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Bailey v. State of Connecticut/Greater Hartford Community College

CASE NO. 3694 CRB-01-97-09

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 12, 1999

JANE BAILEY

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/GREATER HARTFORD COMMUNITY COLLEGE

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 22 North Street, Willimantic, CT 06226.

The respondents was represented by Donna Hixon-Smith, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the September 15, 1997 denial of the respondents’ Motion for Clarification and the May 22, 1998 denial of the respondents’ Motion for Order Compelling Discovery by the Commissioner acting for the First District were heard June 12, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Amado J. Vargas and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent State of Connecticut has petitioned for review from the September 15, 1997 denial of its Motion for Clarification and the May 22, 1998 denial of its Motion for Order Compelling Discovery by the Commissioner acting for the First District. It contends on appeal that the trier deprived it of due process by denying its motions and granting the claimant’s Motion for a Protective Order, thereby denying it the right to obtain an independent medical examination of the claimant and the right to cross-examine the claimant concerning medical providers she treated with before April 1991. We affirm in part, and remand this case to the trier with instructions.

We begin our discussion with this board’s opinion in Bailey v. State of Connecticut/GHCC, 15 Conn. Workers’ Comp. Rev. Op. 433, 3152 CRB-5-95-8 (Sept. 3, 1996). There, we noted that the claimant was found to have suffered a compensable psychiatric condition in a 1994 Finding and Award. In the 1995 award on appeal, the trier had found that the claimant was totally disabled from April 29, 1991 (the date of her injury) to January 20, 1994, based solely on a report from Dr. Zariphes. The respondent essentially contended on appeal that the claimant had not met her burden of proving that she was temporarily totally disabled as a result of that compensable condition. As Dr. Zariphes’ report contradicted his observation that the claimant had successfully begun student teaching in October 1993, and as there was no other evidence of disability, this board reversed the trier’s decision, and remanded the case for “new proceedings concerning the extent of disability.” Id., 437. The claimant appealed that decision to the Appellate Court, which dismissed the appeal for lack of a final judgment.

Formal hearings on this matter resumed on June 5, 1997. The parties disagreed as to whether or not new periods of disability could be addressed in accordance with this board’s remand. Transcript, pp. 5-6. The respondent objected to having the claimant’s new injury, mileage reimbursement, etc., addressed without first going through an informal and pre-formal hearing discovery process. Id., 14. Argument between counsel ensued as to whether records had been provided to the respondent in a timely fashion. Id., 13-19.

The trier then ordered a recess, and asked to meet with counsel. Going back onto the record, he stated that he was limiting the issue to “only the medical bills and the evidence that was presented or will be presented at this hearing concerning the period of the claimant’s disability until January of 1994.” Id., 19. Further, he ruled that the claimant would testify concerning subsequent disability and other issues, and that she would be cross-examined by the respondent’s attorney on those issues, even though they would not be the subject of his decision. Id., 20. He stated that the claimant’s transcript would be sent to an independent medical examiner, and if that doctor felt it necessary to see the claimant in person, the issue would be addressed then. Id., 20-21. Clearly, the trier’s concern was that the claimant complete her testimony in one session, due to her tenuous psychological state. He stated that the issue of disability beyond January 24, 1994 could be introduced at later hearings, with the transcript of the claimant’s testimony available for reference, along with any pertinent medical records that came into evidence as part of the packet of reports from the treating physician. Id., 22. The claimant then proceeded to testify, and the respondent’s counsel cross-examined her extensively.

The next formal hearing was on August 14, 1997. Dr. Zariphes, the claimant’s treating physician, testified. The trier noted that the respondent had subpoenaed the doctor only the day before the hearing, and had not notified him previously that it expected him to testify. See Transcript, pp. 9, 44. The respondent’s counsel requested the opportunity to cross-examine the claimant based on certain school and employment records which had been received by the respondent a day earlier. Id., 66. The trier replied that, in his opinion, the respondent had been given sufficient time to obtain the records, but had waited too long to prepare its case. He then granted a Motion for Protective Order that the claimant’s counsel had filed that day, preventing the respondent from calling the claimant again as a witness. He also ruled that no further medical exams would be allowed, as there had been sufficient time to do so prior to this formal hearing. Id., 67. In his opinion, Dr. Selig, the respondent’s proposed independent medical examiner, could have been provided with the records he needed much earlier. Id., 69. The commissioner did not appear to accept the assertions of respondent’s counsel that they had made many sincere but fruitless attempts to obtain these records previously.

