AUBIN v. UNION CITY STEEL, 03463 CRB-07-96-11 (5-14-1998)


CASE NO. 03463 CRB-07-96-11 CLAIM NO. 0700003045Workers’ Compensation Commission
MAY 14, 1998

The claimant was represented by Laurence Parnoff, Esq.

The respondent employer and Aetna Life Casualty were represented by Margaret Corrigan, Esq., Pomeranz, Drayton Stabnick.

The respondent employer and Hartford Insurance Group were represented by Joseph E. Skelly, Jr., Esq., Edward M. Henfey Associates.

The respondent employer and Travelers Insurance Co. were represented by Joseph Passaretti, Jr., Esq., Law Offices of Christine Harrigan.

These Petitions for Review from the May 9, 1997 Finding Re: Motion for Recusal and the November 1, 1996 Order of the Commissioner acting for the Seventh District were heard October 17, 1997 before a Compensation Review Board panel consisting of Commissioners James J. Metro, John A. Mastropietro and Stephen B. Delaney.



The claimant has petitioned for review from the May 9, 1997 Finding Re: Motion for Recusal by the Commissioner acting for the Seventh District, while the respondents have petitioned for review from the November 1, 1996 Order of that same commissioner. Essentially, this case concerns the simple issue of whether the trial commissioner erred by setting aside a dismissal order. We find no error, and affirm the trial commissioner’s decision.

The parties in this case were scheduled to appear at a formal hearing on August 15, 1996. The claimant did not appear at that formal hearing, and the trial commissioner granted the respondents’ motion to dismiss all of the claimant’s claims. On September 18, 1996, the claimant filed a motion to set aside the dismissal. The claimant’s attorney stated in the motion that he had notified the Workers’ Compensation Commission of his inability to attend that formal hearing sometime in late June, and that the other parties had not objected to rescheduling the hearing. Milagros Cividanes, an employee of the Hartford Administrative office, reportedly confirmed that the rescheduling had been approved by the Chairman.

The claimant argued that he did not immediately respond to his receipt of the Motion to Dismiss because he did not construe the document he received in the mail as a motion that had already been granted. He explained that, to the best of his belief, the rescheduling of the hearing had already been agreed to by one of the attorneys who signed the motion. He also did not believe that such a motion could be acted upon until an opportunity to be heard on the motion had been afforded. See November 1, 1996 Transcript, p. 11-12. The commissioner described the proceedings surrounding the motion to dismiss as “an unfortunate set of circumstances that led to miscommunication,” and granted the motion to set aside his dismissal of the case. Id., 14. The respondents appealed that decision. The claimant also filed a motion to recuse the trial commissioner which was heard on April 16, 1997, and subsequently denied on May 9, 1997. The claimant then petitioned for review from that decision.[1]

The respondents argue that the claimant did not appeal from the granting of the Motion to Dismiss within ten days from the date of the commissioner’s decision as prescribed by § 31-301 (a). Thus, they contend that this Commission no longer had jurisdiction to act any further in this matter. See O’Connor v. United Parcel Service, 13 Conn. Workers’ Comp. Rev. Op. 204, 206, 1741 CRB-4-93-5 (March 30, 1995). Under that reasoning, the trial commissioner would have been without jurisdiction to grant the claimant’s motion to set aside the dismissal of his claim. The respondents seek dismissal of all claims for benefits through the date of the August 15, 1996 formal hearing.

The facts of this case are almost identical to those in Murray v.Black Tie Limousine, 3306 CRB-3-96-3 (decided Aug. 21, 1997). There, a claimant’s attorney did not appear at a 1:00 formal hearing until 2:00 p.m., just after the trial commissioner had granted an oral Motion to Dismiss the claim. The claimant moved to reopen the dismissal more than a month after the formal finding and dismissal had been entered. The commissioner granted that motion despite the claimant’s failure to appeal within ten days of the written ruling. The respondents appealed to this board.

Upon review, we held that the term “award” in § 31-315 C.G.S. encompasses a dismissal order, and that said statute authorizes a commissioner to entertain a motion to set aside a dismissal order as per Practice Book § 377 (which allows a judgment rendered upon a default or nonsuit to be set aside within four months of the date notice of the decision was sent) and § 52-212 C.G.S. The trial commissioner in Murray
did not find that the claimant’s counsel was negligent in failing to show up at the proper time for the formal hearing, and this board was not required to read negligence into that circumstance. It was reasonable for the trial commissioner to conclude that counsel’s tardiness was a reasonable mistake, and to allow him to present the case on the merits in the remedial spirit of the Workers’ Compensation Act. Id.

Our decision in Murray clearly controls the instant case. The commissioner did not act outside the bounds of his authority in granting a motion to set aside a dismissal order that was predicated upon the claimant’s absence at a formal hearing. At the oral argument on the motion to set aside, the commissioner stated that the Motion to Dismiss was based on a “miscommunication,” and opted to set aside the dismissal of the claimant’s claims. It was within his discretion to take that course of action. As we discussed in Murray, the remedial spirit of Chapter 568 favors such a result, and § 31-315 allows a commissioner to set aside a dismissal order in the same manner he would be allowed to reopen and modify an award. The claimant’s motion to set aside the dismissal order was proper, and the commissioner was entitled to entertain it.

The trial commissioner’s decision is hereby affirmed.

Commissioners John A. Mastropietro and Stephen B. Delaney concur.

[1] The trial commissioner whose potential recusal was at issue in this case has since resigned from the Workers’ Compensation Commission. Thus, this issue is moot, as the case would not be remanded to him.