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Costelli v. Blakeslee Arpaia Chapman, Inc.

CASE NO. 2159 CRB-3-94-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 11, 1996

PHILIP COSTELLI

CLAIMANT-APPELLEE

v.

BLAKESLEE ARPAIA CHAPMAN, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Thomas Farver, Esq., and Christopher DeMarco, Esq., Farver & DeMarco, 2842 Old Dixwell Ave., Hamden, CT 06518.

The respondents were represented by John M. Letizia, Esq., Byrne & Letizia, Woodbridge Corporate Park, 1764 Litchfield Tpke., Woodbridge, CT 06525.

The Second Injury Fund was not represented at oral argument. Notice sent to Ernie Walker, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the September 22, 1994 Finding of Denial of Motion to Preclude of the Commissioner acting for the Third District was heard May 19, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the September 22, 1994 Finding of Denial of Motion to Preclude by the Commissioner acting for the Third District. They argue on appeal that the commissioner improperly failed to grant their Motion to Preclude the testimony of the claimant’s treating physician, and that he improperly failed to rule that the claimant’s actions improperly inhibited discovery. We reverse the trial commissioner’s decision.

The claimant sustained a myocardial infarction on September 27, 1991. He alleged that it arose out of and in the course of his employment with the respondent Blakeslee Arpaia. The respondents denied such a causal relationship, which issue was before the trial commissioner. The claimant’s treating physician, Dr. Kabul Garg, was subpoenaed by the respondents and testified at a deposition. The claimant had signed a medical authorization release for the respondents. At the deposition, the claimant’s attorney instructed Dr. Garg to refrain from answering certain medical questions on the ground that doing so would violate the patient/physician privilege. Dr. Garg so refused, and the respondents sought to preclude him from testifying at a future formal hearing and to preclude the use of his medical reports as evidence.

The trial commissioner found that the deposition was not ordered pursuant to § 31-278 C.G.S.; rather, the subpoena duces tecum was issued by the respondents’ attorney. The commissioner found that the claimant had not violated any discovery rules under the Workers’ Compensation Act. He ruled that the respondents’ remedy was to proceed under § 51-85 C.G.S. if they claimed that their subpoena was being disregarded. The respondents have appealed from that ruling.

Section 31-278 states that each commissioner has “power to summon and examine under oath such witnesses, and may direct the production of . . . records . . . in relation to any matter at issue as he may find proper, and shall have the same powers in reference thereto as are vested in magistrates taking depositions and shall have the power to order depositions pursuant to section 52-148. He shall have . . . all powers necessary to enable him to perform the duties imposed on him by the provisions of this chapter.” See Lee v. ABB Combustion Engineering, 2134 CRB-1-94-8 (decided June 27, 1995). The statute also allows the superior court to enforce any proper order of a commissioner rendered pursuant to the Workers’ Compensation Act. Meanwhile, § 51-85 C.G.S. gives attorneys the power to issue subpoenas in administrative proceedings, and states that if such subpoenas are disobeyed, “application may be made to the superior court . . . for an order compelling obedience.”

Several tribunals have stated that the power of a workers’ compensation commissioner to obtain evidence is “not less than but greater than the [superior] court’s evidentiary reach.” Thomas v. Carpenter Technology Corp., 2 Conn. Workers’ Comp. Rev. Op. 128, 130, 247 CRD-4-83 (March 13, 1985), cert. denied, 198 Conn. 804 (1986), citing Powers v. Hotel Bond Co., 89 Conn. 143, 148-49 (1915). The applicable statutes and caselaw both make clear that a commissioner has the same power to order depositions and subpoenas that a court has. It is only when such orders are not complied with that the involvement of the superior court becomes necessary under § 31-278.

In this case, the trial commissioner correctly observed that no order was issued under § 31-278 with respect to the respondents’ subpoena duces tecum. He therefore concluded that the respondents’ remedy was to seek an order for compliance from the superior court pursuant to § 51-85. Although § 51-85 indeed authorizes such an order, we do not agree with the trial commissioner’s implicit determination that he could not rule on the claimant’s refusal to allow Dr. Garg to testify.

Section 51-85 states that “application may be made to the superior court” in the event of noncompliance with an attorney’s subpoena. The statute does not, however, make such action mandatory. Given that the trial commissioner has the power to order depositions and to pass on the admissibility of testimony as evidence, he consequently had the power in this case to decide whether or not the testimony sought from Dr. Garg was permissible under the patient-physician privilege. This is the more logical approach to this issue, as the trial commissioner is the person charged with finding the facts of the workers’ compensation case, and is most familiar with the subject matter involved. It would make less sense to force a superior court judge to pass on the question without first obtaining the opinion of the trial commissioner. Of course, failure to obey the trial commissioner’s order would necessitate the involvement of the superior court; but that was not the situation in this case. The trial commissioner should have ruled on the claimant’s assertion of patient-physician privilege at the formal hearing.

With respect to the merits of the claimant’s objection, we note that the workers’ compensation system encourages full disclosure and cooperation among the parties during the adjudication process. Dixon v. United Illuminating Co., 1996 CRB-4-94-3 (decided August 4, 1995). Against that backdrop there exist certain exceptions to that rule, including that of patient-physician privilege. See § 52-146o C.G.S. That rule prevents a physician from disclosing communications made by a patient or information obtained by personal examination of a patient without his or her express consent.

Where an individual makes a workers’ compensation claim, however, and chooses a particular doctor as his treating physician, we do not agree that the privilege applies. In offering the testimony and medical reports of his treating physician, the claimant places the credibility of that evidence at issue. It would be difficult for a trial commissioner to do his or her job if the history related by a patient to his treating physician was undiscoverable, as the weight of the doctor’s testimony would be impossible to evaluate. The claimant, by offering the medical reports and testimony of his doctor in support of his claim, consents to the waiver of the privilege as to communications between patient and physician. The trial commissioner can then determine what information is relevant. Failure to allow such discovery may result in the exclusion of the treating physician’s testimony and medical reports from the record. Mulrooney v. Wambolt, 215 Conn. 211, 221-22 (1990); Lee, supra.

The trial commissioner’s decision is reversed. The case is remanded for a ruling on the applicability of the patient/physician privilege to Dr. Garg’s testimony.

Commissioners Roberta S. Tracy and Amado J. Vargas concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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