Graham v. Olson Wood Associates, Inc. , 323 Conn. 720 ( 2016 )

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JOHN GRAHAM ET AL. v. OLSON WOOD
ASSOCIATES, INC., ET AL.
(SC 19626)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued September 20—officially released December 20, 2016
Joseph J. Passaretti, Jr., with whom, on the brief,
was Ryan D. Ellard, for the appellant (defendant Con-
necticut Insurance Guaranty Association).
Christopher Meisenkothen, with whom was Cather-
ine Ferrante, for the appellee (plaintiff Carmel
Graham).
Diane D. Duhamel, with whom, on the brief, was
Denise L. Morelli, for the appellees (defendant F.D.
Rich Housing Corporation et al.).
Opinion
ROBINSON, J. In this appeal, we consider whether
a Workers’ Compensation Commissioner may reinstate
an employer or insurer as a party to proceedings pend-
ing on the asbestos docket of the Workers’ Compensa-
tion Commission (commission) when the claim against
that party was dismissed prior to a determination of
the claimant’s compensability or date of final exposure.
The defendant Connecticut Insurance Guaranty Associ-
ation (association),1 appeals2 from the decision of the
Workers’ Compensation Review Board (board)
affirming the decision of the Workers’ Compensation
Commissioner for the Eighth District (commissioner)3
granting motions joined by the plaintiff Carmel Graham4
and the defendants F.D. Rich Housing Corporation (F.D.
Rich) and The Hartford Insurance Group (The Hart-
ford)5 to reinstate the association as a party to proceed-
ings brought pursuant to the Workers’ Compensation
Act (act), General Statutes § 31-275 et seq. On appeal,
the association claims that the commissioner improp-
erly reinstated it to the proceedings because: (1) in
the absence of a timely appeal to the board, the order
dismissing the claim against the association was a final
decision entitled to res judicata effect pursuant to Gen-
eral Statutes §§ 31-3006 and 31-301 (a);7 and (2) the
motions to reinstate the association did not satisfy the
standards necessary to open an award pursuant to Gen-
eral Statutes § 31-315.8 We conclude that the commis-
sioner properly reinstated the association as a party to
the underlying proceedings because the commissioner’s
broad case management authority under General Stat-
utes § 31-298,9 which extends to cases on the asbestos
docket involving the apportionment of liability under
General Statutes § 31-299b,10 permitted him to render
a dismissal that was provisional, rather than final, in
nature. Accordingly, we affirm the decision of the
board.
The record reveals the following undisputed facts
and procedural history. In 2006, the plaintiff’s decedent,
John Graham (decedent); see footnote 4 of this opinion;
filed several notices of claim on form 30C with the
commission, alleging that he had sustained a lung injury
from exposure to asbestos while working for several
different employers, including F.D. Rich. The commis-
sion assigned the decedent’s claims to its asbestos
docket for adjudication, after which several informal
and preformal hearings took place. After the decedent
died in 2008, the plaintiff, his widow, filed a claim for
dependent benefits in 2009 that was joined with the
original claims.
Subsequently, Reliance Insurance Company (Reli-
ance), one of F.D. Rich’s workers’ compensation insur-
ance carriers, became insolvent, and its liability
transferred statutorily to the association. See footnote
1 of this opinion. On January 26, 2011, the commissioner
conducted a formal hearing that was attended by
numerous attorneys representing the decedent’s vari-
ous employers and their respective workers’ compensa-
tion carriers, along with the association.11 The
commissioner stated that the purpose of the formal
hearing was to ‘‘clear the room of who doesn’t need to
be here and then we will get to the meat of the case at
the next session.’’ At that hearing, six of the employers,
along with the association, moved to dismiss the claims
against them for lack of exposure. With no objection
from the plaintiff, the commissioner issued a ‘‘revised
finding and decision’’ on June 9, 2011, which granted
these motions to dismiss.
On November 29, 2012, the commissioner conducted
another formal hearing. At that hearing, five of the dece-
dent’s other employers and their respective insurers
moved to dismiss the claims against them, three of
which were granted with the plaintiff’s consent. The
commissioner then advised counsel for the association,
who was present at the hearing as a courtesy to the
commission, that: ‘‘I think we need to bring [the associa-
tion] back in, and . . . you will be on the notice for the
next hearing.’’ At that hearing, counsel for The Hartford
stated that he had reviewed the record and questioned
whether the decedent had any claim arising from a very
brief period of employment in the first quarter of 1977,
during which The Hartford insured F.D. Rich. Counsel
for The Hartford stated that his reading of the record
‘‘[involved the association again] as a potential party
[defendant] and indeed . . . potentially a lead [defen-
dant] under [§ 31-299b].’’ He asked whether the plaintiff
would need further participation from The Hartford,
observing that, ‘‘if I drop out, then all the more reason
for [the association] to become [involved again].’’ After
some additional discussion, counsel for The Hartford
agreed to file a motion to dismiss to which the plaintiff
could respond after reviewing the record. The commis-
sioner advised counsel for the association that an offi-
cial request to cite the association back into the
proceedings would be forthcoming.
