author: SCHALLER, J.

text:
    WALTER GOODRICH ET AL. v. ROBERTA DIODATO
    (AC 16411)
    Lavery, Schailer and Dupont, Js.
    Argued October 30, 1997
    officially released April 14, 1998

      John L. Stawicki, for the appellant (defendant).

      Jeffrey N. Low, for the appellees (plaintiffs).
   Opinion

SCHALLER, J.

The defendant, Roberta Diodato, appeals from the judgment of the trial court quieting title in favor of the plaintiffs, Walter Goodrich and Lois Goodrich. The plaintiffs sought to quiet title to a strip of land that runs along the boundary of their property and that of the defendant in the town of Montville. The plaintiffs also sought damages for trespass, nuisance and interference with the quiet enjoyment of their property, and an order allowing the plaintiffs to remove the fence and steel rods that the defendant had placed on their property. The defendant raised a special defense, asserting that the plaintiffs’ grantors did not own the disputed land at the time they conveyed it to the plaintiffs, and, therefore, that the deed for that parcel was void. The defendant also filed a counterclaim seeking to quiet title and to collect damages for trespass, adverse possession and the conversion of certain shrubs and bushes.

The trial court determined that the plaintiffs proved ownership of the disputed land by record title and that' the common boundary line was that claimed by the plaintiffs. The court also determined that the defendant did not establish her claim of adverse possession and that neither party established intentional trespass. On appeal, the defendant claims that the trial court improperly (1) reformed the common boundary line to a location not claimed by either party, (2) disregarded the legal principle of junior and senior rights in establishing the boundary line, (3) determined that the defendant failed to prove her claim of adverse possession by clear and convincing evidence and (4) determined that the deed conveying the strip of land to the plaintiffs was valid. We affirm the judgment of the trial court.

The following facts are relevant on appeal. The subject properties are part of a residential subdivision developed by Frank Lathrop and John Lathrop on Occum Lane in Montville. That subdivision is delineated in two maps prepared in September and December, 1959, which contained errors and significant discrepancies. The defendant purchased her property at 31 Occum Lane in 1961 by deed from the Lathrops. The deed conveys lot three and the eastern half of lot two in the subdivision to the defendant, and refers to the September, 1959 subdivision map. The plaintiffs purchased their property at 23 Occum Lane from the Lathrops by deed in 1962. The deed conveys lot one and the western twenty feet of lot two to the plaintiffs, and refers to the December, 1959 subdivision map. In 1980, the plaintiffs purchased the remaining twelve foot strip of land in the western half of lot two from the Lathrops by quitclaim deed.

From 1962 to 1989, the relationship between the neighboring parties was friendly, and they often visited each other’s properties. In 1989, however, while clearing bushes and tree stumps from their land, the plaintiffs discovered that part of the defendant’s tool shed was on their property. The plaintiffs notified the defendant of the situation and asked her to remove her shed from their property. In response, the defendant hired a land surveyor, John Wells, who examined the parties’ deeds, the deeds of other subdivision lot owners, the two subdivision maps and Montvillc land records. Wells discovered discrepancies in the deeds and the two subdivision maps. Specifically, the defendant’s deed conveyed lot three and the “easterly half of Lot [no.] 2,” and purported to convey 120 feet of frontage property on Occum Lane to the defendant. The September, 1959 subdivision map referred to in the defendant’s deed, however, depicts the defendant’s property on Occum Lane as totaling only 106.5 feet of frontage. Unable to reconcile these differences, Wells simply ignored the September, 1959 map and the 1980 conveyance of the strip of land to the plaintiffs. He concluded that the boundary line ran along the western border of the defendant’s driveway and marked this line by placing steel rods on the plaintiffs’ property. The defendant also erected a fence along a portion of this boundary.

The plaintiffs also hired a surveyor, Robert Mullen, to establish the location of the common boundary line. Relying on the parties’ deeds, the deeds of other subdivision lot owners, the two subdivision maps, Montville land records, state highway maps and physical evidence obtained from on-site inspection, Mullen determined that the common boundary line ran down the middle of lot two, dividing the lot into two equal parcels and passing through the defendant’s driveway. Mullen also became aware of the discrepancies in the deeds and the subdivision maps. Instead of simply reapportioning the discrepancies in favor of one party, as Wells did, Mullen evenly apportioned the discrepancies among all of the lot owners to locate the common boundary line.

On the basis of all of the evidence before it, the trial court found that the Lathrops conveyed only 106.5 feet of total frontage to the defendant in 1961, thus upholding the plaintiffs’ claim that the common boundary line ran down the middle of the defendant’s driveway. The trial court also found that after lot one and the western twenty feet of lot two were conveyed to the plaintiffs in 1962, a strip of land between the western twenty feet and the eastern half of lot two remained in the possession of the Lathrops, and that this land was finally conveyed to the plaintiffs in 1980.

I

The defendant first claims that the trial court improperly reformed the common boundary line to a position not claimed by either party. We disagree.

The defendant asserts that the common boundary line runs along the western border of her driveway and continues in a straight line to the rear of her property, incorporating all of the disputed land. The plaintiffs, on the other hand, assert that the boundary line divides lot two into two equal parcels and runs through the defendant’s driveway. The plaintiffs, however, acknowledge the defendant’s longtime use of the driveway and stated at trial that they were not claiming the portion of the strip of land on which the defendant’s driveway was located. The trial court’s establishment of the common boundary, arrived at after considering all of the circumstances surrounding the conveyances and the plaintiffs’ concession that they did not want to claim a portion of the defendant’s driveway, was within the relief requested by the plaintiffs. Contrary to the defendant’s assertion, the trial court reformed the boundary to a location that was explicitly claimed by the plaintiffs. The trial court’s decision, therefore, accorded with orn-ease law, which states that in resolving a boundary dispute, a trial court must identify the boundary line along a course for which there is a supporting basis in its findings and in the prayers for relief. See F. & AK, Inc. v. Sleeper, 161 Conn. 505, 512, 289 A.2d 905 (1971). In the present case, there were both.

II

The defendant next claims that the trial court improperly disregarded the legal principle of junior and senior rights in establishing the common boundary line. We disagree.

In C. Brown, W. Robillard & D. Wilson, Boundary Control and Legal Principles (4th Ed. 1995) § 11.2, p. 253, the principle of junior and senior rights is described as follows: “When a portion of a tract of land is sold, two parcels are created, a new parcel and the remainder of the parent parcel. Because the new parcel must receive all of the land described, it is called the senior deed, and the remainder, at the time of conveyance, becomes the junior deed.” “As between private parties, a junior grant, in conflict with a senior grant, yields to the senior grant.” Id., § 11.1, p. 250. This principle appears to be nothing more than a restatement of the well established rule that aparty cannot convey that which he no longer possesses. Gioia v.Annunziata, 102 Conn. 52, 56, 127 A. 921 (1925). In cases where there are ambiguities about what was intended to be conveyed to the holder of the oldest deed, that rule cannot resolve the dispute. Instead, in cases like the present case where the deed and the map referenced therein contain ambiguities, the trial court must look to the intention of the parties to determine where the boundary line lies. Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 511, 280 A.2d 877 (1971). “The question of the parties’ intention as to the division line was one of fact for the trial court and we cannot disturb its finding if it is based on evidence of the surrounding circumstances and the situation of the property which legally supports the finding.” F. & AK, Inc. v. Sleeper, supra, 161 Conn. 511. We have fully reviewed the record, trial transcript, exhibits and briefs in this appeal and conclude that the trial court’s establishment of the boundary line was firmly supported by the evidence.

III

The defendant next claims that the trial court improperly determined that she failed to prove her adverse possession claim by clear and convincing evidence. We disagree.

