Fenton v. Area Cooperative Educational Services (A.C.E.S.)

CASE NO. 3752 CRB-03-97-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 23, 1998

IAN FENTON

CLAIMANT-APPELLEE

v.

AREA COOPERATIVE EDUCATIONAL SERVICES (A.C.E.S.)

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOC. WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Edward Gallant, Esq., Cummings & Lockwood, P.O. Box 1960, 700 State St., New Haven, CT 06509-1960.

The employer and its insurer were represented by Andrew A. Cohen, Esq. and John Letizia, Esq., Letizia & Ambrose, 1764 Litchfield Turnpike, Suite 106, Woodbridge, CT 06525.

This Petition for Review from the December 18, 1997 Denial of Motion to Compel Deposition of the Commissioner acting for the Third District was heard April 24, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (“respondents”) have petitioned for review from the December 18, 1997 Denial of Motion to Compel Deposition of the trial commissioner acting for the Third District. In that decision the trial commissioner denied the respondents’ request to compel the claimant to provide testimony at a deposition. In support of their appeal, the respondents contend that it was error for the trial commissioner to deny their Motion to Compel Deposition of the claimant because the ruling has inhibited the discovery process and has denied the respondents due process and the right to a fair hearing. Moreover, the respondents argue that it would be an abuse of discretion for the trial commissioner to allow the claimant to avoid testifying at a deposition and then to subsequently allow the claimant to testify at the formal hearing.

The trial commissioner found the following relevant facts. The claimant alleges that on July 26, 1995, he suffered a myocardial infarction as a result of injuries he sustained when assaulted by a student during his employment on April 25, 1995. The respondents deny that the myocardial infarction is causally related to the April 25, 1995 assault. The claimant requested a formal hearing on the issue of compensability of the myocardial infarction. On June 3, 1997, the claimant testified at a deposition which was notified by the respondents. The deposition was stopped after approximately two hours because of the claimant’s severe pain and need to take medication. The parties initially agreed to continue the deposition at a later date.

The claimant’s counsel is concerned that the mental and physical stress that the claimant would be exposed to during a deposition poses a direct threat to his physical condition. The claimant is currently awaiting a heart transplant. The claimant’s treating physician, Dr. Remetz, is of the opinion that the claimant should avoid physical and mental stress and that exposure to physical and mental stress may precipitate potentially life threatening cardiac problems. (Finding No. 10). The respondents estimate that the deposition will take ten hours, and have offered to conduct the deposition in two and one-half hour sessions at the office of the claimant’s attorney. The claimant is not agreeable to the offer, and has proposed instead the use of written interrogatories. The trial commissioner denied the respondents’ Motion to Compel Deposition based upon the opinion of Dr. Remetz.

Initially, we note that the workers’ compensation system encourages full disclosure and cooperation among the parties during the adjudication process. Dixon v. United Illuminating Co., 14 Conn. Workers’ Comp. Rev. Op. 215, 1996 CRB-4-94-3 (Aug. 4, 1995). 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.” The statute also allows the superior court to enforce any proper order of a commissioner rendered pursuant to the Workers’ Compensation Act. In addition, § 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.”

In Costelli v. Blakeslee Arpaia Chapman, Inc., 15 Conn. Workers’ Comp. Rev. Op. 113, 2159 CRB-3-94-9 (Jan. 11, 1996), we explained as follows:

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.

Id. at 115.

In support of their appeal, the respondents argue that they will not be able to adequately prepare for the formal hearing if they are denied the ability to depose the claimant. Moreover, the respondents contend that it is arbitrary and unfair to allow the claimant to avoid testifying at a deposition and then to subsequently allow the claimant to testify at a formal hearing. There has been no medical evidence presented which indicates that the claimant’s participation in a deposition would be more threatening to his health than his participation at a formal hearing. We note that on December 26, 1997, the respondents filed a Motion to Correct which sought to add the following:

WHEREFORE, in accordance with the foregoing opinion of Dr. Remetz, I find that the Respondent’s Motion to Preclude Trial Testimony of Claimant should therefore be GRANTED.

The trial commissioner denied the respondents’ Motion to Correct. The claimant’s counsel has indicated that the claimant may testify at the formal hearing. (11/24/97 TR. at p. 9).

Practice Book § 221 provides in pertinent part that a court may limit discovery as follows:

Upon motion by a party from whom discovery is sought, and for good cause shown, the court may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; (5) that the discovery be conducted with no one present except persons designated by the court....

In the instant case, the parties have made several suggestions regarding the modification of the discovery process so as to accommodate the claimant. Specifically, the respondents have offered to allow the deposition to be conducted at the claimant’s attorney’s office in two and one-half hour increments, allowing for breaks for the claimant. On the other hand, the claimant’s attorney has offered to have the claimant answer written interrogatories. In addition, the claimant’s attorney has suggested that the deposition take place in the presence of a trial commissioner. (Claimant’s Brief at p.3). The parties, however, are unable to agree upon any of these offers.

Significantly, the trial commissioner has not yet set forth the method which will be used for discovery prior to the formal hearing. The trial commissioner may choose one of the above suggestions of the parties, a combination of them, or perhaps he will have a different means of resolving the problem. Moreover, it is not clear whether the trial commissioner will allow the claimant to testify at the formal hearing if he continues to refuse to testify at a deposition. At this point, therefore, we are unable to determine whether the respondents are being denied a reasonable means of discovery prior to the formal hearing. Accordingly, we must remand this matter to the trial commissioner in order to formulate a plan for discovery, including whether the claimant will be allowed to testify at the formal hearing.

This matter is accordingly remanded to the trial commissioner.

Commissioner Michael S. Miles concurs.

COMMISSIONER DONALD H. DOYLE, JR., CONCURRING. I concur with the majority’s decision to remand this matter, as it is not clear whether or not the respondents are being denied a reasonable means of discovery prior to the formal hearing. I write separately in order to emphasize that a trial commissioner should generally be accorded great deference regarding evidentiary decisions, “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.” Costelli v. Blakeslee Arpaia Chapman, Inc., 15 Conn. Workers’ Comp. Rev. Op. 113, 2159 CRB-3-94-9 (Jan. 11, 1996).

Pursuant to § 31-278, a trial commissioner “shall make inquiry, through oral testimony, deposition testimony or written and printed record, 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.” Thus, the trial commissioner has broad discretion to rule on evidentiary issues, and his rulings “will not be set aside unless that discretion is abused.” Pietraroia v. Northeast Utilities, 3597 CRB-8-97-4 (Sept. 8, 1997). Accordingly, the decision regarding whether or not to order a party to testify at a deposition should normally be a decision within the discretion of the trial commissioner.

As it is not clear whether the respondents are being denied a reasonable means of discovery, I agree with the decision to remand this matter.