CASE NO. 4424 CRB-6-01-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 27, 2002
HARTFORD GOLF CLUB
The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114.
The respondents were represented by Jean Molloy, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, Glastonbury, CT 06033-6087.
This Petition for Review from the July 24, 2001 Finding and Order of the Commissioner acting for the Sixth District was heard February 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 24, 2001 Finding and Order of the Commissioner acting for the Sixth District. She contends on appeal that the trier erred by ordering that the admission of certain evidence be conditioned upon her acceding to an examination by a vocational rehabilitation specialist who was not also a physician within the meaning of § 31-294f C.G.S. We find no error, and affirm the trial commissioner’s decision.
The trial commissioner found that the claimant sustained an 8% permanent partial disability to her back following a May 8, 1999 injury that arose out of and in the course of her employment with the respondent Hartford Golf Club. Her treating physician stated on May 4, 2000 his suspicion that she had become a candidate for social security. The claimant sought a work capacity evaluation from Hank Lerner, a vocational rehabilitation specialist, who issued an employability assessment report on September 18, 2000. Based on his assessment, she contends that she is permanently and totally disabled from all employment. At the formal hearing, she sought to support her claim by introducing Lerner’s testimony.
The respondents then attempted to schedule her for an evaluation with David Saja, another vocational rehabilitation expert. The claimant refused to submit to that evaluation, arguing that an independent examination with such a specialist would be an invasion of her personal privacy as defined by § 52-178a C.G.S.1 Because a vocational rehabilitation specialist does not practice a healing art under § 20-1 C.G.S.2, she asserts that § 31-294f and § 31-275 do not permit an order for such an exam. The respondents, meanwhile, argued that the commissioner’s evidence-gathering powers encompass such an order. They also argued that Admin. Reg. § 31-283a-2 3 allows any party to request that a claimant undergo vocational rehabilitation services, if eligible, which presupposes that a claimant can be asked to submit to a vocational evaluation. The trier agreed with the respondents’ position. He held that the relevant statutes, together with the Practice Book4 and concepts of equity, fair play, full disclosure and cooperation, allow a respondent to seek an examination with a vocational rehabilitation expert if a claimant wishes to offer her own evidence of like kind. The trier therefore ordered that she either submit to the examination, or be precluded from offering her own vocational rehabilitation expert’s report into evidence. The claimant has appealed from that ruling.
The main thrust of the argument in the claimant’s brief is that a vocational rehabilitation specialist falls outside the scope of § 31-294f, which allows the employer or the commissioner to request that an injured employee submit himself “to examination by a reputable practicing physician or surgeon,” in order to determine the nature of the injury and the resultant incapacity. “Physician,” in turn, is defined by § 31-275(17) as any person authorized and licensed to practice a healing art, as defined by § 20-1. She takes the position that, absent specific authorization by the Workers’ Compensation Act, a trial commissioner cannot invoke the general provisions of § 31-278 C.G.S. and § 31-298 C.G.S. to order a claimant to submit to an examination by a non-physician such as a vocational rehabilitation specialist. She then cites a number of cases that stress the proposition that the remedial purpose of the Act cannot transcend its statutorily-defined jurisdictional boundaries. See, e.g., Dowling v. Slotnik, 244 Conn. 781, 800 (1998). In her view, the trial commissioner lacked the authority to rule that he would exclude her vocational rehabilitation expert’s testimony and reports unless she consented to an examination by a vocational rehabilitation specialist of the respondent’s choosing. Indeed, at oral argument, the claimant’s counsel went so far as to say that the Act intends to give the claimant an advantage by creating evidentiary restrictions for employers and insurers that do not equally constrain injured employees who are seeking benefits.