“In order to establish adverse possession, the claimant must oust an owner of possession and keep such owner out uninterruptedly for fifteen years by an open, visible and exclusive possession under a claim of right with intent to use the property as his own and without the consent of the owner.” Clark v. Drska, 1 Conn. App. 481, 485, 473 A.2d 325 (1984). “Adverse possession must be proven by the claimant... by clear and convincing evidence.” (Citations omitted.) Oak Leaf Marina, Inc. v. Ertel, 23 Conn. App. 91, 93, 579 A.2d 568, cert. denied, 216 Conn. 827, 582 A.2d 206 (1990). “In the final analysis, whether possession is adverse is a question of fact for the trier.” Whitney v. Turmel, 180 Conn. 147, 148, 429 A.2d 826 (1980).

In this case, the trial court concluded that the defendant failed to prove that her possession was open, adverse and exclusive. Both parties worked and played on the disputed tract of land. The defendant never used the property as though it belonged to her alone, nor did she use it to the exclusion of the plaintiffs. In fact, a pathway was cleared between the hedges so that the parties could have access to each other’s property. In addition, before the dispute arose, the defendant’s husband told the plaintiffs that he thought the common boundary line ran somewhere to the east of the defendant’s hedges. Although much of the evidence was disputed, “it is axiomatic that this court cannot retry the facts or pass on the credibility of witnesses.” Peters v. Pearl, 37 Conn. App. 153, 156, 655 A.2d 262, cert. denied, 233 Conn. 908, 658 A.2d 980 (1995). We are satisfied that the trial court’s determination that the defendant did not demonstrate adverse possession by clear and convincing evidence was not clearly erroneous or otherwise improper as a matter of law.

IV

The defendant’s final claim is that the trial court improperly determined that the Lathrops possessed the disputed land when they conveyed it to the plaintiffs in 1980, and, therefore, the deed for that parcel was valid. We disagree.

We first address the plaintiffs’ assertion that this issue should not be reviewed on appeal because the defendant did not state in her special defense or counterclaim that her ouster claim was made pursuant to General Statutes § 47-21. The plaintiffs cite Practice Book § 109A (a), now Practice Book (1998 Rev.) § 10-3 (a), which provides that “[w]hen any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number . . . .” We have held, however, that the requirement that the pleader specifically identify the statute on which he relies is directory, rather than mandatory. Rowe v. Godou, 12 Conn. App. 538, 542, 532 A.2d 978 (1987), rev’d on other grounds, 209 Conn. 273, 550 A.2d 1073 (1988). The purpose of this rule is to promote the full and open disclosure of legal claims by identifying and narrowing the issues before the court. Id., 543-44. Although the defendant did not specifically refer to § 47-21 in her special defense, the defendant sufficiently apprised the trial court of her special defense of ouster. Accordingly, we will address the merits of this issue.

The defendant claims that she ousted the Lathrops from the disputed land in 1962, eighteen years before they deeded the parcel to the plaintiffs in 1980. She asserts, therefore, that the Lathrops were not in possession of that land at the time of the conveyance, and the deed is void.

“The possession necessary to constitute an ouster under § 47-21 is not some fleeting or ephemeral technical invasion of the property nor the occasional technical invasion tolerated by adjoining neighbors on good terms with one another. Rather, it is possession of a character such that it would, if continued for the requisite period, ripen into a title by adverse possession.” (Emphasis added.) Loewenberg v. Wallace, 147 Conn. 689, 694, 166 A.2d 150 (1960).

The trial court, in its memorandum of decision, found that the defendant failed to establish that she ousted the Lathrops before they conveyed the disputed land to the plaintiffs in 1980. In addressing the claim of ouster, the trial court determined that “[t]hat portion of lot two situated between the easterly one-half of that parcel, which was conveyed to the defendant, and the westerly twenty feet of that parcel, which was included in the conveyance to the plaintiffs, remained in the ownership of the Lathrops. . . . The testimony and exhibits do not support the proposition that the defendant and her family made an open, notorious and hostile use of the land to the immediate west of the boundary line fixed by Mullen so as to put [the plaintiffs] or anyone else on notice that a claim to title by adverse possession was being asserted.” (Emphasis added.)

Since we have already concluded that the trial court properly determined that the defendant failed to prove the elements of adverse possession, we conclude that the trial court’s determination that the defendant also failed to prove the possession necessary to constitute an ouster under § 47-21 was not improper.

The judgment is affirmed.

In this opinion the other judges concurred.

       In their prayer for relief, the plaintiffs made a general request for the establishment of a common boundary between the parties.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    PAUL HIRSCH ET AL. v. CAROL TOLONEN ET AL.
    (AC 16949)
    O’Connell, C. J., and Foti and Spear, Js.
    Argued January 16
    officially released April 14, 1998

      Neil R. Marcus, with whom, on the brief, was Monte E. Frank, for the appellants (plaintiffs).

      Patrick J. Walsh, with whom, on the brief, were Richard P. Hastings and Steven P. Panos, for the appellees (named defendant et al.).
   Opinion

SPEAR, J.

The plaintiffs, Paul Hirsch and Heidi Hirsch, brought suit against the defendants, Carol Tolo-nen and Southern New England Telephone Company, alleging a trespass to their airspace with respect to certain overhead utility service wires that traverse the plaintiffs’ property and serve Tolonen’s residence. The plaintiffs appeal from the judgment of the trial court denying their requests for both money damages and an injunction ordering the defendants to remove the service wires. The plaintiffs claim that the trial court improperly interpreted the language of the subject deed to grant the defendants a right to maintain the service wires across the plaintiffs’ property because there was no express language in the deed creating such an easement. We affirm the judgment of the trial court.

The trial court’s memorandum of decision sets out the relevant facts. The plaintiffs and Tolonen are the respective owners of two contiguous parcels of property located on Fox Run Road in the town of Redding. Prior to subdivision, these parcels constituted a single tract of land that was owned by Joseph Michael and Mieke Michael. When the Michaels subdivided the land in 1983, a map depicting the subdivision was created and thereafter recorded in the Redding land records. Between 1983 and 1992, lot A, currently owned by the plaintiffs, was conveyed several times by successive owners of the property. In 1983, the deed by which the Michaels originally conveyed lot A made reference to two easements. The first easement provided for a mutual driveway in favor of the adjoining parcel, lot B. The second easement, in favor of the Southern New England Telephone Company, allowed for service wires to run over lot A to the west of lot B.

In 1987, Richard Sloper took title to lot A, the deed to which provided that title was subject to two easements, the telephone company easement and the driveway easement, and “notes and symbols shown on Map [no.] 3064.”1 When Sloper defaulted on his mortgage in 1992, Citicorp Mortgage, Inc., the mortgagee, foreclosed on lot A. In 1993, the plaintiff, Heidi Hirsch, took title to lot A. The property description in the deed from Citicorp to Hirsch also made reference to map no. 3064.

In 1994, the defendant, Carol Tolonen purchased lot B, the title to which was subject not only to the telephone company and driveway easements, but also to the map’s notes and symbols that were referenced within the deed’s property description. In 1996, the plaintiffs brought the unsuccessful action for trespass, seeking money damages and an order that the defendants be required to remove the service wires that traversed the plaintiffs’ property. This appeal followed.

The plaintiffs claim that the trial court improperly construed the language of their deed to grant the defendants an easement where no express language creating an easement in favor of lot B ever appeared in the deed to lot A. Additionally, the plaintiffs maintain that as a matter of law, an easement cannot be created simply because a purchaser accepts a deed subject to certain notes and symbols on a map. We conclude that the plaintiffs’ easement claims miss the mark. The actual issue here is whether the map’s notes and symbols became part o/the deed itself, such that the plaintiffs’ acceptance of the deed and its restrictions clearly delineated the rights of the parties. We conclude that the notes and symbols did, in fact, become part of the deed itself and are therefore binding on the plaintiffs.

