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Valiante v. Burns Construction Company

CASE NO. 5393 CRB-4-08-11



OCTOBER 15, 2009











The claimant was represented by Daniel Skuret, Esq., Law Offices of Daniel D. Skuret, 215 Division Street, P.O. Box 158, Ansonia, CT 06401-0158.

The respondents were represented by Timothy Ward, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the October 27, 2008 Order of the Commissioner acting for the Fourth District was heard April 24, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.


JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from an Order issued by the trial commissioner directing that a claims adjuster be subject to a deposition. The respondents argue that this in some fashion violates their due process rights. We find no merit in the respondents’ arguments, and affirm the order of the trial commissioner.

The genesis of this dispute occurred when counsel for the claimant alleged that the respondents had engaged in undue delay and unreasonable contest. In preparation for a hearing on this issue counsel for the claimant noticed a deposition of a claims adjuster for ACE USA insurance, Ann McCants. Counsel for the respondent filed for a protective order and a Motion to Quash the subpoena. Following those developments the trial commissioner issued a notice, dated October 2, 2007 for the parties to attend an Emergency Formal hearing on October 16, 2007. The hearing notice referenced § 31-288(a) C.G.S. § 31-288(b) C.G.S. and § 31-300 C.G.S. among other statutes. The hearing did not specifically reference the claimant’s discovery requests.

That issue was addressed at the commencement of the October 16, 2007 formal hearing. The trial commissioner made the following statement on the record.

I just want to make a statement for the record preliminary as far as housekeeping. The notice, as I stated, was issued on October 2, 2007 for today’s formal; and as the parties have a copy of that notice, there’s various issues listed for today’s formal. We had brief discussion off the record. Essentially what this case was set down for today’s formal by myself was in regard to the claimant’s request to take the deposition of the respondent adjuster in this case. That exactly is not spelled out in the notice for today’s formal.
So the purpose on going forward today on the record is to spell out to the parties that I’m going to reconvene this formal for approximately two weeks and the next time we reconvene the formal, it’s going to be for the sole issue of the claimant’s request to take the respondent adjuster deposition. And then at a later date we will address the other listed issues.

October 16, 2007 Transcript, pp. 2-3.

The next formal hearing was held on January 28, 2008. While the hearing notice for that hearing did not specifically reference the issue of holding a deposition; once again the trial commissioner went on the record to confirm the parties were prepared to go forward on that issue.

Also I think it needs to be stated that the underlying issues in this case that give rise to the claimant’s request to take the deposition of the adjuster in this case are noticed for today’s formal as they have been in the past. I just want to make it clear the only issue for today’s formal though is claimant’s request to take the deposition. All these other issues are still claimed, they’re not going to be argued as part of this formal.
Any disagreement with that, Attorney Skuret?
MR. SKURET: No, just to take the deposition and production of documents as your Honor I think indicated.
MR. WARD: No, no disagreement with that.

January 28, 2008 Transcript, pp. 3-4.

On October 27, 2008 the trial commissioner ordered that the deposition of Ms. McCants take place. Following the denial of a Motion to Correct, the respondents appealed this order.

Notwithstanding the fact that their counsel acknowledged on the record that he was aware of the issues under consideration by the trial commissioner, and consented to the commissioner proceeding at that time, the respondents have appealed arguing they had inadequate notice of the issues under consideration. This argument is unmeritorious.

The legal argument presented by the respondents appears rather wide ranging and amorphous, and alleges that the claimant has failed to properly define the issues under consideration pertaining to undue delay and unreasonable contest. For the purposes of this appeal these arguments are irrelevant. The only relief ordered by the trial commissioner was ordering the deposition of the respondent’s claim adjuster. We will limit our consideration to that single issue presently under appeal.

In order to prevail on appeal, the respondents would need to establish that the trial commissioner’s order was improper for one of the following reasons.

