This was an appeal of the claimant’s bid for sanctions against the respondents for unreasonable delay. The claimant argues that the trial commissioner had pre-judged the motion for sanctions and denied a motion to depose the claim’s adjuster, which made it impossible for him to prove his case. The claimant argued that the commissioner had stated prior to the opening of the record that he would be “hard pressed to issue a finding of unreasonable contest/unreasonable delay and a fight on credibility.”
The CRB discussed the extraordinary remedy of recusing a trial commissioner. Citing a decision in Martinez vs. McCord, the CRB reiterated that “since the early days of Workers’ Compensation in Connecticut, the recusal of trial commissioners has been disfavored except for circumstances under which a trial commissioner determined on his or her own that their impartiality was at issue.” The CRB found in this case that the trial commissioner’s comments prior to trial that it would be an uphill battle to convince him to issue sanctions was not so prejudicial as to require a recusal. According to the Supreme Court’s dicta in State vs. Rizzo303Conn72(2011) “…opinions that judges may form as a result of what they learn in earlier proceedings in the same case ‘rarely’ constitute the type of bias or appearance of bias that requires recusal…To do so an opinion must be ‘so extreme as to display clear inability to render fair judgment.’” The CRB held that the information upon which the trial commissioner had developed his bias was not outside the record, but was based on a recitation of the facts prior to going on the record at trial. For this reason, the CRB found no error from the trial commissioner’s refusal to recuse himself in this matter.
However, when his refusal to recuse himself was added to the trial commissioner’s refusal to allow a deposition of the claims adjuster, which arguably would have been essential to proving the undue delay portion of this claim, the CRB held that the trial commissioner had abused his discretion in failing to allow the claimant every opportunity to adduce any relevant evidence on the issue of sanctions. “We are simply not persuaded that the claimant was availed of every opportunity in this case to rebut the evaluation as to the merit of sanctions the trial commissioner publicly stated at the commencement of this case prior to hearing any testimony on the record.”
As a consequence, the CRB vacated the trial commissioner’s dismissal of the sanctions issue and remanded it to a new trial commissioner for a de novo hearing, who was charged with determining whether to allow the deposition and then issuing a ruling on undue delay. Query whether the CRB had implicitly determined that the trial commissioner should have recused himself by awarding a de novo trial by another commissioner, ie, the CRB easily could have remanded the case back to the original trial commissioner with instructions to reconsider the request for deposition.