State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Pietraroia v. Northeast Utilities

CASE NO. 3838 CRB-08-98-06



AUGUST 18, 1999


























The claimant was represented by Amy M. Stone, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P. O. Drawer 929, Groton, CT 06340.

The respondent employer was represented by Robert Enright, Esq., McGann, Bartlett, & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

The respondent employer and Travelers Insurance Co. were not represented at oral argument. Notice sent to Theodore M. Pappas, Esq., Law Offices of Scott B. Clendaniel, One Civic Center Plaza, P. O. Box 2138, Hartford, CT 06145-2138.

The respondent employer and Hartford Insurance Group were represented by Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

The respondent employer and Liberty Mutual Ins. Co. were represented by Nancy Rosenbaum, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

The Second Injury Fund was not represented at oral argument. Notice sent to Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 5, 1998 Ruling on Motion to Dismiss of the Commissioner acting for the Eighth District was heard February 26, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.


JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 5, 1998 Ruling on Motion to Dismiss of the Commissioner acting for the Eighth District. He argues on appeal that the trial commissioner erred by dismissing his workers’ compensation claim with prejudice after the claimant declined to travel to Connecticut from Australia in order to testify. We affirm the trial commissioner’s decision.

The early history of this case was set forth in a previous decision of this board, Pietraroia v. Northeast Utilities, 3597 CRB-8-97-4 (Sept. 8, 1997), which we will recapitulate here. No facts have been found in this matter to date, but the claimant alleges that he worked for the respondent employer from 1956 to 1972, and that he was exposed to asbestos during that time. He then emigrated to Australia, where he worked as a winegrower (“vigneron”) before he became totally disabled in April 1993 due to pulmonary pathology. The claimant seeks temporary total disability benefits and compensation for a permanent partial impairment of his lungs. He also contends that, due to his age and infirmity, he is unable to fly to Connecticut to testify and to submit to a medical examination.

Early in 1997, the trial commissioner denied the claimant’s request for permission to testify electronically, and granted a motion by the respondents to stay the proceedings until the claimant appeared at a pre-trial deposition, an independent medical examination, and ultimately a formal hearing where he could testify in person. The trier also stated that the claimant’s failure to make himself available by September 1, 1997 “absent good cause may result in a mistrial.” Pietraroia, supra. The claimant petitioned for review from that order, and this board affirmed the trial commissioner’s ruling. We noted the broad discretion of the trial commissioner to determine the admissibility of evidence under § 31-298, and observed that the constitutional protections regarding due process apply not just to claimants, but to all parties in workers’ compensation proceedings:

In protecting the substantive rights of all the parties, a trial commissioner must adapt the form and procedure of any given case to the circumstances that confront him or her, within the limits of Chapter 568. See McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 342, 2050 CRB-3-94-5 (Sept. 20, 1995), affirmed, 43 Conn. App. 912 (1996) (per curiam). The trier proceeds as far as is possible in accordance with the rules of equity as per § 31-298. It is no more fair to prohibit a respondent from personally confronting a claimant seeking redress than it would be to prevent a claimant from being able to confront a doctor who reports that said claimant has fabricated his alleged disability. The claimant, by bringing an action in this forum, submits to the jurisdiction of the trial commissioner, and must adhere to the decisions he or she makes regarding the optimum manner in which the facts should be found. As such, a trial commissioner is entitled to require a claimant to personally appear before him and to submit to the examination of a Connecticut physician if he or she believes it is necessary for the respondents to have a fair opportunity to defend their interests in a given case.

As the claimant had offered no concrete proof that he was unable to travel from Australia, and the trier had left open the possibility that the claimant might be able to show “good cause” why he could not attend proceedings in Connecticut, we held that the trier committed no error by ordering the claimant to appear personally.

