Opinion
CASE NO. 1149 CRD-7-90-12
MARCH 31, 1992
The claimant was represented by Russell J. Berkowitz, Esq., and Anthony A. Piazza, Esq., Piazza, Melmed Canner.
The respondents were represented by Kevin J. Maher, Esq., Maher Williams.
This Petition for Review from the December 5, 1990 Finding and Dismissal of the Commissioner for the Seventh District was heard October 25, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Donald H. Doyle and Jesse Frankl.
OPINION
Claimant's appeal seeks a rehearing of his claim before a Commissioner other than the one who heard it previously. The Seventh District Commissioner had ruled that the claim was time barred for failure to comply with the notice provisions of the Workers' Compensation Law contained in Sec. 31-294 C.G.S.
Sec. 31-294 provides in pertinent part: No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury. . . .
Claimant alleged he sustained an intracerebral hemorrhage on November 18, 1987 arising in and out of the course of his employment. He was originally represented by Atty. Stephen M. Seelig. Atty. Seelig testified that his law office mailed a letter dated July 18, 1988 to the district commission office requesting a hearing in the matter. Further testimony by the attorney's former secretary supported this assertion. See TR November 27, 1990 at 4-8.
The trial Commissioner found that the district office had no record of receiving the alleged July 18, 1988 letter from Atty. Seelig. The trial Commissioner also took administrative notice of another letter dated December 21, 1988 from Atty. Seelig stating: "Pursuant to the enclosed Notice to Compensation Commissioner And Employee Of Intention To Contest Liability To Compensation, would you please schedule an informal hearing in regard to the above-captioned matter." (Claimant's Exhibit B). Thereafter as the December 21, 1988 letter was received more than one (1) year after the alleged November 18, 1987 date of injury the Commissioner dismissed the claim.
The appeal presents the following issues: (1) whether the Commissioner should have recused himself in the proceedings below and (2) whether the conclusions reached were legally consistent with the subordinate facts found.
In paragraph # 9 of his Finding the Commissioner found, "The office of the undersigned has no record of having received the letter referred to in Paragraph 8 hereof, and a diligent search by the staff of this office has failed to turn up the original of said letter." The Claimant's contention based on that finding is that the Code of Judicial Conduct, Canon 3(C)(1)(a) requires recusal by the Commissioner. The Code of Judicial Conduct, Canon 3(C)(1)(a) provides. "A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: (a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. . . ."
Claimant's request for recusal did not surface until this appeal. As a matter of fact the issue of recusal was not even mentioned in Claimant's Reasons of Appeal filed at the time of the appeal in December, 1990. The first reference to recusal came in the appellant's brief filed July 30, 1991. A request for the recusal or disqualification of a judge will generally not be considered for the first time on appeal. See e.g., Bieluch v. Bieluch, 199 Conn. 550, 552-53 (1986); Timm v. Timm, 195 Conn. 202, 203-205 (1985). Our Supreme Court has adhered to this rule even where as here it is claimed that the trial judge "had personal knowledge of disputed evidentiary facts concerning the proceeding. . . ." Herrmann v. Summer Plaza Corporation, 201 Conn. 263, 274 (1986). Further, the court has held Workers' Compensation matters are often different from those of an ordinary court. The Workers' Compensation Commissioner performs both administrative, executive and quasi-judicial duties. Powers v. Hotel Bond Co., 89 Conn. 143 (1915); Kirsten v. B.F. Goodrich Sponge Products Co., 178 Conn. 401 (1979).
At least before the passage in 1991 of P.A. 91-339, the district commissioner, in this case, the Seventh District, had the obligation to perform administrative duties such as supervising the filing of necessary forms and communications. Since the Commissioner by law was obligated to perform these multiple functions, it hardly seems that his knowledge that Attorney Seelig's putative letter of July 18, 1988 was not in the Seventh District files rises to the level of "plain error" and thus a subject for review. See, Cameron v. Cameron, 187 Conn. 163 (1982). Nor did the Commissioner's actions result in claimant's being denied his due process right to an impartial arbiter. Sullivan v. Northwind Energy Insulators, Inc., 2 Conn. App. 689 (1984).
The second issue concerns the timeliness of the claim under Sec. 31-294. On that issue the Commissioner's determination was dependent upon his factual findings. Specifically, his findings indicated that claimant had failed to prove that notice had been given within a year of the injury as the July, 1988 letter had never been received in the district. That factual determination depended on the weight and credibility accorded the testimony presented. It is for the trier not for us as an appellate body to make such determinations. Rivera v. Guida's Dairy, 167 Conn. 524 (1975).
We therefore affirm the December 5, 1990 decision of the Commissioner for the Seventh District and dismiss the claimant's appeal.
Commissioners Donald H. Doyle and Jesse Frankl concur.