Opinion
CASE NO. 1403 CRB-7-92-3
JANUARY 13, 1994
The claimant was represented by Mark William Vallen, Esq. and Tracy Alan Saxe, Esq., Sachs, Berman, Rashba Shure.
The respondent Aetna Life Casualty was represented by Jason Dodge, Esq. and Margaret Corrigan, Esq., Pomeranz, Drayton Stabnick.
The respondent Commercial Union Insurance Company was represented by Lori Alexander, Esq. and Patricia O'Neil, Esq., Tyler, Cooper Alcorn.
The respondent Liberty Mutual Insurance Company was represented by Carolyn Signorelli, Esq. and Scott Williams, Esq., Maher Williams.
The respondent General Accident Fire and Life Assurance was represented by David Davis, Esq., McGann, Bartlett Brown.
This Petition for Review from the March 25, 1992 Finding and Order of the Commissioner for the Seventh District was heard December 18, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr.
OPINION
In Mingrone v. Burndy Corporation, 9 Conn. Workers' Comp. Rev. Op. 252, 1109 CRD-7-90-9 (1991) (Mingrone I), we determined that the surviving widow's claim (1) was timely filed and (2) sufficiently complied with the requirements of General Statutes Sec. 31-294 to invoke the default provisions of General Statutes Sec. 31-297(b). We therefore remanded the matter for further proceedings consistent with our opinion.
In 1990, in proceedings before the trial commissioner, the respondents asserted that the following alleged technical defects in the notice of claim prevented the trial commissioner from granting the claimant's Motion to Preclude: (1) the claimant-widow did not give her actual name but only identified herself as Mrs. Bruno Mingrone, (2) the notice does not state whether she is claiming benefits as a surviving dependent or on behalf of her husband, (3) the notice failed to list the place of injury and (4) it failed to state the last address of the decedent. No other arguments were asserted before the trial commissioner at that time. The trial commissioner agreed with each contention. In Mingrone I, we disagreed with the respondents and the trial commissioner regarding each contention.
On remand, respondent-insurer General Accident Fire and Life Assurance Company, which had received notice of the prior trial and appellate proceedings with respect to the Motion to Preclude but had not participated in those proceedings, presented the following additional grounds for denying the Motion to Preclude: the letter upon which the claimant relies as a notice of claim for compensation is not sufficient to support a Motion to Preclude because (1) it states that the decedent suffered the first manifestation of disease in April, 1986, which is at variance with the May 15, 1986 date stipulated by the parties at the first formal hearing as being when the decedent was made aware of the possible causal relationship between his employment and the symptoms of the illness or disease which eventually caused his death, (2) it was not properly served pursuant to General Statutes Sec. 31-321 in that it was sent to the employer at its post office box number rather than its street address; and (3) it was improperly served because it was addressed to the "Burndy Corporation" and not to a person, that is, an individual. The respondent-employer and the other respondent-insurers joined in those arguments and reasserted the same arguments against preclusion which had been presented at the time of the first formal hearing and which were addressed in Mingrone I.
That General Accident had notice and an opportunity to oppose the Motion to Preclude at the time of the first trial proceeding is apparent from the transcript of the July 20, 1990 hearing on the claimant's motion, wherein the trial commissioner stated at the outset of that hearing: "I will note for the record that General Accident Insurance, a respondent-insurer, has [de]fault of appearance and that notice of this hearing was sent to it at P.O. Box 922, Orange, Connecticut 06477 on June 21, 1990, at the same time notices were sent to all other parties in this matter."
See Pickard v. Manchester Gardens Condominium Ass'n, 10 Conn. Workers' Comp. Rev. Op. 216, 1331 CRD-1-91-9 (1992).
After considering the respondents' arguments and considering our decision in Mingrone I, the commissioner granted the Motion to Preclude. This appeal by all respondents followed.
The respondents' criticize our remand for further proceedings in Mingrone I as "inappropriate since it merely delayed the process of appellate review of the Compensation Review Division decision." They argue that our failure to make an explicit finding on behalf of the claimant with regard to the Motion to Preclude was improper. Whether our disposition in Mingrone I delayed the process of appellate review, however, is not determined by the form of our disposition but by its substance. Review by our Appellate Court is available where our decision is deemed to be final for purposes of appeal; it does not turn solely on whether further proceedings are contemplated. See Rodriguez v. Bruce Mfg. Molding Co., 30 Conn. App. 320 (1993); Imbrogno v. Stamford Hospital, 28 Conn. App. 113, 118-22, cert. denied, 223 Conn. 920 (1992). Because we determined in Mingrone I that all of the reasons asserted by the respondents in opposition to the claimant's Motion to Preclude (and accepted by the trial commissioner) were, in fact, without merit, it was incumbent upon the trial commissioner to grant the motion on remand. In our view, our remand for further proceedings consistent with our opinion necessarily required the granting of the Motion to Preclude just as if we had directed the commissioner to do so; see, e.g., State v. Marsala, 225 Conn. 10 (1993); as well as to conduct any other proceedings necessary to resolve the remaining unresolved or disputed issues, if any, relevant to this claim for compensation. Consequently, we reject the respondents' suggestion that our disposition of Mingrone I by remand for further proceedings was either "inappropriate" or that it "merely delayed the process of appellate review."
