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Millette v. Wal-Mart Stores, Inc.

CASE NO. 4429 CRB-5-01-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 19, 2002

TAMMY MILLETTE

CLAIMANT-APPELLEE

v.

WAL-MART STORES, INC.

EMPLOYER

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Dana Lee, Esq., Grady & Riley, Attorneys and Counselors at Law, 86 Buckingham Street, Waterbury, CT 06710.

The respondent was represented by Nicholas Varunes, Esq., Kenny, Brimmer, Melley & Mahoney, Attorneys at Law, Five Grand Street, Hartford, CT 06106-1505.

This Petition for Review from the August 9, 2001 Finding and Award of the Commissioner acting for the Fifth District was heard March 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. On or about March 20, 2000 the claimant while in the employ of the respondent injured her neck. As a result of that injury, claimant was diagnosed with two herniated discs and ultimately underwent surgery for their removal.

The trial commissioner found the claimant sustained a compensable injury and was totally disabled from the date of her injury until Sept. 28, 2000. Additionally, the trial commissioner awarded interest pursuant to sec. 31-300 due to the respondent’s delay in payments.

The respondent took this appeal. The issues presented for review are whether the respondent’s ability to properly defend liability for the claim was hindered due to; (1) the trial commissioner’s failure to order the claimant to attend a deposition, and (2) not permitting the respondent to take the deposition of Dr. Arkins. Sifting through all the procedural chaff cluttering claims by both parties we conclude the respondent’s opportunity to defend this case was not harmed by the denial of its various requests for sanctions and opportunities to gather evidence.

As this appeal raises procedural concerns, we will review the facts which give rise to the claimant’s claim and the pertinent history of the proceedings below. The claimant was employed by the respondent as a stock person assigned to the pharmacy area of the respondent’s store. On March 20, 2000 while setting up some displays the claimant experienced a sharp pain in her neck. That pain was then followed by numbness and pain along her left arm and into her fingers. The claimant completed her shift. However, when she picked up her child from her father-in-law who provided daycare, she was in such discomfort that she left the child in the care of her father-in-law and the claimant returned home.

The next day the claimant consulted a physician who diagnosed the claimant as having two herniated discs. Thereafter, the claimant underwent surgery for a two level anterior discectomy on May 26, 2000. Dr. Thomas Arkins, a neurosurgeon, performed the surgery and opined that claimant’s disc herniation was related to her work injury. However, Dr. Jacob Mushaweh opined that claimant’s herniated discs were not the result of her work injury.

Before we consider the merits of this matter, we note that the respondent has filed a Motion To Submit Additional Evidence. Our review in this matter hinges on various documents filed with the Fifth District office which were not formally entered into the record. The respondent’s Motion To Submit Additional Evidence seeks to proffer the following documents: (1) letters to the Commission requesting Hearings, Depositions and Sanctions; (2) statement on the record from the cancelled November 13, 2000 deposition; (3) notices of deposition of the Claimant’s treating physician; (4) Claimant’s Motions to Quash and Protective Order; (5) Respondent’s Objection to Claimant’s motions; and (6) Commissioner Spain’s letter dated April 19, 2001.

We believe that as these documents were submitted in furtherance of the prosecution and defense of the claim, they should be considered part of the record on review before this board. The only document that in our mind may be questioned as part of the record is item #2, statement on the record from the cancelled November 13, 2000 deposition. Arguably, this particular item could be characterized as evidence. Thus, the usual caveats set out in Admin. Reg. Sec. 31-301-9 and case law controlling admission or exclusion would apply. Those caveats are that additional evidence will not be considered unless material and unless there were good reasons for failing to present it in the proceedings below. Rodrigues v. American National Can, 4329 CRB-7-00-12 (Jan. 2, 2002); Briggs v. American Medical Response, 4302 Compensation Review Board-3-00-9 (Sept. 24, 2001), appeal dismissed, A.C. 22381 (Jan. 1, 2002).

The only opportunity the respondent would have had to seek to admit this document into the record would have been in a formal hearing before the trial commissioner. In the instant case, as noted in that part of this opinion concerning the merits, the trial commissioner stated that the request for sanctions stemming from the November 13, 2000 deposition would be considered after the case in chief. Therefore, we understand how the respondent might have believed that the matter of sanctions would be considered at some later date. Thus, the respondent’s failure to move to admit item #2 is excusable and it along with the aforementioned documents are considered to be part of the record on review before us. See Practice Book Rule 61-10.