Our legislature has spoken with respect to the significance of a map that is referenced within the language of a deed. Specifically, General Statutes § 7-31 provides that “the map may be received and placed on file in the office of the clerk of the town in which such land is situated and shall thereupon be deemed a part of the deeds referring thereto . . . .” Here, it is undisputed that the subject map was timely and properly recorded. Moreover, it is well settled that when the language of a deed makes reference to a map, the “reference to the map in the deed, [f]or a more particular description, incoiporates [the map] into the deed as fully and effectually as if copied therein.” (Internal quotation marks omitted.) Bankers Trust Co. v. Zoning Board of Appeals, 165 Conn. 624, 631, 345 A.2d 544 (1974); see also Cohen v. Holloways’, Inc., 158 Conn. 395, 401, 260 A.2d 573 (1969); Barri v. Schwarz Bros. Co., 93 Conn. 501, 508, 107 A. 3 (1919). The plaintiffs’ deed clearly indicated that their title to lot A was “subject to” certain notes and symbols as shown on the map that was properly recorded in the office of the town clerk of Redding. The trial court soundly reasoned that “[t]he plaintiffs chose to accept a deed subject to notes and symbols shown on map no. 3064. . . . [T]his burden could presumably have been rejected .... The plaintiffs did not choose that course.”

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs withdrew the complaint as to an additional defendant, Carl Tolonen, prior to trial.

       Map no. 3064, depicting the service wires, was recorded in the Redding land records on May 6, 1983.

       In 1983, the Michaels conveyed to Scott McArthur and Sally McArthur, who subsequently conveyed to Howard Patron in 1986.

       The notes and symbols depict the overhead utility lines at issue. Not until Howard Patron’s conveyance to Richard Sloper in 1987 did a deed for this property malee reference to notes and symbols on a map.

       Heidi Hirsch took title to lot A under the name Heidi Halsey. She subsequently filed a name change certificate in October, 1995.

       The property description in the deed stated: “All that certain parcel of land together with the buildings and improvements thereon, situated in the Town of Redding, Fairfield County, Connecticut, shown and designated as Parcel A on a certain map entitled, Surveyor’s Certificate Property Surveyed for Joseph E. & Mieke B. Michael, Location Fox Run Road, Substantially Correct by John M. Farnsworth, R.L.S. which map is filed in the Redding Land Records as Map #3064 to which reference may be held for a more particular description of the premises. SUBJECT, HOWEVER TO . . . 3.) Notes and symbols as shown on Map No. 3064 of file in the Redding Town Clerk’s Office.”

       The plaintiffs also assert that no reservation of an easement or right of way appeared in their chain of title. As a collateral matter, we note that Richard Sloper, the owner of lot A when it was foreclosed on by Citicorp Mortgage, Inc., had taken title to lot A subject to the telephone company and driveway easements, as well as “notes and symbols shown on Map. No. 3064.” If Sloper’s deed was properly recorded, and we assume that it was, the plaintiffs would have been deemed, as a matter of law, to have had constructive notice of the fact that title to lot A was “subject to” two easements and notes and symbols on the subject map.


author: SULLIVAN, J.

text:
    JOEL HEBERT v. RWA, INC., ET AL.
    (AC 17214)
    Landau, Sullivan and Daly, Js.
    Argued January 13
    officially released April 14, 1998

      Brian E. Prindle, for the appellant (defendant William Hansen).

      Michelle D. Truglia, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (defendant second injury fund).
   Opinion

SULLIVAN, J.

The defendant William Hansen, doing business as Hansen Brothers General Contractors, appeals from the decision of the workers’ compensation review board affirming the trial commissioner’s finding that Hansen was the principal employer obligated to assume liability for all compensation and medical expenses due to the plaintiff, Joel Hebert, pursuant to General Statutes § 31-291. Hansen claims that the board improperly (1) affirmed the commissioner’s finding that Hansen was the principal employer of the plaintiff, (2) affirmed the commissioner’s finding that the defendant second injury fund (fund) could pursue its claim against Hansen under § 31-291 or General Statutes § 31-355 as the principal employer of the plaintiff for all moneys paid by the fund to the plaintiff, (3) concluded that the commissioner properly took administrative notice of a transcript of a prior hearing held in this matter on April 26, 1993, and (4) failed to find that the commissioner’s consideration of the prior hearing was prejudicial to Hansen. Hansen claims the board should have ordered a new hearing based on each of the aforementioned issues. We disagree.

The record reveals the following facts and procedural history. The plaintiff injured his back on October 20, 1992, while working in the employ of the defendant appellee RWA, Inc., doing business as RWA Roofing & Sheet Metal (RWA). The injury occurred while the plaintiff was installing a roof on the premises of the Ground Round restaurant in Groton. RWA had entered into a contract with Hansen to install a rubber flat roof on the building. Hansen had never before installed a flat roof of any kind. Hansen’s business is primarily residential contracting, such as performing repairs and additions to residential buildings, and some light commercial work, such as fixing table legs, installing shelves and hanging doors. The plaintiff instituted a workers’ compensation claim relative to his injury and named both RWA and Hansen as parties. Neither RWA nor Hansen carried workers’ compensation insurance at the time of the injury.

Two formal workers’ compensation hearings took place. The first hearing concluded on April 26,1993, and resulted in a finding of facts and awar d of compensation dated May 24, 1993. The commissioner found that the plaintiff sustained a compensable injury while in the course of his employment with RWA on October 20, 1992, that RWA did not maintain workers’ compensation insurance and that Hansen was the principal employer on the roofing job where the plaintiff was injured. The commissioner issued subsequent findings and awards dated November 4, 1993, and August 5, 1994, relative to payment of benefits to the plaintiff pursuant to § 31-355. Hansen appealed in a timely fashion from each of the findings and awards. On December 6, 1994, the board sustained Hansen’s appeal and remanded the matter for further proceedings on the issue of whether Hansen was the principal employer under the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. The board remanded the appeal because most of the tapes and stenographic notes of the first hearing were lost and, consequently, the board did not have available to it a transcript to review the commissioner’s finding that Hansen was the principal employer. After the remand, the workers’ compensation office received a transcript of the April 26,1993 hearing.

The second formal hearing resulted in a second finding and award, which was issued on July 10, 1995. The commissioner found that Hansen was the principal employer and therefore liable for all compensation and medical benefits due to the plaintiff under § 31-291. Hansen appealed to the board from that finding and award. Subsequently, the fund was ordered to pay benefits to the plaintiff under § 31-355. On May 2, 1997, the board affirmed the July 10,1995 finding and award, and this appeal followed.

The standard of review in workers compensation matters is clear: “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.” (Internal quotation marks omitted.) Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). “[T]he power and duty of determining the facts [rest] on the commissioner, the trier of facts.” (Internal quotation marks omitted.) Six v. Thomas O’Connor & Co., 235 Conn. 790, 798, 669 A.2d 1214 (1996). “It matters not that the basic facts from which the [commissioner] draws this inference are undisputed rather than controverted. . . . It is likewise immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” (Citation omitted; internal quotation marks omitted.) Id., 799.

“Our scope of review of actions of the [board] is . . . limited. . . . The decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) Knapp v. New London, 44 Conn. App. 465, 468, 691 A.2d 11 (1997).

I

Hansen first claims that there was insufficient evidence for the commissioner to find that he was the principal employer of the plaintiff. We disagree.

Whether one is a principal employer is governed by § 31-291. There are three main elements involved in this statute. “ ‘One, the relation of the principal employer and contractor must exist in work wholly or in part for the former. Two, the work must be in, on or about premises controlled by the principal employer; and three, the work must be a part or process in the trade or business of the principal employer.’ ” Mancini v. Bureau of Public Works, 167 Conn. 189, 193, 355 A.2d 32 (1974).