In the present case, none of these arguments present a legitimate ground for appeal. On the issue of notice, we find that the trial commissioner twice specifically stated on the record what the purpose of the formal hearing was, and indeed, continued the Formal Hearing to a later date presumably to provide the respondents an opportunity to present a defense. Any confusion as to the scope of the issues and the remedy under consideration by the tribunal was clearly resolved on the record prior to the conclusion of the formal hearing. Therefore, the respondents’ citation of Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999) is off-base. The scope of the relief under consideration in the present case was acknowledged by both parties and indeed, it appears that counsel for the respondent is raising a notice argument on appeal after waiving it in open court.1

The legal standard herein was stated in Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001). “[N]otice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed. . . .” In Mosman we further stated “we also recognize that a party may be apprised that a given claim is at issue by other means, such as the statement of the parties at trial, the evidence they have introduced, or the papers they have filed” Id. Clearly, the trial commissioner fulfilled this requirement by his statements at the hearing.

The respondents then challenge the legal authority for ordering a deposition, asserting that the trial commissioner must seek the intervention of the Superior Court in ordering a deposition. This argument is inconsistent with the plain language of the statutes empowering trial commissioners to conduct hearings. It also ignores the quasi-judicial powers of this Commission which have been recognized by the Supreme Court since the decision in Powers v. Hotel Bond Co., 89 Conn. 143 (1915).

On appeal, we must apply the “plain meaning” of the various statutes empowering trial commissioners. See § 1-2z C.G.S. The plain meaning of § 31-287 C.G.S. and § 31-298 C.G.S. provide a broad grant of authority for a trial commissioner to “run one’s own courtroom” which we have previously held “goes directly to the core powers of this Commission to adjudicate claims.” Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008).

Returning to the plain meaning of the statutes, the relevant terms of § 31-278 C.G.S. states as follows:

Each commissioner shall, for the purposes of this chapter, have power to summon and examine under oath such witnesses, and may direct the production of, and examine or cause to be produced or examined, such books, records, vouchers, memoranda, documents, letters, contracts or other papers in relation to any matter at issue as he may find proper, and shall have the same powers in reference thereto as are vested in magistrates taking depositions and shall have the power to order depositions pursuant to section 52-148.2

The relevant terms of § 31-298 C.G.S. states as follows:

Both parties may appear at any hearing, either in person or by attorney or other accredited representative, and no formal pleadings shall be required, beyond any informal notices that the commission approves. In all cases and hearings under the provisions of this chapter, 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. No fees shall be charged to either party by the commissioner in connection with any hearing or other procedure, but the commissioner shall furnish at cost (1) certified copies of any testimony, award or other matter which may be of record in his office, and (2) duplicates of audio cassette recordings of any formal hearings. Witnesses subpoenaed by the commissioner shall be allowed the fees and traveling expenses that are allowed in civil actions, to be paid by the party in whose interest the witnesses are subpoenaed.

Given the plain meaning of these statutes, it appears self-evident to this panel that the General Assembly has specifically empowered trial commissioners to order depositions as part of their broad powers to compel production of whatever evidence they deem necessary for the adjudication of claims before this commission. The authority cited by the respondents purporting to limit the statutory authority of trial commissioners to compel deposition predates the enactment of § 1-2 z C.G.S. and in any event, does not appear to directly address the issue on appeal.3 4

We also note that this panel upheld the power of the trial commissioner to order a party to attend a deposition in Pietraroia v. Northeast Utilities, 3597 CRB-8-97-4 (September 8, 1997), noting “[i]f anything, a workers’ compensation commissioner is entitled to go beyond what the statutory rules of evidence allow in determining what evidence should be admitted in a compensation proceeding.” The Supreme Court overruled this panel on other grounds, finding this decision was an abuse of discretion as it sought to dismiss a claim with prejudice if the claimant (who lived in Australia) failed to attend a hearing in the State of Connecticut. Pietraroia v. Northeast Utilities, 254 Conn. 60 (2000). While the Supreme Court in its Pietraroia decision directed the Commission to find a less burdensome means to obtain the claimant’s testimony and medical examination, the Supreme Court did not question the power of a trial commissioner to order a party to submit to discovery. Indeed the Supreme Court suggested that the ability of a party to notice a deposition was part of the “substantial rights of the parties.” Id., at 72.5

The respondents finally argue that the trial commissioner committed legal error herein by approving the deposition. In their opinion, the trial commissioner was obligated to offer a detailed response either granting or denying the numerous objections and proposed protective orders interposed by the respondent. They believe this failure constitutes an abuse of discretion. We disagree.

