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Vetre v. State of Connecticut/Department of Children and Youth Services

CASE NO. 3443 CRB-06-96-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 28, 2000

FRANCIS VETRE

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF CHILDREN and YOUTH SERVICES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

APPEARANCES:

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

The respondent was represented by Michael J. Belzer, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 8, 1996 Finding and Award by the Commissioner acting for the Sixth District was heard June 16, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. On October 17, 1996, the respondent filed a petition for review from the October 8, 1996 Finding and Award of the Commissioner acting for the Sixth District. Due to the specific and limited scope of this board’s subsequent ruling in Vetre v. State of Connecticut/DCYS, 3443 CRB-6-96-10 (Jan. 16, 1998) (“ Vetre I”), several of the points that the respondent raised on appeal were not debated at that time. An evidentiary issue that was pending on remand was then addressed by the trial commissioner, from whose decision the parties both appealed. At the close of our second opinion in Vetre, 3948 CRB-6-98-12 (Feb. 14, 2000) (“ Vetre II”), we stated that we must now provide the respondent an opportunity to reargue the unresolved appellate issues that had first been raised in 1996. The parties then filed further briefs, and the respondent readdressed its contentions before this board on June 16, 2000. Those claims of error concern the trier’s award of attorney’s fees in favor of the claimant, his finding of estoppel, and his inclusion of findings on the subject of the claimant’s left knee injury. After considering the respondent’s arguments, we affirm the trial commissioner’s original decision on all counts except for the amount of the attorney’s fee awarded to the claimant.

In that 1996 Finding and Award, the trier found that the claimant’s accepted March 29, 1977 left knee injury resulted in a 25% loss of knee function as per an approved voluntary agreement. Along with the serious knee problems that the claimant endured following the injury, he began to experience psychiatric symptoms as early as March 1978. The respondent began denying the compensability of the claimant’s psychiatric treatment as of June 18, 1992. By 1996, the claimant had been hospitalized five times for depression secondary to injury and compensation issues, suicidal ideation, and post-traumatic stress disorder. The claimant’s treating psychiatrist, Dr. Noonan, was of the opinion that the claimant’s mental condition was linked to his 1977 work injury. However, the claimant had a complex psychiatric history that was noted by Dr. Borden, who examined the claimant at the respondent’s request. He opined that the claimant’s psychiatric condition predated his workplace injury, and was made worse in recent years by illnesses and deaths in his family. He did not think that the claimant’s mental health problems were caused by the compensable knee 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 deemed the respondent to be estopped from denying compensability because it had made extensive payments to several medical providers for treatment of the psychiatric injury. The commissioner entered an order directing the respondent to pay all outstanding bills, compensation benefits and COLAs, as well as attorney’s fees for unreasonable contest. The respondent then appealed that decision to this board, which reversed and remanded the case to the trier for consideration of an evidentiary ruling he had made regarding the admissibility of psychiatric records from a hospitalization that had taken place in the mid-1960’s. See Vetre I, supra. Ultimately, the trier conducted an in camera inspection of the records, and ruled that they were too remote in time to be relevant. That decision was affirmed in Vetre II.

We now turn to the outstanding appellate issues. First, the state contends that the commissioner erred by issuing findings pertaining to the claimant’s knee injury when the sole issue before him was the compensability of the psychiatric condition. Specifically, the respondent objects to ¶ A of the commissioner’s findings, which asserts that the claimant “has been totally disabled since March 29, 1977 as a consequence of his left knee injury,” and to a resultant order in ¶ E that the respondent pay “all outstanding bills from the medical providers mentioned in this decision, all outstanding compensation benefits and COLAs, and any travel associated with the Claimant’s knee injury and psychiatric injury.” The respondent recalls the outset of the July 13, 1994 formal hearing, where the trial commissioner stated (accurately) that notice had been issued “for the purposes of determining payment of medical bills and compensability of the claimant’s psychiatric condition.” Transcript, p. 1. None of the formal hearing notices directly indicated that the claimant’s current disability status was at issue, and the state contends that it had no opportunity to introduce evidence regarding the existence of continuing total disability on account of the accepted 1977 knee injury.

There is little doubt regarding the fundamental concerns that prompt the issuance of notice in administrative proceedings. These are the need to (1) inform all parties of the date and time that they are expected to appear before the presiding judicial body, and (2) define the scope of the controversy for the benefit of all parties so that they may reasonably prepare to address the precise claims in dispute. Fairness and due process require nothing less. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 588 (1999); Casertano v. Shelton, 3329 CRB-4-96-4 (Sept. 16, 1997). Still, the language included in such notices is not the only source of information available to one who is investigating whether a party had been apprised that a given claim was at issue during the proceedings. Other considerations may also be relevant, such as the statements of the parties at trial, the evidence they have introduced, or additional documents that have been filed.