Hansen concedes the first element, namely that a contract existed between him and RWA. The second element requires that Hansen must have been in control of the premises where the injury occurred. “The term control in [the context of § 31-291] has a specific meaning. It is merely descriptive of the work area and is used instead of such words as owned by him or in his possession in order to describe the area in a more inclusive fashion. The emphasis is upon limitation of the area within which the accident must happen rather than upon actual control of the implements which caused the accident.” (Internal quotation marks omitted.) Alpha Crane Service, Inc. v. Capitol Crane Co., 6 Conn. App. 60, 73-74, 504 A.2d 1376, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986).

Hansen alleges that he did not control the premises because he did not own them, have a trailer or office on them or have the ability to control the plaintiffs activities. The evidence shows, however, that Hansen visited the job site daily, inspected the ongoing work and asked the plaintiff to address certain problem areas on the roof before proceeding. Hansen alone dealt with the owners of the premises and he was ultimately responsible to them for the satisfactory completion of the work. The record supports the commissioner’s finding that Hansen was in control of the subject premises.

The third element requires that the work be “a part or process in the trade or business” of the principal employer. Hansen claims that his business is residential remodeling and repair and some light commercial work, neither of which includes installing flat roofs on commercial buildings. There is no question that Hansen obtained the contract for installation of the roof by dealing directly with the restaurant and that he then hired RWA to install the roof. Hansen negotiated the contract price with the restaurant and with RWA, reserving a fee for himself. The case law is settled that as long as the subcontractor’s operations “entered directly into the successful performance of the commercial function of the principal employer”; (internal quotation marks omitted) Mancini v. Bureau of Public Works, supra, 167 Conn. 196; those operations are a part or process of the trade or business of the principal employer.

“The finding of the commissioner cannot be changed unless the record discloses that the finding includes facts found without evidence . . . .” (Internal quotation marks omitted.) Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 627, 706 A.2d 1372, cert. granted on other grounds, 244 Conn. 914, 714 A.2d 6 (1998). We conclude that the evidence supports the commissioner’s finding that Hansen was the principal employer of the plaintiff for purposes of § 31-291.

II

Hansen’s second claim is that the commissioner and the board improperly found that the fund had legal authority to recover from Hansen, as the principal employer, any sums the fund paid to the plaintiff for injuries the plaintiff received while he was working for RWA.

The fund’s right to receive payment from persons or firms on whose behalf the fund has made payment is found in §§ 31-291 and 31-355 (c) and (d). The purpose of § 31-291 “is to protect employees of minor contractors against the possible irresponsibility of their immediate employers, by making the principal employer who has general control of the business in hand liable as if he had directly employed all who work upon any part of the business which he has undertaken to carry on.” (Internal quotation marks omitted.) Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989). Any reasonable reading of § 31-291 makes it clear that the principal employer is ultimately hable for payment of a worker’s compensation claim for an injury received while at work.

The plain meaning of § 31-355 (c) makes the employer hable to the state for any payments made out of the fund. Thus, if the fund makes any payments on behalf of an employer, then the entity on whose behalf payment was made shah be liable to the fund for the amount paid plus interest, damages and attorney’s fees. Hansen claims that the fund made payments to the plaintiff on behalf of RWA, not Hansen, because RWA was the entity adjudicated responsible for payment. Hansen asserts that because neither RWA nor the plaintiff have rights against Hansen, the fund also has no such rights. Essentially, Hansen argues that the fund is no more than a subrogee and has no greater rights than those of the party to whom it is subrogated, in this case, RWA. That is the law relative to insurance claims but not workers’ compensation claims. The fund’s rights are not in any way limited by the rights that either the plaintiff or RWA have against Hansen. It is clear that there is no prohibition barring the fund from collecting moneys for which it has paid an obligation owed under the act by the principal employer, in this case, Hansen.

Ill

Hansen next alleges that the commissioner improperly took administrative notice of the transcript of the proceeding that took place on April 26, 1993. Hansen claims that the commissioner’s action prejudiced him because the board had remanded the case for a de novo hearing.

The following additional facts are relevant to a resolution of this claim. The workers’ compensation office lost the transcripts of the hearing that resulted in the finding and award of May 24, 1993. As a result, when Hansen appealed that finding and award, the board remanded the matter for a hearing de novo. After the remand, but prior to the commencement of the second formal hearing, the transcript of the April 26,1993 hearing was found. The attorney for the fund used the transcript in the May 24, 1995 proceedings in an attempt to impeach Hansen’s testimony. In addition, the commissioner stated in paragraph three of her July 10,1995 finding and award that she took administrative notice of all prior findings, pleadings and decisions of the board.

Hansen claimed that this was improper and filed a motion to correct dated July 24, 1995. That motion did not, however, seek to correct paragraph three of the finding and award. In that motion, which was denied, Hansen sought to have the following findings of the commissioner deleted: “43. Mr. Hansen admitted that he did not have workers’ compensation insurance for the Ground Round project. 44. Mr. Hansen admitted that he received written notice of the formal hearing held on April 26, 1993, that he attended that hearing and that he testified at that hearing.”

Hansen sets forth no evidence to support his claim of prejudice. In this regard, we note that the transcript of the April 26, 1993 hearing was available to Hansen’s attorneys and to the attorneys for the fund at the time of the May 24, 1995 hearing.

In taking administrative notice of the prior proceedings in this matter and, in particular, of the transcript of April 26, 1993, the commissioner was exercising her discretion. Workers’ compensation commissioners have the power to take administrative notice of pleadings in the matters before them and in other files and related matters. See DeAlmeida v. M.C.M. Stamping Corp., 29 Conn. App. 441, 444, 615 A.2d 1066 (1992). Moreover, there was sufficient evidence introduced at the May 24,1995 hearing to support the commissioner’s July 10,1995 finding and award, and there is no evidence whatsoever to suggest that the commissioner relied on incorrect information. In exercising her discretion, the commissioner did not prejudice Hansen in any way.

IV

Hansen’s last claim is that the commissioner improperly incorporated into her findings the finding of a prior commissioner that Hansen was a principal employer in this matter. Hansen refers to a statement in the procedural history portion of the July 10, 1995 finding and award in which the findings of fact and award of compensation of May 24, 1993, was set forth. The purpose of the reference to the May 24, 1993 finding and award was simply to set forth the long history of this matter. Again, Hansen fails to substantiate his claim. There is no evidence that the commissioner based any of her findings on the May 24, 1993 finding and award. To set forth the procedural history of a matter, where it includes a prior finding and award, is not improper absent some evidence to show that a party was prejudiced thereby.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-291 provides in relevant part: “When any principal employer procures any work to be done wholly or in part for him by a contractor, or through him by a subcontractor, and the work so procured to be done is a part or process in the trade or business of such principal employer, and is performed in, on or about premises under his control, such principal employer shall be liable to pay all compensation under this chapter to the same extent as if the work were done without the intervention of such contractor or subcontractor. . . .”

       See footnote 1.

       General Statutes § 31-355 (c) provides: “The employer and the insurer, if any, shall be liable to the state for any payments made out of the fund in accordance with this section or which the state has by award become obligated to make from the fund, together with cost of attorneys’ fees as fixed by the court. If reimbursement is not made, or a plan for payment to the fund has not been agreed to by the Treasurer and employer, within ninety days of any payment from the fund, the Attorney General shall bring a civil action, in the superior court for the judicial district where the award was made, to recover all amounts paid by the fund pursuant to the award, plus double damages together with reasonable attorney’s fees and costs as taxed by the court. Any amount paid to the Treasurer by the employer or insurer after the filing of an action, but prior to its completion, shall be subject to an interest charge of eighteen per cent per annum, calculated from the date of original payment from the fund.”

       General Statutes § 31-355 (d) provides in relevant part: “Any recovery made under this section, including any recovery for costs or attorney’s fees, shall be paid into the fund. . . .”


author: O’CONNELL, C. J.

text:
    TERESA CARUSO v. QUICKIE CAB COMPANY, INC., ET AL.
    (AC 17294)
    O’Connell, C. X, and Spear and Hennessy, Js.
    Submitted on briefs March 5
    officially released April 14, 1998

      William J. Curran filed a brief for the appellant (plaintiff).

