Lazzari v. Stop & Shop Supermarket Co., LLC ( 2016 )

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ANTHONY LAZZARI v. THE STOP AND SHOP
SUPERMARKET COMPANY, LLC, ET AL.
(AC 37325)
Gruendel, Mullins and Mihalakos, Js.
Argued December 2, 2015—officially released February 2, 2016
(Appeal from the Workers’ Compensation Review
Board.)
Anthony Lazzari, self-represented, the appellant
(plaintiff).
Matthew Necci, with whom, on the brief, was Alyssa
Swaniger, for the appellee (named defendant).
Opinion
PER CURIAM. The plaintiff, Anthony Lazzari, appeals
from the decision of the Workers’ Compensation
Review Board (board) remanding his appeal in order
for the Workers’ Compensation Commissioner (com-
missioner) to hold a formal hearing. The board deter-
mined that without a formal hearing at which a record
could be created, the plaintiff’s appeal was not ripe. On
appeal, the plaintiff raises various claims, principally
arguing that the board inadequately considered the
issues he raised before it. We affirm the board’s
decision.
The plaintiff’s underlying claim is that he was injured
while an employee of the defendant, The Stop & Shop
Supermarket Company, LLC, and that he, therefore, is
owed workers’ compensation benefits by that company
and its defendant insurer, Mac Risk Management, Inc.
When the defendants sought to depose the plaintiff, he
filed a ‘‘memoranda re: legal authority for deposition’’
with the commissioner, requesting, inter alia, the legal
authority pursuant to which the commissioner could
compel his deposition. The commissioner replied with
a letter outlining the law regarding the defendants’ enti-
tlement to depose the plaintiff, the permissible scope of
such a deposition, and the mechanics of the deposition,
along with suggestions for conducting a deposition in
a way that would address the plaintiff’s concerns. The
plaintiff then appealed from the commissioner’s reply
to the board. The board issued a remand order on Sep-
tember 24, 2014, stating that no transcript or exhibits
existed1 and that due process required an evidentiary
hearing where a record could be created. It then
remanded the matter to the commissioner for a formal
hearing or other appropriate action.2 Thereafter, the
plaintiff appealed to this court.
The issue presented on appeal is whether the board
properly remanded the matter to the commissioner for
a formal hearing.3 We conclude that it did.
We previously have held that a ‘‘board’s remand
order, in which it expressly stated that ‘[a]bsent a record
this board cannot properly consider an appeal’ and then
remanded the matter to the commissioner for a formal
hearing . . . is entirely consistent with established
Connecticut law.’’ Passalugo v. Guida-Seibert Dairy
Co., 149 Conn. App. 478, 485, 91 A.3d 475 (2014)
(affirming board’s dismissal of appeal as unripe and
remanding for formal hearing of plaintiff’s appeal from
informal hearing); see also Pagan v. Carey Wiping
Materials Corp., 144 Conn. App. 413, 415–16, 73 A.3d
784, cert. denied, 310 Conn. 925, 77 A.3d 142 (2013)
(same); Brinson v. Finlay Bros. Printing Co., 77 Conn.
App. 319, 326 n.8, 823 A.2d 1223 (2003) (appeal from
informal hearing not appealable decision due to lack
of record). General Statutes § 31-2984 states in relevant
part that at a formal hearing, a commissioner ‘‘shall
make inquiry, through oral testimony, deposition testi-
mony 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.’’ General Statutes § 31-301 (b)5 then states
in pertinent part: ‘‘The Compensation Review Board
shall hear the appeal on the record of the hearing before
the commissioner . . . .’’ The statutes contemplate
that both parties will have the opportunity to make
their arguments to the commissioner and the commis-
sioner will have the opportunity to fully develop the
record by questioning the parties and providing them
with an opportunity to submit evidence. In addition, the
regulations of the Workers’ Compensation Commission
require the commissioner to make findings in a speci-
fied format.6
All of these requirements ensure that the record
before the board will be sufficient for it to make a
proper determination of the rights of the parties. The
board properly determined that it could not decide the
issues presented without a formal hearing at which
all parties would have an opportunity to make their
arguments and the commissioner would be able to ren-
der a decision, which could then be reviewed by the
board if an appeal was taken.
The decision of the Workers’ Compensation Review
Board is affirmed.
1
The plaintiff asserts that there are, in fact, records, consisting of the
various court filings, his memoranda, and the commissioner’s letter. We
construe the board’s reference to no transcripts or exhibits to mean none
of those transcripts or exhibits that it customarily receives following a
formal hearing and that serve to frame the issues before it.
2
During the pendency of this appeal, a formal hearing was held before a
different commissioner, at which the plaintiff refused to submit to ques-
tioning that he claimed could render his appeal moot. That commissioner
determined that he could not go forward with the hearing while the plaintiff
maintained this appeal. In addition, the plaintiff filed a motion for articula-
tion, which the board granted in part, regarding the meaning of ‘‘other
appropriate action’’ in its decision, and denied in part, regarding the meaning
of ‘‘communication.’’ The board articulated that in providing for ‘‘other
appropriate action,’’ it left open the possibility that the commissioner could
utilize alternate methods of dispute resolution aside from a formal hearing.
3
The plaintiff also asserts that the commissioner’s statements regarding
the deposition were incorrect. The commissioner’s statements regarding the
deposition are not properly before us because the board never reached that
issue. In addition, the defendants have requested sanctions pursuant to
Practice Book § 85-2, claiming that the plaintiff’s appeal is frivolous. We
decline to order sanctions.
4
General Statutes § 31-298 provides: ‘‘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 informal 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 accor-
dance 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. No fees shall
be charged to either party by the commissioner in connection with any
hearing or other procedure, but the commissioner shall furnish at cost (1)
certified copies of any testimony, award or other matter which may be of
record in his office, and (2) duplicates of audio cassette recordings of
any formal hearings. Witnesses subpoenaed by the commissioner shall be
allowed the fees and traveling expenses that are allowed in civil actions,
to be paid by the party in whose interest the witnesses are subpoenaed.
When liability or extent of disability is contested by formal hearing before
the commissioner, the claimant shall be entitled, if he prevails on final
judgment, to payment for oral testimony or deposition testimony rendered
on his behalf by a competent physician, surgeon or other medical provider,
including the stenographic and videotape recording costs thereof, in connec-
tion with the claim, the commissioner to determine the reasonableness of
such charges.’’
5
General Statutes § 31-301 (b) provides: ‘‘The appeal shall be heard by
the Compensation Review Board as provided in section 31-280b. The Com-
pensation Review Board shall hear the appeal on the record of the hearing
before the commissioner, provided, if it is shown to the satisfaction of the
board that additional evidence or testimony is material and that there were
good reasons for failure to present it in the proceedings before the commis-
sioner, the Compensation Review Board may hear additional evidence or
testimony.’’ This section contemplates that the board will hear additional
testimony only after the commissioner was able to develop the record and
only if there is good reason to do so.
6
Section 31-301-3 of the Regulations of Connecticut State Agencies pro-
vides: ‘‘The finding of the commissioner should contain only the ultimate
relevant and material facts essential to the case in hand and found by him,
together with a statement of his conclusions and the claims of law made
by the parties. It should not contain excerpts from evidence or merely
evidential facts, nor the reasons for his conclusions. The opinions, beliefs,
reasons and argument of the commissioner should be expressed in the
memorandum of decision, if any be filed, so far as they may be helpful in
the decision of the case.’’