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Pietraroia v. Northeast Utilities8/8/2000
The dispositive issue in this appeal is whether the workers' compensation commissioner (commissioner) abused his discretion in dismissing with prejudice the claim of the plaintiff, Angelo Pietraroia, a resident of Australia, because he failed to appear for the formal hearing before the commissioner in Connecticut. The plaintiff appeals from the decision of the compensation review board (board) affirming the decision of the commissioner dismissing the plaintiff's claim. The plaintiff contends that: (1) the commissioner had no power to dismiss the claim without adjudicating the case on the merits; and (2) in the alternative, the commissioner abused his discretion in dismissing the claim. We conclude that: (1) the commissioner had the power to dismiss the claim; but (2) he abused his discretion in doing so. Accordingly, we reverse the board's decision.
The plaintiff, on August 8, 1994, through his Connecticut attorney, filed a claim for workers' compensation against his former employer, the defendant Northeast Utilities, alleging that, while employed by the defendant from 1956 through 1972, he suffered " ulmonary impairment caused by exposure to lung irritants . . . ." The notice of claim indicated that the plaintiff lived in Australia. The defendant filed a timely notice of contest of liability. Ultimately, on June 5, 1998, the commissioner granted the defendant's motion to dismiss the claim with prejudice. The plaintiff appealed from that decision to the board, which affirmed the decision. This appeal followed.
Certain facts and the procedural history are undisputed. Following the filing of the plaintiff's claim and the defendant's notice of contest, the matter was scheduled for a formal hearing on January 28, 1997. On January 2, 1997, however, the plaintiff moved for permission to present his testimony electronically. In support thereof, the plaintiff represented that he was sixty-four years old, he had lived in Australia since 1972, and he resided in McLaren Flat, South Australia, which is near the city of Adelaide. He also represented that he was unable to testify in person because of illness, as indicated in a medical report attached to the motion. He represented further that he "could . . . present his case by way of deposition," which he acknowledged would, however, "be an inconvenience for both [the plaintiff] and [the defendant] in that counsel for each party would either have to travel to Australia at considerable cost or procure Australian attorneys to conduct a deposition in Australia." The plaintiff submitted that "another alternative would be to present his testimony telephonically before the Commissioner at a continued formal hearing scheduled for a time which would take into account the 14 1/2 hour time difference between Middletown, Connecticut and South Australia." He submitted that a telephone with speaker phone capabilities at the site of the hearing would be used, that the oath would be administered by an appropriate official provided in Practice Book § 13-28, formerly § 245, and that he would bear the cost of the telephone time. The commissioner denied this request on January 6, 1997.
Prior to the scheduled January 28 formal hearing, the defendant scheduled a physical examination of the plaintiff with Thomas Godar, a Connecticut physician, and also scheduled a deposition of the plaintiff in Connecticut. These were scheduled for times close to the January 28 formal hearing date. Neither the physical examination nor the deposition took place because the plaintiff did not travel from Australia to Connecticut for the hearing.
At the hearing on January 28, the defendant contended that "the statute of limitations and the statute of non-claim" bar
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