State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Flamenco v. Independent Refuse Service

CASE NO. 5600 CRB-7-10-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 2, 2011

JULIO FLAMENCO

CLAIMANT-APPELLANT

v.

INDEPENDENT REFUSE SERVICE

EMPLOYER

and

THE HARTFORD

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Alan Scott Pickel, Esq., The Pickel Law Firm, LLC, 1700 Bedford Street, Suite 203, Stamford, CT 06905.

The respondents did not appear at oral argument.1 In the proceedings below, the respondents were represented by Nicholas C. Varunes, Esq., Varunes & Associates, P.C., Five Grand Street, Hartford, CT 06106-1505.

This Petition for Review from the October 25, 2010 Finding and Order of the Commissioner acting for the Seventh District was heard on May 27, 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 claimant has petitioned for review from the October 25, 2010 Finding and Order of the Commissioner acting for the Seventh District. In accordance with the directive contained in Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280 (2011), we find error and accordingly reverse the decision of the trial commissioner.

The following factual background is pertinent to our review of this matter. On September 28, 2010, an informal hearing was scheduled for 9:00 a.m. at the offices of the Seventh District of the Workers’ Compensation Commission. No Hearing Cancellation Form was filed with the commission prior to the hearing and respondents’ counsel appeared on time. At 9:40 a.m., the trial commissioner dismissed respondents’ counsel having neither seen nor heard from claimant’s counsel. At 9:55 a.m., claimant’s counsel appeared at the doorway of the commissioner’s hearing room at which time the trial commissioner interrupted the ongoing proceedings to inform claimant’s counsel that his hearing had been rescheduled. On that same date, the trial commissioner issued a fine letter informing claimant’s counsel that a $100.00 sanction was being imposed “[p]ursuant to Connecticut General Statutes Sections 31-288 & 31-300 of the Connecticut Workers’ Compensation Act” because of the failure of the claimant’s counsel to appear at the hearing scheduled earlier that day.2

On October 1, 2010, the claimant filed a Petition for Review and Reasons for Appeal from the September 28, 2010 penalty letter. The claimant argued that the trial commissioner’s reliance on § 31-300 C.G.S. was erroneous as that statute does not provide for sanctions for an attorney’s late appearance at a hearing. The claimant also contended that the trial commissioner’s imposition of sanctions pursuant to § 31-288 C.G.S. likewise constituted error because the commissioner took no evidence which would have provided support for a finding that claimant’s counsel had “unreasonably, and without good cause,” delayed the completion of the hearing. On October 22, 2010, the Chairman of the Compensation Review Board, noting the absence of a formal record in the matter, issued an order pursuant to § 31-301(b) C.G.S. remanding the claim back to the trial commissioner for the Seventh District “for a Formal Hearing or other appropriate proceedings.”3 See Flamenco v. Independent Refuse Service, 5594 CRB-7-10-10 (October 22, 2010).

Also on October 22, 2010, the trial commissioner held a penalty hearing in order to provide claimant’s counsel “an opportunity to present a defense to the fine and to move to vacate the fine based on said defense.” Findings, ¶ 13. At the penalty hearing, the trial commissioner took administrative notice of correspondence dated September 29, 2010 in which claimant’s counsel apologized for missing the September 28, 2010 informal hearing and explained that the failure of his office to appear was due to a scheduling misunderstanding.4 Claimant’s counsel moved for a recusal of the trial commissioner because “counsel did not believe that the commissioner who issued the fine should be the commissioner to hear the defense to the fine.” Findings, ¶ 14. Claimant’s counsel also argued that the “hearing was ‘moot’ because it should have been held prior to the issuance of the fine on September 29, 2010.” Findings, ¶ 15. See also October 22, 2010 Transcript, p. 3. The trial commissioner denied the motion for recusal and proceeded to hear the matter on the merits. Ultimately, the trial commissioner concluded that “[t]here was insufficient basis to support an order to vacate the September 28, 2010 fine imposed for failure to appear.” Findings, ¶ G. The trial commissioner also determined that “[t]here was no credible basis articulated by counsel for the undersigned trial commissioner to recuse herself from hearing the defense to a Sec. 31-288(b)(2) fine,” Findings, ¶ F, noting that “[i]t is analogous to a judge hearing the damage phase of [a] civil bench trial over which she has rendered judgment.” Id.