Subsequently, on February 6, 2013, the plaintiff filed
a motion asking that the association be ‘‘cited back into
this claim as a [defendant],’’ in which she contended
that the order dismissing it was ‘‘interlocutory and pro-
visional and . . . not an adjudication on the merits of
the [plaintiff’s] claims or [the association’s] defenses.’’
The plaintiff stated that The Hartford had filed a motion
to dismiss for lack of causative exposure that, if suc-
cessful, would have ‘‘implicated’’ the association under
§ 31-299b because the ‘‘next carrier on the risk would
[have been] an insolvent carrier,’’ namely, Reliance. On
February 14, 2013, The Hartford filed a similar motion,
joined by F.D. Rich, seeking to reinstate the association
to the proceedings in light of The Hartford’s pending
motion to dismiss. The association opposed these
motions. On January 29, 2014, the commissioner heard
arguments from the parties on these motions at a for-
mal hearing.
On February 4, 2014, the commissioner granted the
motions by the plaintiff and The Hartford to reinstate
the association as a party to the case, rejecting the
association’s argument that the order dismissing it from
the case was a ‘‘binding judgment and that, absent an
appeal [to the board] within [twenty] days, it can only
be undone by application of [§] 31-315.’’ Specifically,
the commissioner rejected the association’s reliance
on res judicata principles, observing that the record
contained no evidence, findings, or formal stipulations
that the association ‘‘had no liability to the [plaintiff].’’12
He emphasized that, in ‘‘asbestos cases there are often
so many potential [defendants] that the administrative
preference for ‘culling the herd’ prior to a formal hearing
is understandable. However, until the date of last expo-
sure has been determined—and with it the identity of
the party against whom an award would be made under
[§] 31-299b—agreements to let out certain parties must
be viewed as interlocutory.’’ The commissioner further
observed that bringing the association back into the
case would not prejudice it or any other party because
no exhibits had yet been admitted, the association
reserved its right to recall the only witness who had
testified, namely, the plaintiff, and the association ‘‘will
be granted reasonable time to prepare for [the] continu-
ation of the formal hearing.’’13
The association appealed from the commissioner’s
decision to the board. Acknowledging that, ‘‘over the
years, certain procedural customs and conventions
have evolved [that] are unique to the management of
the asbestos docket,’’ the board concluded that the gov-
erning statutes ‘‘provide the framework for assessing
the merits of a claim,’’ and that a ‘‘close reading’’ of
§ 31-299b ‘‘indicates quite clearly that the legislature
intended that the apportionment of liability among the
various [defendants] in these claims can only occur
after the conclusion of litigation on the merits of the
underlying claim.’’ (Emphasis in original.) The board,
therefore, agreed with the commissioner’s conclusion
that, ‘‘until the date of last exposure has been deter-
mined—and with it the identity of the party against
whom an award would be made under [§] 31-299b—
agreements to let out certain parties must be viewed
as interlocutory.’’ (Internal quotation marks omitted.)
To this end, the board concluded that it did not matter
whether the hearing at which the association’s motion
to dismiss was granted was ‘‘formal’’ or ‘‘informal,’’
insofar as the ‘‘actual language’’ of § 31-299b contem-
plates apportionment only after the adjudication on the
merits of the underlying claim.14 (Emphasis omitted;
internal quotation marks omitted.) The board deter-
mined that the record demonstrated that the underlying
merits of the plaintiff’s claim, including compensability,
had not yet been adjudicated at the time of the order
dismissing the association. The board further observed
that ‘‘[t]o allow a party to escape liability prematurely
because of a procedural irregularity, thereby potentially
thwarting an injured claimant’s ability to collect an
award of benefits, not only does violence to the plain
meaning of the statute but also clearly runs counter to
the remedial nature and humanitarian purpose of the
[act].’’15 Accordingly, the board affirmed the commis-
sioner’s decision granting the motions to reinstate the
association as a party to this case. This appeal followed.
See footnote 2 of this opinion.
On appeal, the association claims that, under §§ 31-
300 and 31-301 (a), the failure, by the plaintiff and The
Hartford, to appeal to the board rendered the commis-
sioner’s dismissal a final judgment. The association
argues that the board’s decision allowing it to be rein-
stated as a party ‘‘circumvented’’ §§ 31-300 and 31-301
(a), even assuming that § 31-299b does not allow for
dismissals of claims against apportionment respon-
dents prior to a formal adjudication as a matter of law.
The association contends that the board’s characteriza-
tion of the previous proceedings as having ‘‘ ‘merely
excus[ed] [the association] by agreement’ is a wild mis-
characterization,’’ insofar as there was a formal hearing
at which all parties had the opportunity to participate.
