OSTROWSKI v. GUIDA-SIEBERT DAIRY CO., NO. 5374 CRB-6-08-9 (9-23-2011)

CASE NO. 5374 CRB-6-08-9 CLAIM NO. 601027631CONNECTICUT COMPENSATION REVIEW BOARD CONNECTIICUT WORKERS’ COMPENSTAION COMMISSION
SEPTEMBER 23, 2011

This Petition for Review from the August 20, 2008 Finding Dismissal of the Commissioner acting for the Sixth District was heard Janaury 21, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.

The claimant represented himself at oral argument. He was accompanied by an interpreter, Ms. Ada Bielak.

The respondent employer was represented by Richard D. O’Connor, Esq., Siegel, O’Connor, O’Donnell Beck, P.C., 150 Trumbull Street, Hartford, CT 06103-2406.

The respondent insurer was represented by Larry McLoughlin, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

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OPINION
JOHN A. MASTROPIETRO, CHAIRMAN.

The claimant has appealed from the August 20, 2008 Finding and Dismissal of the Commissioner acting for the Sixth District. This matter was the subject of a prior decision by this Board, (5374 CRB-6-08-9) dated April 28, 2010, wherein we dismissed this appeal due to the claimant’s failure to appear at oral argument. The claimant subsequently informed this Board that he had been incarcerated on the date of the previous hearing, which was held February 26, 2010. As a result, we decided to allow him to present his appeal before this panel on January 21, 2011. After hearing the claimant’s arguments we are not persuaded the trial commissioner erred in dismissing the claim for want of prosecution. We affirm the trial commissioner’s Finding and Dismissal and dismiss this appeal.

The facts of this matter were fully set out in our prior decision. They may be summarized as follows. The claimant was asked by the trial commissioner to provide medical documentation substantiating his claim for benefits. The trial commissioner noticed the matter for a pre-formal hearing which the claimant failed to attend. The trial commissioner subsequently noticed the matter for a formal hearing. The claimant failed to attend that hearing as well. Subsequent to that absence, the trial commissioner granted a Motion to Dismiss filed by the respondents, seeking to dismiss the claim pursuant to Practice Book § 85-1 due to want of prosecution by the claimant.

In challenging the dismissal of his claim, the claimant argues on appeal that he was unable to proceed with his claim in 2008 as he was not represented by counsel and could not obtain an interpreter. He believes that he “complied with everything” in regards to his claim. We disagree. Aside from whatever evidentiary deficiencies the

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claim possessed, attendance at duly noticed hearings before this Commission is not a matter a litigant can choose to waive.[1] The claimant does not present an argument that he did not know about the scheduled hearing, or was unavoidably detained from attending the hearing. Therefore, failure to attend such a scheduled hearing constitutes conclusive evidence a party is not prosecuting his or her claim for benefits in a timely manner, and provides legitimate grounds for a trial commissioner to grant the adverse party’s Motion to Dismiss.

On appeal we may only reverse the decision of the trial commissioner if it is inconsistent with the law, or is otherwise “clearly erroneous”Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). We find the trial commissioner had a sufficient factual predicate to justify granting the respondents Motion to Dismiss. We affirm the Finding and Dismissal and dismiss this appeal.

Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.

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