      David M. Tilles filed a brief for the appellees (defendants).
   Opinion

O’CONNELL, C. J.

The plaintiff appeals following the trial court’s denial of her motion to set aside the verdict on the ground of inadequacy or, in the alternative, for an additur. See Practice Book § 320, now Practice Book (1998 Rev.) § 16-35. Prior to jury deliberations, both counsel had stipulated to a general verdict, thereby avoiding the need for the jury to award separate amounts for economic and noneconomic damages. The jury returned a $15,000 plaintiffs verdict.

This action arose out of an incident in which the plaintiff was entering a taxicab owned by the defendant cab company when the cab driver started to drive away before the plaintiff was entirely inside, dragging her a short distance. The plaintiff complained of pain in her low back and right shoulder and was treated at a hospital emergency room the same day.

We review a trial court’s refusal to set aside a verdict, as well as denial of a motion for additur under an abuse of discretion standard. Childs v. Bainer, 235 Conn. 107, 113, 663 A.2d 398 (1995). We determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. Id.

The plaintiff claimed medical bills in the amount of $14,582.45, a 10 percent permanent disability of the low back and a 5 percent permanent disability of each wrist. On appeal, the plaintiff argues that the $15,000 verdict in her favor is inadequate because it is only nominally greater than her claimed medical bills and, therefore, does not properly redress her claimed damages for pain and suffering and permanent disability.

The plaintiffs argument has no merit. Where there is a general verdict and no interrogatories to the jury regarding the breakdown of the verdict, it is “impossible for the trial court or this court to determine what factors the jury considered in making its award. . . . Where there is a general verdict and no breakdown of the components of the verdict, it would be error to set it aside.” Marchetti v. Ramirez, 40 Conn. App. 740, 746, 673 A.2d 567 (1996), aff'd, 240 Conn. 49, 688 A.2d 1325 (1997). Because a general verdict was rendered in the present case, there is no way to determine from the verdict whether the jury awarded compensation for all of the plaintiffs claimed medical bills. Additionally, significant aspects of the plaintiffs evidence regarding her medical bills were disputed at trial by the defendants.

The defendants did not call any witnesses on their behalf but presented their case through cross-examination of the plaintiffs witnesses. For example, the plaintiff admitted on cross-examination that she had been advised to lose weight to help her back problem. There was also evidence that at least one of the physicians who treated the plaintiff reported that her back pain was exacerbated by her excessive weight. The plaintiff further admitted that she had fallen on ice and fractured her ankle in January, 1996, resulting in her confinement for four weeks. We do not know what effect, if any, that evidence had on the jury’s determination of its award. Finally, a substantial portion of the plaintiffs claimed medical bills, approximately $2400, was attributable to carpal tunnel surgery on both wrists. That surgery took place about seventeen months after the cab incident. At trial, the defendants disputed liability for the $2400 bill by vigorously attacking any causal connection between the plaintiffs carpal tunnel syndrome and the cab incident.

The plaintiffs appeal rests on the assumption that the jury awarded her the full amount of her claimed medical bills and only a nominal amount for her claimed pain and suffering and permanent disability. That assumption is unfounded because we cannot know how or why the jury arrived at its determination of damages. We cannot speculate as to how the jury reached its figure. Malmberg v. Lopez, 208 Conn. 675, 683, 546 A.2d 264 (1988).

“The ultimate test is whether the jury’s award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the [jurors] were influenced by partiality, prejudice, mistake or corruption.” Marin v. Silva, 156 Conn. 321, 323, 240 A.2d 909 (1968); see Childs v. Bainer, supra, 235 Conn. 114. The plaintiff has failed to show that this verdict was outside the limits of just damages or that it shocks the sense of justice. The trial court did not abuse its discretion in denying the plaintiffs motion to set aside the verdict or, in the alternative, for an additur.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 320, now Practice Book (1998 Rev.) § 16-35, provides in relevant part: “[MJotions to set aside a verdict, motions for remittitur, motions for additur . . . unless brought by petition served on the adverse party or parties . . . must be filed with the clerk within ten days after the day the verdict is accepted; provided that for good cause the judicial authority may extend this time. The clerk shall notify the trial judge of such filing. Such motions shall state the specific grounds upon which counsel relies.”

       The administrator of the cab driver’s estate is also a defendant in this action.

       The sole interrogatory in this case was concerned with contributory negligence and is irrelevant to this appeal.


author: LANDAU, J.

text:
    JOEL SINGER v. LAWRENCE R. MATTO ET AL.
    (AC 16957)
    Foti, Landau and Healey, Js.

      Argued January 26
    officially released April 21, 1998

      LawrenceR. Matto, pro se, the appellant (defendant), with whom, on the brief, was Terence S. Hawkins.

      Paul T. Edwards, with whom were Vincent A. Errante, Jr., and, on the brief, Joyce A. Lagnese, for the appellee (plaintiff).
   Opinion

LANDAU, J.

The defendants, Lawrence R. Matto and Helene F. Matto, appeal from the judgment of the trial court denying their motion to reargue the award of sanctions to the plaintiff, Joel Singer, a plastic surgeon. The pro se defendants claim that the trial court improperly denied their motion to reargue the plaintiffs motion for costs and attorney’s fees in which they sought the opportunity to advance, through counsel, arguments not previously before the trial court and to develop an evidentiary record sufficient to allow the reviewing tribunal to evaluate those arguments.

The following facts are relevant to the disposition of this appeal. Singer brought suit against the defendants for payment of professional services he had rendered to the defendant Lawrence R. Matto. The Mattos counterclaimed for medical malpractice. On June 13, 1996, after a trial to the court, the trial court rendered judgment in favor of Singer on his collection claim in the amount of $4425 together with costs and in favor of Singer on the malpractice counterclaim. After a hearing on July 18,1996, the trial court ruled on Singer’s motion for costs and attorney’s fees, awarding him $87,037.43, pursuant to General Statutes § 52-190a. The trial court concluded that the defendants did not have a good faith basis for filing their malpractice counterclaim. The defendants then retained counsel, who, on August 6, 1996, filed a motion to reargue the award of attorney’s fees. After a hearing on February 7,1997, the trial court, ruling from the bench, denied the motion to reargue. The defendants appealed and moved for permission to create a record for appellate review. On October 8, 1997, over strong objection by the plaintiff, this court granted permission for the defendants to file the transcripts of the July 18, 1996 hearing and the trial of June 11 through June 13, 1996. The defendants did not, however, seek permission to supplement the record with the transcript of the February 7, 1997 hearing.

It is important to note that the sole issue before us is whether the trial court properly denied the motion to reargue. Our inquiry is whether the trial court abused its broad discretion in denying the relief sought by the defendants. See Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 671, 652 A.2d 1063 (1995). The plaintiff claims, with respect to the trial court’s ruling on the motion to reargue, that the record is inadequate to review the defendants’ claim. He argues that the defendants’ failure to provide a memorandum of decision or a signed transcript of an oral decision rendered from the bench precludes appellate review of their claim. See Practice Book §§ 4059 and 4060, now Practice Book (1998 Rev.) §§ 64-1 and 64-2.

While we have on occasion excused noncompliance with these rules; see State v. Lawler, 30 Conn. App. 827, 828 n.2, 622 A.2d 1040 (1993) (appellant did not furnish signed transcript containing trial court’s oral decision, but between parties, complete copy of transcript filed); Fiddelman v. Redmon, 31 Conn. App. 201, 209 n.6, 623 A.2d 1064, cert. denied, 226 Conn. 915, 628 A.2d 986 (1993) (trial court did not issue written memorandum or transcribe and sign oral decision but did issue detailed statement of findings and conclusions); we have done so in those instances where the trial court’s decision was sufficiently detailed and concise so that review of the appellant’s claim was possible. Therefore, we do not “exalt form over substance.” State v. Rios, 30 Conn. App. 712, 714, 622 A.2d 618 (1993).

