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

CASE NO. 4378 CRB-6-01-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 14, 2002

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, Suite 2B, 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 April 4, 2001 Findings of Facts and Award by the Commissioner acting for the Sixth District was heard October 5, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.1

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has petitioned for review from the April 4, 2001 Findings of Facts and Award by the Commissioner acting for the Sixth District. The respondent argues that the trier erred with respect to his rulings concerning unpaid medical bills and attorney’s fees. We find no error, and affirm the trial commissioner’s decision.

Different aspects of the instant case have been appealed to the CRB during the last few years, and a review of this history will be helpful in analyzing the matters now before us on appeal. The claimant suffered a compensable knee injury on March 29, 1977, resulting in a 25% loss of knee function. Along with the knee problems that the claimant experienced following his injury, he began to suffer from psychiatric symptoms as early as March 15, 1978. He has been repeatedly hospitalized for depression secondary to injury and compensation issues, suicidal ideation, and post-traumatic stress disorder. The respondent began denying the compensability of the claimant’s psychiatric treatment after June 18, 1992, though it had been paying the bills of the treating physician, Dr. Noonan, until that point. While Dr. Noonan consistently asserted that the claimant’s psychiatric problems were related to the 1977 injury, the respondent offered a contrary opinion by Dr. Borden, an independent medical examiner, that attributed the claimant’s psychiatric problems to complex, long-standing issues that predated his compensable injury, along with recent illnesses and deaths in his family. In an October 8, 1996 decision, the trial commissioner found that Dr. Noonan’s opinion was the more credible of the two, and ordered the respondent to pay all outstanding bills, benefits, and COLAs, along with attorney’s fees for unreasonable contest.

The respondent’s initial appeal to this board concerned the trier’s refusal to allow it to cross-examine the claimant regarding a psychiatric hospitalization that occurred in the mid-1960’s, and his refusal to allow the respondent to introduce evidence concerning a previous psychiatric condition. Vetre v. State, 3443 CRB-6-96-10 (Jan. 16, 1998) [hereinafter Vetre I]. The trier had ruled that the interests of justice did not require the production of those records (which the respondent had subpoenaed) given their remoteness, the claim history, and the allegations and medical opinions that the parties had set forth regarding the etiology of the psychiatric condition. After discussing the trier’s discretion to determine the relevance of evidence under § 31-298 C.G.S., and the laws on privileged communication between patient and psychiatrist in §§ 52-146e(a) and 52-146f(5) C.G.S., we observed that psychiatric records may be introduced “where the claimant raises his mental condition as part of a claim and where the trier finds that the interests of justice favor the disclosure of those communications.” As the trier had told the respondent that he would allow it to obtain the claimant’s psychiatric records by subpoena duces tecum, we held that he had implicitly agreed to review those records in order to determine whether justice favored their disclosure. However, in making his decision to exclude them from evidence, he had relied solely on the length of time that had passed since the 1960’s, rather than on the actual contents of the records. We remanded the case for the trier to conduct an in camera inspection of those records to determine their relevance, and declared the other appellate issues moot for the time being.

The matter then resurfaced before the CRB following a December 14, 1998 ruling concerning the admissibility of the claimant’s hospital records. Vetre, 3948 CRB-6-98-12 (Feb. 14, 2000) [hereinafter Vetre II]. We confirmed our holding in Vetre I that the rights of privacy granted by § 52-146e should be honored in workers’ compensation proceedings, and ruled rather emphatically that the trier had not erred by conducting the in camera inspection himself, without the participation of counsel or a medical expert. “Any prior access to the records by an opposing party would vitiate the integrity and effect of the patient-psychiatrist privilege.” Id., citing State v. Storlazzi, 191 Conn. 453 (1983); In re Christopher G., 20 Conn. App. 101 (1989). As for the use of an expert to assist a trial commissioner with an in camera inspection, we held that a trier may seek such assistance if he or she finds that the medical significance of the records is beyond his or her ken. We then examined the sealed records ourselves, and held that the contents of those records showed no abuse of discretion on the part of the trier in excluding them from evidence. We also held that the 1996 award should be reinstated, with the respondent being given an opportunity to readdress the issues that it had raised in Vetre I, but that had not been addressed by this board in light of the remand order.

