State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Vetre v. State of Connecticut/DCYS

CASE NO. 3443 CRB-6-96-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 16, 1998

FRANCIS VETRE

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DCYS

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Richard Kosinski, Esq., 106 Farmington Ave., New Britain, CT 06053.

The respondent was represented by Matthew Beizer, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 8, 1996 Finding and Award of the Commissioner acting for the Sixth District was heard May 23, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the October 8, 1996 Finding and Award of the Commissioner acting for the Sixth District. It argues on appeal that the trier erred by failing to allow it to cross-examine the claimant regarding a previous psychiatric hospitalization and by refusing to allow it to introduce medical evidence concerning his previous condition. Several other arguments have also been raised on appeal.1 As we agree in part with the respondent’s contention, we reverse the trier’s decision and remand this case for further proceedings.

The trial commissioner found that the claimant suffered an accepted left knee injury on March 29, 1977, resulting in a 25% loss of knee function as per a voluntary agreement approved on August 6, 1980. Along with the serious knee problems that the claimant had following the injury, he began to experience psychiatric symptoms as early as March 15, 1978. He has been hospitalized five times for depression secondary to injury and compensation issues, suicidal ideation, and post-traumatic stress disorder. The claimant began treating with Dr. Noonan for these problems in 1983. The respondent denied the compensability of the claimant’s psychiatric treatment after June 18, 1992, although it had been paying Dr. Noonan’s bills up to that point, and in fact paid for treatment and medication that Dr. Noonan prescribed subsequent to June 1992.

Dr. Noonan consistently stated in his reports that the claimant’s mental condition was caused by his 1977 knee injury. However, the claimant had a prior psychiatric history that was noted by Dr. Borden, who examined the claimant twice at the respondent’s request. Dr. Borden reported that the claimant grew up in a home with a physically and emotionally abusive father, and that he had long-standing psychiatric problems. In fact, he was hospitalized for a psychiatric condition in 1964 after his wife left him, and was in the hospital when his mother died in 1965—a loss from which he never recovered, according to Dr. Borden. Dr. Borden opined that the claimant’s complicated psychiatric problems predated 1977, and were compounded in recent years by illnesses and deaths in his family. He did not think that the claimant’s psychiatric problems were linked to his 1977 work injury.

The commissioner found that Dr. Borden’s opinion was less persuasive than Dr. Noonan’s, and concluded that the psychiatric injury was causally attributable to the knee injury. He also ruled that the respondent was estopped from denying compensability because it had made extensive payments to several medical providers on the psychiatric injury. He ordered the respondent to pay all outstanding bills, compensation benefits and COLAs, as well as attorney’s fees for unreasonable contest. The respondent filed an appeal from that decision.

There is no dispute that the claimant was hospitalized for psychiatric reasons during the mid-1960’s. During the formal hearing on July 13, 1994, counsel for the respondent requested that the claimant provide a medical release for documents generated during his hospitalization from 1964 to 1967. The claimant, who appeared pro se at that hearing, objected that those records were irrelevant. The commissioner denied the request because he thought that this matter should have been addressed before the formal hearings began. He also noted that the respondent was aware of the hospitalization, and offered to give it an opportunity to secure those records by way of a subpoena duces tecum. Transcript, 4-5.

The respondent immediately filed subpoenas duces tecum with both of the hospitals that the claimant had visited. The respondent argued that the claimant had put his psychiatric condition and its etiology at issue, and that justice required disclosure of his past psychiatric history. The claimant, now represented by an attorney, filed an objection to the motion for disclosure on the grounds that there is no nonconsensual disclosure provision for an administrative proceeding, and that the records in question pertain to a condition too remote in time to be relevant now. The trier issued a decision2 on November 13, 1995 in which he noted that the respondent had obtained opinions from two psychiatrists stating that the claimant’s psychiatric condition was not causally related to his 1977 compensable knee injury. However, the trier ruled that the interests of justice did not require the production of the subpoenaed records given their remoteness, the history of the claim, and the allegations and medical opinions introduced by the parties regarding the etiology of the psychiatric condition. At a formal hearing on April 3, 1996, the trier also sustained the claimant’s objection to the respondent’s attempt to question him regarding his mid-1960’s psychiatric hospitalization. See Transcript, 16-21.