In this case, we do not have a written memorandum, a signed transcript or any transcript whatsoever. We keep in mind that the defendants in this case appeared pro se at various times and that the appellate courts of this state consistently have been solicitous of the rights of pro se litigants. See Connecticut Light & Power Co. v. Kluczinsky, 171 Conn. 516, 519, 370 A.2d 1306 (1976). We are cognizant, however, that the defendants in this case were represented by counsel from August, 1996, until November, 1997. In any event, we do not seek to tilt the playing field so that pro se litigants are given greater rights than those litigants represented by counsel.

The defendants have not designated a single page of the transcript of the February 7, 1997 hearing as necessary for the prosecution of their appeal. Nor did they timely avail themselves of the variety of procedural vehicles available to them to provide an adequate record. See, e.g., Practice Book § 4051, now Practice Book (1998 Rev.) § 66-5 (motion for articulation) and § 4059 (b), now Practice Book (1998 Rev.) § 64-1 (b) (notice to appellate clerk of trial court’s failure to file memorandum of decision). Nor can it be said that the defendants were unaware or unenlightened as to the possibility of supplementing the record because they filed three motions with this court in September, 1997, requesting, inter alia, permission to file the transcript of the July 18, 1996 hearing on the plaintiffs motion for costs and attorney’s fees.

Absent a transcript or any type of record of the February 7, 1997 hearing, we are deprived of an appropriate and adequate means of determining whether the trial court properly exercised its discretion in denying the defendants’ motion to reargue. “Without an adequate record on which to review the findings of the trial .court, this court must assume that the trial court acted properly.” (Internal quotation marks omitted.) Plati v. United Parcel Service, 33 Conn. App. 490, 495, 636 A.2d 395 (1994). “The [defendants] failed to follow the relatively simple rules established to guarantee the presentation to this court of a record appropriate to review. ... As an appellate tribunal, either we adhere to the letter of the rules or create judicial anarchy, whereby, on an ad hoc basis, we decide cases, the outcome of which will turn on the mind-set of the panel hearing the appeal.” (Citation omitted; internal quotation marks omitted.) Dime Savings Bank of Wallingford v. Cornaglia, 33 Conn. App. 549, 555, 636 A.2d 1370, cert. granted, 229 Conn. 907, 640 A.2d 120 (appeal withdrawn October 17, 1994).

The judgment is affirmed.

In this opinion the other judges concurred.

       Although it is titled “motion to reargue,” the defendants’ motion is in effect a motion to open the judgment.

       General Statutes § 52-190a (a) provides: “No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint or initial pleading shall contain a certificate, on a form prescribed by the rules of the superior court, of the attorney or party filing the action that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant. For purposes of this section, such good faith may be shown to exist if the claimant or his attorney has received a written opinion, which shall not be subject to discovery by any party except for questioning the validity of the certificate, of a similar health care provider as defined in section 52-184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence. In addition to such written opinion, the court may consider other factors with regard to the existence of good faith. If the court determines after the completion of discovery, that such certificate was not made in good faith and that no justiciable issue was presented against a health care provider that fully cooperated in providing informal discovery, the court upon motion or upon its own initiative, shall impose upon the person who signed such certificate, a represented party or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee. The court may also submit the matter to the appropriate authority for disciplinary review of the attorney if the claimant’s attorney submitted the certificate.”

       The defendants appealed from the June 13 and July 18, 1996 judgments and this court dismissed the appeal as having been untimely filed.

         The defendants did file an untimely motion for articulation, which was denied by the trial court; an untimely motion for review of the denial was dismissed by this court on October 8, 1997.


author: HENNESSY, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (AC 16997)
    Foti, Hennessy and Sullivan, Js.

      Argued January 28
    officially released April 21, 1998

      Jason W. Cohen, with whom, on the brief, was J. William Gagne, Jr., for the appellant (defendant Local 2663, Council 4, AFSCME).

      Victor Perpetua, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellee (named defendant).

      Ralph G. Elliot, for the appellee (defendant Hartford Courant).
   Opinion

HENNESSY, J.

The defendant union, Local 2663, Council 4, AFSCME (union), appeals from the judgment denying its cross claim against the defendant freedom of information commission (commission) and directing the disclosure of the names of five employees of the department of children and families (department) disciplined in connection with the death of an infant who was the subject of an investigation by the department. The union claims that the trial court improperly (1) upheld the decision of the commission ordering the release of the names of the five department employees where the commissioner had failed to factor the risk to the employees’ safety into its analysis under General Statutes § 1-19 (b) (2), (2) decided the safety issue under § 1-19 (b) (2) when the commission had made no such ruling, and (3) concluded, despite evidence concerning potential threats to the employees’ safety, that the names of the employees should be released.

The following facts are contained in the record and were before both the commission and the trial court. Valerie Finholm, a reporter for the Hartford Courant, filed a complaint with the commission alleging that the department refused to release the names and records of the five employees whom the department had disciplined as a result of the much publicized death of an infant, Emily H., under the supervision of the department. The union participated in the proceedings before the commission, which, after conducting a hearing, ordered the department to provide Finholm with the requested names and disciplinary records after expunging from the records any information connected with the department’s child protection activities, in. accordance with General Statutes § 17a-28 (c). The department appealed to the Superior Court, and the union, which was named as a defendant in the department’s appeal, filed a cross claim against the commission. The Superior Court affirmed the commission’s decision, dismissed the appeal and denied the cross claim. The union appeals from that decision.

The union claims that the trial court improperly affirmed the commission’s decision that § 1-19 (b) (2) does not bar the release of the names and evaluations of the department employees involved in this case. As part of its claim, the union argues that on de novo review this court must find that the proper interpretation of General Statutes § 4-183 requires a reversal of the Superior Court decision. We agree that because statutory interpretation is a question of law our review on appeal is de novo. See Squeglia v. Squeglia, 234 Conn. 259, 263, 661 A.2d 1007 (1995). We do not agree, however, that a reversal of the decision of the Superior Court is warranted in this case.

The union specifically claims that the commission failed to factor into its analysis the safety risks to the department employees should the information be released, as required by § 1-19 (b) (2). The union contends that this omission constitutes an error of law and an abuse of discretion under § 4-183 (j) (4) and (6). The union relies on Board of Pardons v. Freedom of Information Commission, 19 Conn. App. 539, 541-42, 563 A.2d 314, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989), to support the proposition that all employment records should be granted a blanket protection because the release of such information creates a significant risk to the lives of these employees. We find this reliance to be misplaced because, aside from other numerous distinguishing factors, the “United States Supreme Court has recognized that the very tense and potentially explosive nature of correctional institutions poses a constant threat to both inmates and correctional personnel alike. See Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 132, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977).” Board of Pardons v. Freedom of Information Commission, supra, 542-43. That case addresses sensitive matters involving prisoners and has little in common with the issues involved in this appeal. Accordingly, we find the union’s reliance on that case unpersuasive.

It is the policy of this state, as evidenced by § 1-19, that all records kept on file by any public agency are public and that every person has the right to inspect them until and unless the records are deemed exempt under § 1-19 (b) (2). The exemption applies if the records are personnel documents, the disclosure of which would constitute an invasion of personal privacy. Here, the records are clearly personnel documents and, therefore, our analysis will be confined to determining whether the disclosure of the names would constitute an invasion of personal privacy.

