Casman v. Lego Systems

The claimant was represented by Harvey L. Levine, Esq., Law Offices of Harvey L. Levine, 754 West Main Street, New Britain, CT 06053.

The respondents were represented by Margaret Corrigan, Esq., Michael McAuliffe, Esq., and Richard Stabnick, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the September 23, 1992 Finding and Order of the Commissioner for the Third District was heard September 10, 1993 before a Compensation Review Board panel consisting of the Commissioner Chairman Jesse Frankl and Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos.

OPINION

JESSE FRANKL, CHAIRMAN. This appeal presents the issue of whether an employer who has intervened in a third party tort action pursuant to General Statutes Sec. 31-293 thereby waives its right to request a medical examination pursuant to General Statutes Sec. 31-3051 and must instead obtain a physical examination of the claimant-plaintiff in the tort action by following the procedure set forth in Practice Book Sec. 229. The commissioner ordered the claimant to attend medical examinations regarding the ongoing workers’ compensation claim pursuant to Sec. 31-305, notwithstanding the pending tort action and the rules of Superior Court governing the procedure of similar independent medical examinations in that forum.2 We affirm the trial commissioner.

The claimant sustained an injury arising out of and in the course of his employment with the respondent-employer and has been receiving workers’ compensation benefits. The claimant has also filed a third party lawsuit in Superior Court for those injuries. The respondent-employer intervened in that lawsuit pursuant to Sec. 31-293. The respondents scheduled medical examinations pursuant to Sec. 31-305. The claimant refused to attend those examinations claiming that the respondents do not have the authority to obtain a medical examination because they intervened in the Superior Court action as a co-plaintiff and must conform to the Practice Book rules governing medical examinations rather than the Workers’ Compensation Act. The trial commissioner ordered the claimant to attend the medical examinations scheduled by the respondents. This appeal followed.

General Statutes Sec. 31-293(a) clearly contemplates that an injured employee and his employer may be simultaneously involved in two different forums with respect to compensation for the workplace injury — before the Workers’ Compensation Commission as adverse parties with respect to workers’ compensation benefits, and before the Superior Court as co-plaintiffs with respect to an action against a third party tortfeasor. The statute permits such third party actions by providing that “the payment or award of compensation shall not affect the claim or right of action of such injured employee against such [third party tortfeasor], but such injured employee may proceed at law against such person to recover damages for such injury . . . .” General Statutes Sec. 31-293(a). Additionally, Sec. 31-293(a) gives a workers’ compensation respondent-employer an absolute right to intervene in such third party tort action to assert its statutory right to reimbursement of workers’ compensation benefits paid to an employee, should the employee prevail in the third party action. Hallenbeck v. St. Mark the Evangelist Corporation, 29 Conn. App. 618, 625 (1992).

Nowhere, however, does Sec. 31-293 imply that the workers’ compensation statutes in general, or Sec. 31-305 in particular, no longer apply after a third party action is filed in Superior Court. If anything, Sec. 31-293 implies that both actions will proceed independent of each other.

The claimant’s attempt to import the procedural rules governing civil actions into the workers’ compensation forum is not only unsupported by the Workers’ Compensation Act, but it finds no support in the rules governing practice in the Superior Court. Practice Book Sec. 1 states that our Practice Book rules “govern practice and procedure in the superior court . . . .” Moreover, Practice Book Sec. 229 makes no mention of requests for medical examinations made in other legal forums, particularly administrative proceedings, which might occur simultaneously with a case in court.

Our workers’ compensation system and our judicial system provide different forums and different methods of seeking redress for bodily injury. Having chosen to proceed in each forum, the claimant is bound by the rules which govern proceedings in the respective forums. While different outcomes under the medical examination provisions of each system are possible, we discern no real conflict between Sec. 31-305 and Practice Book Sec. 229. The provisions of Sec. 31-305 will not undermine or impair the operation of Superior Court rules governing medical examinations, whereas the same may not be true with respect to the use of Practice Book Sec. 229 requirements in the workers’ compensation forum. Cf. Poventud v. Eagle Four, 6 Conn. Workers’ Comp. Rev. Op. 72, 775 CRD-5-88-10 (1988); Thomas v. Carpenter Technology Corp., 2 Conn. Workers’ Comp. Rev. Op. 127, 247 CRD-4-83 (1985).

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos concur.

1 General Statutes Sec. 31-305 provides in pertinent part: “At any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner, an injured employee shall submit himself to examination by a reputable practicing physician or surgeon, with a view to a determination of the nature of the injury and the incapacity resultant therefrom . . . . The refusal of an injured employee thus to submit himself to a reasonable examination shall suspend his right to compensation during such refusal.”

General Statutes Sec. 31-305 was repealed effective July 1, 1991. The pertinent provisions of Sec. 31-305 are now found in General Statutes Sec. 31-294f(a). BACK TO TEXT

2 Practice Book Sec. 229 provides in pertinent part: “In any civil action, in any probate appeal, or in any administrative appeal where the court finds it reasonably probable that evidence outside the record will be required, in which the mental or physical condition of a party, or of a person in the custody of or under the legal control of a party, is material to the prosecution or defense of said action, the court may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control.

“In the case of an action to recover damages for personal injuries, any party adverse to the plaintiff may file and serve in accordance with Sec. 120 a request that the plaintiff submit to a physical or mental examination at the expense of the requesting party. That request shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made. Any such request shall be complied with by the plaintiff unless, within ten days from the filing of said request, the plaintiff files in writing an objection thereto specifying to which portions of said request objection is made and the reasons for said objection. The objection shall be placed on the short calendar list upon the filing thereof. The court may make such order as is just in connection with the request. No plaintiff shall be compelled to undergo a physical examination by any physician to whom he objects in writing.

“In any other case, such order may be made only on motion for good cause shown to be heard at short calendar. The motion shall specify the time, place, manner, conditions and scope of the examination and the person or persons by whom it is to be made.”

General Statutes Sec. 52-178a provides: “In any action to recover damages for personal injuries, the court or judge may order the plaintiff to submit to a physical examination by one or more physicians or surgeons. No party may be compelled to undergo a physical examination by any physician to whom he objects in writing submitted to the court or judge.” BACK TO TEXT