CASE NO. 4544 CRB-3-02-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 9, 2003
LOGISTEC CONNECTICUT, INC.
LAMORTE BURNS & CO.
The claimant was represented by Joseph Passaretti, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
The respondents were represented by Neil J. Ambrose, Esq., Letizia, Ambrose & Falls, P.C., One Church St., New Haven, CT 06510.
This Petition for Review from the June 12, 2002 Finding and Award of the Commissioner acting for the Third District was heard January 24, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Howard H. Belkin and Nancy A. Brouillet.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the June 12, 2002 Finding and Award of the Commissioner acting for the Third District. They contend that the trier erred by finding that they unreasonably contested liability for this claim, and also contest the award of various costs associated with trial. We affirm the trial commissioner’s award of some of those costs, but find error with regard to the award of unreasonable contest, and reverse with orders for further proceedings on remand.
The claimant in this matter sustained a compensable injury to his left leg and foot on June 22, 1999. He began experiencing back pain on or before January 2000, as per the trial commissioner’s findings. Dr. Diana, his treating physician, declined to refer him for treatment of that back pain. The claimant sought treatment with Dr. Lerner on his own, beginning on May 8, 2000. This treatment consisted of spinal manipulation of the lumbar and thoracic spines, along with physiotherapeutics, ultrasound and electrical muscle stimulation. Dr. Lerner testified, and the trier found, that the claimant’s back pain was directly caused by his accepted lower extremity injury. He also testified that the claimant was able to continue working because of the treatment he provided. However, when Dr. Lerner had contacted the insurer and Dr. Diana for authorization of treatment or a referral, he had been denied.
Finding that the respondents had offered no valid evidence to contest Dr. Lerner’s opinions, the trial commissioner designated him as an authorized treating physician, and ordered the respondents to pay the covered portion of his medical bills. The trier further ordered the respondents to pay the cost of Dr. Lerner’s file review, travel time, and testimonial time for the formal hearing of August 16, 2001. The trier next found that the respondents unreasonably contested liability for this claim, and ordered the payment of a reasonable attorney’s fee, along with the claimant’s trial costs, mileage allowance and compensation rate for attendance at hearings. The respondents have appealed that ruling to this board.1
The initial contention of the respondents-appellants is that the trier erred by reaching the unreasonable contest issue in the Finding and Award, because adequate notice was not provided that this topic would be addressed in his decision. The first mention of unreasonable contest was in the claimant’s proposed findings, which were submitted at a January 4, 2002 pro forma hearing. Procedural due process is a requirement of adjudicative administrative hearings like workers’ compensation proceedings. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974); Milliot v. Yale University, 4527 CRB-3-02-5 (May 14, 2003). Though Chapter 568 proceedings here in Connecticut do not require formal pleadings, the hearing notices that this Commission sends out must be detailed enough to provide parties with a working overview of the issues scheduled for discussion, in order to allow sufficient preparation. Audi v. Blakeslee Arpaia Chapman, 4234 CRB-3-00-5 (June 26, 2001). A party may also be apprised that a claim is at issue by other means, such as the statements of the parties at trial, the nature of the evidence they have presented, or the papers they have filed. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 588 (1999).
The issue of unreasonable contest occupies an unconventional status in comparison to core claims for disability benefits and medical treatment, in the sense that a trial commissioner cannot determine whether grounds for such a finding exist until after the respondents have finished presenting their defenses. Where it seems likely either prior to the commencement of formal hearings or during trial that there will be justification for such a finding, a claimant should vocalize a request for § 31-300 sanctions as soon as possible. However, advance notice that unreasonable contest will be an issue is not always practical.