Formal hearing proceedings regarding this matter began on December 7, 2000. However, prior to the December 7, 2000 formal hearing, the respondent scheduled a deposition of the claimant for November 13, 2000. That deposition was scheduled to be held at claimant’s counsels’ office. Respondent’s counsel appeared but claimant’s counsel objected to the deposition and the matter did not go forward. Respondent then sent a letter dated November 14, 2000 requesting sanctions against the claimant on the basis of the claimant’s last minute cancellation of the scheduled deposition.1

On December 5, 2000 in a letter to the Fifth District, the respondent renewed its request for sanctions against claimant’s counsel. On December 7, 2000 a formal hearing commenced. At that formal hearing, respondent’s counsel objected to the hearing going forward on the basis that the firm’s attorney who had been handling the matter was unable to attend due to her summons for jury duty. The trier denied respondent’s counsel’s request and the hearing went forward. See Dec. 7, 2002 Transcript, p. 2.

At that formal hearing session the trial commissioner stated that the issue of respondent’s motion for sanctions would be dealt with after the case-in-chief. See Dec. 7, 2002 Transcript, p.3.2 Chief among the respondent’s complaints is that it was not given the opportunity to depose the claimant. Specifically, the respondent contends that the claimant’s failure to go through with the deposition scheduled for and cancelled on November 13, 2000 deprived it of an opportunity to examine the claimant and prepare its case. However, we note that the respondent had the opportunity to cross-examine the claimant both at the December 7, 2000 and the continued session of the formal hearing on March 15, 2001. We note that respondent’s counsels (Atty. Nicholas Varunes and Atty. Anita Varunes) cross-examined the claimant for a significant period of time at both formal hearing sessions. See Dec. 7, 2000 Transcript, pp. 24-70 and Mar. 15, 2001 Transcript, pp. 7-22.

We fail to see how the respondent’s ability to defend this claim was adversely effected due to its inability to depose the claimant in advance of the Dec. 7, 2000 session of the formal hearing. We note that more than 3 months passed between the first and second sessions of the formal hearing. Clearly, given this interim of time the respondent had an opportunity to investigate claimant’s testimony at the December 7, 2000 hearing and to challenge the truth or veracity of that testimony at the March 15, 2001 formal hearing proceeding. Thus, we conclude that the respondent’s ability to defend was not thwarted by the failure of the trial commissioner to order a deposition of the claimant.

We next consider whether the trial commissioner’s failure to permit the respondent to depose Dr. Arkins also impaired its ability to defend against liability. At the March 15, 2001 formal hearing the following colloquy occurred.

MR. VARUNES: Commissioner, at this time I request the hearing be continued so that I could subpoena the doctor.
THE COMMISSIONER: Well, I find it difficult to do that. At the last hearing Claimant’s counsel indicated he would only have fifteen minutes. You said you were going to have four witnesses, that was back at the December seventh hearing. Notices went out on February 21 for the hearing on March 1, which was received and apparently objected to for lack of ten days notice and it was rescheduled on March one for today’s date.
Now, you have had it seems to me ample opportunity to depose the doctor and that is, as far as I could tell pretty much the standard procedure for medical testimony. I don’t know why it wasn’t done in this case but I’m not going to grant the extension. The record will close today but you may file briefs.
MR. LEE: Your Honor, before you close the record can I - at the last hearing I subpoenaed St. Raphael’s Hospital records. St. Raphael’s did not provide the documents at the time of the hearing. I do have them now, I provided them to closing (sic) counsel and I would like to offer them as an exhibit at this time.
THE COMMISSIONER: Any objection?
MR. VARUNES: No objection.
THE COMMISSIONER: You haven’t offered anything else today?
MR. LEE: No.
THE COMMISSIONER: Exhibit E.
MR. LEE. I have one other exhibit. It’s a bill from Dr. Arkins and it’s dated after the last hearing.
THE COMMISSIONER: Any objection?
MR. VARUNES: No.
THE COMMISSIONER: Exhibit F.
THE COMMISSIONER: Anything else?
MR. LEE: No.
THE COMMISSIONER: The record will remain open until two weeks after the transcripts are available, at which time you could file proposed findings and briefs.
MR. LEE: Two weeks after the transcripts are sent to us?
THE COMMISSIONER: Yes, after the transcripts are available. Thank you all. We are adjourned.
MR. VARUNES: Thank you, Your Honor.
MR. LEE: Thank you.