Decisions regarding the relevance and remoteness of evidence in workers’ compensation proceedings fall solely within the discretion of the trier of fact. Section 31-298 C.G.S.; Mulroy v. Becton Dickinson Co., 15 Conn. Workers’ Comp. Rev. Op. 455, 458, 2295 CRB-8-95-2 (Sept. 6, 1996); Merchant v. J.S. Nasin Co., 9 Conn. Workers’ Comp. Rev. Op. 122, 952 CRD-2-89-11 (May 1, 1991). This includes the admissibility of psychiatric records. Section 52-146e(a) makes communications between a patient and his psychiatrist privileged, requiring the patient’s consent before such records may be disclosed. However, § 52-146f(5) allows patient-psychiatrist communications to be disclosed “in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense . . . and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between patient and psychiatrist be protected.”

We interpret the term “civil proceedings” to include the proceedings of the Workers’ Compensation Commission in this situation. The fact-finding responsibilities in any workers’ compensation case belong to the trial commissioner rather than to a Superior Court judge, and the maintenance of an action under the Workers’ Compensation Act is a direct substitute for the potential civil liability that is removed by § 31-284 C.G.S. See Harris v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op. 357, 360-61, 3143 CRB-5-95-8 (June 26, 1996). The broad general authority of the commissioner to go beyond the scope of the statutory and common-law rules of evidence pursuant to § 31-298 further favors the application of § 52-146f(5) to workers’ compensation proceedings. Thus, the trier has the discretion to admit psychiatric records where the claimant raises his mental condition as part of a claim and where the trier finds that the interests of justice favor the disclosure of those communications. See Lee v. ABB Combustion Engineering, 14 Conn. Workers’ Comp. Rev. Op. 157, 159-60, 2134 CRB-1-94-8 (June 27, 1995) (psychologists’ records subject to same standard under § 52-146c(b)).

In this case, the trier specifically indicated that he would allow the state to obtain the claimant’s psychiatric hospitalization records via subpoena duces tecum. July 13, 1994 Transcript, 5-6. Implicit was the notion that he would review those records in determining whether justice favored their admission into evidence. Though he used the phrase “interests of justice” in his written ruling, there is no dispute that the trier did not actually look at the psychiatric records to determine whether they should remain privileged. Instead, he simply stated that the history of the claim, the facts alleged by the parties, and the remoteness of the records were enough to ensure their irrelevance.

The remoteness of an event is certainly a valid ground for declaring it irrelevant to a subsequent injury. However, where a trier agrees to allow a party to subpoena records, he should not rely solely on the length of time that has passed between events in excluding those records from evidence without reviewing the records first. Here, both Drs. Noonan and Borden suggested that these records could be important in making a diagnosis. Although Dr. Borden had questioned the claimant regarding his psychiatric history before issuing his medical opinion, the respondent thought that it was important for the trier to personally familiarize himself with the details of the claimant’s past hospitalizations. April 3, 1996 Transcript, 20-21. We do not believe that he should have ruled on the subpoena without first conducting an in camera inspection of the records to determine their relevance. If, after inspecting them, the commissioner continued to deem the records too remote in time to be relevant, then it would have been proper for him to exclude them from evidence. However, the respondent should have been given a more meaningful opportunity to demonstrate the utility of those records in this matter.

The trier’s decision is thus reversed, and the case remanded so that the trier may review the records sought to be subpoenaed before making a ruling on their admissibility. All other issues on appeal are moot in light of our decision on the subpoena duces tecum.

Commissioners James J. Metro and John A. Mastropietro concur.

1 Those claims of error are that the trier erred by finding that the respondent was estopped from contesting the compensability of the psychiatric condition because the respondent had made payments for psychiatric treatment; that the trier’s finding of unreasonable contest and his award of attorney’s fees were legally erroneous; and that the trier erred by making factual findings and conclusions regarding the claimant’s disability status and entitlement to benefits due to his accepted knee injury. BACK TO TEXT

2 This decision was an evidentiary ruling that was not separately appealed to this board. It is properly raised here for the first time. BACK TO TEXT

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