CASE NO. 03461 CRB-03-96-11 CLAIM NO. 0200016144Workers’ Compensation Commission
APRIL 9, 1998

The claimant was represented by Brian Prucker, Esq., Fitzgerald

The respondents were represented by Raymond Hassett, Esq., Hassett, George Siegel, P.C.

This Petition for Review from the November 5, 1996 Denial of Motion To Re-Open Finding by the Commissioner acting for the Third District was heard August 15, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.


The claimant has petitioned for review from the November 5, 1996 Denial of Motion to Re-Open Finding by the Commissioner acting for the Third District. He has also filed a Motion to Submit Additional Evidence in this matter. The subject of this appeal originated with a June 12, 1995 Finding by Commissioner Nancy A. Brouillet, in which she dismissed the claimant’s request for temporary total disability benefits and §31-308a benefits. The claimant appealed that ruling to this board, which affirmed the trier’s decision on the merits. Bailey v. Stripling AutoSales, 15 Conn. Workers’ Comp. Rev. Op. 369, 3095 CRB-2-95-6 (June 28, 1996).

In conjunction with that appeal to the CRB, the claimant filed a Motion to Submit Additional Evidence in an effort to introduce proof that the trial commissioner was not competent to render her decision at the time she issued her Finding. This board denied that motion, as the claimant had not yet obtained the evidence he sought to introduce, and could not provide the review panel with sufficient information to make a ruling under Admin. Reg. § 31-301-9. Id., 372. We also noted that the Workers’ Compensation Act does not vest in this Board the authority to determine a commissioner’s competency.

The claimant did not appeal that decision to the Appellate Court. Instead, he filed a § 31-315 Motion to Reopen the June 12, 1995 Finding “on the basis of changed conditions of fact in that the claimant has evidence that the commissioner making the determinations was not competent to enter said ruling. . . .” Commissioner George A. Waldron held a formal hearing on October 23, 1996, and another hearing one week later. He took administrative notice of the Finding by Commissioner Brouillet and the CRB decision. He concluded that the claimant had not offered evidence that was previously undiscoverable by the exercise of due diligence, nor had the claimant offered evidence that could produce a different result at a new trial. Commissioner Waldron reasoned that the 1995 Finding was supported by subordinate facts, and the competency of a workers’ compensation commissioner was beyond his jurisdiction to adjudicate. He ruled that the facts of this case had already been litigated, and the decision on those facts was res judicata. The claimant has appealed that decision to this board.

The claimant has raised an argument in his appellate brief concerning the adequacy of the notice he received for the second hearing on October 30, 1996, but we need not delve into that topic to resolve this appeal. The issue here is simply one of subject matter jurisdiction. The claimant is currently attempting to reopen the June 12, 1995 Finding concerning the denial of benefits by alleging that new evidence has been obtained concerning the physical and mental condition of Commissioner Brouillet. Although a claimant may attempt to modify an award or voluntary agreement under § 31-315 by alleging changed conditions of fact, the grounds alleged for reopening the decision must be within the trial commissioner’s purview. As we stated in our previous Bailey decision (Bailey I), it is beyond the authority of a workers’ compensation commissioner to adjudicate issues concerning the capacity of a fellow commissioner to preside over a case. Therefore, the evidence offered by the claimant is incapable of being material to proceedings in this forum, either by way of Motion to Submit Additional Evidence, or by way of Motion to Reopen.

Our holding in this matter is founded upon both legal and practical considerations. Certain issues surrounding the possible disqualification of a trial commissioner in a given case, such as the question of whether a commissioner should have recused himself on the ground that there exists the appearance of bias, may be properly resolved in this forum. See Dixon v. United Illuminating Co., 232 Conn. 758 (1995), Costa v.United Nuclear Corp., 16 Conn. Workers’ Comp. Rev. Op. 101, 2296 CRB-2-95-1 (Nov. 20, 1996). However, the claimant’s motion concerns the overall fitness of a commissioner to serve. That is a much broader and much more sensitive issue that is not ultimately addressable to this Commission. See § 31-276 (e).

The claimant has attempted to frame this matter as concerning only the commissioner’s ability to carry out her duties on the specific dates in question, rather than her “constitutional competency.” Although we understand the difference, we would be making findings relevant to both even if we ostensibly were to consider only the former. Also, this would still place a trial commissioner in the untenable position of having to decide whether a peer was fit for duty on a given day. Fortunately, it appears that our state legislature has foreseen the difficulties that would be engendered by this type of peer review. Section 51-51i(c) C.G.S. assigns responsibility for considering any alleged grounds for removal, suspension or censure of a workers’ compensation commissioner for “neglectful or incompetent performance of his duties,” inter alia, to the Judicial Review Council (“JRC”) established by § 51-51k. Procedures for investigating complaints and conducting hearings are set forth by that statute, which also provides for the confidentiality of investigations pending a finding of probable cause. See § 51-51i.

Our federal courts have recognized the importance of making preliminary investigations by the JRC confidential in order to prevent the public discussion of meritless actions “filed by embittered litigants or by social malcontents seeking to harass judges. . . . [O]pen proceedings prior to a finding of probable cause would invite chronic, disgruntled litigants to use the JRC proceedings as a forum for collateral litigation of legal claims or theories rejected elsewhere or for the pursuit of vendettas against judges.” Kamasinski v. Judicial Review Council,797 F.Sup. 1083, 1092 (D. Conn. 1992), aff’d, 44 F.3d 106 (2nd. Cir. 1994). The existence of such safeguards in the forum of the Judicial Review Council make it a much better place to consider complaints regarding the fitness of workers’ compensation commissioners than the District offices of this Commission are. Indeed, the public nature of workers’ compensation hearings, and the lack of a “probable cause” prerequisite in cases concerning the qualifications of commissioners as is required in proceedings before the JRC, make this Commission an undesirable forum for the claimant to bring forth the allegations contained in his Motion to Reopen and his Motion to Submit Additional Evidence. We agree with the wisdom of our legislature and the federal courts on this matter: such complaints do not belong before this Commission.

For the above reasons, we reaffirm our position in Bailey I that we lack subject matter jurisdiction over issues surrounding the competency of a workers’ compensation commissioner. Thus, we affirm the decision of the trial commissioner dismissing the claimant’s Motion to Reopen, and deny any outstanding Motion to Submit Additional Evidence of that nature.

Commissioners James J. Metro and John A. Mastropietro concur.