On October 28, 2010, the claimant filed a second Petition for Review, this time from the trial commissioner’s Finding and Order of October 25, 2010. The claimant filed a Motion to Correct on November 5, 2010 which was denied in its entirety, and this appeal followed. On appeal, claimant contends the trial commissioner did not have the authority to enter an order for sanctions pursuant to § 31-288(b)(2) C.G.S. without first conducting an evidentiary hearing. The claimant argues that “without conducting an evidentiary hearing on September 28, 2010, it was impossible for the Commissioner to make the required factual findings of (1) unreasonable delay; (2) without good cause; and (3) which delayed the hearings of the claim.”5 Appellant’s Brief, pp. 7-8. As such, the sanctions letter, which “was improper and should be vacated in its entirety,” id., at 8, also constituted a due process violation. In addition, the claimant maintains that the commission erroneously conducted a “so-called due process hearing” on the issue of sanctions when the trial commissioner “had already decided the issue without evidence.” Id., at 11. The claimant also contends that the commission provided inadequate notice of the October 22, 2010 hearing in that “[a]t no time was Claimant’s counsel ever presented with or given adequate notice that the purpose of the October 22, 2010 hearing was to move to vacate an order that was issued without notice and without an opportunity to be heard in violation of due process.”6 Id., at 14. The claimant argues that the trial commissioner improperly failed to disqualify herself from presiding over the hearing set down for October 22, 2010, in violation of Canon (c) of the Code of Judicial Conduct.7 The claimant also maintains that the commission erred in imposing sanctions when counsel did not unreasonably and without good cause delay the completion of hearings on the claim. The claimant alleges that the trial commissioner both erroneously found facts that were not in evidence and failed to find uncontroverted facts that had been presented into evidence. Finally, the claimant contends that the trial commissioner’s denial of the claimant’s Motion to Correct constituted error.

The appellant appeared before this board at oral argument on May 27, 2011. However, on July 19, 2011, prior to the issuance of an Opinion by the board, our Appellate Court handed down its decision in response to an appeal to that court filed by the claimant on November 10, 2010. The court, remarking at the outset that the claim should be more properly classified as a violation of the claimant’s right to fundamental fairness rather than a due process violation, noted that pursuant to the provisions of § 31-288(b)(2), “‘any appeal’ by a party sanctioned thereunder ‘shall be taken’ to the board.” Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280, 285 (2011). The court stated that because the claimant’s October 1, 2010 petition for review comported with the requirements of the statute, the board was thus compelled to “examine the record before it to determine whether it contains evidence to support the facts found by the commissioner.” Id. The court disagreed with the board’s determination that no record existed on which to review the claimant’s appeal, instead holding that the September 28, 2010 penalty letter along with the claimant’s Petition for Review and Reasons of Appeal filed on October 1, 2010 constituted such a record. The court then determined that because the board had been “presented with no record to substantiate [the trial commissioner’s] determination that the tardiness of the plaintiff’s counsel was either unreasonable or without good cause, resulting in undue delay to the completion of the hearings at issue…,” id., the finding of the trial commissioner relative to the imposition of sanctions could not stand. The court therefore reversed the October 22, 2010 decision of the Workers’ Compensation Commission and remanded the matter to the commission “with direction to order the workers’ compensation commissioner to vacate the $100 sanction.”Id., at 286.

On August 2, 2011, this board issued an order vacating said sanction. In light of the Appellate Court’s decision, the October 25, 2010 Finding and Order of the Commissioner acting for the Seventh District is accordingly reversed.

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

1 In correspondence to the board dated February 8, 2011, respondents’ counsel requested that the respondents be excused from participating in this appeal. BACK TO TEXT

2 Section 31-288(b)(2) (Rev. to 2009) states, in pertinent part: “Whenever either party to a claim under this chapter has unreasonably, and without good cause, delayed the completion of the hearings on such claim, the delaying party or parties may be assessed a civil penalty of not more than five hundred dollars by the commissioner hearing the claim for each such case of delay.” Section 31-300 (Rev. to 2009) states, in pertinent part: “In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in the award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee.” In her Finding and Award of October 25, 2010, the trial commissioner indicated that the fine had been levied pursuant to the provisions of § 31-288(b)(2) C.G.S. BACK TO TEXT

3 Section 31-301(b) C.G.S. (Rev. to 2009) states: “The appeal shall be heard by the Compensation Review Board as provided in section 31-280b. The Compensation Review Board shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the board that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the Compensation Review Board may hear additional evidence or testimony.” BACK TO TEXT

4 Claimant’s counsel also complained that no one from the commission had placed a telephone call to his office inquiring into his absence at the September 28, 2010 informal hearing. BACK TO TEXT

5 The claimant pointed out that the respondents have not asserted a claim that hearings in the matter have been unreasonably delayed by the claimant. BACK TO TEXT

6 Our review of the file indicates, and the claimant so notes, that the hearing notice for the October 22, 2010 stated that the issue to be addressed at the hearing was “31-288(b)-Penalties for Undue Delay.” BACK TO TEXT

7 Canon 3(c) of the Code of Judicial Conduct states, in pertinent part: “(1) A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (A) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” BACK TO TEXT

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