The respondents moved for a mistrial and an order of dismissal from the trial commissioner on February 12, 1998. Several days later, the claimant filed an objection, and requested that the formal hearing be continued to a “date certain” in May 1998 on the strength of his representation that he had decided to come to Connecticut to pursue his claim after all. The claimant alleges that these around-the-world travel arrangements were made contrary to the recommendations of his physician, Dr. Ann Matthews. This Commission scheduled a formal hearing for May 8, 1998, and the respondents scheduled a deposition and a medical examination in proximity to that date. However, on April 23, 1998, the claimant wrote a letter to counsel stating that his health had deteriorated, and that he was going to cancel his trip.

On May 7, 1998, the respondents again moved to dismiss the case, stating that they had seen nothing in writing to support the claimant’s assertion that he was too ill to travel abroad. When the formal hearing was reconvened the next day, the claimant’s counsel offered 58 exhibits into evidence, and represented that her client would be willing to submit to written interrogatories under oath. Transcript, p. 3. The respondents objected to the admissibility of the claimant’s documents, and to the fact that the medical report supporting the claimant’s illness had not been disclosed to any of the respondents in advance of the formal hearing. The respondents reasserted their request to dismiss, and the commissioner gave the claimant until June 1, 1998 to object to that motion, which the claimant did on May 29, 1998. The trier nonetheless dismissed the case with prejudice one week later “for the reasons stated in the Respondent’s Motion to Dismiss.” He also denied a request for articulation of that decision, which motion the claimant filed in conjunction with this appeal.

The claimant argues that the trier’s decision must be reversed because the Workers’ Compensation Act does not grant a commissioner the authority to dismiss a case with prejudice on purely procedural grounds. He cites Gonirenki v. American Steel & Wire Co., 106 Conn. 1 (1927), and Poventud v. Eagle Four, 6 Conn. Workers’ Comp. Rev. Op. 72, 775 CRD-5-88-10 (Dec. 30, 1988), as authority for his position. In Gonirenki, a commissioner denied a respondent’s motion to reopen and modify an award, stating that the arguments made in the respondent’s motion constituted facially insufficient grounds for reversal. The Supreme Court ruled that the commissioner should have afforded the respondent an opportunity to be heard on the merits of its motion, because the motion alleged facts that, if true, would have entitled the respondent to the relief it sought. “The respondent has not had its day in court. Any disposition of a motion of this character without giving the mover or petitioner an opportunity to be heard on the merits will, on appeal, be regarded as procedure prejudicial to the rights of the mover or petitioner . . . .” Id., 9. Unlike the instant case, in which formal hearings were scheduled, the commissioner in Gonirenki did not afford the moving party a chance to present argument on its motion.

Poventud, meanwhile, focused on the streamlined procedures of Chapter 568 in holding that a trial commissioner was not required to address a respondents’ Motion in Limine1 where the respondents could simply object to the admissibility of the evidence in question at the time of trial. This board declined to add a new pleading to the list of motions permitted in workers’ compensation proceedings, as there was no statutory, regulatory or due process basis for the filing of a Motion in Limine—contrary to the more solid foundation for certain other discovery motions, or motions to dismiss. Id., 73. In short, neither Gonirenki nor Poventud holds that a trial commissioner cannot grant a motion to dismiss a claim for procedural reasons. Those cases concern different issues, and are essentially inapplicable to the matter at hand.

Section 31-298 states that, in all cases and hearings under the Act, “the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” Section 31-278 gives each commissioner the authority to summon witnesses and examine them under oath, and grants him “all powers necessary to enable him to perform the duties imposed upon him by the provisions of this chapter.” These statutes entitle a trial commissioner to determine the manner in which evidence will be taken in a workers’ compensation case, and to make rulings concerning the failure of parties to comply with his reasonable requests.