The association further contends that the plaintiff’s
decision not to challenge its motion to dismiss was in
effect a ‘‘[surrender] of [the] claim against’’ it, and that
the board’s decision has the effect of creating ‘‘different
tiers of formal proceedings . . . .’’ Addressing an issue
not reached by the board; see footnote 15 of this opin-
ion; the association also argues that the commissioner
improperly invoked § 31-315, which governs motions
to open or modify awards, to support his decision to
cite the association back into the case. Specifically, the
association posits that § 31-315 does not support the
commissioner’s decision to reinstate it as a party
because no conditions of fact changed between its dis-
missal and reinstatement.
In response, the plaintiff contends, inter alia, that
‘‘[t]he fluidity with which [defendants] are cited into
and dismissed from asbestos disease claims is properly
within the procedural discretion of the commissioners,’’
and is consistent with the remedial purpose of the act,
which is to provide a simple and efficient procedure
that effectuates ‘‘the sole remedy for employees and
their dependents for work-related injuries and death.’’
Green v. General Dynamics Corp., 245 Conn. 66, 71,
712 A.2d 938 (1998). The plaintiff also relies on § 31-
298, which provides that the commissioner is not bound
by ‘‘ordinary common law or statutory rules of evidence
or procedure,’’ to argue that a motion to dismiss before
the commission is not identical, for purposes of finality,
to a motion to dismiss filed in the Superior Court. To
this end, the plaintiff relies on the customary deference
afforded to the board’s construction of the act, and
argues that principles of res judicata do not apply
because the merits of the claims were never litigated,
and that the dismissal was ‘‘merely administratively
permitted’’ to facilitate the management of a factually
complex occupational disease claim.
The plaintiff, The Hartford, and F.D. Rich emphasize
that the association was not prejudiced by the ‘‘provi-
sional dismissal’’ insofar as the association, through
counsel, reserved the right to participate or object if
brought back into the case, did in fact participate
throughout, and had suffered no due process depriva-
tion because no evidence on the merits has been admit-
ted other than the plaintiff’s testimony establishing her
dependency, which the association has reserved its
right to cross-examine. In contrast, the plaintiff argues
that ‘‘[s]trict adherence to purported rules of procedure
in this complex asbestos workers’ compensation claim
would certainly result in surprise and injustice’’ for her,
because she would be left with no § 31-299b carrier if
the association were not reinstated and The Hartford’s
motion to dismiss were ultimately granted. We agree
with the plaintiff, The Hartford, and F.D. Rich and con-
clude that the board properly determined that the initial
dismissal was provisional, thus permitting the commis-
sioner to reinstate the association as a party to the pro-
ceedings.16
‘‘As a threshold matter, we set forth the [well estab-
lished] standard of review applicable to workers’ com-
pensation appeals. . . . The conclusions drawn by [the
commissioner] from the facts found must stand unless
they result from an incorrect application of the law to
the subordinate facts or from an inference illegally or
unreasonably drawn from them. . . . [Moreover, it] is
well established that [a]lthough not dispositive, we
accord great weight to the construction given to the
workers’ compensation statutes by the commissioner
and . . . board. . . . Cases that present pure ques-
tions of law, however, invoke a broader standard of
review than is ordinarily involved in deciding whether,
in light of the evidence, the agency has acted unreason-
ably, arbitrarily, illegally or in abuse of its discretion.
. . . We have determined, therefore, that the traditional
deference accorded to an agency’s interpretation of a
statutory term is unwarranted when the construction
of a statute . . . has not previously been subjected to
judicial scrutiny [or to] . . . a governmental agency’s
time-tested interpretation . . . .
‘‘Furthermore, [i]t is well established that, in resolv-
ing issues of statutory construction under the act, we
are mindful that the act indisputably is a remedial stat-
ute that should be construed generously to accomplish
its purpose. . . . The humanitarian and remedial pur-
poses of the act counsel against an overly narrow con-
struction that unduly limits eligibility for workers’
compensation. . . . Accordingly, [i]n construing work-
ers’ compensation law, we must resolve statutory ambi-
guities or lacunae in a manner that will further the
remedial purpose of the act. . . . [T]he purposes of
the act itself are best served by allowing the remedial
legislation a reasonable sphere of operation considering
those purposes.’’ (Citations omitted; internal quotation
marks omitted.) Sullins v. United Parcel Service, Inc.,
315 Conn. 543, 550–51, 108 A.3d 1110 (2015).
A brief review of the act’s apportionment scheme
illuminates the process by which the commission adju-
dicates occupational disease claims involving multiple
employers or insurers, such as those pending on its
asbestos docket. ‘‘[T]he last insurer on a risk for which
other insurers also bear some liability is deemed initially
liable for payment to the injured employee, with the
right to recover proportional reimbursement from the
other insurers. See General Statutes § 31-299b.’’ Frank-
lin v. Superior Casting, 302 Conn. 219, 221–22, 24 A.3d
1233 (2011). ‘‘Section 31-299b mandates that the last
insurer on the risk . . . pay the claimant. There is no
common-law joint and several liability among . . .
insurers that would allow the claimant to choose from
which insurer he will recover.’’ Id., 232–33; see also
Hatt v. Burlington Coat Factory, 263 Conn. 279, 312–13,
819 A.2d 260 (2003) (§ 31-299b applies only ‘‘to single
instances of occupational diseases and repetitive
trauma, and not to the consequences of separate injur-
ies on separate occasions’’). If the association stands
in the shoes of the last insurer on the risk, it is responsi-
ble for that insurer’s liability under § 31-299b, but may
seek apportionment from the other employers or their
insurers.17 Franklin v. Superior Casting, supra, 232–33.
