Mercado v. Personal Moving Services of America

The claimant was represented by Robert Weber, Esq., and Thomas Marshall, Esq., Weber & Marshall, 24 Cedar St., P. O. Box 1568, New Britain, CT 06050-1568.

The respondent Employee Staffing of America, Inc. was represented by Kevin W. Ahern, Esq., and Michael Parizo, Esq., 202 Cherry St., Milford, CT 06460.

The respondent Personal Moving Services of America did not appear at oral argument before this Board.

This Petition for Review from the April 12, 1994 Finding and Award of the Commissioner acting for the First District was heard March 10, 1995 before a Compensation Review Board panel consisting of Commissioner George Waldron and Commissioners Roberta Smith D’Oyen and Amado J. Vargas.

OPINION

GEORGE WALDRON, COMMISSIONER. The respondent Employee Staffing of America, Inc. has petitioned for review from the April 12, 1994 Finding and Award of the Commissioner for the First District. In that decision, the commissioner found that the claimant suffered a compensable injury while employed with the respondent employer on October 14, 1992. In addition, the commissioner found that both the respondent employer and its employer representative, Employee Staffing of America, Inc., failed to appear at the formal hearing which was held on April 6, 1994 after proper notice of the hearing had been forwarded.1 Furthermore, the commissioner found that both the respondent employer and the respondent Employee Staffing of America, Inc. (hereinafter “respondent”) failed to appear at a prior hearing which was held on January 13, 1994. The respondent’s sole contention on appeal is that the commissioner should have rescheduled the April 6, 1994 hearing pursuant to the respondent’s request of April 5, 1994. We find no error on the part of the commissioner.

Administrative Regulations § 31-279-2 provides: “Punctual appearance by an authorized representative at every conference or hearing assigned by the commissioner is required, unless such attendance is excused by the commissioner prior to the conference or hearing.” Moreover, Administrative Regulation § 31-279-4 states in part that “[n]o party can assume the granting of a continuance to produce witnesses at a later date, or for any other reason not regularly recognized in a judicial proceeding.” It is within the broad discretion of the commissioner to grant or deny a continuance, and such a decision is virtually unreviewable. Muniz v. Koteas, CASE NO. 1720 CRB-4-93-5 (decided April 21, 1995).

In its appeal, the respondent contends that it requested a postponement of the hearing on April 5, 1994, which was the day before the scheduled hearing. Pursuant to § 31-279-2, the respondent was required to attend the hearing in the absence of approval from the trial commissioner prior to the hearing. The respondent does not contend that the trial commissioner had granted its request for a postponement. We note that the respondent contends that it had two other matters scheduled on April 6, 1994. However, it does not contend that the scheduling conflict was unforeseeable, nor does it allege any reason for the dilatory conduct of waiting until the day prior to the hearing to request the postponement. Accordingly, we conclude that it was within the trial commissioner’s discretion to conduct the formal hearing and to issue a decision without the respondent’s participation.

The trial commissioner’s decision is affirmed.

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

1 As no motion to correct has been filed by the respondents, we are limited to the findings of fact made by the trial commissioner. Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994). BACK TO TEXT