The invasion of personal privacy exception precludes disclosure only when the information sought does not pertain to legitimate matters of public concern and is highly offensive to a reasonable person. “ ‘When [the] intimate details of [one’s] life are spread before the public gaze in a manner highly offensive to the ordinary reasonable [person], there is an actionable invasion of [the individual’s] privacy, unless the matter is one of legitimate public interest.’ ” Perkins v. Freedom of Information Commission, 228 Conn. 158, 173, 635 A.2d 783 (1993), quoting 3 Restatement (Second), Torts § 652D, comment (b), p. 386 (1977). Once it has been established that the information is of legitimate public concern, however, the degree to which intimate details will be revealed will not prevent disclosure.

The commission hearing officer found that the disciplinary action taken against the employees for their failure to protect a child who had recently been referred to the department is a legitimate matter of public concern. Relying on the two-prong definition of invasion of personal privacy as set forth in Perkins, the hearing officer found that it was not necessary to consider whether the disclosure of the requested records would be highly offensive to a reasonable person because the records involve a matter of public concern.

On appeal, the trial court found that disclosure is required because the union failed to establish (1) that the disclosure of the names of the disciplined employees would be a highly offensive invasion of their personal privacy and (2) that the disclosure of the names of the employees would not pertain to a matter of legitimate public concern. The trial court examined the evidence that was presented to the commissioner concerning both grounds. On appeal to this court, the union claims that the portion of the trial court’s opinion that delved into the safety issue was improper because the commissioner did not make those findings first. We need not reach that issue because, contrary to the trial court’s conclusion, Perkins does not stand for the proposition that the two prongs of this test are interchangeable. Rather, as the commission hearing officer applied the exception set forth in § 1-19 (b) (2) and analyzed in Perkins, once it is established that the matter is of public concern, the invasion of privacy claim must fail.

The Superior Court therefore correctly determined that the release of the names of the employees would not constitute an invasion of privacy.

The judgment is affirmed.

In this opinion the other judges concurred.

       This case originated when Valerie Finholm, a reporter with the Hartford Courant, and the Hartford Courant requested that the commission order the department to release the names of the five employees it had disciplined. The commission ordered the names released. The department appealed to the trial court, and the union, which represented four of the five employees and was named as a defendant by the department, filed a cross claim against the commission, concurring with the department position. The trial court, upheld the decision of the commission, and the union appealed to this court.

       General Statutes § 17a-28 (c) provides: “When information concerning an incident of abuse or neglect has been made public or when the commissioner reasonably believes publication of such information is likely, the commissioner or his designee may disclose, with respect to an investigation of such abuse or neglect: (1) Whether the department has received a report in accordance with section 17a-101b or section 17a-103, and (2) in general terms, any action taken by the department, provided names or other individually identifiable information of the minor victim or other family member shall not be disclosed, notwithstanding such individually identifiable information is otherwise available.”

       General Statutes § 1-19 provides in relevant part: “(a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. . . .
      “(b) Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (2) personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .”

       General Statutes § 4-183 (j) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       The safety of the public is considered to be of public concern. Girgenti v. Cali-Con, Inc., 15 Conn. App. 130, 136-37, 544 A.2d 655 (1988).

       The standard and burden of proof articulated in Perkins is derived from a comparison of § 1-19 (b) (2) with § 652D of the Restatement (Second) of Torts, which defines a tort action for the invasion of personal privacy as being triggered by public disclosure of any matter that “(a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.” (Internal quotation marks omitted.) Perkins v. Freedom of Information Commission, supra, 228 Conn. 172. The Restatement also recognizes that there is no invasion of a right to privacy when the subject matter of the publicity is of legitimate public concern. 3 Restatement (Second), Torts § 652D, comment (d), p. 388 (1977). Perkins v. Freedom of Information Commission, supra, 173.


text:
    JOSEPH FIMIANI v. STAR GALLO DISTRIBUTORS, INC., ET AL.
    (AC 16698)
    Landau, Schaller and Hennessy, Js.
    Argued December 4, 1997
    officially released April 21, 1998

      Richard R. Hine, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough and Anthony Jan-notta, assistant attorneys general, for the appellant (defendant second injury fund).

      David D. Chapman, for the appellees (named defendant et al.).
   Opinion

HENNESSY, J.

The second injury fund (fund) appeals from the workers’ compensation review board (board) decision reversing the trial commissioner’s partial transfer of liability to the fund pursuant to General Statutes § 31-349 (b). The board held that the plaintiffs entire disability, which developed after he suffered a second injury, even though made worse by a prior injury, is transferable to the fund. On appeal, the fund contends that only that portion of the disability that is attributable to the second injury is transferable. We reverse the decision of the board.

The pertinent facts and procedural history are as follows. At all times relevant to this appeal, Joseph Fimiani was an employee of Star Gallo Distributors, Inc. (Star Gallo). On January 6, 1987, Fimiani sustained a work-related back injury. Nationwide Insurance Company (Nationwide) was Star Gallo’s workers’ compensation carrier on that date and accepted liability for this injury by issuing a voluntary agreement. On November 30, 1987, Fimiani sustained another work-related back injury. Liberty Mutual (Liberty) accepted liability by issuing a voluntary agreement because it was Star Gallo’s workers’ compensation carrier at the time of the second injury.

The workers’ compensation carriers later disputed the cause of the second injury. Liberty contended that the injury was a recurrence of the first injury thereby making Nationwide responsible. Nationwide contended that it was a “second injury” as defined by General Statutes § 31-275 thereby making Liberty responsible. This dispute was the subject of informal hearings before a commissioner on February 3, March 2, and July 7, 1988, and January 10, 1989. After various conflicting medical opinions were presented, the parties entered into a compromise agreement whereby Nationwide agreed to pay 75 percent of the benefits and Liberty agreed to pay 25 percent. This voluntary agreement was accepted by the commissioner on November 13, 1989.

Thereafter, Liberty and Nationwide requested transfer of the liability for the second injury to the fund. The fund agreed to accept transfer of liability pursuant to § 31-349 only as to the percentage of benefits that Liberty was responsible for pursuant to its voluntary agreement with Nationwide. The transfer to the fund came before the third district of the workers’ compensation commission, where a formal hearing was held before a commissioner on July 12 and November 9, 1994.

The commissioner issued a ruling on February 14, 1995, determining that the January 6, 1987 injury was a substantial factor in Fimiani’s total disability resulting from the November 30, 1987 injury and ordered the fund to administer the claim. The commissioner approved the transfer of Liberty’s 25 percent liability to the fund and concluded that Nationwide should continue to be liable for 75 percent of the total disability. The commissioner based that apportionment of liability on the agreement, with which both insurance companies had complied.

Nationwide appealed that decision to the board alleging that the commissioner had improperly apportioned liability and, in the alternative, if apportionment was appropriate under the statutory scheme, by relying on the voluntary agreement rather than on the medical evidence to determine apportionment. The board reversed the commissioner’s ruling and concluded that on a second injury resulting in a disability, the fund is liable for all benefits due to the plaintiff without regard to the percentage of the disability attributable to the first or second injury. One commissioner dissented arguing that the board’s recent decision in Lundquist v. Parkway Pavilion, 15 Conn. Workers’ Comp. Rev. Op. 7 (1995), was the proper interpretation of § 31-349 and should be upheld. We agree.

As a preliminary matter, it is important to note the precedential value of opinions of the commissioners of the worker’s compensation review board. “General Statutes § 31-278 sets forth the powers and duties of commissioners. Pursuant to that section, commissioners ‘shall have all powers necessary to enable [them] to perform the duties imposed upon [them] by the provisions of [the Workers’Compensation Act]’. . . .” Hun-nihan v. Mattatuck Mfg. Co., 243 Conn. 438, 444, 705 A.2d 1012 (1997). “The agency’s practical construction of the statute, if reasonable, is high evidence of what the law is.” (Internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, 217 Conn. 110, 120, 584 A.2d 1172 (1991). “We accord great deference to the construction given to [§ 31-349] by the commissioner and the review division because they are both charged with its enforcement.” Crochiere v. Board of Education, 227 Conn. 333, 354, 630 A.2d 1027 (1993). Furthermore, “[o]ur review of an agency’s decision on questions of law is limited by the traditional deference that we have accorded to that agency’s interpretation of the acts it is charged with enforcing.” Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 300, 622 A.2d 1005 (1993).

