agree with the Fund’s assertion quoted above that we took no position as to whether proceedings relating to the potential liability of a principal employer should go forward. The Fund argues that our silence should not be read so narrowly as to deprive it of its due process rights as to the § 31-291 issue. And again we agree. Where we disagree with the Fund is at what point in the adjudicative process inquiry may be permitted. The resulting remand in Omachel I for a determination as to whether the employer had Workers’ Compensation insurance on the date of injury as well as our comment that “we need not consider any other issues raised by any of the parties as a future ruling on the issue of insurance coverage may render the issues moot” suggests our belief that the order of proceedings was a matter within the authority of the trial commissioner. In short, any determination by the trial commissioner to bifurcate the proceedings is a matter within the trial commissioner’s discretion. See Martinez-McCord v. State/Judicial Branch, 5055 CRB-7-06-2 (February 1, 2007) quoting Swenson v. Sawoska, 18 Conn. App. 597, 601 (1989).

Specifically, we note that the trial commissioner and counsel for the Fund exchanged the following colloquy:

MS. SUMMERS: I do have one other matter, Commissioner.
THE COMMISSIONER: Which is?
MS. SUMMERS: We had — at the last hearing, we went round and round and round about whether the Fund was entitled to two things: One is discovery on the principal employer issue, and the second was our right to a Formal hearing on the principal employer issue.
THE COMMISSIONER: Actually, Attorney Summers, please stop for a second. You have both, okay. You have a right to discovery, and you have a right to a Formal hearing, just not today, and I would rather postpone any discussion on those issues until after today’s proceedings are over and done because it did take up a lot of time at our other hearings. I’ve read your submissions, I’ve read what Mr. Nourie had submitted as well, I know that the two of you are very firm in your positions, and I could understand if principal employer becomes an issue, that you are entitled to discovery, but for now and for today let’s just deal with this and leave the principal employer off the table for today. (emphasis added)

July 2, 2009 Transcript, pp. 18-19.

The above statement of the trial commissioner reflects her cognizance of the Fund’s due process and discovery rights as to issues relating to a principal employer and her intent to safeguard them. We do not believe that the trier’s ruling may be construed as anything more than her determination that judicial clarity and efficiency were better served by limiting the issues under consideration in the July 2, 2009 hearing. As our Supreme Court stated in Barry v. Quality Steel Products, Inc., 263 Conn. 424, 448-49 (2003)

Pursuant to General Statutes§ 52-205 and Practice Book § 15-1, the trial court may order that one or more issues that are joined be tried before the others. “The interests served by bifurcated trials are convenience, negation of prejudice and judicial efficiency. . . . Bifurcation may be appropriate in cases in which litigation of one issue may obviate the need to litigate another issue.” (Citation omitted.) Reichhold Chemicals, Inc. v. Hartford Accident & Indemnity Co., 243 Conn. 401, 423, 703 A.2d 1132 (1997). The bifurcation of trial proceedings lies solely within the discretion of the trial court. (Footnotes omitted.)(Emphasis added.)

We note that in the Fund’s prosecution of this appeal it also filed a Motion to Submit Additional Evidence. That motion filed September 18, 2009 seeks to proffer a number of documents.6 While we appreciate that the Fund’s motion may arise from an abundance of caution and concern that a procedural misstep may occur in the prosecution of this appeal, we find that none of the documents proffered advance the Fund’s argument as to why the trial commissioner’s determination to bifurcate the principal employer issue was an abuse of her discretion. The fact that the Fund has repeatedly made the same demand and met with the same response does not indicate an abuse of the commissioner’s discretion but rather, a remarkable restraint on the part of the commissioner. Nonetheless, we do not believe the evidence proffered by the Fund is material to our review as to whether the commissioner’s ruling was legally appropriate. See Admin. Reg. § 31-301-9. See also; Cuadrado v. Stop & Shop Companies, Inc., 5360 CRB-7-08-7 (July 2, 2009).

Finally, we note that the respondent, O & G filed a Motion to Dismiss on the basis that the Fund’s appeal was untimely. The respondent, O & G argues that the Fund knew of the trial commissioner’s decision to defer proceedings on the § 31-291 issue as early as May 27, 2009 and therefore, pursuant to § 31-301(a) the Fund’s appeal filed July 16, 2009 exceeded the time permitted for filing an appeal with the Compensation Review Board.7 We disagree. Had the Fund taken an appeal from the trial commissioner’s oral ruling at the May 27, 2009 pre-formal hearing, we would have been compelled to remand the matter for further proceedings as the appellant would have been unable to provide an adequate record for review as pre-formal hearings are generally not transcribed. The board would then have been presented with an appeal and would have been without a basis for review. Thus, we disagree with the appellee’s assertion that the instant appeal should be dismissed as untimely.

We therefore affirm the July 2, 2009 bench ruling, the July 30, 2009 Ruling on the Fund’s Motion for Articulation and the July 30, 2009 ruling on the Fund’s Motion for Reconsideration.

Commissioners Nancy E. Salerno and Jack R. Goldberg concur.

