AULENTI v. DARIEN, NO. 4571 CRB-7-02-9 (9-5-2003)


CASE NO. 4571 CRB-7-02-9 CLAIM NO. 700129228Compensation Review Board WORKERS’ COMPENSATION COMMISSION

The claimant was represented by Louis Ciccarello, Esq., Lovejoy
Rimer, P.C., 65 East Avenue, P.O. Box 390, Norwalk, CT 06852-0390.

The respondents were represented by Colette S. Gladstone, Esq., Howd Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114-1190.

This Petition for Review from the September 6, 2002 Order Re: Motion to Preclude of the Commissioner acting for the Seventh District was heard March 28, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.


The respondents have petitioned for review from the September 6, 2002 Order Re: Claimant’s Motion to Preclude that was made by the Commissioner acting for the Seventh District. They argue on appeal that the trial commissioner erred by precluding them from contesting liability for the claimant’s repetitive trauma injury. We do not reach this issue, as no formal hearing was ever held in this case. Without a formal hearing, no evidentiary record was created, and this board lacks sufficient information to proceed on review. Thus, a remand will be necessary.

The records of this Commission contain a Form 30C filed by the claimant on February 19, 2002, describing a “continual” injury that consisted of respiratory symptoms, memory impairment, burning sensations, pain and fatigue occurring on a daily basis. Our records also contain a Form 43 that was stamped “Received” by this Commission on April 16, 2002, more than 28 calendar days following this Commission’s receipt of the notice of claim. The claimant then filed a Motion to Preclude the respondents from contesting liability on April 26, 2002. It appears from our computer records that informal hearings were held on May 14, 2002 and August 1, 2002, before the trial commissioner issued his decision dated September 6, 2002. His opinion reflects that the respondents opposed the Motion to Preclude on the ground that the Form 30C was insufficiently specific to allow a reasonable employer to make an investigation. Both parties relied on the case of Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596
(2000), in support of their respective arguments.

The trier ruled in favor of the claimant. However, no formal hearing was held prior to the issuance of that ruling. There are consequently no exhibits, nor is there a transcript of proceedings or a stipulation of facts between the parties. We are left only with the documents present in the file. Though it is not unorthodox for this board to take administrative notice on appeal of such documents when the circumstances warrant, we have never used such a mechanism to create the entire evidentiary record for our discussion of an issue on appeal. A vital step in the proceedings — the presentation, authentication and admission of exhibits — would therein have been bypassed, along with other procedural safeguards inherent in the formal hearing process.

At oral argument before this board, the claimant explained that her Motion to Preclude set forth an undisputed list of facts. Because the respondents requested a decision on the Motion to Preclude at the informal proceeding before the commissioner, the claimant is of the mind that they waived their right to a formal hearing. She maintains that the Motion to Preclude, the respondents’ acknowledgement that they filed their Form 43 more than 28 days after the filing of the Form 30C, and the trier’s order together constitute sufficient foundational data for this board to reach the merits of this appeal.

We disagree. The annals of this board reflect numerous cases holding that orders issued following informal hearings lack a record for proper review, and must therefore be remanded. See, e.g., Mack v. State/Dept. ofCorrection, 4589 CRB-1-02-11 (Jan. 8, 2003) (§ 31-308a C.G.S. order issued without formal hearing); Conerly v. IBM, 4567 CRB-7-02-9 (Nov. 7, 2002) (formal hearing conducted off the record; no exhibits or transcripts existed, so CRB could not consider merits of appeal); Hashmiv. Dan’s Shell of West Hartford, 4524 CRB-1-02-5 (May 30, 2002) (no formal hearing; case remanded); Woomer v. Home Depot, 4507 CRB-2-02-3
(April 25, 2002) (§ 31-288 (b) order issued after informal hearing: no record, no review); Mele v. Hartford, 4453 CRB-1-01-9 (Nov. 30, 2001) (orders issued under § 31-288 and § 31-300 were improperly issued without formal hearing). Even though the underlying issue here concerned the legal question of whether a Form 30C sufficiently complied with § 31-294c‘s notice of claim requirements to support a motion to preclude rather than an obvious disagreement over the subordinate facts, it was still necessary for the parties to convene at a formal hearing and to create some kind of evidentiary record. Without one, this board cannot safely assume that there was a meeting of the minds with regard to the underlying facts. Also, we are conscious of the drastic effect of a Motion to Preclude, as it divests the employer of the right to contest liability for a claim. We do not believe that this rather harsh remedy should be imposed without ensuring that both parties have been provided with the due process protections inherent in a formal proceeding.

Accordingly, we dismiss the instant appeal without prejudice, and remand the instant matter to the Seventh District so that a formal hearing may be conducted.

Commissioners James J. Metro and Howard M. Belkin concur.