Mar. 15, 2001 Transcript, pp. 53-54 (emphasis ours).

On March 16, 2001, (the day after the formal hearing) the respondent’s noticed and subpoenaed the deposition of Dr. Arkins to be held on April 9, 2001. That deposition was renoticed for April 16, 2001.3 On April 19, 2001 the trial commissioner sent a letter to Atty. Nicholas Varunes stating the following:

Dear Counselor:
I have your Motion for Sanctions and your request for an emergency formal hearing for that motion.
A formal hearing in the captioned matter opened December 7, 2000 and was continued to March 15, 2001.
The reports of Dr. Arkins were admitted into evidence as Claimant’s Exhibit B on December 7th. When that hearing was adjourned I directed that the matter be reassigned and that counsel have all their witnesses and any other evidence available at the continued hearing.
The matter was reassigned for March 15, 2001. At its conclusion I directed that the record remain open for the receipt of transcripts.
The period from March 15 to two weeks after the receipt of transcripts was not meant for evidence gathering.
Sincerely,
Darius J. Spain, Commissioner

We think the trial commissioner’s comments could not be clearer, i.e., the time for taking Dr. Arkins deposition had passed. Thus the narrow issue before us is whether the failure of the trial commissioner to allow the respondent to take Dr. Arkins’ deposition, after two sessions of the Formal Hearing impaired its ability to defend against the claim. The commissioner did not think so, nor do we.

The respondent cites Pietraroia v. Northeast Utilities, 254 Conn. 60 (2000) as supporting its position that it should have been permitted to take Dr. Arkins’ deposition. We do not read the factual underpinning of Pietraroia as sufficiently analogous to mandate the result sought by the respondent.

In Pietraroia, the claimant appealed from the trial commissioner’s dismissal of his claim where the basis of the trier’s decision was that the claimant failed to appear at a formal hearing. In that case the claimant resided in Australia and asserted that his health would not permit him to travel to Connecticut for a hearing or deposition. The claimant argued that he should be permitted alternative means to put on his case, e.g., deposition by telephone conference or similar creative methods. The trier in Pietraroia ruled against the claimant and the Compensation Review Board affirmed the trier’s dismissal. The Supreme Court reversed and held:

There is no doubt that a court may, under its inherent equitable powers, dismiss a claim in an appropriate case of unjustifiable disobedience of its orders, or for an unjustifiable failure to appear for trial. See Jaconski v. AMF, Inc., 208 Conn. 230, 232-33, 543 A.2d 728 (1988). Thus, a commissioner has an analogous power to dismiss a claim “in accordance with the rules of equity.” General Statutes § 31-298.

Pietraroia, supra, pp. 71-72

However, the Pietraroia court concluded that the trier abused his discretion in dismissing the claim as alternative procedures existed which would permit the respondent to adequately protect its right to defend against liability. The significant difference between Pietraroia and the instant matter is that in the instant case the respondent was not denied an opportunity to depose Dr. Arkins. The respondent merely failed to exercise that opportunity in a time frame that the trier deigned consistent with the concept of due diligence.

We think the Appellate Court’s opinion in Pantanella v. Enfield Ford, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001) more closely approximates the procedural posture of the instant matter. In Pantanella, the appellant attempted to take the deposition of a physician after the trial commissioner closed the evidentiary record. The Appellate Court held a trial commissioner’s decision whether to open the record is a matter within his discretion. Id, p. 57. The timelines ascribed to the litigation process are matters within the trial commissioner’s discretion. Briggs, supra.

Finally, we note that in its Reasons for Appeal filed August 30, 2001, the respondent raises the issue of whether the trial commissioner erred in accepting Dr. Arkins’ records after denying the respondent the “[opportunity] to take the deposition of the treating physician while the record remained open.” Our understanding of the chronology of these events in this matter is not entirely consistent with the respondent’s assertion. Our review reflects that Dr. Arkins’ report was marked and entered into the record at the December 7, 2000 session of the formal hearing. (See Claimant’s Exhibit B) We note that respondent’s counsel did not object to the admission of Exhibit B at the time that it was offered into the record.