Finally, § 31-299b sets forth a three step process under
which: ‘‘(1) an award of compensation is made to the
claimant; (2) the current employer or employer’s
insurer ‘shall be initially liable for the payment of such
compensation’; and (3) the commissioner, ‘within a rea-
sonable period of time after issuing an award, on the
basis of the record,’ must make two determinations:
(a) the identification of prior employers or insurers that
are liable for a portion of the claimant’s compensation;
and (b) the extent of their liability. General Statutes
§ 31-299b.’’ Ferraro v. Ridgefield European Motors,
Inc., 313 Conn. 735, 748, 99 A.3d 1114 (2014); see also
id., 750 (‘‘[a]llowing an agreement between insurers to
constrain a commissioner’s authority to make findings
following a hearing on an apportionment claim would
be inconsistent with our jurisprudence addressing a
commissioner’s authority to render a decision in the
area of compensation claims’’); Levarge v. General
Dynamics Corp., 282 Conn. 386, 391–92, 920 A.2d 996(2007) (apportionment under § 31-299b is not ministe-
rial act, but requires independent analysis of employ-
ment and medical evidence).
The relative simplicity of the § 31-299b apportion-
ment framework belies the factual complexity that
often attends the adjudication of occupational disease
claims such as those presented in this case. ‘‘Occupa-
tional diseases are, from a legal standpoint, peculiar in
. . . that they arise, not from an accident or event hap-
pening at a precise moment, but from a day by day
exposure to unhealthful conditions over an extended
period; the exact time of their origin is necessarily
obscure and their insidious progress is not revealed
until, frequently after a long interval, the disability
which they create manifests itself.’’ (Internal quotation
marks omitted.) Green v. General Dynamics Corp.,
supra, 245 Conn. 72–73. The parties agree that the
nature of occupational disease claims often renders
them factually complex because they may implicate
numerous employers and their insurers, particularly at
the outset of a claim brought by a claimant with a
lengthy work history, when the periods of exposure
have yet to be determined. For example, this case
required the decedent, who had a thirty year career as
a carpenter, to send notices of claim to twenty-nine
employers, some of whom had multiple insurance carri-
ers. As the board observed in its decision in this case,
these complexities have resulted in the ‘‘evol[ution]’’
of ‘‘certain procedural customs and conventions . . .
unique to the management of the [commission’s] asbes-
tos docket.’’
The commission’s management of these complicated
apportionment matters is facilitated by its commission-
ers’ extensive discretion over the conduct of hearings
before them, conferred upon it by § 31-298. That statute
dispenses with ‘‘formal pleadings . . . beyond any
informal notices that the commission approves,’’ and
requires the trial commissioner to ‘‘proceed, so far as
possible, in accordance with the rules of equity. He
shall not be bound by the ordinary common law or
statutory rules of evidence or procedure, but shall make
inquiry, through oral testimony, deposition testimony
or written and printed records, in a manner that is
best calculated to ascertain the substantial rights of the
parties and carry out the provisions and intent of this
chapter.’’18 General Statutes § 31-298. The adjudicatory
and case management authority conferred by § 31-298
is ‘‘broad . . . .’’ Bailey v. State, 65 Conn. App. 592,
604, 783 A.2d 491 (2001); see also Bidoae v. Hartford
Golf Club, 91 Conn. App. 470, 479–80, 881 A.2d 418(given ‘‘the mandate of § 31-298 that the commissioner
protect the substantial rights of the parties while exer-
cising his broad, equitable powers to take evidence and
to carry out the provisions of [the act], we hold that the
commissioner did not abuse his discretion in precluding
the plaintiff from admitting evidence from her voca-
tional rehabilitation expert when she disregarded the
commissioner’s order to submit to an examination by
the defendants’ expert’’), cert. denied, 276 Conn. 921,
888 A.2d 87 (2005), cert. denied, 547 U.S. 1112, 126 S.
Ct. 1916, 164 L. Ed. 2d 665 (2006); Walter v. State, 63
Conn. App. 1, 15, 774 A.2d 1052 (upon finding that
employer had not been properly notified of hearing,
and prior to issuance of award, commissioner ‘‘properly
exercised his discretionary power under § 31-298’’ in
granting employer’s motion to open record because that
‘‘resulted in a hearing on the merits of the claim, rather
than the conclusive presumption of liability provided
by a granting of a motion to preclude’’), cert. denied,
256 Conn. 930, 776 A.2d 1148 (2001).
Most significantly, § 31-298 makes clear that practice
and procedure before the commission does not mirror
practice and procedure before the courts of the Judicial
Branch, unless a statute specifically so provides. Cf.
