State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bass v. AT&T

CASE NO. 5634 CRB-7-11-3

CASE NO. 5621 CRB-7-11-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 3, 2012

DANIEL BASS

CLAIMANT-APPELLANT

v.

AT & T

EMPLOYER

and

SEDGWICK CLAIMS MANAGEMENT SERVICES, INC.

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 Heather K. Porto, Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Suite 216, Glastonbury, CT 06033.

This Petition for Review from the following rulings of the Commissioner acting for the Seventh District was heard on July 22, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel: the December 20, 2010 denial of the December 20, 2010 claimant’s “Motion to Disqualify;” the February 4, 2011 “Ruling on Claimant’s February 3, 2011 Motion to Vacate the Commissioner’s Fine of February 1, 2011;” the February 24, 2011 denial of the February 23, 2011 claimant’s “Motion to Disqualify;” and the March 3, 2011 denial of the March 3, 2011 claimant’s “Motion to Reargue and Open Hearing.”

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the following rulings of the Commissioner acting for the Seventh District: the December 20, 2010 denial of the December 20, 2010 claimant’s “Motion to Disqualify;” the February 24, 2011 “Ruling on Claimant’s February 3, 2011 Motion to Vacate the Commissioner’s Fine of February 1, 2011;” the February 24, 2011 denial of the February 23, 2011 claimant’s “Motion to Disqualify;” and the March 3, 2011 denial of the March 3, 2011 claimant’s “Motion to Reargue and Open Hearing.” In accordance with our Appellate Court’s holding in Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280 (2011), we find error and accordingly reverse the February 24, 2011 “Ruling on Claimant’s February 3, 2011 Motion to Vacate the Commissioner’s Fine of February 1, 2011.”2

The following factual background is pertinent to our review of this matter. On January 31, 2011, an informal hearing in the instant claim was scheduled for 2:30 p.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. At 3:40 p.m., the trial commissioner, having neither seen nor heard from claimant’s counsel, dismissed respondents’ counsel. On February 1, 2011, a “form” fine letter was sent to claimant and his counsel indicating that a $100.00 sanction was being imposed pursuant to § 31-288(b)(2) C.G.S. because of the failure of claimant’s counsel to appear at the January 31, 2011 informal hearing.3

On February 3, 2011, claimant’s counsel filed a “Motion to Correct and Articulate or Vacate” the February 1, 2011 sanctions letter. In paragraph two of the motion, claimant’s counsel asserted that his file did not contain a notice for the January 31, 2011 informal hearing. On February 4, 2011, the trial commissioner denied the motion to correct and the motion to articulate. The trial commissioner deferred action on the motion to vacate and indicated the motion would be considered at an upcoming formal hearing. On February 4, 2011, a notice was sent to claimant’s counsel informing him that a formal hearing had been scheduled for February 23, 2011. The notice listed § 31-288 C.G.S. as the sole statutory issue. Claimant’s counsel appeared for the February 23, 2011 formal hearing and was instructed by the trial commissioner “to confine his presentation to evidence of ‘good cause’ for setting aside his February 1, 2011 fine under Sec. 31288.” Findings, ¶ 12. Claimant’s counsel did not do so, proceeding instead to challenge, inter alia, the Commission’s policies and procedures for issuing “no show” fines and the trial commissioner’s role in presiding over a hearing for which the trier was a material witness. The hearing was adjourned sua sponte by the trial commissioner following a determination that claimant’s counsel “had no intention of presenting any evidence in defense of his February 1, 2011 fine.” Findings, ¶ 14.

Following the formal hearing of February 23, 2011, the trial commissioner issued her ruling of February 24, 2011 in which she found that the file materials “clearly evidence that claimant’s counsel received the Commission’s December 28, 2011 notice of the January 31, 2011 hearing and that claimant’s counsel wrote to his client informing him of same.” Findings, ¶ A. As such, the trial commissioner determined that paragraph two of the claimant’s Motion to Correct and Articulate or Vacate “professing lack of notice of the January 31, 2011 informal hearing demonstrates a profound lack of candor towards this tribunal.” Findings, ¶ B. The trier concluded that because neither the claimant nor his counsel had presented any evidence in support of the Motion to Vacate, “[g]ood cause existed to levy the fine against the claimant and his counsel for failure to appear at the January 31, 2011 formal hearing.” Findings, ¶ D. The trier denied the Motion to Vacate with prejudice.

On February 23, 2011, claimant’s counsel filed a Motion to Disqualify. That motion was denied on February 24, 2011. On March 3, 2011, claimant’s counsel then filed a Motion to Reargue and Open Hearing which was denied on March 3, 2011. The instant appeal followed. On appeal, the claimant contends that the trial commissioner’s entry of an order for sanctions pursuant to § 31-288(b)(2) C.G.S. prior to an evidentiary hearing constituted a violation of due process. The claimant also argues that the trial commissioner was without authority to order sanctions pursuant to § 31-288(b)(2) C.G.S. in the absence of a party’s allegation of unreasonable delay. In addition, the claimant alleges that the trier erroneously: denied the Motion to Articulate and Correct; scheduled a “moot” hearing on the issue of sanctions; refused to permit claimant’s counsel to present legal argument at the February 23, 2011 hearing; failed to disqualify herself pursuant to Canon 3(c) of the Code of Judicial Conduct from presiding over the evidentiary hearing of February 23, 2011 and refused to allow herself to be called as a witness at said hearing; and denied claimant’s motions to vacate and to reargue and open hearing.4 Finally, claimant asserts that the trier erroneously found facts that were not in evidence.

The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled. The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003). “This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).

