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IN RE: VMMC/Pirone v. DTS Trucking

CASE NO. 3063 CRB-8-95-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 14, 1997

IN RE: VETERANS MEMORIAL MEDICAL CENTER

MEDICAL PROVIDER

APPELLANT

RICHARD PIRONE

CLAIMANT-APPELLEE

v.

DTS TRUCKING

EMPLOYER

and

AETNA CASUALTY & SURETY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The appellant medical provider was represented by David Brown, Esq., Brown & Welsh, P. C., Meriden Executive Park, 538 Preston Ave., P. O. Box 183, Meriden, CT 06450-0183.

The claimant was not represented at oral argument.

The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Motion for Costs and Fees was heard June 27, 1996 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Donald H. Doyle, Jr., and Robin L. Wilson.

RULING ON MOTION FOR COSTS AND FEES

GEORGE A. WALDRON, COMMISSIONER. This case began when the appellant Veterans Memorial Medical Center petitioned for review from a May 12, 1995 letter sent by the chairman of the Workers’ Compensation Commission to the VMMC’s attorney denying its 696 informal hearing requests. Oral argument was conducted on April 1, 2 and 3, 1996, concerning the appeals in all 696 cases. The VMMC had alleged in each case that it provided medical treatment to a person who indicated at the time service was rendered that his injury was connected to his employment. In all of those cases, the VMMC sought a hearing at the district office regarding its medical bills, but provided this Commission with nothing more than a hearing request form listing the name and address of the medical provider (VMMC), the person who received medical attention, the alleged employer, and the alleged insurer, if known.

This board subsequently issued a decision on those appeals, In re: Veterans Memorial Medical Center, 3063 CRB-8-95-5 (decided May 20, 1996). There, we stated that the VMMC had alleged insufficient jurisdictional facts to warrant a hearing on the subject matter jurisdiction of this Commission over the VMMC’s claims. See also Figueroa v. C&S Ball Bearing, 237 Conn. 1 (1996). We noted in our decision that there were a variety of scenarios uncovered at the three-day oral argument session, including a number of claims which had already been accepted as compensable, and a number of cases in which VMMC had either been paid or granted a hearing, but had neglected to withdraw the appeal. Pomeranz, Drayton & Stabnick, one of the many law firms that represented various respondents in the VMMC cases, has now filed a Motion for Costs and Fees on behalf of several of its clients, alleging that the appellant should have withdrawn its appeals in four of those cases.

In this particular case, the claimant suffered a compensable injury on June 20, 1992. An informal hearing was held pursuant to statutory notice in the Second District on September 22, 1995, at which the issue was the payment of medical bills, and VMMC was represented by counsel. Meanwhile, the appeal from the chairman’s May 12, 1995 letter denying hearings on the VMMC cases remained pending before the CRB. Although the instant claim was one of the 696 cases encompassed by the appeal, the medical provider took no action to withdraw the appeal with respect to this case before the April 3, 1996 oral argument. Instead, VMMC and the respondents were both represented at oral argument, where respondents’ counsel stated that an informal hearing had already been held on the issue before the board. VMMC filed a withdrawal of its appeal that day.

As part of its objection to the respondents’ Motion for Costs and Fees, VMMC argues that the issue of the chairman’s letter was not necessarily made moot by the subsequent granting of hearings by some district offices in certain cases. VMMC explains in its brief that a case becomes moot when “during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits.” In re Romance M., 229 Conn. 345, 357 (1994). The appellant argues that, as long as the chairman’s order stood, the validity of any subsequent informal hearing or order by a commissioner was in question. Therefore, its appeal was not frivolous.

This argument makes some sense as a legal principle. However, we are not persuaded that it is applicable here. The chairman’s original order dismissing VMMC’s 696 hearing requests was predicated on the fact that VMMC had not included with those requests any proof that a compensable workers’ compensation claim existed. In that order, he stated that the this Commission lacked subject matter jurisdiction “until there is established a claim of connection to a compensable injury.” In re: Veterans Memorial Medical Center, supra. In this particular case, it turns out that the injury had been accepted as compensable, thus meeting the prerequisite for a hearing discussed in the chairman’s order. Once VMMC demonstrated the existence of a claim, it was entitled to, and received, an informal hearing. Its hearing request had been denied earlier by the chairman only because it failed to include necessary facts in its hearing request. As soon as VMMC corrected that situation and got its hearing, the appeal should have been withdrawn, as the chairman’s order was no longer applicable to this matter.

We recognize that the huge number of claims involved in this appeal played a big part in the appellant’s failure to withdraw cases that had already been resolved. However, we cannot agree with VMMC’s contention that the respondents are as much to blame as the appellant for not taking steps to ensure that this appeal was withdrawn. We noted in our May 20, 1996 VMMC decision that there were a number of claims listed among the appealed cases that should have been withdrawn. As the party pursuing these claims, VMMC had the sole power to withdraw its petitions for review. In prosecuting an appeal of this magnitude, it was incumbent upon VMMC—and not the various respondents—to take special care to insure that the valuable resources of this commission would not be wasted by spending time reviewing and discussing settled cases. That was not done properly. Now, some of the parties who were forced to pay counsel to defend such claims are understandably unhappy that their own financial resources were also wasted.

Section 31-301(e) C.G.S. provides that, where applicable, the procedure in appealing a commissioner’s award is the same as the procedure used in appealing a superior court decision to the supreme court. According to the Rules of Appellate Procedure, a party may have costs and attorney’s fees imposed against it for presenting unnecessary, unwarranted, or frivolous issues on appeal, as well as for disregarding the rules governing withdrawal of appeals. Practice Book § 4184B(4), (5), (8). Practice Book § 4165.4 also states that no costs shall be taxed in favor of either party upon reservation of a workers’ compensation case by this board or upon appeal from this board, “provided that if an appeal is found by the court either to be frivolous or to be taken for the purpose of vexation or delay, the court may tax costs in its discretion against the person so taking the appeal.” We have concluded that the appellant allowed unnecessary and frivolous issues to remain before this board on appeal, inconveniencing both the staff of this commission and the attorneys for all parties. Thus, under the authority of the aforementioned statutes, we hold that the appellant VMMC is liable for the costs and fees incurred by the respondents in this appeal. See also § 51-84(b) C.G.S. (Attorneys subject to rules of all courts, and may be fined for transgressing a court’s rules and orders).

The respondents’ Motion for Costs and Fees is granted, and the matter is remanded to the Second District for a determination of the costs incurred.

Commissioners Donald H. Doyle, Jr. and Robin L. Wilson concur.

Workers’ Compensation Commission

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