The respondent availed itself of that opportunity at a subsequent oral argument, which was followed by a third CRB decision. In Vetre, 3443 CRB-6-98-12 (Nov. 28, 2000) [hereinafter Vetre III], we rejected the respondent’s arguments that the trier exceeded his authority by making findings pertaining to the effects of the claimant’s knee injury, and that the trier erred by ruling that the state unreasonably contested the compensability of the claimant’s psychiatric condition due to the fact that it had been paying for his psychiatric care for nine years before raising an objection. “A respondent is expected to monitor the status of a workers’ compensation case, and act seasonably regarding its acceptance of treatment. . . . [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.” Id. We also disagreed with the respondent’s argument that their contest of the psychiatric claim was manifestly reasonable in light of Dr. Borden’s report and its unsuccessful attempt to obtain the medical records of the claimant’s 1960’s psychiatric hospitalization. “[T]he 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.” Id. The respondent did prevail on one contention, however: they had not been given notice that the issue of an attorney’s fee would be determined by the trier in his 1996 decision, and had not been given an opportunity to offer evidence on that subject. Though we suspected that the $7,500 fee award made by the trier was reasonable, we nonetheless remanded the case so that the trier could take evidence and make a new determination as to the proper fee amount.

That determination was made in an April 4, 2001 ruling, which is the subject of the current petition for review pending before this board. The trier noted that he presided at each of the formal hearings related to this case, and that he was thoroughly familiar with all of the proceedings and file documents. He found that the respondent through its own fault and neglect had failed to pay New Britain General Hospital and Dr. Noonan for numerous medical bills dating back to 1991, in violation of § 31-300’s proscriptions against undue delay and unreasonable contest. In fact, he called the respondent’s administration of this claim “unconscionable,” and observed that the nonappearance of the respondent or its counsel at the formal hearing below was consistent with its pattern of conduct related to the administration of this claim. The trier then found that the claimant’s counsel had provided him with legal services since August 1, 1994, spending a total of 159.2 attorney hours on this claim, and incurring $460.49 in costs. The prevailing hourly fee was found to be (at least) $175.00. The trier awarded the claimant a total attorney’s fee of $27,860.00 ($175 multiplied by 159.2 hours), along with $181.82 in expenses for a deposition transcript. Further, he ordered that 12% interest per annum accrue on this fee should it not be paid within ten days of the date of the award.

The respondent’s first argument on appeal is that the trial commissioner erred by denying it the opportunity to file a Motion to Correct his findings, as contemplated by Admin. Reg. § 31-301-4, which states that an appellant must file such a motion within two weeks after such finding has been entered, “unless the time is extended for cause by the commissioner . . . .” Following the trier’s April 4, 2001 decision, the respondent filed a petition for review on April 12, 2001, and a Motion for Extension of Time to File Motion to Correct was submitted at the same time. The motion stated that the respondent sought an extension until two weeks after the receipt of the formal hearing transcript and evidence so that proper reference could be made to the record. The commissioner denied that motion, and a subsequent motion to reconsider the initial denial, without specifically explaining his reasons for doing either. The respondent now alleges that there was no good reason for his action.

Though it is common in this system for an appellant to receive an extension of time to file a motion to correct pending receipt of necessary documents, there is no such thing as entitlement to such an extension under every circumstance. The regulation implies that the trial commissioner must use his discretion to decide whether a party seeking an extension has demonstrated that a good reason exists for waiving the two-week period contemplated by § 31-301-4. Krevis v. Bridgeport, 3857 CRB-4-98-7 (Aug. 18, 1999), aff’d, 63 Conn. App. 328 (2001). Our Appellate Court recently confirmed that the trier has broad discretion in such situations. Krevis, supra, 331. Our review must be limited to whether that discretion was clearly abused.