Here, the claimant’s knee injury was accepted as compensable by a voluntary agreement approved in 1977. He has been receiving continuous compensation payments since that date. On December 17, 1992, the respondent filed a Form 43 notifying the claimant and this commission of its intent to contest liability to pay compensation. The form explains, “Respondents do not deny original left knee injury of 3/29/77 but do contest the psychiatric hospitalization of 6/18/92 and subsequent treatment and total disability as causally related to the original work injury.” (Emphasis added.) The state then requested a formal hearing on those issues. After an informal hearing was held, this commission then mailed out notice for a preformal hearing at which the subject was scheduled to be “compensability of psychiatric condition & temporary total.” The subsequent formal hearing notice stated “payment of medicals & compensability of psychiatric condition.” In light of the respondents’ Form 43 and the preformal hearing notice, it is reasonable to assume that the issue of total disability was tacitly subsumed within the more general and immediate dispute over the compensability of the claimant’s psychiatric condition. As we have stated in the past, parties are not encouraged to try their cases in piecemeal fashion, for this delays the speedy resolution of claims. Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 84, 2150 CRB-3-94-9 (Dec. 7, 1995).

Although there was no direct discussion of the claimant’s work capacity at oral argument, the record contains several medical reports that offer insight into the claimant’s disability status. In June 1992, Dr. Noonan described the claimant’s left leg injury as having caused total disability. Claimant’s Exhibit 2. His delineation of the claimant’s severe psychiatric symptoms, including major depressive disorder, post-traumatic stress disorder, and suicidal ideation due to the deterioration of his knee and the resulting pain, left little practical room for a “return-to-work” recommendation. Dr. Swartz stated on July 17, 1992 that the claimant’s knee was 100% disabled, and recommended an amputation of the left leg. Claimant’s Exhibit 6. He thought it “unfortunate that [the claimant] is totally disabled because of this mishap.” Id. Two days earlier, Dr. D’Angelo had reported that the claimant’s knee was permanently fixed in a position of 45 flexion, and that it generated a lot of pain. He opined that the claimant “is not able to do any type of work whatsoever because of limitation of function of his left lower extremity.” Claimant’s Exhibit 27. In establishing that the claimant had a serious and incapacitating condition whose attendant physical pain could probably not be relieved without removing his lower left leg, these reports provide substantial evidence that total disability not only existed, but that it would continue for at least the near future.

The lack of any mention at trial of the claimant’s current disability status does not itself neutralize the earlier introduction of this issue into the case. We observe that the claimant was not represented by an attorney until the last formal hearing, by which time the respondent had focused the prevailing debate onto the etiology of the claimant’s psychological ailment through its own counsel’s line of questioning at previous formal hearings. There is no reason to infer that the parties at any time tried to bifurcate or settle the issue of the claimant’s disability status, such as occurred with the issue of timely notice in Casertano, supra, and the issue of jurisdiction in Norton v. James Fleming Trucking, Inc., 15 Conn. Workers’ Comp. Rev. Op. 472, 2119 CRB-1-94-8 (Sept. 16, 1996). The disability issue was ignored during the parties’ discourse because the compensability of the psychiatric condition appeared to be the pivotal subject of disagreement. We do not believe that the parties said or did anything to rescind the total disability question from the trial commissioner’s purview. Therefore, the matter remained amenable to resolution by dint of the trier’s factual determination of the credibility of the medical evidence. See Brown v. State of Connecticut/DMH, 4053 CRB-2-99-5 (July 27, 2000).

The respondent next argues that the commissioner erred by finding that the state was estopped from contesting the compensability of the claimant’s psychiatric condition. In ¶¶ C and D of his conclusions, the trier held, “Having made payments on the psychiatric injury, the Respondent is estopped from denying compensability. I find the Respondent’s actions in making extensive payments to the several medical providers to be admission of the compensability in regards to the contested psychiatric condition.” The respondent protests that estoppel is an equitable remedy that is unavailable in the workers’ compensation system, and, alternatively, that the claimant failed to prove the necessary elements to establish such a claim. To this allegation, the claimant’s counsel has included a brief but memorable answer whose spirit is reflected in this phrase: “In a democracy, government should be the servant, not the master, of the people.” Brief, 4.

A true claim of estoppel is predicated on proof of two essential elements: the party against whom estoppel is claimed must have said or done something designed to induce another party to believe that certain facts exist and to act on that belief, and the other party must have changed its position in reliance on those facts, thus incurring some injury. Bozzi v. Bozzi, 177 Conn. 232, 242 (1979). Caselaw establishes that, in order to invoke the equitable theory of estoppel against a state agency, one must additionally show that the action in question was induced by an agent having authority in such matters, and that special circumstances make it highly inequitable or oppressive not to estop the agency. Dos Santos v. F.D. Rich Construction, Inc., 233 Conn. 14, 19 (1995); Kimberly-Clark Corp. v. Dubno, 204 Conn. 137, 148 (1987); West Hartford v. Gelinas, 18 Conn. App. 688, 691 (1989). We agree with the respondent that this rather considerable standard of proof was not met here—nor did the claimant attempt to make such a showing. In fact, we do not believe that the commissioner’s use of the term “estopped” was intended to invoke this equitable theory in its traditional form. Instead, the source of the “estoppel” here was the wording and humanitarian purpose of the Workers’ Compensation Act, and the scope of this “estoppel” was quite limited.