General Statutes § 31-301 (e) (‘‘[t]he procedure in
appealing [to the board] from an award of the commis-
sioner shall be the same as the procedure employed in
an appeal from the Superior Court to the Supreme
Court, where applicable’’); General Statutes § 31-315
(‘‘[t]he commissioner shall also have the same power
to open and modify an award as any court of the state
has to open and modify a judgment of such court’’). This
reflects that ‘‘the proceedings [before the commission]
were designed to facilitate a speedy, efficient and inex-
pensive disposition and to reduce the necessity of legal
counsel for the claimant.’’ Menzies v. Fisher, 165 Conn.
338, 346, 334 A.2d 452 (1973); see also Schreck v. Stam-
ford, 250 Conn. 592, 600, 737 A.2d 916 (1999) (recogniz-
ing value of legal counsel in workers’ compensation
proceedings, particularly those with complex legal or
factual issues).
Given the general informality of workers’ compensa-
tion proceedings, the board has recognized that motions
practice before the commission is relatively limited,
with motions generally restricted to only those with a
specific ‘‘statutory, regulatory or due process basis,’’
namely, ‘‘motions to preclude, motions to re-open and
modify, certain motions for discovery, motions to cor-
rect and motions to dismiss.’’ Poventud v. Eagle Four,
6 Conn. Workers’ Comp. Rev. Op. 72, 73 (1998); see id.(declining to review commissioner’s refusal to rule on
motion in limine filed to address admissibility of physi-
cian’s testimony, despite widespread use of that motion
in Superior Court, because ‘‘[o]ur legislators in 1913
did not envision that claims procedure would be encum-
bered with the pleading formalities required in the
courts’’); cf. Gonirenki v. American Steel & Wire Co.,
106 Conn. 1, 9, 137 A. 26 (1927) (‘‘we do not understand
that [commissioners] have ever adopted a procedure
requiring pleadings as in our courts, or that demurrers,
motions to dismiss, and like pleadings, are any part
of the established procedure before them’’). Indeed,
commissioners necessarily have broad authority with
respect to the scope of motions to dismiss, insofar as
there is no statute or regulation specifically governing
them beyond the fact that the ‘‘statutory language [of
§ 31-298] is capacious enough to include the power to
dismiss a claim in an appropriate case.’’ Pietraroia v.
Northeast Utilities, 254 Conn. 60, 71, 756 A.2d 845(2000); see also id., 72 (commissioner has authority
under § 31-298 to dismiss claim without adjudicating
its merits, if claimant fails to appear for trial or indepen-
dent medical examination because otherwise ‘‘claim
would remain in a procedural limbo’’). We have recog-
nized that such dismissals have been made with or
without prejudice. See id., 69 n.11.
Thus, in the absence of binding common law or statu-
tory rules of evidence or procedure, the nature of
motions practice in hearings before the commission is
cabined only by procedural due process, which
‘‘requires not only that there be due notice of the hearing
but that at the hearing the parties involved have a right
to produce relevant evidence, and an opportunity to
know the facts on which the agency is asked to act, to
cross-examine witnesses and to offer rebuttal evi-
dence.’’ (Internal quotation marks omitted.) Testone v.
C. R. Gibson Co., 114 Conn. App. 210, 217, 969 A.2d
179, cert. denied, 292 Conn. 914, 973 A.2d 663 (2009);
see also, e.g., Bryan v. Sheraton-Hartford Hotel, 62
Conn. App. 733, 741, 774 A.2d 1009 (2001) (in proceed-
ings before commission, ‘‘[a]n integral premise of due
process is that a matter cannot be properly adjudicated
unless the parties have been given a reasonable oppor-
tunity to be heard on the issues involved’’ [internal
quotation marks omitted]).