The board reasoned that the phrase “all responsibility for compensation” in § 31-349 unambiguously includes liability for the full disability of an injured employee. In so doing, it reversed its prior decision in Lundquist and held the fund hable for the plaintiff’s entire disability rather than the percentage attributable to the second injury. We agree with the dissenting commissioner that there is no support for imposing a greater liability on the fund than what would be imposed on a similarly situated employer. Moreover, apportionment of liability is appropriate when there are two separate compensa-ble injuries that contribute to the total disability. Joli-coeur v. L.H. Duncklee Refrigeration, Inc., 14 Conn. Workers’ Comp. Rev. Op. 24, 27 (1995), citing Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338, 341, 94 A.2d 19 (1952).

The general rule in workers’ compensation law is that an employer is liable to provide compensation for the full extent of an employee’s disability, regardless of whether the disability is due in part to a preexisting condition or impairment. Levanti v. Dow Chemical Co., 218 Conn. 9, 18, 587 A.2d 1023 (1991). Because of the hardships imposed by this rule, the legislature has enacted apportionment statutes such as General Statutes § 31-299b, applicable to occupational trauma and repetitive injury cases, and § 31-349, applicable where two separate traumatic injuries have occurred. In addition, liability for a disability caused by injuries which are “equal, concurrent and contributing causes” may be apportioned under the common-law tort theory of causation set forth in Mund v. Farmers' Cooperative, Inc., supra, 139 Conn. 341. See Jolicoeur v. L.H. Duncklee Refrigeration, Inc., supra, 14 Conn. Workers’ Comp. Rev. Op. 27.

When a worker covered by the Workers’ Compensation Act suffers a work-related injury, evidence that a preexisting impairment has materially increased the plaintiffs overall disability is sufficient to warrant application of § 31-349. Lovett v. Atlas Truck Leasing, 171 Conn. 577, 583, 370 A.2d 1061 (1976). Further, § 31-349 “is an apportionment statute that limits the liability of employers previously imposed. Plesz v. United Technologies Corporation, 174 Conn. 181, 186, 384 A.2d 363 (1978); Lovett v. Atlas Truck Leasing, supra, 582-83.” Levanti v. Dow Chemical Co., supra, 218 Conn. 17-18.

The question presently before us is whether § 31-349 requires that liability for the percentage of disability attributable to the second injury be transferred to the fund or whether total responsibility for the disability must be assumed by the fund. We conclude that the fund is liable only for that percentage of the disability attributable to the second injury. To hold otherwise would be contrary to the purpose of the statute.

Here, the commissioner concluded that the plaintiffs first injury substantially increased his overall disability. Therefore, § 31-349 applies. We interpret § 31-349 as providing that after 104 weeks the fund shall be responsible for all compensation and medical treatment attributable to the second injury “less any compensation payable or paid with respect to the previous disability.” The use of the phrase “less any compensation payable” indicates that the legislature envisioned that benefits due to the plaintiff from the first injury would continue after transfer and be deducted from the benefits received from the second injury. Accordingly, the fund would not take on that cost.

The fund was established to protect the employer from liability for the total disability resulting from an injury made worse because of an existing prior injury. Levanti v. Dow Chemical Co., supra, 218 Conn. 17-18. The underlying purpose in establishing the fund was to encourage the hiring and retention of employees who had been injured in the course of their employment. Id. There is nothing in the statute that suggests that the fund was established to relieve the employer of responsibility for an initial injury simply because the employee suffered a second injury.

The employer or its insurer must remain responsible for the percentage of the compensation and medical treatment for the total disability attributable to the first injury. To relieve the employer or its insurer from liability for an injuiy for which it is responsible under the Workers’ Compensation Act and to transfer that liability to the fund when a second injury occurs violates the underlying purpose of the statute.

We conclude that in cases where an employee has suffered two separate compensable injuries that have contributed to cause a disability, and liability for that disability can be apportioned between the two injuries by the trial commissioner, the apportionment may also be extended to the liability imposed on the fund by § 31-349.

In this case, the commissioner ordered the fund to administer the payments to the plaintiff and further ordered that Nationwide reimburse the fund for 75 percent of the liability and that the fund reimburse Liberty for 25 percent of the liability. The apportionment by the commissioner was made on the basis of the voluntary agreement between the two insurers regarding liability and was improper. The commissioner should have apportioned liability between the first and second injury on the basis of all of the evidence, including the medical reports. See generally General Statutes § 31-349. An agreement between the insurers is not in and of itself reliable evidence to be used as a measurement for the division of liability between the two injuries. The commissioner should have relied to some extent on medical testimony.

When the agency is reversed and it appears as a matter of law that there was only one single conclusion that it could reasonably reach, this court may direct the agency to take that action on remand. See Chevron Oil Co. v. Zoning Board of Appeals, 170 Conn. 146, 153, 365 A.2d 387 (1976). We find that this is not such a case. Further proceedings before the commissioner are necessary to determine the proper apportionment.

The decision of the compensation review board is reversed and the case is remanded with direction to remand the matter to the trial commissioner for further proceedings to determine the percentage of liability attributable to each injury.

In this opinion the other judges concurred.

       General Statutes § 31-349 (b) provides in relevant part: “The employer by whom the employee is employed at the time oí the second injury, or its insurer, shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. Failure on the part of the employer or an insurer to comply does not relieve the employer or insurer’ of its obligation to continue furnishing compensation under the provisions of this chapter. ... If the claim is accepted for transfer, the custodian shall file with the workers’ compensation commissioner for the district in which the claim was filed, a form indicating that the claim has been transferred to the Second Injury Fund and the date that such claim was transferred and shall refund fifteen hundred dollars of the notification fee to the self-insured employer or the insurer, as applicable. . . . If the custodian rejects the claim of the employer or its insurer, the question shall be submitted by certified mail within thirty days of the receipt of the notice of rejection by the employer or its insurer to the commissioner having jurisdiction, and the employer or insurer shall continue furnishing compensation until the outcome is finally decided. . . . If the employer or insurer prevails, or if the custodian accepts the claim all payments made beyond the one-hundred-four-week period shall be reimbursed to the employer or insurer by the Second Injury Fund.”

       Liberty paid Fimiani for a 20 percent permanent partial disability pursuant to the approved voluntary agreement.

       This issue is a question of fact for the commissioner. “Whether claimant sustained a relapse or recurrence of a previous compensable injury is a question determinable by the trial commissioner. . . . His conclusions will not be disturbed unless contrary to law, without evidence or based on unreasonable or impermissible factual inferences.” (Citations omitted.) Hehl v. Kimberly Clark Corp., 8 Conn. Workers’ Comp. Rev. Op. 38, 39 (1990).

       General Statutes § 31-275 (23) provides: “ ‘Second injury’ means an injury, incurred by accident, repetitive trauma, repetitive acts or disease arising out of and in the course of employment, to an employee with a previous disability.”

       The commissioner ordered the fund to reimburse Liberty for 25 percent of the benefits paid to the plaintiff after the one hundred fourth week of payments and Nationwide to reimburse Liberty for 75 percent of benefits paid after the one hundred fourth week of payment.

       “In a workers’ compensation case, the claimant has the burden of proving that he has suffered a compensable injury, and that this injury at least significantly contributed to any alleged disability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151, [291 A.2d 743] (1972); Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 41-42, [668 A.2d 1346] (1996); Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (Dec. 13, 1996). In a case such as the one at bar, proof of such a relationship is contingent upon expert medical testimony. Murchison [v. Skinner Precision Industries, Inc.], supra, 152.” Keenan v. Union Camp Corp., 16 Conn. Workers’ Comp. Rev. Op. 174, 175 (1997).