CASE NO. 4124 CRB-03-99-09
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 27, 2000
The claimant was represented by Francis P. Cipriano, Esq., 1220 Whitney Avenue, P. O. Box 6503, Hamden, CT 06517.
The respondent was represented by Andrew A. Cohen, Esq., Letizia, Ambrose & Cohen, P.C., One Church Street, New Haven, CT 06510.
These Petitions for Review from the August 27, 1999 and September 9, 1999 rulings of the Commissioner acting for the Third District were 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.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from two rulings by the Commissioner acting for the Third District: an August 27, 1999 oral ruling at an informal hearing, and a written September 9, 1999 denial of the respondent’s request that the trier memorialize the August 27, 1999 ruling in writing. These appeals were filed because the respondent objects to an evidentiary ruling by the trier that limits the scope of its independent psychiatric examination. One of these petitions for review has already been withdrawn, and another is the subject of a Motion to Dismiss by the claimant, who also seeks interest and attorney’s fees based on the allegedly frivolous nature of this appeal. We concur with the claimant’s assessment of this action, and order that the appeal be dismissed with costs charged to the respondent.
To begin, we note that there have been no findings made in this case, nor has a formal evidentiary hearing been held. Therefore, we must cull the relevant facts from the documents filed by the parties and the transcript of an August 16, 1999 in limine hearing that preceded the scheduled formal of August 31, 1999. It follows that any background information stated here is merely contextual, and does not carry any precedential weight.
According to the preformal hearing memo, the claimant, a Yale University dining hall worker, was setting up an on-campus cookout for the Yale football team on June 17, 1991. She sustained physical injuries when she fell while attempting to flee a belligerent flock of birds. The claimant allegedly suffers from post-traumatic stress disorder (PTSD) from this event, and seeks compensation for her continuing psychiatric treatment with Dr. Schnitt. She also claims that an aggravation occurred on February 17, 1997, when a stand of dishes fell on her during the course of her employment with the university. Though the claimant’s initial head injuries from 1991 were accepted by voluntary agreement, the respondent has contested the psychiatric aspect of this claim. Specifically, they suspect that the origin of her psychiatric problems predates the compensable incident of 1991, and have denied any relationship between her continuing psychiatric disorder and either the 1991 or 1997 mishap.
At one time, a formal hearing on this issue was scheduled for August 31, 1999. Prior to that hearing, the respondent sought to depose the claimant and to secure her attendance at an independent medical examination by Dr. Berv. Due to complications and conflicts in scheduling, the respondent’s counsel contended that he would be unable to complete these tasks by the commencement of the hearing. The commissioner accordingly agreed to continue the formal hearing for two more weeks so that everything could be completed before the proceedings began. August 16, 1999 Transcript, pp. 29-30. He expressed the desire that the resolution of this case not be delayed indefinitely, as the claimant was paying for her own psychiatric treatment. Id., 15, 20-21. Counsel indicated that the independent medical examination would take place on August 19, 1999, and that the claimant’s deposition would be completed during several late afternoon appointments over the course of the next few weeks. Id., 21-30.
Apparently, the independent medical examination with Dr. Berv developed into more than a one-visit proposal. The respondent requested that four separate evaluations be permitted, so that Dr. Berv and his staff might conduct thorough psychological testing. The claimant initially acquiesced to this demand, though the claimant’s counsel asked for an emergency informal hearing to protest the extent of this request. This hearing was scheduled for August 27, 1999. At the second IME session on August 23, 1999, the claimant allegedly suffered a severe panic attack, whereupon she was transported by ambulance to the Yale-New Haven hospital emergency room for evaluation. Four days later, the trial commissioner ordered that Dr. Berv could only examine the claimant on one additional occasion, and that the IME could not be conducted at his office. This proceeding was not held on the record, and no written findings were made.
Despite the absence of a record, the respondent filed an appeal from the trial commissioner’s order on September 1, 1999. The claimant quickly moved to dismiss the appeal on the ground that there was no underlying record for this board to review. The respondent then wrote the commissioner a letter requesting that he issue a written order as to the matters presented at the August 27, 1999 hearing, so as to “avoid the further delay that would result if Yale University were instead forced to request an emergency formal hearing on the permissible scope of this psychiatric IME.” Letter, September 9, 1999. The commissioner immediately stated in writing that this request was denied because the matter is currently on appeal. The respondent then filed a second petition for review from the commissioner’s September 9, 1999 letter, and moved to withdraw its first petition for review. The chairman of this commission granted that request on September 30, 1999, leaving only the latter petition for review pending before this board.
