CHUNG v. WAL-MART STORES, NO. 4474 CRB-2-02-1 (11-13-2002)

PATRICIA CHUNG CLAIMANT-APPELLEE v. WAL-MART STORES, INC., EMPLOYER CLAIMS MANAGEMENT, INC., INSURER RESPONDENTS-APPELLANTS

CASE NO. 4474 CRB-2-02-1, CLAIM NO. 200135941Compensation Review Board WORKERS’ COMPENSATION COMMISSION
NOVEMBER 13, 2002

The claimant was represented by Brian K. Estep, Esq., and Ralph Monaco, Esq., both of Conway Londregan, P.C., 38 Huntington Street, P.O. Box 1351, New London, CT 06320-1351. The respondents Wal-Mart Stores and Claims Management, Inc., were represented by Nicholas Varunes, Esq., of Kenny, Brimmer, Melley Mahoney, Attorneys at Law, Five Grand Street, Hartford, CT 06106-1505.

This Petition for Review from the December 27, 2001 Order of the Commissioner acting for the Second District was heard June 21, 2002 before a Compensation Review Board panel consisting of Chairman John A. Mastropietro, and Commissioners Donald H. Doyle, Jr., and Amado J. Vargas.

OPINION
JOHN A. MASTROPIETRO, CHAIRMAN.

The respondents appeal from the Commissioner acting for the Second District’s December 27, 2001 Order. In that Order the trial commissioner, inter alia, levied a fine in the amount of $500 pursuant to § 31-288 (b)(2) on the basis of their failure to appear[1] at an informal hearing.

The ultimate issue presented for review is whether the trial commissioner erred in assessing a fine against the respondents for their failure to appear at an informal hearing held December 19, 2001. The underlying facts are that a notice was issued December 11, 2001 by the Second District stating that an informal hearing in this matter would be held December 19, 2001. Respondents-Appellants’ counsel asserts in their brief before this panel that it did not receive notice of the informal hearing until December 21, 2001, two days after the hearing was held. On December 27, 2001, the commissioner issued an order assessing a fine on the basis of the respondents’ failure to appear.

While we have no reason to doubt the validity of respondents’ counsel’s assertions, we believe that they are assertions which are more properly presented to the trial commissioner. Our review of this matter indicates that the respondents appealed the trier’s December 27, 2001 Order and it appears that the respondents have not had an opportunity to be heard on the issue of a sanction for failure to appear. This tribunal has held that without an evidentiary record we are unable to engage in a meaningful review on appeal. Hashmi v. Dan’s Shell of West Hartford, 4524 CRB-1-02-5 (May 30, 2002); Mele v. Hartford, 4453 CRB-1-01-9 (November 30, 2001); Judkins v. Michael Streckfus Co., 4072 CRB-8-99-6 (August 9, 2000).[2]

We also note that in their appeal the respondents challenged the legal validity of the commissioner’s imposition of the fine on the basis that the informal hearing notice did not comply with the requirements set out in § 31-297, i.e. that a party be given at least 10 days notice prior to the scheduled date of the hearing. However, § 31-297 also provides that a commissioner may have a hearing with less than 10 days notice provided the commissioner finds emergency circumstances exist. Further, pursuant to § 31-297 in the event emergency circumstances are found, the commissioner must give notice to the parties that the commissioner “finds reasonable under the circumstances.”[3]

The respondents contend they did not receive notice of the scheduled December 19, 2001 informal hearing until two days after the hearing took place and thus, we need not address the appropriateness of the trier’s exercise of her discretion in waiving the ten day hearing notice requirement until such time as a record is presented and such facts are in evidence.[4] However, we remind the respondents that § 31-297
does provide a commissioner with such discretionary power. See Soares v.Glass Industries, 12 Conn. Workers’ Comp.Rev.Op. 189, 1377 CRB-3-92-1
(May 4, 1994) (CRB upheld trier’s failure to give 10 days notice of a hearing where the trier found the claimant had six dependent children and was in dire financial straits.)

We therefore reverse the trial commissioner’s December 27, 2002 Order insofar as it imposes a fine pursuant to § 31-288 (b)(2) for failure to appear at an informal hearing and remand for further proceedings so as to provide the respondents with an opportunity to be heard on this issue.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

CERTIFICATIONTHIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 13th day of November 2002 to the following parties:

PATRICIA CHUNG

BRIAN K. ESTEP, ESQ.

RALPH MONACO, ESQ. 7099 3400 0008 5539 1438

WAL-MART STORES, INCORPORATED

NICHOLAS VARUNES, ESQ. 7099 3400 0008 5539 1414

__________________ Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission

[1] We note that the trial commissioner also made various orders relating to further medical testing. At oral argument the respondents withdrew their appeal of the issue relating to that part of the trier’s order. Additionally, we note that subsequent to oral argument the trial commissioner on October 8, 2002 issued a Finding and Dismissal in this matter.

[2] Ordinarily as the cases referred to above reflect, where this tribunal is not provided with an adequate record to review, e.g., the appeal is taken from a ruling following an informal hearing and no transcripts or exhibits exist, oral argument is not scheduled and the matters are summarily remanded to the trial commissioner for a formal hearing or other appropriate action. However, on the basis of the preliminary papers submitted by the respondents-appellants, an issue was identified suggesting that the appellants were raising an issue that could arguably result in the Compensation Review Board’s exercising its interlocutory appellate review powers. For this reason oral argument was scheduled. It was not until oral argument that the appellants withdrew this particular issue, and oral argument went forward on the remaining issues presented.

[3] Sec. 31-297 provides in pertinent part:

If an employer and his injured employee, or his legal representative, as the case may be, fail to reach an agreement m regard to compensation under the provisions of this chapter, either party may notify the commissioner of the failure. Upon such notice, or upon the knowledge that an agreement has not been reached in a case in which a right to compensation may exist, the commissioner shall schedule an early hearing upon the matter, giving both parties notice of time and place not less than ten days prior to the scheduled date; provided the commissioner may, on finding an emergency to exist, give such notice as he finds reasonable under the circumstances.

[4] It may well be that if the trial commissioner finds that the respondents did not receive notice of the December 19, 2001 informal hearing then she may vacate that part of her December 27, 2001 Order imposing a fine on the respondents for failure to appear at the informal hearing.