We remind the respondent that the commissioner’s finding of a causal connection between the claimant’s psychological problems and his compensable injury was predicated on his acceptance of Dr. Noonan’s medical opinion over that of Dr. Borden, rather than on his reliance on estoppel theory. Findings, ¶ B. This factual finding ultimately governs the compensability of the instant claim, including all reasonable medical bills. The trier’s subsequent discussion of estoppel, meanwhile, was related only to the reasonableness of the respondent’s denial of outstanding medical bills and its choice to contest liability in light of the fact that it had paid for Dr. Noonan’s psychiatric care for nine years before challenging the compensability of the psychiatric condition.

The purpose of Chapter 568 is to provide a “prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.” Pietraroia v. Northeast Utilities, 254 Conn. 60, 74 (2000). Among the concerns of the legislature in drafting the Act was its desire that employers bear the burden of investigating claims promptly, and that they timely apprise claimants of the specific reasons for the denial of their claims. These duties were codified in § 31-294c. Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 611 (2000). Although an employer may contest the extent of a claimant’s disability at any time, the same concerns that inspired the preclusionary language in § 31-294c favor consistency in a respondent’s management of a particular claim. A respondent is expected to monitor the status of a workers’ compensation case, and act seasonably regarding its acceptance of treatment. Morris v. A&A Acoustics, 3429 CRB-7-96-9 (Aug. 8, 1997). Thus, a commissioner, in his wisdom and experience, might deem it unsuitable for a respondent to suddenly challenge a mode of treatment that had been heretofore accepted with little fuss for a span of nearly a decade.

Circumstances support the notion that the trier reached such a conclusion here. The medical examination of Dr. Borden that declared the claimant’s psychiatric problems unrelated to his 1977 workplace injury was dated September 6, 1990—nearly two years before the respondent began to deny compensability of the claimant’s treatment. Respondent’s Exhibit D. This report is the best, and most recent, medical evidence that the respondent submitted in support of its case. Following his evaluation and rejection of that evidence, the trier was entitled to consider the length of time that passed before the respondent raised its defenses, which evidently led him to deem its belated contest unreasonable under all the circumstances. Having found this to be so, the trier understandably and fairly summarized the respondent’s status with the phrase “estopped from denying compensability.” We find no error in that judgment.

The state’s final argument on appeal is an objection to the trier’s finding of unreasonable contest and his award of $7,500.00 in attorney’s fees under § 31-300. The respondent argues that, based on Dr. Borden’s report and its heretofore unsuccessful attempt to obtain the medical records of the claimant’s psychiatric hospitalization during the 1960’s, it is “axiomatic” that the respondent had reasonable grounds on which to contest the compensability of the claimant’s psychiatric claim. Brief, 5. We disagree. Whether a respondent’s defense merits sanctions for undue delay or unreasonable contest is a discretionary decision that rests in the hands of the trial commissioner. Malafronte v. Med-Center Home Health Care, 3888 CRB-7-98-9 (Aug. 31, 1999). Here, the trier was entitled to conclude that there was an unacceptable time delay between the report of Dr. Borden and the state’s initiation of proceedings to contest liability for the claimant’s psychological problems. He also found that the sealed psychiatric records were irrelevant. See Vetre II, supra. Therefore, the trier had grounds upon which to find the state’s contest of this claim unreasonable. Bailey v. State of Connecticut/GHCC, 3922 CRB-2-98-10 (Nov. 30, 1999) (manner in which a party presents its defense can be relevant to issue of whether contest of claim is reasonable).

We do acknowledge, however, that the state is correct regarding one argument: the $7,500 amount of attorney’s fees is unsubstantiated by the record. Although it does not seem to this board that this sum is likely to be inappropriate, it is indeed true that the amount of a fee award is an issue normally addressed after notice is given to both parties. Simmons v. Temporary Labor Corp., 3975 CRB-6-99-2 (May 25, 2000). “This affords the participants a chance to present evidence regarding the factors relevant to a fee award, including ‘the amount of preparation required in the case, the novelty and intricacy of the questions presented, and customary charges for similar services.’” Id., quoting Anglero v. State of Connecticut/DAS, 3457 CRB-8-96-11 (March 5, 1998). Here, the trial commissioner did not award the claimant a specific amount of compensation, and the claimant’s attorney did not submit an affidavit itemizing the time and money he spent pursuing this claim on his client’s behalf. Because we cannot determine from the record that the $7,500 award here is obviously in conformance with this Commission’s attorney’s fee guidelines, we must vacate the amount awarded. Simmons, supra. The case is hereby remanded to the trial commissioner so that he may take evidence and make a new determination as to the correct attorney’s fee that the claimant is entitled to receive.

The trial commissioner’s decision is affirmed in all respects, with the exception of the amount of the attorney’s fee, which shall be assessed on remand.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

Workers’ Compensation Commission

Page last revised: January 4, 2005

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