The March 15, 2001 formal hearing transcript contains just over eight pages of testimony. At the hearing, the claimant’s attorney offered two affidavits as exhibits, which explain the basis of his requested attorney’s fee. The respondent’s attorney, meanwhile, did not attend that hearing. The commissioner noted for the record that the Attorney General’s office had been contacted as a courtesy, whereupon the Sixth District office was told that the attorney assigned to the case was on his way. After a second call was made, the receptionist at the Attorney General’s office indicated that said attorney could not be located. Transcript, supra, pp. 3-4. The hearing thus went forth without his presence. The claimant’s attorney then briefly explained the source of his proposed $175 per hour fee, and offered his affidavits into evidence. The trier closed the hearing by setting a March 31, 2001 deadline for proposed findings.

On April 2, 2001, both the claimant and the respondent offered proposed findings. The claimant’s brief detailed the services of his attorney, while the respondent’s brief argued that no fees should be awarded (an issue discussed and settled in Vetre III) because the recent case of Dengler v. Special Attention Health Services, 62 Conn. App. 440 (March 27, 2001), re-established that expert testimony was necessary in workers’ compensation matters that involved injuries too complex to have their etiology commonly understood by laypersons. No evidence concerning the proper amount of an attorney’s fee was ever offered by the respondent, or referred to in its brief. On the afternoon of April 4, 2001, the date of the trier’s decision, the respondent’s counsel faxed a letter to the claimant’s attorney and to the Sixth District explaining that there had been a mix-up in the Attorney General’s office concerning scheduling, and that the March 15, 2001 hearing had not been added to counsel’s schedule until that same morning, preventing him from learning of the hearing and arriving at the Sixth District office until the formal hearing session had ended. In that fax, counsel noted that he had not received copies of the affidavits upon which the claimant relied, and that he objected on that ground. By this time, the trier’s decision had already been issued.

We do not believe that, under these circumstances, the trier abused his discretion by failing to allow an extension of time for the filing of a Motion to Correct. Counsel does not indicate that he made any affirmative attempt to obtain a transcript or copies of the two affidavits prior to the issuance of the decision, or that they were being withheld from him either before or after April 4, 2001. In fact, counsel prepared his own post-trial brief and submitted it to the commissioner. Further, the basis for his need for the transcript and his unfamiliarity with the exhibits was his failure to attend the hearing—a failure that, from all appearances in the record, was not explained to the trier until the decision had already been issued. We find no error in the trier’s denial of an extension of time for the appellant to file a subsequent Motion to Correct, particularly given the fact that the matter below already involved attorney’s fees for unreasonable contest. The respondent has not established a track record in defending this case that would likely inspire a commissioner to be lenient regarding extensions on procedural deadlines, and it is not the place of this board to overlook the fact that a trier has such authority.2

With regard to the respondent’s suggestion that the claimant’s attorney should not be awarded attorney’s fees because of the recent Appellate Court decisions in Dengler, supra, and Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733 (2001), we find no merit to this argument given the issues discussed in those decisions. Neither opinion suggests that the patient-psychiatrist privilege and the in camera records inspection procedures we discussed in Vetre I and Vetre II are somehow weakened by a new understanding of employers’ due process rights, and we decline to revisit that issue yet again. Further, we have already released our decision concerning the legality of the trier’s finding of unreasonable contest in Vetre III, and will not reconsider it here in Vetre IV. As for the respondent’s assertion that the estoppel doctrine was improperly invoked pursuant to equitable principles, we have already discussed that matter as well. See Vetre III, supra. Overall, we are not tempted by the respondent’s offers to rehash various issues that have been addressed in prior decisions, and thus decline to reverse any of our previous decisions.

The trial commissioner’s decision is accordingly affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 At oral argument in an earlier appellate proceeding conducted on June 18, 1999, counsel for the claimant waived any objection that his client might have against the participation of Commissioner Walker, a former Assistant Attorney General, in the decisionmaking process. See Vetre v. State, 3948 CRB-6-98-12 (Feb. 14, 2000). The claimant’s attorney did not attempt to revive such an objection at oral argument in the current matter, and we presume that his earlier waiver is still valid here. BACK TO TEXT

2 We do, however, deny the claimant’s Motion to Dismiss the instant appeal, as the Appellant was not allowed to file a late Motion to Correct by the trier, and it did file Reasons of Appeal within a week after this board granted counsel’s motion for an extension of time to file said reasons. BACK TO TEXT

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