We conclude, therefore, that a commissioner, in man-
aging complex multiparty cases such as those on the
asbestos docket, has the authority under § 31-298 to
dismiss a claim provisionally, and then, if necessary,
reinstate the dismissed party into the proceedings prior
to a final determination of the compensability of the
claim and the apportionment of any liability under § 31-
299b. We further conclude that the board properly
deemed the order dismissing the association in this
case to be provisional, rather than a final award subject
to § 31-315, despite the lapse of the appeal period set
forth in §§ 31-300 and 31-301 (a).19 First, consistent with
the fact that the compensability of the decedent’s illness
had yet to be determined, the commissioner did not
characterize the order dismissing the association in a
manner suggesting its finality, such as by calling it ‘‘an
award’’ or noting that the dismissal was ‘‘with preju-
dice.’’ See Pietraroia v. Northeast Utilities, supra, 254
Conn. 69 and n.11 (considering propriety of dismissal
‘‘ ‘with prejudice’ ’’ as result of claimant’s failure to
appear, and emphasizing that such dismissal meant
‘‘with finality—without the ability in the [claimant] to
revive it’’). Further, as the board noted, although the
plaintiff, The Hartford, and F.D. Rich did not object to
the association’s initial motion to dismiss, neither did
they at any time stipulate specifically to a lack of liability
on its part on the record. This, coupled with the fact
that compensability of the claim had not yet been deter-
mined for purposes of the first step under the § 31-
299b apportionment process, strongly suggests that the
dismissal of the association was not entitled to adminis-
trative finality with the effect of res judicata.20 See Mar-
one v. Waterbury, 244 Conn. 1, 12–13, 707 A.2d 725(1998) (noting that res judicata depends on lack of need
for further action by court to determine matter); see
also Coldwell Banker Manning Realty, Inc. v. Cush-
man & Wakefield of Connecticut, Inc., 293 Conn. 582,
594, 980 A.2d 819 (2009) (grievance committee dismissal
of arbitration request was not ‘‘ ‘mutual, final and defi-
nite’ ’’ award for purposes of General Statutes § 52-418
[a]). Given the sheer multiplicity of respondents in the
typical asbestos case, the commissioner must have the
discretion under § 31-298 to, as the commissioner in
this case put it, ‘‘clear the room’’ or ‘‘[cull] the herd,’’
with the flexibility of reinstating parties or insurers to
the proceedings should the date of last exposure be
different than anticipated. (Internal quotation marks
omitted.)
Finally, the provisional nature of the order dismissing
the association and the permissibility of reinstating the
association as a party to the proceedings are both dem-
onstrated by the fact that the record reveals no preju-
dice to the association from the commissioner’s order
granting the motions to reinstate it as a party. Out of
an apparent abundance of caution, the association’s
attorney has prudently attended all proceedings before
the commission, and there has been no fact finding yet
with respect to the compensability of, and liability for,
the benefits due to the plaintiff. Moreover, as was dis-
cussed at oral argument before this court, the record
does not reveal any problems with respect to the loss
of evidence occasioned by the association’s dismissal.
Finally, to the extent that any evidence has been admit-
ted, that evidence consists of the plaintiff’s very brief
testimony to establish her entitlement to dependent
benefits under the act; the commissioner granted the
association the opportunity to recall her for cross-exam-
ination should it desire to do so. Cf. Marandino v.
Prometheus Pharmacy, 294 Conn. 564, 586–87, 986 A.2d
1023 (2010) (failure to file formal motion to modify
does not preclude modification of award pursuant to
§ 31-315 to obtain total incapacity benefits, given reme-
dial purpose of act and fact that ‘‘the record demon-
strates that the commissioner and the parties
considered the plaintiff’s application for total incapacity
benefits to be the equivalent of a motion to open or
modify,’’ and there was no evidence of prejudice
because defendant had adequate notice of hearing and
‘‘were able to participate, present evidence, and cross-
examine witnesses’’). Accordingly, because the order
dismissing the association was provisional, rather than
final, we conclude that the board properly affirmed
the commissioner’s decision to grant the motions to
reinstate the association as a party to the workers’
compensation proceedings.
The decision of the Workers’ Compensation Review
Board is affirmed.
In this opinion the other justices concurred.
1
‘‘The association is a nonprofit unincorporated legal entity created by
General Statutes § 38-276 [now General Statutes § 38a-839] and composed
of all insurers licensed to transact business in this state that write any
kind of direct insurance, except for those specifically excluded from the
application of the Connecticut Insurance Guaranty Association Act by Gen-
eral Statutes § 38-274 [now General Statutes § 38a-837]. . . . The associa-
tion was established in order to reimburse, to a limited extent, covered
claims against insolvent insurers.’’ (Citation omitted; internal quotation
marks omitted.) Franklin v. Superior Casting, 302 Conn. 219, 222 n.2, 24
A.3d 1233 (2011). Under General Statutes § 31-355 (e), the commission has
jurisdiction to determine the association’s obligations with respect to work-
ers’ compensation claims, namely, those asserted against insolvent insurers.
See Hunnihan v. Mattatuck Mfg. Co., 243 Conn. 438, 445–47, 705 A.2d
1012 (1997).
2
The association appealed to the Appellate Court; see General Statutes
§ 31-301b; and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
We note that the order dismissing the claim against the association was
issued by Commissioner Amado J. Vargas, while the order reinstating the
association as a party was issued by Commissioner David Schoolcraft. In
the interest of simplicity, we refer herein to both as the commissioner.
4
The named plaintiff in the present case, John Graham, who was Carmel
Graham’s husband, filed the original claims for workers’ compensation bene-
fits in 2006. After he died in 2008, Carmel Graham filed a claim for dependent
benefits that was joined with the original claims. In the interest of simplicity,
all references to the plaintiff hereinafter are to Carmel Graham.