1 The trial commissioner from whom the appeal was taken in Omachel I was Jesse M. Frankl. The trial commissioner from whom the instant appeal was taken is Christine L. Engel. BACK TO TEXT

2 For whatever reason, our anticipation that matters would be scheduled on an expedited basis did not occur. BACK TO TEXT

3 Motion for Articulation filed with the trial commissioner July 13, 2009. BACK TO TEXT

4 Motion for Reconsideration filed with the trial commissioner July 13, 2009. Additionally we note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

5 The Fund in its brief filed December 31, 2009 attributes the trier’s bench ruling to the July 2, 2009 Transcript, pp. 18-20. BACK TO TEXT

6

1. An unsigned Order Compelling Discovery dated April 29, 2009. (Attachment 1)

2. A letter to respondents O & G’s counsel, Attorney Sean Nourie, dated November 14, 2007 from Second Injury Fund’s counsel, Assistant Attorney General Donna H. Summers. The letter appears to be a request for information, documents, records, etc from O & G pertaining to the issue of principal employer. (Attachment 1)

3. A letter to respondents O & G’s counsel, Attorney Sean Nourie, dated May 22, 2008 from Second Injury Fund’s counsel, Assistant Attorney General Donna H. Summers. The letter appears to duplicate the request for information set out in #2 above. (Attachment 1)

4. A letter to Commissioner Peter Mlynarczyk dated April 2, 2007 from Second Injury Fund’s counsel, Assistant Attorney General Donna H. Summers requesting, inter alia, that this matter be scheduled for a hearing on the issue of principal employer liability. (Attachment 2)

5. A letter to Commissioner Peter Mlynarczyk dated January 15, 2008 from Second Injury Fund’s counsel, Assistant Attorney General Donna H. Summers requesting, inter alia, that this matter be scheduled for a hearing on the issue of principal employer liability. (Attachment 3)

6. A letter to Commissioner Peter Mlynarczyk dated January 17, 2008 from respondent O & G’s counsel, Attorney Sean Nourie, objecting to the request set out in the Fund’s letter of January 15, 2008. (Attachment 4)

7. A letter to Commissioner Peter Mlynarczyk dated January 18, 2008 from Second Injury Fund’s counsel, Assistant Attorney General Donna H. Summers responding to respondent O & G’s counsel, Attorney Sean Nourie’s objection to the request for a hearing on the issue of principal employer. (Attachment 5)

8. A letter to Commissioner Christine Engel April 29, 2009 from respondent O & G’s counsel, Attorney Sean Nourie which provides the basis for counsel’s objection to proceedings on the issue of principal employer liability. (Attachment 6)

9. A copy of the Compensation Review Board’s opinion in Omachel I. (Attachment 6)

10. Apparent duplicate copy of item #5 above: A letter to Commissioner Peter Mlynarczyk dated January 15, 2008 from Second Injury Fund’s counsel, Assistant Attorney General Donna H. Summers requesting, inter alia, that this matter be scheduled for a hearing on the issue of principal employer liability. (Attachment 3)

11. Apparent duplicate copy of item #6 above: A letter to Commissioner Peter Mlynarczyk dated January 17, 2008 from respondent O & G’s counsel, Attorney Sean Nourie, objecting to the request set out in the Fund’s letter of January 15, 2008. (Attachment 4)

12. Apparent duplicate copy of item #7 above: A letter to Commissioner Peter Mlynarczyk dated January 18, 2008 from Second Injury Fund’s counsel, Assistant Attorney General Donna H. Summers responding to claimant’s objection to the request for a hearing on the issue of principal employer. (Attachment 5)

13. A copy of the Second Injury Fund’s Appellant Brief filed April 19, 2007 in Omachel I, supra. (Attachment 6)

14. A letter dated May 13, 2009 to Commissioner Christine Engel from Second Injury Fund’s counsel, Assistant Attorney General Donna H. Summers which set forth the Fund’s arguments in support of proceeding with a formal hearing on the issue of principal employer. (Attachment 7)

15. A copy of a document entitled Construction Management Trade Contract between O & G Industries, Inc and Sunshine Construction for the Sarah J. Rawson Elementary School, Hartford, CT

16. Copy of Application for Building Permit Application No. 20042094 pertaining to work at the Sarah J. Rawson Elementary School, Hartford, CT.

17. A copy of the October 10, 2006 Finding and Award of the Commissioner acting for the First District, Jesse M. Frankl.

18. A copy of the June 25 2008 Memorandum of Decision on Motion to Dismiss from the Superior Court, No. CV 07-4033038 Hartford Insurance Group v. Sunshine Masonry Construction (JTR Wagner).

19. A copy of a letter to Commissioner Christine Engel dated June 2, 2009 from Second Injury Fund’s counsel, Assistant Attorney General Donna H. Summers which requests an immediate hearing on the issue of principal employer. (Attachment 8)

20. A copy of a letter to Commissioner Laura (sic)Engel dated June 15, 2009 from respondent O & G’s counsel, Attorney Sean Nourie, which objects to the Fund’s letter of June 2,2009 requesting an immediate hearing on the issue of principal employer. (Attachment 9)

21. A copy of a letter to Commissioner Christine Engel dated June 16, 2009 from Second Injury Fund’s counsel, Assistant Attorney General Donna H. Summers which seeks to respond to the June 15, 2009 letter to Commissioner Engel from respondent O & G’s counsel, Attorney Sean Nourie. (Attachment 10)

22. A copy of the Respondent Second Injury Fund’s Motion for Articulation dated July 10, 2009 and Commissioner Christine Engel’s July 30, 2009 denial of same. (Attachment 11)

23. A copy of the Respondent Second Injury Fund’s Motion for Reconsideration and Clarification dated July 10, 2009 and Commissioner Christine Engel’s July 30, 2009 denial of same. (Attachment 12) BACK TO TEXT

7 Sec 31-301(a) provides in pertinent part:

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. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: August 18, 2010

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