At the next formal hearing on December 4, 1997, the respondent called Dr. Zariphes back to the stand, and questioned him thoroughly. Upon the claimant’s cross-examination, an attempt was made to use a November 1995 report to refresh the witness’ recollection. The respondent objected on the ground that the instant proceedings, outside the testimony of the claimant herself on June 5, 1997, were limited to the dates of disability through January 1994. Transcript, p. 107-108. Counsel pointed out to the trier that at the June hearing, he had indicated he would maintain jurisdiction over any other periods of disability and assign other hearings later. Id., 113. Questions implicating dates of disability beyond January 1994 were allowed anyway, but the trier later stated that he would strike the testimony regarding the periods after the remand. Id., 123.

The last formal hearing prior to oral argument on this appeal was held on May 22, 1998. After successfully introducing Dr. Selig’s March 19, 1998 deposition as an exhibit, respondent’s counsel raised her Motion for an Order Compelling Discovery, along with a Motion for Repayment pursuant to § 31-301g. The trier denied both motions. He ruled that it was too late in the proceedings to allow additional discovery, with the parties noting that this board was about to consider appeals from some of his earlier rulings. Transcript, 11-14. He also denied the motion for repayment on the ground that the issue had not been raised in a timely manner. Id., 19-20. Several weeks later, this board heard argument on the respondent’s appeals.

Under § 31-301(a), this board has jurisdiction to consider an appeal from a decision of a commissioner upon a motion, or an order by a commissioner. Both of the petitions for review filed by the respondent are from rulings that are appealable to this board. However, we note that, as a practical matter, the respondent’s appeal of these largely discretionary rulings has mainly served to delay the resolution of this case. This board does not encourage the appeal of interlocutory rulings such as evidentiary decisions that could be addressed after the trier has been given an opportunity to make findings.

As the history related above demonstrates, the trier agreed early on in the post-remand proceedings to limit the issue to total disability between the date of injury and January 20, 1994. This was a reasonable decision given this board’s nonspecific remand to hold “new proceedings concerning the extent of disability.” The trier should now abide by his decision at the June 5, 1997 hearing, and restrict the scope of his findings to disability through January 20, 1994. As the respondent argues, no opportunity for discovery or informal proceedings on disability after that date had been provided as of May 22, 1998. See Casertano v. Shelton, 3329 CRB-4-96-4 (Sept. 16, 1997).

At the same time, however, the trier has the authority under § 31-298 to determine whether an employer’s request for an independent medical examination is reasonable. As the overseer of the trial proceedings, he controlled the introduction of evidence in this case, and was entitled to use his judgment in deciding whether the respondent had proceeded with proper diligence in investigating this disability claim. Pantanella v. Enfield Ford, 3377 CRB-1-96-7 (Jan. 28, 1998). The transcripts indicate that the trier strongly believed that the respondent had not tried to obtain the records it wanted in a diligent manner. He also had a valid reason for protecting the claimant from being forced to personally testify on multiple occasions—a reason with which the parties seemed to be in concordance at the June 5, 1997 formal hearing.

As a reviewing body, we are not in a position to decide which party, if any, was responsible for the respondent’s failure to obtain its desired information sooner. The trial commissioner was in that position, and made his evidentiary decision. We do not perceive an abuse of the trier’s discretion from reviewing the transcripts and the parties’ appellate documents. Thus, we affirm his decision to deny the respondent further cross-examination of the claimant, further discovery regarding the claimant’s school and medical records and another independent medical examination, insofar as these rulings pertain to the claim for disability through January 20, 1994.

We do not believe that these discovery issues pertaining to disability after that date should be deemed settled, however, with the exception of further direct cross-examination of the claimant. The June 5, 1997 agreement regarding that matter specifically contemplated that the claimant would not be forced to return to testify regarding her claim for disability either before or after January 20, 1994. Other discovery issues regarding the post-1994 disability claim should be treated separately, as the respondent has not been given the same opportunity for discovery on this matter that it had regarding the pre-1994 disability claim.

Thus, we affirm the trier in part, and remand this matter so that proceedings may be completed regarding the April 29, 1991-January 20, 1994 disability claim.

Commissioners Amado J. Vargas and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: April 8, 2005

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