We turn now to the respondents' substantive claims on appeal. Basically, the respondents contend that the trial commissioner should have denied the Motion to Preclude for each of the reasons presented, both newly and previously asserted. We disagree.
In Mingrone I, we determined that the claimant's notice of claim was timely. "[T]hat determination was the law of the case [on remand] and was binding equally upon the parties and the trial court." Manchester Modes, Inc. v. Ellis, 2 Conn. App. 261, 262 (1984); see also Laurel, Inc. v. Commissioner of Transportation, 173 Conn. 220, 222 (1977); Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 51-52 (1985). In Mingrone I, we also determined that the asserted deficiencies in the notice; see footnote 1, supra; did not render the notice insufficient to invoke the default provisions of Sec. 31-297(b). Accordingly, that determination, as well became the law of the case, not subject to further litigation before the trial commissioner. Consequently, the respondents' attempt to reassert reasons previously the subject of appellate determination was properly rejected by the commissioner.
On remand, the respondents also attempted to raise three arguments in opposition to the Motion to Preclude, which arguments had not previously been presented to the trial commissioner or this tribunal regarding the merits of the motion. In these arguments, the respondents oppose the Motion to Preclude based on alleged technical defects in the notice of claim. These newly raised claims, too, were not properly before the trial commissioner on remand, though obviously for reasons doctrinally different than those discussed above.
First of all, we remanded this case to the commissioner for proceedings not inconsistent with our opinion in Mingrone I. This required that the commissioner grant the Motion to Preclude. If the trial commissioner had accepted the respondents arguments he would have violated the "well-settled [rule] that on remand from an appellate court, a trial court cannot deviate from the directions given by the appellate court." Connecticut National Bank v. Zuckerman, 31 Conn. App. 440, 441 (1993).
Secondly, a claim that a notice of claim does not strictly comply with the technical requirements of Sec. 31-294 does not deprive a commissioner of' subject matter jurisdiction. Peters v. State of Connecticut, 10 Conn. Workers' Comp. Rev. Op. 32, 35, 1103 CRD-3-90-8 (1992). Any objection to the sufficiency of the notice is waived if not asserted at the time the Motion to Preclude is considered by the trial commissioner. See id. Such a conclusion is compelled by rules of res judicata which are "based on the public policy that `a party should not be able to relitigate a matter which it already has had an opportunity to litigate.'" Dunham v. Dunham, 221 Conn. 384, 391 (1992), quoting In re Juvenile Appeal (83-DE), 190 Conn. 310, 318 (1983). In 1990, the respondents asserted numerous reasons why the Motion to Preclude should fail. Those reasons were all accepted by the trial commissioner, but later rejected by this tribunal in Mingrone I. The respondents' attempt to raise additional non-jurisdictional grounds in opposition to the motion in 1992 contravenes the important public policy, which supports the doctrine of res judicata, that "[l]itigation must end at some point" Corey v. Avco-Lycoming Division, 163 Conn. 309, 321 (1972) This is especially true in a case under the Workers' Compensation Act which is intended to "creat[e] a quick vehicle for the recovery by the claimant for work related injuries." DeAlmeida v. M.C.M. Stamping Corporation, 29 Conn. App. 441, 446 (1992); see also Powers v. Hotel Bond Co., 89 Conn. 143 (1915). The respondents attempt to assert new grounds in opposition to the Motion to Preclude after all of their original grounds were resolved adversely to them would permit them to unreasonably delay the ultimate determination of the claim and would thereby frustrate an important objective of our Workers' Compensation Act.
The rule of claim preclusion prevents reassertion of the same claim even though additional or different legal theories might be advanced in support of it. Jackson v. R.G. Whipple, Inc., 225 Conn. 705, 713 n. 4 (1993). Since it was given notice and an opportunity to present any legal arguments in opposition to the Motion to Preclude; see footnote 2, supra; claim preclusion may be applied against General Accident notwithstanding its default of appearance. Slattery v. Maykut, 176 Conn. 147, 157 (1978); Ratner v. Willametz, 9 Conn. App. 565, 573 (1987); but see Jackson v. R.G. Whipple, Inc., supra, 715-18 (issue preclusion).
In this regard, the claimant aptly notes in her brief: "Respondents may not continually raise new and additional claims until such time as it finds a suitable theory or the widow claimant dies of old age due to these dilatory practices."
We, therefore, affirm the trial commissioner and deny the appeal.
Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr. concur.