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CASE NO. 3231 CRB-7-95-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 23, 1997
CITY OF STAMFORD
ROLLINS HUDIG HALL
The claimant was represented by Carolyn Wilkes Kaas, Associate Professor of Law; Noula Rovos, Legal Intern; and Howard Cohen, Legal Intern, Quinnipiac College School of Law Legal Clinic, 275 Mount Carmel Ave., Hamden, CT 06518-1946.
The respondents were represented by Booth Kelly, Esq., Murphy & Beane, Two Union Plaza, P. O. Box 590, New London, CT 06320.
This Petition for Review from the November 30, 1995 Finding and Dismissal of the Commissioner acting for the Seventh District was heard October 11, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 30, 1995 Finding and Dismissal of the Commissioner acting for the Seventh District. A series of formal hearings was held in this matter during 1990 and 1991, where reference was repeatedly made to the fact that the claimant, a retired police officer, was receiving a disability retirement pension from the city of Stamford as per a provision in the city charter. The commissioner who conducted the formal hearings recused himself before he could issue a Finding and Award, so a different commissioner took over the case. She issued a decision dismissing the claimant’s allegation that he had suffered a compensable psychiatric condition and that he was entitled to workers’ compensation benefits. Her findings focused mainly on depression that the claimant had suffered for years because of problems in his personal life.
On review, this board noted that the findings contained many unnecessary recitals of evidence contrary to Admin. Reg. § 31-301-3, and that there were few, if any, findings to support the commissioner’s conclusion that the claimant had not met his burden of proof. Conetta v. City of Stamford, 13 Conn. Workers’ Comp. Rev. Op. 68, 69, 1491 CRB-7-92-8 (Dec. 29, 1994). We also noted that the trier attached to her decision a copy of a section of the Stamford city charter, which she referred to in her findings. That charter was never entered into evidence or administratively noticed, however, and could not be the basis of a finding. Thus, we remanded the case for further proceedings that “should result in a ruling clearly articulating the specific legal bases of the decision. . . . The August 11, 1992 decision being appealed does not indicate whether the dismissal is due to the failure to prove causation or due to the claim’s being time barred under the statute.” Id., 69-70 (internal citation omitted).
The trial commissioner then held another formal hearing on November 13, 1995, during which she ruled that the Stamford city charter would be excluded from evidence “in accordance with the remand directive.” She then cited the testimony of Dr. Tai, the claimant’s treating physician, in which he discussed the claimant’s “earlier emotional deterioration as a result of his personal problems in his life.” See Claimant’s Exhibit O. The commissioner concluded that the claimant had again failed to prove that his depression resulted from his employment, and dismissed the claim without reaching the issue of the timeliness of the claimant’s notice of claim. The claimant has appealed that decision to this board.
It is apparent from the trial commissioner’s decision that she misunderstood the nature of this board’s previous ruling in Conetta. She was not instructed to omit the city charter from evidence; rather, the panel was saying that that document would first need to be placed in evidence before any findings could flow from it. The claimant has contended throughout the proceedings that by paying him a disability pension, the city necessarily has to have acknowledged that his illness was work-related. By not considering the charter, the commissioner omitted the possibility that the claimant could persuade her that the city should be estopped from contesting the causal relationship of his depression. She did not make a finding on timely notice, of course; her 1995 decision was based solely on the claimant’s failure to prove causation. The commissioner’s mistaken belief that she was precluded from considering the charter (or any other new evidence) may thus have had a determinative effect on this decision.
We believe that due process requires that this case be reheard. Further, it should be remanded to a different commissioner in order to preserve the vital appearance of impartiality in workers’ compensation proceedings. See Costa v. United Nuclear Corp., 16 Conn. Workers’ Comp. Rev. Op. 101, 2296 CRB-2-95-1 (Nov. 20, 1996). We are concerned that, under the unusual circumstances of this case, a third decision by the same trial commissioner would appear to be a mere exercise in “going through the motions,” and that the claimant would not emerge from these proceedings with the feeling that he has had a meaningful day in court. That is a result we seek to avoid. Therefore, this case is remanded to the Seventh District, where a trial de novo will be held on all issues, including notice, compensability, and the possible res judicata effect of the prior decision regarding the claimant’s pension.
Commissioners George A. Waldron and Robin L. Wilson concur.
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