Hicking v. State of Connecticut Department of Correction

The claimant was represented by Ralph A. Russo, Esq., 49 Welles Street, Suite 212, Glastonbury, CT 06033.

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review was filed from the November 4, 2005 Finding and Award of the Commissioner acting for the Second District and was heard May 19, 2006 before a Compensation Review Board panel consisting of Commissioners Nancy E. Salerno, A. Thomas White, Jr. and Amado J. Vargas.

OPINION

NANCY E. SALERNO, COMMISSIONER. The Respondent appeals from the November 4, 2005 Finding and Award of the Commissioner acting for the Second District. In that Finding and Award the commissioner concluded the claimant’s left knee replacement was causally related to her July 13, 2002 compensable injury and that she was totally disabled from November 17, 2004 until her return to work in a recuperative post with the respondent employer. Additionally, the trier found, “The respondents have unreasonably contested liability for the claimant’s claim and have continuously sought to relitigate issues previously decided and refuse to capitulate despite an independent medical examiner’s opinion directly contrary to their position.” Finding ¶ E. The trier awarded attorney’s fees based on the respondent’s unreasonable contest.

The procedural history of this appeal begins with the trial commissioner’s May 6, 2004 Finding and Award in which he concluded that claimant’s complaints relating to her left knee were causally related to her July 13, 2002 compensable injury. Presumably, believing it was aggrieved by the trier’s decision, the respondent filed an appeal. The appeal was heard by this board and the May 6, 2004 Finding and Award was affirmed in the CRB’s opinion in Hicking v. State/Department of Correction, 4825 CRB-2-04-6 (July 14, 2005) [hereafter Hicking I].

While the aforementioned appeal was pending before the CRB, the claimant requested payments pending appeal pursuant to § 31-301(f). On April 5, 2005 (after oral argument in the appeal on the merits was heard) the commissioner issued a Finding and Award ordering the respondent to pay benefits pursuant to § 31-301(f). The respondent appealed from this ruling as well. Despite the CRB’s opinion and holding in Hicking I and the apparent mootness of the issue raised, the respondent pursued the appeal. The claimant appellee moved to dismiss the appeal on the basis that the issue presented for review was moot. In our opinion in Hicking v. State/Department of Correction, 4935 CRB-2-05-4 (April 10, 2006) [hereafter Hicking II], we concurred with the appellee’s contention and dismissed the respondent’s appeal. In Hicking II, note 4, we also noted, “Respondent may claim in a 31-301(f) proceeding it was proper to preserve the original issues in dispute for review since the original finding and award was on appeal. This rationale was extinguished when the original Finding and Award was upheld on appeal. Nonetheless, respondent did not withdraw this appeal after it was rendered moot, and indeed pursued a futile CRB hearing on the appeal.”

Additionally, we referenced and compared the appellant’s filings in Hicking II with those of Hicking I and found “A comparison of the Motion to Correct denied by the trial commissioner on April 21, 2005 with the Motion to Correct denied by the trial commissioner on June 22, 2004 reveals these motions simply revisit the same issues all over again. Respondent simply attempted to retry the medical evidence supportive of the claimant which the trial commissioner previously found credible.” (footnote omitted).

Having lost on the merits and on appeal once, the appellant renewed the same arguments in a second appeal and the matter was dismissed. The respondent appears before this tribunal a third time. In this appearance the respondent argues it is aggrieved by the trier’s conclusion in the November 4, 2005 Finding and Award insofar as it was found to have unreasonably contested the instant claim.1

A conclusion that the respondent unreasonably contested a claim is a matter that is dependent upon the facts found by the commissioner. See e.g., Colon v. CEI Bottling & Distribution Co., 4470 CRB-3-01-12 (November 12, 2002). We will not disturb such conclusions unless they are based on unreasonable or impermissible factual inferences, without evidence or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). We find no error.

While the respondent filed a Motion To Correct in the instant matter, we note that the record before us appears to be incomplete. The only transcript provided which relates to the issue for this appeal is for a formal hearing session conducted May 31, 2005. The trial commissioner’s November 4, 2005 Finding and Award indicates that at least two other formal hearing sessions were held.2 With only a partial transcript record, we cannot adequately review the appropriateness of the commissioner’s findings. Mackiewicz v. Aetna Life & Casualty, 4558 CRB-8-02-8 (August 14, 2003). Thus, we have no basis for disturbing the findings of the trial commissioner.

We therefore affirm the November 4, 2005 Finding and Award of the Commissioner acting for the Second District.

Commissioners A. Thomas White, Jr., and Amado J. Vargas concur.

1 We note the appellant did not file its Reasons of Appeal. Our belief that the only issue presented for review is the legal appropriateness of the commissioner’s conclusion that the respondent unreasonably contested this matter is based on the appellant’s statement in its brief. See Appellant’s Brief, p. 2. BACK TO TEXT

2 It appears the two other formal hearing sessions were held August 2, 2005 and September 20, 2005. BACK TO TEXT