5
Several other parties participated as defendants in the proceedings before
the commission including, inter alios, the named defendant, Olson Wood
Associates, Inc. These additional parties, however, are not relevant to the
present appeal.
6
General Statutes § 31-300 provides in relevant part: ‘‘As soon as may be
after the conclusion of any hearing, but no later than one hundred twenty
days after such conclusion, the commissioner shall send to each party a
written copy of the commissioner’s findings and award. . . . If no appeal
from the decision is taken by either party within twenty days thereafter,
such award shall be final and may be enforced in the same manner as a
judgment of the Superior Court. . . .’’ Although § 31-300 has been the subject
of certain technical amendments since the events underlying the present
case; see, e.g., Public Acts 2011, No. 11-44, § 49; those amendments have
no bearing on the merits of this appeal. In the interest of simplicity, we
refer to the current revision of the statute.
7
General Statutes § 31-301 (a) provides in relevant part: ‘‘At any time
within twenty days after entry of an award by the commissioner, after
a decision of the commissioner upon a motion or after an order by the
commissioner according to the provisions of section 31-299b, either party
may appeal therefrom to the Compensation Review Board by filing in the
office of the commissioner from which the award or the decision on a
motion originated an appeal petition and five copies thereof. . . .’’
8
General Statutes § 31-315 provides in relevant part: ‘‘Any award of, or
voluntary agreement concerning, compensation made under the provisions
of this chapter . . . shall be subject to modification in accordance with the
procedure for original determinations, upon the request of either party . . .
whenever it appears to the compensation commissioner, after notice and
hearing thereon, that the incapacity of an injured employee has increased,
decreased or ceased, or that the measure of dependence on account of
which the compensation is paid has changed, or that changed conditions
of fact have arisen which necessitate a change of such agreement, award
or transfer in order properly to carry out the spirit of this chapter. The
commissioner shall also have the same power to open and modify an award
as any court of the state has to open and modify a judgment of such court.
The compensation commissioner shall retain jurisdiction over claims for
compensation, awards and voluntary agreements, for any proper action
thereon, during the whole compensation period applicable to the injury
in question.’’
9
General Statutes § 31-298 provides in relevant part: ‘‘Both parties may
appear at any hearing, either in person or by attorney or other accredited
representative, and no formal pleadings shall be required, beyond any infor-
mal notices that the commission approves. In all cases and hearings under
the provisions of this chapter, the commissioner shall proceed, so far as
possible, in accordance with the rules of equity. He shall not be bound by
the ordinary common law or statutory rules of evidence or procedure, but
shall make inquiry, through oral testimony, deposition testimony or written
and printed records, in a manner that is best calculated to ascertain the
substantial rights of the parties and carry out the provisions and intent of
this chapter. . . .’’
10
General Statutes § 31-299b provides in relevant part: ‘‘If an employee
suffers an injury or disease for which compensation is found by the commis-
sioner to be payable according to the provisions of this chapter, the employer
who last employed the claimant prior to the filing of the claim, or the
employer’s insurer, shall be initially liable for the payment of such compensa-
tion. The commissioner shall, within a reasonable period of time after issuing
an award, on the basis of the record of the hearing, determine whether prior
employers, or their insurers, are liable for a portion of such compensation
and the extent of their liability. If prior employers are found to be so liable,
the commissioner shall order such employers or their insurers to reimburse
the initially liable employer or insurer according to the proportion of their
liability. Reimbursement shall be made within ten days of the commissioner’s
order with interest, from the date of the initial payment, at twelve per cent
per annum. If no appeal from the commissioner’s order is taken by any
employer or insurer within twenty days, the order shall be final and may
be enforced in the same manner as a judgment of the Superior Court. . . .’’
11
The January 26, 2011 formal hearing was the product of a remand order
from the board. Specifically, in June, 2009, the association moved to dismiss
the proceedings for lack of jurisdiction. That motion was denied, and the
association appealed to the board. In July, 2009, the board concluded that
the association’s appeal was premature without a record, and remanded
the case for ‘‘a formal hearing or other appropriate action.’’
12
The commissioner also observed that, by the time of the association’s
motion to dismiss, the board had already issued a decision, later upheld in
Franklin v. Superior Casting, 302 Conn. 219, 232–33, 24 A.3d 1233 (2011),
holding that if the association stands in the shoes of the last insurer on
the risk, it is not relieved from liability under § 31-299b, but may seek
apportionment from the claimant’s other employers or their insurers.
13
The commissioner also denied The Hartford’s motion to dismiss, con-
cluding that it would be more appropriate to consider its arguments with
respect to lack of exposure after the close of the evidentiary record.
14
The board further observed that, notwithstanding the custom and prac-
tice of ‘‘excus[ing], by agreement, certain participants from attending all of
the hearings [that] occur during the prosecution of an asbestos claim, it
may safely be said, given the sequence of events contemplated by § 31-299b
. . . that any party who elects not to participate in hearings is doing so at
its own risk.’’ (Internal quotation marks omitted.)
