CASE NO. 3597 CRB-8-97-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 8, 1997
HARTFORD INSURANCE CO.
TRAVELERS INSURANCE CO.
TWIN CITY FIRE INS. CO.
LIBERTY MUTUAL INS. CO.
SECOND INJURY FUND
The claimant was represented by Carolyn P. Kelly, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., P. O. Drawer 929, Groton, CT 06340.
The respondent employer and Hartford Insurance Co. were represented by Robert Enright, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.
The respondent employer and Travelers Insurance Co. were represented by Joseph J. Passaretti, Jr., Law Offices of Christine Harrigan, City Place One, 185 Asylum St., Hartford, CT 06103-3402.
The respondent employer and Twin City Fire Ins. Co. were not represented at oral argument. Notice sent to Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.
The respondent employer and Liberty Mutual Ins. Co. were not represented at oral argument. Notice sent to Debra Dee, Esq., Law Offices of Nancy Rosenbaum, 655 Winding Brook Drive, P. O. Box 695, Glastonbury, CT 06033.
The Second Injury Fund was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the April 14, 1997 Order of the Commissioner acting for the Eighth District was heard June 13, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the April 14, 1997 Order of the Commissioner acting for the Eighth District. He argues on review that, because he is a resident of Australia and is unable to travel to the United States due to his age and infirmity, the trier erred by ordering him to attend a formal hearing in Connecticut so that he might testify before the trier personally, and by ordering him to submit to an independent medical examination and a discovery deposition here as well. We affirm the trial commissioner’s decision.
No underlying facts have been found in this matter to date, and there is no transcript of any of the proceedings. However, from the briefs and motions in the record, it appears that claimant alleges that he worked for Northeast Utilities, f/k/a Hartford Electric Light Company, from 1956 to 1972, and that he was exposed to asbestos during that time. He then emigrated to Australia, and worked as a winegrower (“vigneron”) for twenty years before he became totally disabled in April 1993 due to pulmonary pathology. He allegedly seeks temporary total disability benefits and compensation for a 25% permanent partial impairment of his lung function. The respondents filed a Form 43 with this Commission contesting liability for the instant claim on August 22, 1994.
The claimant’s counsel filed a motion for permission to take the claimant’s testimony electronically on January 2, 1997. This was denied by the trial commissioner four days later. A formal hearing was commenced on January 28, 1997, but was apparently suspended for further briefing after the testimony of a co-worker of the claimant was taken. The respondents filed a motion on March 3, 1997, seeking to stay the formal hearing so that the claimant’s presence at a pre-trial deposition, a respondents’ medical examination, and at the trial itself could be compelled by the commissioner. The claimant filed a written objection to that motion. On April 14, 1997, the trier granted the respondents’ motion, stating that the claimant shall make himself available for a deposition, an independent medical examination, and testimony before the commissioner by September 1, 1997. “Failure to do so and absent good cause may result in a mistrial.”1 The claimant has petitioned for review from that order.
Initially, we must address the respondents’ Motion to Dismiss the petition for review, which is predicated on the contention that the claimant’s appeal is premature. This board has subject matter jurisdiction over an appeal from a decision on a motion for stay pursuant to § 31-301(a). See Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 291-92 (1997); Dixon v. The United Illuminating Co., 14 Conn. Workers’ Comp. Rev. Op. 215, 217, 1996 CRB-4-94-3 (Aug. 4, 1995). The twist in this case is that the commissioner’s order in this matter did not make a binding decision on the underlying issue of the necessity of the claimant’s presence in this forum. The order requires the claimant to appear for a deposition, an independent medical examination, and personal testimony before the trier by September 1, 1997. Failure to do so without good cause “may result in a mistrial.” As the claimant could still have complied with the order as of the date of oral argument, and the commissioner had not yet declared a mistrial, the respondents contended that the claimant had not yet been aggrieved by this decision. Consequently, they maintained that this matter was not yet ripe for review.
The date in the commissioner’s order may not have arrived as of oral argument, but it was clear from the documents in the record and the remarks made by the claimant’s attorney at oral argument that the claimant did not intend to travel to the United States to facilitate the establishment of his workers’ compensation claim. There is a principle in contract law known as “anticipatory breach” that occurs “when the breaching party repudiates his duty before the time for performance has arrived. Its effect is to allow the nonbreaching party to discharge his remaining duties of performance, and to initiate an action without having to await the time for performance.” Pullman, Comley, Bradley & Reeves v. Tuck-it-away, Bridgeport, Inc., 28 Conn. App. 460, 465 (1992) (internal citations omitted). The manifestation of such an intent is largely a factual determination in each instance, and may be either verbally or nonverbally displayed. Id., citing Koski v. Eyles, 37 Conn. Sup. 861, 862 (1981). We believe that the claimant’s statements here reflected an indisputable intent to disregard the commissioner’s order, similar to the type of intent reflected in an anticipatory breach of a contract. Thus, we presume noncompliance with the trier’s order for the purposes of this appeal.
