Pothier v. Stanley-Bostitch/The Bostitch Company

The claimant was represented by Diane Sikorsky, Esq., Edgewater Building, Suites 3 & 4, 929 Boston Post Road, Old Saybrook, CT 06475.

The employer and Aetna Life & Casualty were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The respondent CIGNA Property & Casualty was represented by David Schoolcraft, Esq., Trowbridge, Schoolcraft & Basine, P.C., 207 Main St., Hartford, CT 06106-5314.

This Petition for Review from the March 30, 1994 “Finding and Reopening and Vacating of Finding and Award” of the Commissioner acting for the Third District was heard March 10, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent Aetna has petitioned for review from the March 30, 1994 “Finding of Reopening and Vacating of Finding and Award” of the Commissioner for the Third District. In that decision, the commissioner granted CIGNA’s motion to vacate his prior Finding and Award which he had issued on September 13, 1993. On appeal, Aetna argues that the commissioner improperly vacated his prior Finding and Award. We affirm the trial commissioner.

The following procedural history and findings of fact are relevant to the present appeal. On September 13, 1993 the trial commissioner issued a Finding and Award which held the respondent insurer CIGNA, rather than the respondent insurer Aetna, liable for the claimant’s temporary total disability caused by an aggravation of a compensable injury. Subsequently, on September 22, 1993 CIGNA filed both an appeal and a motion to vacate the Finding and Award. In support of its motion to vacate, CIGNA argued that it had been denied due process because it had not had the opportunity to submit a brief on the merits of the case. Specifically, CIGNA contended that it reasonably understood that the commissioner had asked the parties to brief an evidentiary issue, which the commissioner would then rule upon prior to rendering his decision on the merits. CIGNA argued that it believed that the commissioner would accept briefs on the merits of the case after he had issued a decision on the evidentiary issue.

The commissioner held a formal hearing on the motion to vacate on January 3, 1994. On March 30, 1994, the commissioner granted the motion to vacate, which is the subject of the present appeal now before this tribunal. In his decision, the commissioner explained that he vacated his September 13, 1993 decision in order to allow CIGNA the opportunity to submit a legal brief regarding the merits of the case. The commissioner found that there had been “confusion about when legal briefs were to be filed on the merits of the case because of the evidentiary ruling that this Commissioner was to make prior to considering a deposition....”

In support of its appeal, Aetna contends that a commissioner does not have the authority to vacate his decision. To the contrary, there have been instances where this Board has dismissed appeals because a trial commissioner has vacated the order or award underlying the appeal. See Hutchinson v. C. Cowles & Co., 12 Conn. Workers’ Comp. Rev. Op. 387, 1934 CRB-3-93-12 (Aug. 29, 1994); Discuillo v. Stone & Webster, 12 Conn. Workers’ Comp. Rev. Op. 1, 1366 CRD-2-91-12 (Jan. 4, 1994); Ward v. UTC/Pratt & Whitney Aircraft, 11 Conn. Workers’ Comp. Rev. Op. 110, 1735 CRB-1-93-5 (June 4, 1993). In the instant case, CIGNA filed a motion to vacate within ten days following the commissioner’s Finding and Award, contending that it had not been afforded an opportunity to file a brief on the merits. Based upon the compelling circumstances regarding due process in this case, we conclude that the commissioner properly exercised his discretion in granting the motion to vacate.1

The trial commissioner’s decision of March 30, 1994 which vacated his prior award is accordingly affirmed, and Aetna’s appeal is dismissed.

Commissioners Roberta Smith D’Oyen and Amado J. Vargas concur.

1 We caution, however, that a trial commissioner should generally not attempt to rescind an award once it has been appealed to the CRB. See Spatafore v. Yale University, 2011 CRB-3-94-4 (Aug. 25, 1995). BACK TO TEXT