Norton v. James Fleming Trucking, Inc. et al.

The claimant was represented by Thomas P. Willcuts, Esq., Murphy & Willcuts, 21 Oak St., Capitol Place, Hartford, CT 06106.

The respondents James Fleming Trucking Inc. and Hanover Insurance were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The said respondent employer and Liberty Mutual Insurance were not represented at oral argument. Notice sent to Debra Dee, Esq., Law Offices of Nancy S. Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.

The said respondent employer and International Insurance were represented by Edward D. O’Brien, Jr., Esq., 103 Woodland St., Hartford, CT 06105.

The respondent Good Transportation was not represented at oral argument. Notice sent to Good Transportation, P. O. Box 370, Sassamonsville, PA 19472.

The Second Injury Fund was represented by Taka Iwashita, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the August 5, 1994 Corrected Finding and Award of the Commissioner acting for the First District was heard February 23, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 5, 1994 Corrected Finding and Award of the Commissioner acting for the First District. He argues on appeal that the commissioner improperly found that the Workers’ Compensation Commission lacked jurisdiction over his claim, and that he made improper findings regarding the medical evidence. He has also filed a Motion to Submit Additional Evidence. Without ruling on that motion, we affirm the trial commissioner’s decision.

The commissioner framed the issues to be resolved at the formal hearing as follows: whether the claimant suffered a repetitive trauma injury to his back in early 1993 while employed by Good Transportation, whether the claimant was an employee of Good Transportation, and whether Good Transportation had workers’ compensation insurance. The commissioner found that the claimant neither took the stand on his own behalf nor called any witnesses in his favor. Instead, his attorney introduced six exhibits made up of five sets of medical reports and/or bills, and a Pennsylvania Compensation Rating Bureau notice indicating that Good Transport Ltd. was not carrying workers’ compensation insurance during the first quarter of 1993. The commissioner also took administrative notice of an approved voluntary agreement among the claimant, James Fleming Trucking and Hanover Insurance referencing an August 18, 1990 injury, a 15 percent permanency of the lower back, and a maximum medical improvement date of July 11, 1991.

The commissioner specifically noted that no evidence was presented establishing any kind of employment relationship between the claimant and Good Transportation. He also found that the medical evidence offered by the claimant was inconsistent, and that the claimant did not meet his burden of proof that he suffered a compensable back injury while employed by Good Transportation. The commissioner thus dismissed the claim against Good Transportation, from which decision the claimant has appealed.

Before we discuss the substance of this appeal, we note that it is the appellant who has the burden of establishing the grounds for his appeal and providing this board with an adequate record for review. Sargent v. Rybczyk Plumbing & Heating, 13 Conn. Workers’ Comp. Rev. Op. 128, 130, 1660 CRB-6-93-3 (Jan. 31, 1995). Included in this burden is the responsibility for filing a brief. This board has the discretion to dismiss an appeal where the appellant fails to heed that responsibility in a timely fashion, and we have exercised that power in the past. See, e.g., Latulippe v. Derekseth Homes, Inc., 13 Conn. Workers’ Comp. Rev. Op. 140, 1839 CRB-1-93-9 (Feb. 1, 1995). The claimant has failed to file an appellate brief here, which impedes our ability to discern the nuances of his claims of error and the ability of the respondents to refute those claims. Although we do not dismiss the appeal in this case under Practice Book § 4055, we note that the appellant’s case is markedly weakened by this deficiency in the appellate record.

It appears from the Reasons of Appeal that the claimant is contending that the commissioner should not have determined jurisdiction in the Corrected Finding and Award because it was not properly at issue, and that the commissioner’s subsequent findings are thus not binding. This argument appears to be premised on the fact that the formal hearing notice states the issue to be discussed as “No insurance (Good Transportation), and apportionment.” The claimant argues that all of the parties had previously agreed that the claimant was an employee of Good Transportation, and that jurisdiction was admitted and undisputed.

We recently ruled in Allingham v. Burns International Security, 14 Conn. Workers’ Comp. Rev. Op. 333, 1977 CRB-1-94-2 (Sept. 20, 1995), that a trial commissioner deprived a claimant of due process by dismissing her claim for lack of subject matter jurisdiction without notifying the parties that it was at issue. Id., 334-35. In that case, however, the parties had stipulated that the Workers’ Compensation Commission had “personal and subject matter jurisdiction of this claim for benefits,” and the commissioner subsequently concluded that the jurisdictional issue could not be resolved by stipulation. Because both parties had assumed the issue was settled, we held that it was improper for the commissioner to make a decision on that issue without giving the parties a chance to address that topic.

In this case, however, the claimant has provided this board with no proof of any kind that the parties had previously agreed to jurisdiction. Instead, the claimant’s counsel stated at the formal hearing that the main issue in this case was whether the March 1993 back injury claim related back to a 1990 injury or whether it was a new incident. (Transcript, p. 5-6). In order to establish liability for a new injury on the part of Good Transportation, the claimant would necessarily have to establish the elements of his claim, including that he was an employee of Good Transportation and that said employment contributed to his injury. See McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 342, 2050 CRB-3-94-5 (Sept. 20, 1995) (elements of claim for payment of medical bills included evidence of valid referral to establish authorization of treater). This should not have come as a surprise to the claimant’s counsel based on the issue as he stated it at the formal hearing. See Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 110 (1971). Yet, no evidence of any kind was presented even linking the claimant with Good Transportation. Under the circumstances, we do not think the commissioner erred in dismissing that claim.

Our decision on the jurisdictional issue renders the Motion to Submit Additional Evidence moot, as further findings regarding the weight of the medical evidence would not be material to the dismissal of the claim against Good Transportation. Consequently, we decline to rule on that motion.