Opinion
CASE NO. 4452 CRB-5-01-10CLAIM NO. 500114998
SEPTEMBER 18, 2002
The claimant was represented by Ross Lessack, Esq., Dodd, Lessack, Ranando Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.
The respondents were represented by Nicone J. Gordon, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.
This Petition for Review from the October 4, 2001 Finding and Award of the Commissioner acting for the Fifth District was heard April 26, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.
OPINION
The respondents have petitioned for review from the October 4, 2001 Finding and Award of the Commissioner acting for the Fifth District. They contend on appeal that the trier erred by granting the claimant's Motion to Preclude on the basis of a § 31-321 issue that was not raised by either party. As the claimant does not actively oppose the respondents' assertion that the trial commissioner's decision was rendered in error, we reverse that ruling, and remand for further proceedings.
Briefly, the claimant filed a notice of claim with the Fifth District office on October 12, 1998, alleging a July 14, 1998 injury. On October 26, 1998, he received a notice of the respondents' intent to contest his claim, which stated, "The alleged injuries did not occur in/out of the course/scope of employment. No work related injury. In response to notice of claim dated 10/12/98." The claimant subsequently filed a Motion to Preclude on November 14, 2000, alleging that the language of this disclaimer was legally insufficient, and also stating, "It is not known whether or not the notice was sent registered or certified mail, or whether or not a copy was sent registered or certified mail to the Commissioner's Office as required by Section 31-321 of the Connecticut General Statutes." The respondents objected to that motion, and a formal hearing was scheduled.
At the July 26, 2001 formal hearing, the claimant stipulated on the record that the respondents' disclaimer had been properly filed, properly served and timely filed. The only outstanding issue pertaining to the Motion to Preclude was whether the language in the disclaimer was legally sufficient to apprise the claimant of a substantive ground for defense under Menzies v. Fisher, 165 Conn. 338 (1973). Transcript, p. 2. No other issues were raised at the hearing. Despite the parties' stipulation regarding the proper service of the respondents' Form 43, the trial commissioner made the following findings: that the respondents were silent regarding their manner of service to the claimant; that they did not claim to have sent a copy of their disclaimer to the Fifth District Commission; that the Commission's records do not contain a copy of this notice to contest; and that § 31-321 requires personal service by regular or certified mail to the other party and to the Commissioner. On this basis, the trial commissioner granted the claimant's Motion to Preclude, from which ruling the respondents have appealed.
Compliance with the provisions of § 31-321 is certainly an integral element of proper statutory notice under the Workers' Compensation Act. However, where the parties agree at the outset of a formal hearing that a particular issue is settled and is no longer in dispute, it follows that they are under the impression that the trial commissioner will not make an independent factual finding on said issue. Due process requires that the parties be aware that an element of a case is ripe for determination. Casertano v. Shelton, 3329 CRB-4-96-4 (Sept. 16, 1997);Wonacott v. Bartlett Nuclear, Inc., 15 Conn. Workers' Comp.Rev.Op. 334, 2237 CRB-4-94-12 (June 25, 1996). Where a party expresses an understanding that a particular issue is settled, or is not yet ripe for discussion, it is the duty of the commissioner to inform that party otherwise if he or she does not consider the matter settled, so as to provide an opportunity for argument and the introduction of evidence. Id. As the trier based his decision on a factual issue that the parties had deemed settled, we must grant the respondents' request to reverse the decision of the trial commissioner, as said decision was rendered in error. The case is hereby remanded for further proceedings as the parties deem appropriate.
Commissioners Donald H. Doyle, Jr. and Michael 5. Miles concur.
CERTIFICATION
THIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 18th of September 2002 to the following parties:
JOSEPH KASFELDT
ROSS LESSACK, ESQ. 7099 3400 0008 5539 3753
HEITKAMP, INC.
NICONE GORDON, ESQ. 7099 3400 0008 5539 3746
___________________ Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers' Compensation Commission