The commissioner ’s statement that failure to comply with his order, absent good cause, “may” result in a mistrial left room for argument that the claimant had not yet been aggrieved. However, the question of whether or not the claimant could be made to testify and to submit to a medical examination in Connecticut is reviewable by this board with or without an actual mistrial. Just as we consented in Dixon, supra, to rule on the merits of a case where the trial commissioner stated that permission to depose a claimant “was not now granted,” but conceivably could have been authorized at a later time, we believe that the trier’s decision here was of a sufficiently final cast to make immediate review appropriate. We thus deny the respondents’ Motion to Dismiss.
When considering appeals from evidentiary rulings, we must reflect upon the authority that the Workers’ Compensation Act gives a trial commissioner to preside over claims. Section 31-278 C.G.S. vests in the commissioner the authority to “summon and examine under oath such witnesses, and [to] direct the production of . . . records . . . in relation to any matter at issue as he may find proper, . . . and . . . to order depositions pursuant to section 52-148.” Section 31-298 C.G.S. states that the commissioner “shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” The trier has broad discretion to determine the admissibility of evidence, and his rulings will not be set aside unless that discretion is abused. Nelson v. Deb’s Inc., 15 Conn. Workers’ Comp. Rev. Op. 274, 277, 2228 CRB-3-94-12 (June 20, 1996), affirmed, 45 Conn. App. 909 (1997) (per curiam).
The claimant argues that the trial commissioner committed legal error by ordering him to submit to a deposition and an independent medical examination in Connecticut, and by ordering him to appear in person before the trier so that he might testify. He argues in his brief that a pre-trial deposition is not a requirement in workers’ compensation proceedings, and that it is not mandatory for a claimant to attend a formal hearing or a medical examination that is not reasonably requested. He suggests that the trier’s order somehow violated his constitutional right to a remedy for his injury.
In the first place, just because a trial commissioner is not legally required to make a particular evidentiary order does not mean that such an order is impermissible. For example, Practice Book § 246(b) states that a nonresident plaintiff may be compelled to attend, at his own expense, “an examination in the county of this state where the action is commenced or is pending or at any place within thirty miles of the plaintiff’s residence or within the county of his residence or in such other place as is fixed by the order of the court.” If anything, a workers’ compensation commissioner is entitled to go beyond what the statutory rules of evidence allow in determining what evidence should be admitted in a compensation proceeding. See § 31-298. Cases which hold that a trier had the discretion to find the refusal of a medical examination unreasonable, e.g. Garfitt v. Pfizer, Inc., 7 Conn. Workers’ Comp. Rev. Op. 62, 64, 742 CRD-3-88-6 (Aug. 11, 1989), or that a court might allow a deposition into evidence in lieu of the personal appearance of a witness who cannot attend, e.g. Pelarinos v. Henderson, 34 Conn. App. 726, 728-29 (1994), simply support the notion that a trier of fact has the discretion to determine what evidence is necessary for the resolution of a particular case. They do not establish automatic barriers to requests for testimony or examinations that are difficult for a distant plaintiff/claimant to attend.
Second, the constitutional protections of due process apply not just to claimants, but to all parties in workers’ compensation proceedings. That is why we have stated that our system “encourages full disclosure and cooperation” among all parties in resolving compensation cases. Dixon, supra, 217. In protecting the substantive rights of all the parties, a trial commissioner must adapt the form and procedure of any given case to the circumstances that confront him or her, within the limits of Chapter 568. See McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 342, 2050 CRB-3-94-5 (Sept. 20, 1995), affirmed, 43 Conn. App. 912 (1996) (per curiam). The trier proceeds as far as is possible in accordance with the rules of equity as per § 31-298. It is no more fair to prohibit a respondent from personally confronting a claimant seeking redress than it would be to prevent a claimant from being able to confront a doctor who reports that said claimant has fabricated his alleged disability. The claimant, by bringing an action in this forum, submits to the jurisdiction of the trial commissioner, and must adhere to the decisions he or she makes regarding the optimum manner in which the facts should be found. As such, a trial commissioner is entitled to require a claimant to personally appear before him and to submit to the examination of a Connecticut physician if he or she believes it is necessary for the respondents to have a fair opportunity to defend their interests in a given case.
Third, the claimant here has not offered any evidence to support his contention that he is in fact unable to travel here from Australia. Although the cost of a round-trip airplane ticket for such a journey is more than nominal, the trier has been asked to accept on faith alone the allegation that the claimant’s health would not permit safe travel to America. This fact is borne out by the trier’s notation that “absent good cause,” the claimant’s failure to appear before him by September 1, 1997 may result in a mistrial. The trier left open the possibility that the claimant might be able to show that he could not attend proceedings in Connecticut. In the meantime, the commissioner ordered him to appear personally so that he could be examined and questioned regarding his claim of injurious asbestos exposure. We find no error in that request.
The trial commissioner’s decision is affirmed.
Commissioners James J. Metro and John A. Mastropietro concur.
1 The trier denied a Motion to Correct and a Motion for Articulation of this ruling on April 18, 1997. BACK TO TEXT