15
Given its conclusion that the order dismissing the association was not
a final judgment, the board declined to consider whether the commissioner’s
granting of the motions to reinstate the association was a proper application
of § 31-315, with respect to a motion to open.
16
Given our conclusion that the order dismissing the association was not
final, we, like the board, do not reach its claim that the order reinstating it
was not consistent with § 31-315, which governs motions to open awards.
See footnote 15 of this opinion.
17
In Franklin v. Superior Casting, supra, 302 Conn. 233–35, this court
distinguished its holding in Hunnihan v. Mattatuck Mfg. Co., 243 Conn.
438, 452–54, 705 A.2d 1012 (1997), that a solvent insurer that was the last
insurer on a risk could not seek apportionment from the association under
§ 31-299b because such a claim, asserted by an insurer against the associa-
tion, was not a ‘‘covered claim’’ for which the association is liable under
General Statutes § 38a-841. In Hunnihan, the court recognized that ‘‘§ 31-
299b, by placing initial liability on the last insurer in circumstances where
a compensable injury is the responsibility of several insurers, may create
a hardship for the last insurer in the event that a prior insurer has become
insolvent . . . .’’ Id., 453–54. Our more recent decision in Franklin, how-
ever, rejected the association’s argument that ‘‘holding the solvent insurer
. . . liable for the entire claim renders the only result that is consistent
with Hunnihan, namely, that there can be no apportionment between the
association and an insurer,’’ and that ‘‘shifting liability to solvent insurers is
consistent with the policies underlying the [Connecticut Insurance Guaranty
Act, General Statutes § 38a-836 et seq.], protecting the association’s limited
assets and the interests of consumers.’’ Franklin v. Superior Casting,
supra, 226.
18
We note that it is well established that § 31-298 is not itself an indepen-
dent source of jurisdiction, insofar as it ‘‘deals with the manner in which
testimony is obtained and hearings are conducted. It does not provide the
commissioner with any specific jurisdiction over particular types of claims
or questions.’’ Stickney v. Sunlight Construction, Inc., 248 Conn. 754, 765,
730 A.2d 630 (1999); see, e.g., Gill v. Brescome Barton, Inc., 317 Conn. 33,
42 n.11, 114 A.3d 1210 (2015) (§ 31-298 did not authorize reimbursement
order); Leonetti v. MacDermid, Inc., 310 Conn. 195, 218–20, 76 A.3d 168(2013) (§ 31-298 did not operate with General Statutes § 31-290c, workers’
compensation fraud statute, to render commission ‘‘competent’’ to consider
allegedly fraudulent conduct of claimant in entering into severance
agreement purporting to resolve his workers’ compensation claim because
that conduct ‘‘related to the agreement does not affect the compensability
of the claimant’s injury’’); Stickney v. Sunlight Construction, Inc., supra,
765 (reference to ‘‘ ‘equity’ ’’ in § 31-298 does not provide commissioner with
jurisdiction over coverage dispute between insurers); O’Neil v. Honeywell,
Inc., 66 Conn. App. 332, 339–40, 784 A.2d 428 (2001) (equitable provisions
of § 31-298 do not afford commissioner authority to open stipulated award,
because that authority is governed by § 31-315), cert. denied, 259 Conn. 914,
792 A.2d 852 (2002).
19
We acknowledge that the twenty day appeal period set forth in § 31-
301 (a) relates to the board’s subject matter jurisdiction. See Stec v. Raymark
Industries, Inc., 299 Conn. 346, 371, 10 A.3d 1 (2010). Accordingly, by holding
that a motion to reinstate the dismissed party is an appropriate procedural
vehicle with which to address a dismissal later deemed to have been improvi-
dent, we do not suggest that the provisional nature of the dismissal renders
it appealable to the board outside of that statutory period.
20
We disagree with the association’s reliance on State v. Curcio, 191 Conn.
27, 31, 463 A.2d 566 (1983), for the proposition that the order dismissing it
is a final judgment entitled to preclusive effect. Curcio is a well established
gloss on the final judgment requirement of General Statutes § 52-263, which
governs the appellate jurisdiction of this court and the Appellate Court with
respect to reviewing judgments of the Superior Court. But see Dechio v.
Raymark Industries, Inc., 299 Conn. 376, 400–401, 10 A.3d 20 (2010) (con-
cluding that § 31-301 [a] does not impose final judgment requirement for
appeals to board from decisions of trial commissioner, and noting that
General Statutes § 31-301b does not impose final judgment requirement on
appeals to Appellate Court from decisions of board). Nevertheless, there is
a ‘‘distinction between finality for purposes of appeal’’ and finality ‘‘for
purposes of res judicata,’’ despite the fact that ‘‘the two often overlap.’’
Marone v. Waterbury, 244 Conn. 1, 12, 707 A.2d 725 (1998). Curcio is,
therefore, wholly inapposite because it concerns finality for the purpose of
appealability, rather than finality for the purpose of preclusion.