Nor did the respondent object at the March 15, 2001 formal hearing to the trier’s denial of an opportunity to depose Dr. Arkins. We do not find the respondent’s subsequent procedural actions in furtherance of deposing Dr. Arkins cures its failure to raise a timely objection during the course of the formal hearings. Arguably, the respondent did not effectively preserve its objection for appellate review. Russack v. Russack, 58 Conn. App. 517 (2000).

In summary, we think the overall handling of this litigation by both parties ran counter to the spirit of open discovery. Open discovery is the hallmark of our Workers’ Compensation system. That policy is directly codified in § 31-298 and our case law is replete with references to the concept that Workers’ Compensation cases are on a different footing from cases in civil court. The policy which, in part, underpins our Workers’ Compensation Act is to provide “a quick vehicle for the recovery by the claimant for work related injuries.” DeAlmeida v. M.C.M. Stamping Corporation, 29 Conn. App. 441, 446 (1992); See also Powers v. Hotel Bond Co., 89 Conn. 143 (1915). This tribunal has repeatedly explained that the workers’ compensation system encourages full disclosure and cooperation among the parties during the adjudication process. Dixon v. United Illuminating Co., 14 Conn. Workers’ Comp. Rev. Op. 215, 1996 CRB-4-94-3 (Aug. 4, 1995); John v. State, 3729 CRB-3-97-11 (March 1, 1999). We believe both sides would have benefited from greater cooperation and adherence to the Workers’ Compensation Commission’s policy regarding discovery.4

We therefore affirm the commissioner acting for the Fifth District’s August 9, 2001 Finding and Award. We also award interest pursuant to Sec. 31-301c(b).

Commissioners Amado J. Vargas and Stephen B. Delaney concur.

1 The sanctions requested were in the form of payment for the cost of the court reporter and respondent’s counsel’s time expended for the November 13, 2000 scheduled deposition. Claimant’s counsel responded by letter dated November 29, 2000 to respondent’s request for sanctions. Claimant’s counsel argued against imposition of the sanctions on the basis that respondent’s request for a deposition of the claimant “exceeds her authority and may amount to an abuse of process.” (Claimant’s letter dated November 29, 2000). Although we note it appears that claimant’s counsel forwarded the fee for the court reporter. BACK TO TEXT

2 Our review of the record and the briefs of the parties filed before this board indicates that the trial commissioner did not directly rule on the respondent’s request for sanctions. For purposes of this appeal we construe the respondent’s request for sanctions against the claimant as denied. Spatafore v. Yale University, 14 Conn. Workers’ Comp. Rev. Op. 310, 2011 CRB-3-94-4 (September 14, 1995), aff’d, 239 Conn. 408 (1996); Sullivan v. Northwind Energy Insulators, Inc., 2 Conn. Workers’ Comp. Rev. Op. 12, 146 CRD-4-82 (May 23, 1983), no error, 2 Conn. App. 689 (1984), cert. denied, 195 Conn. 801 (1985). BACK TO TEXT

3 As with the earlier deposition scheduled of the claimant, claimant objected and filed a Motion for Protective Order and Motion to Quash both dated April 4, 2001 and filed April 5, 2001. Again the deposition was marked off and the respondent filed objections to both the Motion for Protective Order and the Motion To Quash. Both objections were dated April 11, 2001 and filed April 12, 2001. These objections were followed by respondent’s Motion for Sanctions dated April 12, 2001. BACK TO TEXT

4 While we may believe that both parties in this litigation did not conduct themselves in a manner consistent with the expedited processing objectives of the Workers’ Compensation Act, the respondent did not challenge the trial commissioner’s conclusion that the respondent delayed proceedings. Clearly, if the respondent had prevailed in its appeal then the Commissioner’s finding as to delay would have fallen along with the other findings challenged by the respondent on appeal. But as the trial commissioner’s Finding and Award is affirmed, the finding as to the respondent’s delay stands. BACK TO TEXT

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