Whether or not a respondent is guilty of unreasonably contesting liability is a factual question to be determined after the trier has listened to the parties’ arguments and reviewed the evidence. Colon v. CEI Bottling & Distribution Co., 4470 CRB-3-01-12 (Nov. 12, 2002); Strona v. Textron Lycoming Div., 4398 CRB-4-01-5 (Aug. 6, 2002). There will occasionally be situations in which the trier will first realize that sanctions are warranted following the conclusion of trial. In such cases, the trier may raise the issue sua sponte during the proceedings, or after the record has been closed and the decision is being considered (assuming that a claim for sanctions has not been explicitly waived as in Milliot, supra). Bailey v. State/GHCC, 3922 CRB-2-98-10 (Nov. 30, 1999), aff’d in part, rev’d in part on other grounds, 65 Conn. App. 592 (2001); see also, McCurrey v. Nutmeg Express, 4342 CRB-5-01-1 (Jan. 3, 2002)(CRB upheld granting of post-formal hearing motion for finding of unreasonable contest and award of attorney’s fees). /p>
Though it is necessary for a trier to possess such latitude in order to respond to situations of unreasonable contest and undue delay under § 31-300, parties remain entitled to due process in the form of an opportunity to argue against any penalties that are to be imposed. Where a trier has entered a sua sponte finding of unreasonable contest without prior notice, that finding should be construed as a preliminary finding of unreasonable contest, with either party having the right to raise that subject at a full evidentiary hearing following the issuance of the trier’s decision. Also, the trier must articulate the basis for the finding of unreasonable contest. In this case, the trial commissioner did not specify the basis for such a finding, and the respondents were not offered the opportunity to contest the issue. Thus, we must remand this case for a subsequent hearing at which the trial commissioner may consider this issue on the merits. Should a finding of unreasonable contest ensue, the grounds for that finding should be explained in the trier’s decision.
The respondents have also objected to the trier’s award of payment to Dr. Lerner for his file review and travel time, his award of mileage reimbursement to the claimant for attendance at the formal hearing under § 31-312, and “trial costs” pursuant to § 31-298. We agree that § 31-312(a) does not entitle an employee to mileage reimbursement for the cost of transportation to and from a formal hearing. The subsection only mentions travel time to and from a place where required medical treatment is being obtained. Travel to a formal hearing is a different matter, and cannot be read to fall within that definition, regardless of the remedial spirit of the Workers’ Compensation Act.
We disagree, however, with the respondents’ interpretation of § 31-298, which allows a prevailing claimant “payment for oral testimony or deposition testimony rendered on his behalf by a competent physician, surgeon or other medical provider, including the stenographic and videotape recording costs thereof, in connection with the claim,” and their reading of § 31-312(b), which directs payment for costs associated with a physician’s “examination, x-ray, medical tests and testimony.” File review is a necessary preparatory step for a doctor prior to testifying at a hearing, and it may be considered part and parcel of the testimonial fees, along with any travel time that the doctor would otherwise bill to the claimant. In terms of the award for “trial costs,” we construe that as covering only those costs contemplated by § 31-298, i.e., testimonial costs and associated stenographic and recording fees, insofar as such costs were incurred. Other costs, namely attorney’s fees, are covered by the provisions of § 31-300, and an award of such fees would be cognizable under that statute.
The trial commissioner’s decision is accordingly affirmed with regard to the trier’s award of certain costs as specified above, and is otherwise reversed and remanded for further proceedings on the issue of unreasonable contest.
Commissioner Howard H. Belkin concurs.2
1 The claimant has moved to dismiss the instant appeal because the respondents’ brief was filed in a tardy manner. It was received by this board four days after the December 2, 2002 extended filing deadline. As we perceive no prejudice to the claimant by this short delay, we will refrain from dismissing this appeal on that ground. Schilling v. New Departure-Hyatt Division, 3290 CRB-6-96-3 (August 4, 1997). BACK TO TEXT
2 As noted in the heading of this opinion, this matter was originally heard on January 24, 2003, by a three-commissioner panel of the Compensation Review Board that included Nancy A. Brouillet, whose term of service has since expired. Former Commissioner Brouillet did not participate in the drafting or review of this written opinion, and has had no involvement in the issuance of this decision. BACK TO TEXT