With respect to this line of reasoning, the only mutual perspective we share with the claimant is our agreement with her point that § 31-294f does not apply in this instance. Given that she seeks to introduce testimony by her own vocational rehabilitation expert in support of her permanent total disability claim, we do not see the respondent’s request for an examination by a similar expert as being primarily grounded in the rights granted to employers by § 31-294f. Rather, the respondents’ request strikes a chord that is more basic to the principles of due process: the notion that one is entitled to confront a witness on equal terms, by addressing any relevant issue that has been placed into dispute by a party seeking some sort of recovery. The respondents raised in their brief the case of Cook v. Miller, 103 Conn. 267 (1925), a Supreme Court opinion which held that a defendant in a civil negligence suit was entitled to obtain a physical examination of the plaintiff, whose injuries were the basis of the pending claim. Though that case may have dealt with a doctor’s examination, the underlying principle was quite clear: it would be a gross violation of justice for a plaintiff to be able to introduce expert testimony on an issue related to her physical or mental condition without permitting the defense to introduce expert testimony of a like kind.
As noted in the recent case of Bailey v. State, 65 Conn. App. 592 (2001), § 31-298 C.G.S. grants broad authority to a commissioner to carry out the provisions of the Workers’ Compensation Act. The statute states that the trier “shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” (Emphasis added). In doing so, he must endeavor to protect the parties’ substantial rights, which include the right of the employer to examine the claimant independently, to notice his deposition, and to insist on hearing his personal testimony at a formal hearing. Bailey, supra, 604, citing Pietraroia v. Northeast Utilities, 254 Conn. 60, 71-72 (2000). The fundamental right of a party to be heard at a meaningful time and in a meaningful manner includes the right to produce relevant evidence and to offer rebuttal evidence. Bailey, supra; Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 740 (2001).
Where a claimant seeks to claim entitlement to total disability benefits by offering the testimony and reports of a vocational rehabilitation specialist, a trier is acting well within his authority if he rules that she cannot offer such evidence without giving her employer and its workers’ compensation insurer an opportunity to offer relevant rebuttal evidence by scheduling their own vocational rehabilitation examination. Such a ruling is clearly designed to protect the rights of all parties by creating a level playing field. We strongly reject the insinuation of the claimant’s counsel that this system is designed to give claimants the advantage of being able to offer certain types of evidence that may not be made equally available to respondents. Section 31-298 clearly allows such a ruling to be made under such circumstances, and § 31-294f would not preclude such an examination. As the trier noted, the Practice Book also supports such a ruling, and the respondents would in any case be entitled to apply for vocational rehabilitation services for the claimant pursuant to § 31-283a. These factors all support the decision below.
The trial commissioner’s decision is accordingly affirmed.
Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.
1 Section 52-178a provides, “In any action to recover damages for personal injuries, the court or judge may order the plaintiff to submit to a physical examination by one or more physicians or surgeons. No party may be compelled to undergo a physical examination by any physician to whom he objects in writing submitted to the court or judge.” BACK TO TEXT
2 Section 20-1 defines “healing arts” as “the practice of medicine, chiropractic, podiatry, natureopathy and, except as used in chapters 384a and 388, the practice of optometry.” BACK TO TEXT
3 Administrative Reg. § 31-283a-2 states, “As provided in Section 31-283a of the general statutes, a disabled employee may be eligible for vocational rehabilitation benefits, provided the Chairman or his designee finds that:
(1) The employee, employer, insurance carrier, physician, Commissioner, or other interested party has requested vocational rehabilitation services by completing and filing an application signed by the applicant for vocational rehabilitation benefits with the Chairman or his designee.
(2) There exists a permanent impairment which substantially disables the employee for a significant period of time from performing the worker’s most recent or customary type of work and that such permanent impairment is a direct result of an injury found to be compensable under Chapter 568 of the general statutes by a Commissioner, a voluntary agreement, an award; or in lieu of those, a stipulation approved by a Commissioner.” BACK TO TEXT
4 Specifically, the trial commissioner cited P.B. § 13-11(a), which states, “In any civil action, in any probate appeal, or in any administrative appeal where the judicial authority finds it reasonably probable that evidence outside the record will be required, in which the mental or physical condition of a party, or of a person in the custody of or under the legal control of a party, is material to the prosecution or defense of said action, the judicial authority may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in the party’s custody or legal control.” BACK TO TEXT