The claimant has moved to dismiss the respondent’s remaining appeal on the same ground that it moved to dismiss the earlier appeal: the lack of a reviewable record. The claimant has also objected to the respondent’s motion to stay the formal proceedings pending resolution of the “critical issue” of Dr. Berv’s IME. The claimant noted in this objection that the respondent had not solicited an opinion by Dr. Berv regarding the reasonableness of the one-exam limitation, nor had it attempted to accommodate the claimant’s circumstances. She charged the respondent with simply attempting to delay resolution of this case. Eight months subsequently passed, during which time the respondent filed no further documentation in support of its appeal despite the passage of the due date for the filing of its brief. The claimant filed another Motion to Dismiss in response to that procedural lapse. On May 5, 2000, the claimant moved that she be awarded interest and attorney’s fees pursuant to § 31-300 on account of the frivolous nature of this interlocutory appeal. The respondent then moved to withdraw its appeal four days later.
As the claimant observes, this case is reminiscent of Coles v. Star Inc., 16 Conn. Workers’ Comp. Rev. Op. 67, 3239 CRB-07-95-12 (Oct. 25, 1996). There, the respondents appealed from an informal hearing order whereby the trier had approved treatment by a physician who was not a member of the insurer’s managed care plan. We observed that “no record exists as to the underlying proceeding. Moreover, the trial commissioner did not issue findings of fact. Without a transcript or findings of fact, we are unable to engage in meaningful review and cannot properly consider this appeal in accordance with § 31-301 C.G.S. See Warchola v. U.S. Gypsum Specialists, 11 Conn. Workers’ Comp. Rev. Op. 108, 1444 CRB 1-92-6 (June 2, 1993).” Therefore, we dismissed the petition for review. From its outset, the instant appeal has been amenable to a similar analysis. Practically, there is little that this board could have done at any point during this appeal, as there is neither an evidentiary record nor a relevant transcript for this panel to consider. The respondent should not have bothered to petition for review prior to some type of formal hearing. The law is clear on this matter. See Judkins v. Michael Streckfus Co., 4072 CRB-8-99-6 (Aug. 9, 2000) (appeal from informal proceeding was dismissed, and case automatically remanded for formal proceedings).
Additionally, this board is troubled by the respondent’s diligence in prosecuting this appeal. The respondent essentially filed two petitions for review from a ruling whose complete record consists of a one-sentence remark by a trial commissioner. In its letter to that commissioner, the appellant expressed concern about the delay that would be caused if it deemed an emergency formal hearing necessary to settle the issue of Dr. Berv’s deposition. Yet, this same appellant maintained its appeal from the result of the informal hearing for eight months, failed to file a brief, and requested withdrawal of its appeal only after sanctions were sought by the claimant. Now, one year later, it is likely that a formal hearing will be necessary on the very same issue that could have been litigated a year ago.
The respondent is correct when it states that an appeal may be withdrawn as a matter of right pursuant to Practice Book § 63-9 at any time prior to oral argument. However, that section of the Practice Book also states that, “Unless an appeal or writ of error is withdrawn on the consent of the appellee without costs, costs shall be taxed as if the trial court judgment had been affirmed.” It is the opinion of this board that the respondent’s lack of diligence after filing this appeal forestalled the resolution of this claim unnecessarily. A respondent may not utilize the very system that is designed to ensure that the workers of this state are swiftly compensated for their injuries in a manner that could foreseeably evoke the opposite result. Therefore, we deem this appeal frivolous, as it should have been apparent to the respondent that this board could not provide a practical remedy.
In several of the Veterans Memorial Medical Center cases; see, e.g., In re: VMMC/Swift v. R&R Corrugated Container, Inc., 3063 CRB-8-95-5 (March 14, 1997); we held that the appellant VMMC was liable for the costs and fees incurred by certain appellees in defending frivolous appeals. We reasoned that § 31-301(e) provides that, where applicable, the procedure in appealing a commissioner’s award is the same as the procedure used in appealing a Superior Court decision. The Rules of Appellate Procedure permit the imposition of costs and attorney’s fees against an appellant for presenting unnecessary or unwarranted issues on appeal; P.B. § 85-2(4); and for failing to disregard the rules governing withdrawal of appeals. P.B. § 85-2(9). Practice Book § 76-4 also allows the taxing of costs in a workers’ compensation appeal to the Appellate Court where it is found “to be frivolous or to be taken for the purpose of vexation or delay.” Having found this appeal to be frivolous, we order that the respondent pay the $2,074.50 attorney’s fee of claimant’s counsel as enumerated in his supplemental affidavit of June 15, 2000. The claimant should not be forced to bear the cost of her attorney’s services in defending this improvident appeal.
The respondent’s appeal is hereby dismissed, with costs taxed to the appellant.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.