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Wiblyi v. McDonald’s Restaurant et al.

CASE NO. 5596 CRB-1-10-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 8, 2011

JOHN M. WIBLYI, JR.

CLAIMANT-APPELLEE

v.

MCDONALD’S RESTAURANT

EMPLOYER

and

GALLAGHER BASSETT SERVICES

INSURER

RESPONDENTS-APPELLANTS

and

FIRESTONE BUILDING PRODUCTS

EMPLOYER

and

OLD REPUBLIC INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Harvey L. Levine, Esq., and Jennifer B. Levine, Esq., Law Offices of Harvey L. Levine, 754 West Main Street, New Britain, CT 06053.

The respondents-appellants, McDonald’s Restaurant and Gallagher Bassett Services were represented by John B. Cantarella, Esq., Law Offices of John B. Cantarella, 2389 Main Street, Glastonbury, CT 06033.

The respondents-appellees, Firestone and Old Republic Insurance were represented by Thomas G. Cotter, Esq., The Cotter Law Firm, LLC, 2563 Main Street, Suite 201, Stratford, CT 06615, who did not appear at oral argument.

This Petition for Review from the September 28, 2010 Finding and Award of the Commissioner acting for the Sixth District was heard April 1, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from a Finding and Award wherein the trial commissioner in this matter decided to bifurcate the proceedings so as to consider a Motion to Preclude. We find that the decision of a trial commissioner whether to bifurcate proceedings before this Commission is a discretionary matter. We may not intercede on appeal unless the trial commissioner’s decision was arbitrary and capricious and we do not find that to exist herein. Therefore, we affirm the Finding and Award and dismiss this appeal.

The record indicates that formal hearings were held on this matter on December 16, 2009, June 2, 2010 and July 1, 2010; with a pro-forma hearing to accept submissions of proposed findings on July 15, 2010. The trial commissioner acknowledged the matter had been the subject of numerous hearings over the years, and that a formal hearing to address compensability of the claim and extent of disability was ongoing. The claimant had recently filed a Motion to Preclude in the matter and had moved to have the matter bifurcated so that the Motion to Preclude could be considered prior to addressing the merits of the dispute. The respondents had objected to the bifurcation “for a variety of reasons.” Finding, ¶ 4. The trial commissioner granted the Motion to Bifurcate and rejected the respondent’s proposal to consider the Motion to Preclude following the close of evidence. The respondents filed a Motion to Correct which was denied in its entirety.

The primary argument advanced by the respondents focuses on the length of time proceedings have been pending before this Commission, and their belief the decision herein is inconsistent with the policy of judicial economy. They further argue that the underlying dispute over the Motion to Preclude should be deemed time-barred by the principle of laches. Neither argument undermines the discretionary nature of the trial commissioner’s decision herein.

Our precedent on this issue in Omachel v. Sunshine Masonry Construction, 5489 CRB-1-09-8 (June 21, 2010) and Martinez-McCord v. State/Judicial Branch, 5055 CRB-7-06-2 (February 1, 2007) stands for the proposition that when a trial commissioner decides it is necessary to bifurcate proceedings, we will not reverse such a decision unless it constitutes an abuse of discretion. “Bifurcation of trial proceedings lies solely within the discretion of the trial court; (Citations omitted) and appellate review is limited to a determination of whether this discretion has been abused.” Swenson v. Sawoska, 18 Conn. App. 597, 601 (1989). Martinez-McCord, supra. Our Supreme Court reiterated this principle in Barry v. Quality Steel Products, Inc., 263 Conn. 424, 448-449 (2003). While the respondents may believe the commissioner’s decision herein will act to delay the adjudicatory process, their argument essentially amounts to their disagreement with the trial commissioner’s differing conclusion, as he decided bifurcation would expedite matters. This does not rise to the level of ‘abuse of discretion’ as delineated in In re Shaquanna M., 61 Conn. App. 592, 603 (2001).

We further find the respondents cannot raise laches before an appellate body as an effective argument when the record does not contain the requisite findings of fact by the trial commissioner. In Kalinowski v. Meriden, 5028 CRB-8-05-11 (January 24, 2007) we pointed out that the Appellate Court had made clear “[a] conclusion that a plaintiff has been guilty of laches is one of fact for the trier and not one which can be made by this court, unless the subordinate facts found make such a conclusion inevitable as a matter of law,” citing Tinaco Plaza, LLC v. Freebob’s, Inc., 74 Conn. App. 760, 776 (2003).

This decision made by the trial commissioner in this matter did not “vitiate logic,” nor was it based on “improper or irrelevant factors.” In re Shaquanna M., supra. On appeal, we must respect the decision reached by the trial commissioner.

The Finding and Award is affirmed and the appeal is dismissed.

Commissioners Christine L. Engel and Scott A. Barton concur in this opinion.

Workers’ Compensation Commission

Page last revised: January 24,2012

Page URL: http://wcc.state.ct.us/crb/2011/5596crb.htm

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