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Wysocki v. State of Connecticut/Cedarcrest Hospital

CASE NO. 3807 CRB-06-98-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 12, 1999

CAROLYN WYSOCKI

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/CEDARCREST HOSPITAL

EMPLOYER

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Mary Kelly, Esq., of Livingston, Adler, Pulda & Meiklejohn, P.C., 557 Prospect Avenue, Hartford, CT 06105.

The respondent was represented by Matthew Beizer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06106.

This Petition For Review from the April 14, 1998 Finding and Award of the Commissioner acting for the Sixth District was heard October 23, 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 claimant has petitioned for review from the Commissioner acting for the Sixth District’s April 14, 1998 Finding and Award. In that Finding and Award the trial commissioner concluded that the claimant suffered from a work related asthmatic bronchitis condition. Thereafter, the claimant filed the instant appeal.

The only issue presented for review is whether the trial commissioner erred in failing to order the respondents to pay for the deposition testimony of Dr. Mark Cullen. Dr. Cullen, who also treated the claimant, was called by the claimant as a witness.

In support of her argument, the claimant contends that P. A. 97-106 which amended § 31-298 is applicable and thus, the respondent should pay Dr. Cullen’s fee for his deposition. That act provides:

When liability or extent of disability is contested by formal hearing before the commissioner, the claimant shall be entitled, if he prevails on final judgment, to payment for oral testimony or deposition testimony rendered on his behalf by a competent physician, surgeon or other medical provider, including the stenographic and videotape recording costs thereof, in connection with the claim, the commissioner to determine the reasonableness of such charges.

The claimant-appellant contends that the above amendment is procedural in character and thus, applicable to her case. In opposition to the appellant’s claim, the respondent argues, inter alia, even if one characterizes the amendment as procedural it should not be applied. The respondent relies on DeAlmeida v. MCM Stamping Corp., 29 Conn. App. 441, 450-51 (1992) which states, “Absent an express legislative intent, a statute will not be applied retroactively, even if it is procedural, when ‘considerations of good sense and justice dictate that it not be so applied’ American Masons’ Supply Co. v. F.W. Brown Co., 174 Conn. 219, 223 (1978)”. The respondent argues the application of the retroactive application provision of § 31-298 at issue would not comport with considerations of good sense and justice. Further, the respondent contends that even if the amending language in § 31-298 was considered procedural, given that the first formal hearing took place prior to the time P.A. 97-106 became effective, the act should not apply.

We agree with the claimant. We think that P.A. 97-106 affects a matter of procedure, and good sense and justice are not offended by applying it to the instant matter. A change in law concerning procedure may be applied to a pending action. Our Appellate Court in consideration of another matter held that the term “‘pending’” is defined as “‘not yet decided.’” Webster’s Third New International Dictionary” Rivera v. Allstate Insurance Co., 44 Conn. App. 47, 52 (1996). Thus, we think that it is permissible to apply § 31-298 as amended by P.A. 97-106.

We feel we would be remiss, however, if we did not provide another basis of support for our conclusion. Even if we were to apply the law in effect at the time of injury we note that the respondent is correct that § 31-298 at the time of claimant’s injury did not provide for payment of deposition fees in instances where the claimant ultimately prevailed.1 But we do think that it is worthy of note that § 31-312(b)2 at the time of claimant’s injury provided the following:

When liability or extent of disability is contested by formal hearing before the commissioner, the claimant shall be entitled, if he prevails on final judgment, to payment for services rendered him by a competent physician or surgeon for examination, x-ray, medical tests and testimony in connection with the claim, the commissioner to determine the reasonableness of the charges. . . .(emphasis ours)

In its brief respondent notes that the language in P.A. 97-106 specifically includes payment for deposition testimony. We think that the respondent’s attempt to distinguish the language in P.A. 97-106 on this basis merely identifies a distinction without a difference.

We conclude that P.A. 97-106, affects a matter of procedure and may be applied retroactively. We note that even if we reasoned that P.A. 97-106 is inapplicable, the same result is reached by applying § 31-312(b). Having concluded as we have, a determination must be made as to the “reasonableness of the [Dr. Cullen’s] charges.”

We therefore conclude that the claimant is entitled to payment for Dr. Cullen’s deposition testimony and the matter is remanded to the trial commissioner for proceedings consistent with this opinion.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 The trial commissioner held that claimant’s date of injury was November 20, 1992. BACK TO TEXT

2 It appears that prior to the enactment of P.A.91-32, this provision was codified as part of  § 31-298. However, it appears that P.A. 91-32 removed this provision from § 31-298 and codified it as part of  § 31-312(b). BACK TO TEXT

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