Cutler v. State of Connecticut DMR Region 4

The claimant was represented by Jeffrey F. Gostyla, Esq., Eisenberg, Anderson, Michalik & Lynch, 136 West Main St., P. O. Box 2950, New Britain, CT 06050-2950.

The respondents were represented by Anthony Jannotta, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from a December 17, 1996 bench ruling of the Commissioner acting for the Seventh District was heard August 15, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from a December 17, 1996 bench ruling of the Commissioner acting for the Seventh District. The question raised by the claimant is whether the commissioner erred by refusing to allow a staff representative from the claimant’s union to present his case at a formal hearing. The respondent has also filed a Motion to Dismiss this appeal. We deny the Motion to Dismiss, and remand this matter to the Seventh District for further proceedings.

The Motion to Dismiss is premised on two grounds. The first, untimeliness of the appeal, can be quickly set aside. The commissioner’s ruling was on December 17, 1996. The petition for review was filed on December 27, 1996. As we recently explained in Zito v. General Dynamics Corp., 3478 CRB-8-96-11 (July 9, 1997), Practice Book § 4010 makes it clear that § 31-301(a)’s ten-day time limit for filing an appeal should not be calculated by counting the date of the decision itself. The claimant had until December 27, 1996 to file his appeal, and that was accomplished.

The second ground of the Motion to Dismiss, lack of an appealable final judgment, also fails to persuade this review panel. Section 31-301(a) allows an appeal to be filed to the CRB after an award, a “decision by the commissioner upon a motion,” or after a § 31-299b order. Our Supreme Court has defined the term “motion” by looking at Practice Book § 197, which describes a motion as “any application to the court for an order, which application is to be acted upon by the court or any judge thereof . . . .” A similar definition in Black’s Law Dictionary referring to an application for the “purpose of obtaining a rule or order directing some act to be done” was also cited by the Court at the same time. Hall v. Gilbert & Bennett, 241 Conn. 282, 291-92 (1997).

Here, the claimant requested that the trial commissioner allow his union representative to present his case, and the commissioner ruled against him. In our opinion, that constitutes an appealable decision. See Hall, supra. Not allowing the claimant to be represented by the union staffer profoundly affected the manner in which he could present his case. If he were to lose on the merits, and then prevail on this issue on appeal, the entire case would have to be retried. Accordingly, we are inclined to deny the respondent’s Motion to Dismiss this appeal.

We now turn to the merits of the claimant’s argument. According to § 31-298 C.G.S., a party may appear at any hearing “either in person or by attorney or other accredited representative.” The term “accredited representative” is not defined by the Workers’ Compensation Act or the General Statutes, and Black’s Law Dictionary simply says, “[a]s respects service of process, [a] representative having general authority to act.” The claimant argues that the inclusion of this term in § 31-298 evinces a legislative intent to allow non-attorneys to represent parties in hearings before the Workers’ Compensation Commission. He cites Riccio v. Montano, 93 Conn. 289 (1919), as proof that this right has long been recognized by our courts.

We agree that the presence of the term “accredited representative” in § 31-298 indicates an intent to allow non-attorneys to represent parties in the workers’ compensation forum. However, we do not believe that an unqualified “right” for a given non-attorney to represent a claimant at a formal hearing has been established by our law. The Riccio case dealt with the admission of an insurance adjuster’s statement made before a commissioner while the parties in that case were attempting to get a voluntary agreement approved. The Supreme Court simply stated that the commissioner was entitled to rely on his statement because it was made by the insurance adjuster in a situation where, as an official representative of the defendants, he was entitled to represent them before the commissioner. Riccio, supra, 293. We do not read this as an endorsement of the principle that a party is entitled to have anyone at all represent it at a formal evidentiary hearing.

Instead, we believe that the instant matter is truly a case of first impression before this board. There does not appear to be any guidance in either case law or legislation as to what constitutes an “accredited representative.” As the trial commissioner is responsible for administering a workers’ compensation case under §§ 31-278 and 31-298, it thus falls upon him to determine whether a given person is qualified to represent a party in the proceedings before him. This would require the commissioner to examine the proposed representative at the outset of the case to determine if she has appropriate qualifications.

The first formal hearing in this case was held on July 2, 1996. The claimant was accompanied by Linda Passanisi, a staff representative from the Connecticut Employees Union Independent. The trial commissioner refused to let her represent the claimant at that formal hearing. The second formal hearing on October 22, 1996, saw a similar discourse take place. Passanisi again accompanied the claimant, and was told by the trier that she could assist the claimant, but could not represent him at the formal hearing. The commissioner indicated concern that the claimant would have no recourse to malpractice insurance should an error be made in presenting his case. Transcript, p. 4-5.

At the December 17, 1996 formal hearing, Joy Bylan, the staff director of the claimant’s union, appeared instead of Linda Passanisi. She argued that the union had the right to represent the claimant under § 31-298, especially given the leniency of the procedural rules in the workers’ compensation forum relative to the Superior Court. Transcript, p. 3-4. The commissioner indicated that it was within his discretion to decide whether she was “accredited” to represent the claimant in this case. He inquired as to Bylan’s training in the workers’ compensation area and her formal hearing experience. She stated that she had been working in the field for about 20 years, and had represented claimants at the formal hearing level before. She had some familiarity with the Connecticut General Statutes, but not the Rules of Practice.

The commissioner then asked her if the claimant would have any recourse, i.e. malpractice insurance, should she make a fatal mistake in presenting his case. She acknowledged that, unlike an attorney, who would have malpractice coverage, she did not provide such insurance. Similar to his decision regarding Passanisi, the trial commissioner ruled that Bylan could not represent the claimant at the formal hearing, although she could offer assistance to the claimant in discussions at counsel table.

We have noted that there were no formal standards that the trial commissioner could have referred to in determining whether the union staffers were “accredited representatives.” He was thus forced to craft his own guidelines for making that decision. Although he asked Joy Bylan several questions regarding her background before ruling that she could not act as the claimant’s representative, we cannot tell from the transcript if the trier relied on any factor aside from her lack of malpractice insurance in reaching that conclusion. Because legal malpractice insurance is usually reserved for attorneys, it would be incongruous for this board to hold that “accredited representative” is intended to permit non-attorney representation under § 31-298, and to hold at the same time that the absence of malpractice insurance can be the sole criterion for refusing to allow a non-attorney to represent a party in a workers’ compensation case.

Instead, we herein set forth the following procedure for determining whether one qualifies as an “accredited representative” under § 31-298. If a party seeks to use a non-attorney as a representative at a formal hearing, that party must make application to do so at the pre-formal hearing. The commissioner should then hold a second pre-formal hearing at which the person who seeks to become an “accredited representative” is present. At that proceeding, the commissioner should examine the proposed representative to assess her background, her expertise with workers’ compensation matters, her ability to understand the factual and legal issues of the instant case, and any other factors that the commissioner deems relevant to his determination. If it is the claimant who seeks to use non-attorney representation, the commissioner should also canvass him on the record to ensure that he is knowingly and intelligently waiving his right to representation by professional legal counsel, and that there may be no recourse available to him if the representation proves to be ineffective or inappropriate. The trier shall then make a decision as to whether the person before him is qualified to represent the applying party in that particular case. This decision shall be largely discretionary with the trial commissioner, and will not be overturned by this board absent a clear abuse of that discretion.

We therefore sustain the claimant’s appeal, and remand this matter to the Seventh District for a hearing in accordance with the procedure outlined above.