Here, the trial commissioner requested that the claimant personally attend a formal hearing so that his testimony could be recorded in the trier’s presence. Such a request is directly traceable to his quasi-judicial authority under § 31-278. Formal hearings were scheduled, and when the claimant failed to appear at those hearings, the trial commissioner granted the respondents’ motion to dismiss the instant claim. Notably, this procedure is consistent with Practice Book § 13-14, which states “if a party . . . has failed to appear and testify at a deposition duly noticed pursuant to this chapter, or has failed otherwise substantially to comply with any other discovery order made pursuant to Sections 13-6 through 13-11, the judicial authority may, on motion, . . . [i]f the party failing to comply is the plaintiff, [enter] a judgment of dismissal.”

The issuance of the instant dismissal order also calls to mind the procedure advocated by this board in Golanski v. Town of Wallingford/Board of Education, 3334 CRB-8-96-4 (Feb. 2, 1998), where we held that a trial commissioner who dismissed a claimant’s claim on account of his failure to attend formal hearings should have done so unconditionally rather than “without prejudice.” The panel wrote, “The claimant’s attorney attempted to introduce evidence in support of his case, which was not admitted because of an insufficient evidentiary foundation. Nonetheless, the formal hearing was still a trial on the merits. . . . The claimant simply did not meet his burden of proof, and the commissioner should have issued a dismissal order.” Id. Just as in Golanski, the trier here ordered the claimant’s exhibits marked for identification, but declined to accept them as full exhibits without corroborating testimony by the claimant. As a result, the claim was dismissed. See also, Santora v. A.C.E.S., 2299 CRB-3-95-11 (Feb. 26, 1997).

The trier’s dismissal order references as the basis of its decision the respondents’ Motion to Dismiss, which asserts that the claimant had not provided any documentary support for his assertion of ill health prior to the May 8, 1998 formal hearing. At the hearing, the claimant’s counsel offered a letter from Dr. Leonello that corroborated the claimant’s assertion of infirmity. However, one of the other attorneys correctly pointed out that, according to the doctor’s letter, the claimant cancelled his trip of his own volition, and afterward apparently sought confirmation of his decision from a doctor. See Transcript, p. 6. Also, this letter was not provided to the other parties prior to the hearing, which gave them no opportunity to review it or prepare a response. Id., p. 4.

The trier is, of course, the sole arbiter of the credibility of witnesses, and was obligated to apply his fact-finding discretion in deciding whether the claimant’s reasons for not attending the formal hearing were valid. Powers v. Hotel Bond Co., 89 Conn. 143, 153 (1915); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). It is apparent from the record that the trier did not believe the claimant had adequately established that he was unable to travel to the United States to pursue his claim, and consequently dismissed the case. Such an action was the trier’s prerogative, and should not be confused with a deprivation of the claimant’s constitutional right of access to the courts pursuant to the privileges and immunities clause of the federal and state constitutions, nor should it be labeled a denial of due process because willful non-compliance was not proven by the respondents.

The trial commissioner was legally entitled to require the claimant to make himself available in Connecticut during the presentation of his case. He attempted to accommodate the claimant’s needs several times by delaying proceedings, and left the door open for the claimant to show that he was medically unable to return to this country. The claimant did not appear, and did not provide medical documentation establishing that he could not appear. The trier thus determined that the claimant had not demonstrated that he was unable to comply with the trier’s discovery requirements, and he accordingly dismissed the claimant’s claim. We perceive no abuse of discretion in his decision. See Bailey v. State of Connecticut/Greater Hartford Community College, 3694 CRB-1-97-9 (Jan. 12, 1999) (trial commissioner oversees proceedings, and must use own judgment in deciding whether a party has proceeded with proper diligence in pursuing claim).

Thus, we hereby affirm the trial commissioner’s decision.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 The Poventud panel noted that a Motion in Limine is defined by Black’s Law Dictionary as “[A] written motion which is usually made before or after the beginning of a jury trial for a protective order against prejudicial questions and statements.” Poventud, supra, 73. The panel went on to describe it as “a preliminary trial motion arguably permitted in Connecticut courts” under the Practice Book, but one of seriously questionable appropriateness in the workers’ compensation forum. Id. BACK TO TEXT

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