The gravamen of the instant appeal is essentially a challenge to the imposition of an order for sanctions pursuant to § 31-288(b)(2) C.G.S. prior to an evidentiary hearing in which the trial commissioner would make the requisite findings that the claimant had “unreasonably, and without good cause, delayed the completion of the hearings on such claim.” Our Appellate Court recently addressed this issue in Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280 (2011) which involved the same attorney and rested on a similar fact pattern in which claimant’s counsel failed to appear at a scheduled hearing and subsequently received a “form” sanction letter.5 In Flamenco, 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, went on to observe that although administrative hearings held before workers’ compensation commissioners “are informal and governed without necessarily adhering to the rules of evidence or procedure,” id., at 283, quoting Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 740 (2001), “[n]onetheless, administrative hearings must be conducted in a fundamentally fair manner so as not to violate the rules of due process.” Id. Moreover, the Flamenco court stated, “[t]hat precept applies with equal force in attorney discipline proceedings.” Flamenco, supra, at 283.

Noting that “[t]he necessary predicate to imposition of a sanction under the plain language of § 31-288(b)(2) is a finding that the offending party ‘unreasonably, and without good cause, delayed the completion of the hearings ...’”, id., at 284, quoting § 31-288(b)(2) C.G.S., the court went on to conclude that “[t]he record before us contains no finding by the commissioner that the tardiness of the plaintiff’s counsel was unreasonable and without good cause. Even if we were to presume such an implicit finding on the part of the commissioner, the record is bereft of any evidence to support that finding.” Id. The court reversed the Compensation Review Board’s dismissal of the claim and remanded the matter to the board with the directive to order the workers’ compensation commissioner to vacate the $100.00 fine.

Turning to the matter at bar, we note at the outset that the sanctions letter of February 1, 2011 seems to contemplate a per se finding of undue delay premised on a party’s failure to appear at a scheduled hearing. However, the letter contains no information regarding the circumstances which would arguably support the imposition of a fine pursuant to § 31-288(b)(2) C.G.S. In addition, the trial commissioner’s ruling of February 24, 2011 on the claimant’s Motion to Vacate recounts a procedural and chronological sequence of events but is devoid of any findings which specifically address the circumstances surrounding the claimant’s counsel’s failure to appear at the hearing.6 As such, because this board “was 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., at 285, consistent with the Appellate Court’s holding in Flamenco, the finding of the trial commissioner relative to the imposition of sanctions cannot stand.

It should be noted, however, that the recalcitrant testimony provided by claimant’s counsel at the hearing of February 24, 2011 rendered it virtually impossible for the trial commissioner to make any findings whatsoever regarding counsel’s failure to attend the January 31, 2011 hearing. Our review of the transcript indicates that the trial commissioner made no less than seven (7) attempts to elicit an explanation from claimant’s counsel and at one point even offered examples of “good cause.” February 23, 2011 Transcript, pp. 3,5,6,7. Claimant’s counsel repeatedly declined the opportunity to offer any explanation, choosing instead to confine his remarks to a challenge of the procedural legitimacy of the hearing. As such, while we are bound under the particular circumstances of this claim to set aside the sanction imposed herein, we would offer a cautionary note to parties summoned to appear at a sanctions hearing pursuant to § 31288(b)(2) C.G.S. that failure to avail themselves of the opportunity to “show cause” may result in a finding that the conduct in question did indeed “unreasonably, and without good cause,” delay the completion of the hearings on the claim.

The February 24, 2011 “Ruling on Claimant’s February 3, 2011 Motion to Vacate the Commission’s Fine of February 1, 2011” of the Commissioner acting for the Seventh District is hereby reversed.

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

1 In correspondence to the board dated May 2, 2011 filed relative to related appeal 5621 CRB-7-11-1, respondents’ counsel requested that the respondents be excused from participating in the instant appeal. BACK TO TEXT

2 Given that our reversal of the trial commissioner’s February 24, 2011 ruling is dispositive of both appeals addressed herein, we decline to review the appropriateness of the other rulings set out above. It should be noted that the denial of the December 20, 2010 claimant’s “Motion to Disqualify;” was the subject of Case Number 5621 CRB-7-11-1 while the other rulings were the subject of Case Number 5634 CRB-7-11-3. Moreover, although claimant’s counsel filed a Petition for Review, a Motion to Submit Additional Evidence, and Reasons for Appeal pertaining to Case Number 5621 CRB-7-11-1, no brief was ever submitted. BACK TO TEXT

3 Section 31-288(b)(2) (Rev. to 2007) 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. Any appeal of a penalty assessed pursuant to this subsection shall be taken in accordance with the provisions of section 31-301.” BACK TO TEXT

4 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

5 The Flamenco appeal was initially filed with the Compensation Review Board on the basis of a sanctions “form” letter; the board, citing the absence of a formal record, remanded the matter to the trial commissioner “for a formal hearing or other appropriate proceedings.” The Appellate Court disagreed with the board’s determination that no record existed on which to review the claimant’s appeal, instead holding that the penalty letter along with the claimant’s Petition for Review and Reasons of Appeal constituted such a record. BACK TO TEXT

6 We note that in her Ruling of February 24, 2011, the trial commissioner took administrative notice of correspondence dated January 4, 2011 from claimant’s counsel to the claimant informing the claimant of the January 31, 2011 hearing, which correspondence was attached to the trial commissioner’s notes from the January 31, 2011 hearing. While we recognize that such correspondence could give rise to the reasonable inference that the claimant’s counsel was aware that the hearing had been scheduled, we do not find, in light of the Appellate Court’s discussion in Flamenco v. Independent Refuse Service, Inc., 130 Conn. App. 280 (2011), that the mere existence of the correspondence in and of itself sufficiently satisfies the statutory requirements for an award of sanctions pursuant to § 31-288(b)(2) C.G.S. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: June 6, 2012

Page URL: http://wcc.state.ct.us/crb/2012/56215634crb.htm

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