On a factual basis, we note that these issues were the subject of the respondents Motion to Correct. The trial commissioner denied this Motion and we may infer that he found none of the requests meritorious. This is the last word on the subject, especially as the respondents failed to seek an articulation of the trial commissioner’s reasoning. On legal grounds, however, we query whether the commissioner needed to more fully explain his rationale for denial. The objections interposed by the respondents were akin to those interposed by parties in civil litigation. Since trial commissioners, by statute, are not “bound by the ordinary common law or statutory rules of evidence or procedure,” see § 31-298 C.G.S.; we are puzzled as to why the respondents rely on such cases as Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168 (2005) which involve discovery disputes in civil litigation.

This Commission’s case law has been unequivocal. “Our case law clearly states, ‘a trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aside absent a clear abuse of that discretion.’ Lamontagne” [v. F & F Concrete Corp., 5198 CRB-4-07-2 (February 25, 2008)]. Keeney v. Laidlaw Transportation, 5199 CRB-2-07-2 (May 21, 2008). See also Mosman, supra, and Vetre v. State/Dept. of Children and Youth Services, 3443 CRB-6-96-10 (January 16, 1998) which states that “[d]ecisions regarding the relevance and remoteness of evidence in workers’ compensation proceedings fall solely within the discretion of the trier of fact.”

The trial commissioner was the person in the best position to judge whether a deposition of the respondent’s claims adjuster was necessary in this case. The respondents’ efforts to raise arcane legal arguments may contribute heat to these discussions; but shed no light on why the trial commissioner’s decision constituted an abuse of his discretion.6 This panel cannot overturn what is essentially a finding of fact that the deposition of Ms. McCants is necessary in this matter.

There is no error. The trial commissioner’s Order is affirmed and this appeal is dismissed.

Commissioners Peter C. Mlynarzyck and Randy L. Cohen concur in this opinion.

1 The respondents’ citation of LaPia v. Stratford, 47 Conn. App. 391 (1997) on the issue of notice is inapposite. LaPia involved an award granted after an ex parte order. The trial commissioner’s statements at the commencement of the formal hearing in this case clearly allowed both parties “sufficient time to prepare themselves upon the issue.” Id., at 400. BACK TO TEXT

2 This specific statute has been replaced. The current statutes governing depositions in civil actions are § 52-148a C.G.S. through § 52-159 C.G.S. et seq. Nothing in the present statutes is in derogation of the enumerated powers in § 31-278 C.G.S. or § 31-298 C.G.S. BACK TO TEXT

3 Citing Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001), the respondents raise the argument that this decision by the trial commissioner promotes “piecemeal litigation.” A similar argument was raised by the appellant and rejected by this panel in Martinez-McCord v. State/Judicial Branch, 5055 CRB-7-06-2 (February 1, 2007); as we upheld the decision of a trial commissioner to bifurcate proceedings at their discretion. BACK TO TEXT

4 The respondents cite § 51-85 C.G.S. as empowering attorneys to seek redress in the Superior Court for enforcement of subpoenas. This statute does not reference this Commission nor do the respondents address the empowerment of trial commissioners to act as “Magistrates” under § 31-278 C.G.S. We find the respondents’ argument unpersuasive since it is long-standing precedent that “[i]n [reservations] arising under workers’ compensation law, we must resolve statutory ambiguities or lacunae in a manner which will further the remedial purpose of the act.” Mello v. Big Y Foods, Inc., 265 Conn. 21, 25-26 (2003). BACK TO TEXT

5 The record indicates Ms. McCants’s office is in Windsor, Connecticut. Finding, ¶ 1. Therefore, the one factor that led the Supreme Court to place a limitation on a commissioner’s power to order discovery in Pietraroia v. Northeast Utilities, 254 Conn. 60 (2000) (the existence of a onerous burden on the claimant) is simply not present in this case. BACK TO TEXT

6 We find the respondents’ argument that the claimant needed to delineate all his claims for undue delay before a deposition of the claim adjuster could be ordered a compelling example of circular reasoning. Presumably, if the claimant was in possession of all the evidence he needed to proceed, a deposition would be superfluous. BACK TO TEXT


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   Connecticut Workers' Compensation Commission.

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   information is now located at our NEW site: