State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bailey v. State of Connecticut/Greater Hartford Community College

CASE NO. 4744 CRB-1-03-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 3, 2004

JANE BAILEY

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

STATE OF CONNECTICUT/GREATER HARTFORD COMMUNITY COLLEGE

EMPLOYER

RESPONDENT-APPELLEE

CROSS-APPELLANT

and

GAB ROBINS

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Brian Prucker, Esq., American Legal Services, LLC, 212 Talcottville Road, Route 83, Vernon, CT 06066.

The respondent was represented by Donna Hixon-Smith, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the October 9, 2003 Findings, Rulings and Order of the Commissioner acting for the First District were heard May 28, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr., and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant and the respondent have each petitioned for review from the October 9, 2003 Findings, Rulings and Order of the Commissioner acting for the First District. After considering these claims of error, we affirm the trial commissioner’s decision in part, and reverse in part.

This case has a lengthy history in the workers’ compensation adjudicatory system. The claimant began working for the state-operated Greater Hartford Community College in 1987. In 1991, during a time when there was a great deal of stress at her job in the purchasing department, she suffered a panic attack and had to leave work. She was diagnosed by her physician, Dr. Purcell, with depression and anxiety related to workplace stress. Dr. Zariphes, a psychiatrist, concurred in this diagnosis. The claimant filed a workers’ compensation claim alleging psychiatric stress with an injury date of April 29, 1991. This condition was found to be compensable in a June 24, 1994 Finding and Award, which has never been appealed.

Subsequently, the claimant sought total disability benefits. In an August 14, 1995 Finding and Award, the claimant was awarded total disability from May 17, 1991 through January 20, 1994, which benefits totaled $57,056.74 plus interest. In that Finding and Award, the trial commissioner also noted that Dr. Zariphes’ opinion was uncontradicted. He identified a “reasonable attorney’s fee” as $12,000, with the offices of the two attorneys who represented the claimant being instructed to submit either an agreed-upon apportionment of that fee, or a written claim for a sought-after amount. The respondent appealed that decision to this board, but also paid the claimant the full amount of the award pending appeal, as required by § 31-301(f) C.G.S. This board then issued a decision dated September 3, 1996, in which we reversed the trial commissioner’s award of total disability benefits on the ground that there was insufficient medical evidence in the record “to establish a reasonably medically probable relationship between the claimant’s medical condition and total disability through January 1994.” Bailey v. State/Greater Hartford Community College, 3152 CRB-5-95-8 (September 3, 1996). The case was remanded for further proceedings on the extent of the claimant’s disability.

After additional formal hearings and testimony, another Finding and Award was issued. Again, the trial commissioner found that the claimant was entitled to total disability benefits through January 20, 1994. Though it was noted that some of the claimant’s activities during that time period could have been interpreted to be consistent with a work capacity, the trier found that the employer “presented no evidence to prove its potential.” Findings, ¶ C. Accordingly, the trier ordered the respondents to pay the $12,000 attorney’s fee previously assigned in the 1995 Finding and Award, along with a further attorney’s fee of $7,500 for unreasonably contesting the claim.

In the interim, the respondent had appealed the trial commissioner’s granting of a motion for a protective order with regard to certain evidentiary requests. The trier had denied the respondent’s request to obtain an independent medical examination and its request to cross-examine the claimant. His decision was grounded on the claimant’s fragile psychological condition, and on his sense that the respondent had been extremely dilatory in preparing its case. This board ruled in Bailey v. State/GHCC, 3694 CRB-1-97-9 (January 12, 1999), that the trial commissioner’s evidentiary rulings were within his authority, insofar as they pertained to the claim for disability through January 20, 1994. With regard to any future disability, we held that the respondent was still entitled to discovery on that matter, and remanded for further proceedings. Then, in a third Bailey decision, 3922 CRB-2-98-10 (November 30, 1999), we upheld the substance of the trial commissioner’s finding that the claimant was totally disabled through January 20, 1994. We also affirmed the finding of unreasonable contest and the order for the respondent to pay a $7,500 attorney’s fee. However, we ruled that the $12,000 attorney’s fee mentioned in the 1995 Finding and Award was not the liability of the respondent, as it had not been based on a finding of unreasonable contest or undue delay.

These decisions were appealed to the state Appellate Court. After upholding this board’s ruling with respect to the $12,000 attorney’s fee, the court reversed this board’s decision on the evidentiary issues that had been discussed in our January 12, 1999 opinion. Bailey v. State, 65 Conn. App. 592 (2001). The court reasoned that the respondent’s right to an independent medical examination of the claimant was a core part of its right to a fair hearing. Despite the commissioner’s concerns that the respondent had not prepared its case diligently and that the claimant’s tenuous psychological state made it difficult for her to undergo an examination, the court held that the trier should nonetheless have found a way to work with the parties to “ensure that the defendant obtained the examination with all deliberate speed.” Id., 605. Accordingly, the January 12, 1999 and November 30, 1999 decisions of this board were reversed in all respects with the exception of the ruling on the $12,000 attorney’s fee award, and the case was “remanded to the board with direction to remand the matter to the commissioner for further proceedings consistent with this opinion.” Id., 605-606.

We now reach the October 9, 2003 Findings, Rulings and Order from which the instant appeals were taken. The trial commissioner therein found that the claimant was paid $57,056.74 by the respondent on January 31, 1996, pursuant to § 31-301(f). The underlying finding of total disability was subsequently reversed, as discussed above, and the issue still awaits retrial. The trial commissioner found that the state has attempted to obtain records necessary to complete its independent medical examination, but that the claimant has not complied in furnishing the necessary information. The state filed a Motion to Compel Discovery in April 2002. At a January 22, 2003 formal hearing, the claimant’s counsel agreed that the respondent was entitled to have its discovery request honored.

Meanwhile, the respondent filed a motion seeking reimbursement pursuant to § 31-301(f) for the benefits that were paid to the claimant, including the $12,000 attorney’s fee that the claimant paid out of the $57,056.74 that was awarded to her. It also sought the payment of interest at a rate of 10%. The respondent argues that it is entitled to such by virtue of the court’s reversal of the temporary total disability award. With respect to the attorney’s fee, the respondent attempted to subpoena the claimant’s attorney, Brian Prucker, compelling him to produce his fee agreement. Attorney Prucker represented that a certain portion of the sum designated as attorney’s fees was split with prior counsel on the case, who has since filed a personal bankruptcy petition in federal court. He stated that the claimant had been paid a balance of $42,180.67, taking into account the deduction of costs and attorney’s fees.

The trial commissioner agreed with the state’s argument. He found that the state was entitled to reimbursement of $42,180.67 from the claimant, and was also entitled to the sum retained by Attorney Prucker out of the $12,000 attorney’s fee. The trier made no findings regarding the federal bankruptcy proceedings of the claimant’s previous counsel. He allowed Attorney Prucker to take credit for allowable costs, as well as the portion of the $12,000 fee that was shared with prior counsel. The trier denied the state’s request for interest. He also ordered the claimant to comply with the state’s Motion for Discovery. Both parties have filed petitions for review from that ruling.

The respondent’s claims of error on appeal include the trier’s failure to award interest, his ruling that the claimant’s counsel could withhold from his repayment certain sums for costs and fees that he split with another attorney, and his reliance on unsworn statements by counsel. The claimant, meanwhile, contends that repayment should not have been ordered in the first place because there has been no final adjudication of benefits, and she also seeks to correct the record to reflect that she has repeatedly furnished records and authorizations to the state.

We must first address the claimant’s arguments on appeal, beginning with the claimant’s liability for repayment of benefits. Section 31-301(f) states, “During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered, pursuant to the provisions of subsection (a) of this section, to pay a portion of such award. The compensation and medical treatment shall be paid by the employer or its insurer.” 1 Pursuant to this statute, the claimant was paid benefits on January 31, 1996.

The repayment provision is codified in § 31-301(g) [formerly § 31-301(b)]. It provides, “If the final adjudication results in the denial of compensation to the claimant, and he has previously received compensation on the claim pursuant to subsection (f) and this subsection, the claimant shall reimburse the employer or its insurer for all sums previously expended, plus interest at the rate of ten per cent per annum. Upon any such denial of compensation, the commissioner who originally heard the case or his successor shall conduct a hearing to determine the repayment schedule for the claimant.” The claimant contends that the decision of the Appellate Court in Bailey was not a “final adjudication” of benefits within the meaning of § 31-301(g), as the court remanded this case to the trial commissioner for further proceedings. She characterizes the state’s motion for repayment as an interlocutory motion that should not have been granted by the trial commissioner while this case was still pending.2

The term “final adjudication” in § 31-301(g) is one we read as being synonymous with the term “final judgment” as it frequently appears in case law. Such a reading is consistent with common legal usage, which treats as interchangeable the terms “adjudication” and “judgment.” See, e.g., Black’s Law Dictionary, 5th Ed. It also comports with the remedial policy behind Public Acts 84-133 and 86-273, which introduced the “payment pending appeal” language into the Workers’ Compensation Act. This language, which ensures that an injured claimant whose earning capacity has been compromised will not be forced to do without wage replacement benefits and medical treatment while a respondent’s appeal is pending, would not favor a reading that would make a claimant liable to repay benefits before such a repayment was clearly necessary under the law.4 Nor would a different reading of “final adjudication” be suggested by § 31-301(d), which also uses the phrase “pending final adjudication” to describe situations when this board may direct a respondent to comply with the undisputed portion of an award while the disputed portion awaits decision on appeal.

Where a remand has been ordered in a workers’ compensation case, the general standard for determining whether a final judgment exists is dependent on the scope of the proceedings remaining on remand. Fantasia v. Tony Pantano Mason Contractors, Inc., 54 Conn. App. 194, 200 (1999); Quinn v. Standard-Knapp, Inc., 40 Conn. App. 446, 447-48 (1996). “If such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” Id., 448. This rule is an application of the more general principle of final judgment that an otherwise interlocutory order may be appealed where (1) the order terminates a separate and distinct proceeding, or (2) where the order so concludes the rights of the parties that further proceedings cannot affect them. State v. Curcio, 191 Conn. 27, 31 (1983); Fantasia, supra; see also, Schieffelin & Co. v. Department of Liquor Control, 202 Conn. 405, 410 (1987)(distinguishing between two kinds of administrative remands); Wisniowski v. Planning Commission, 37 Conn. App. 303, 308 n.7 (1995) (explaining that Schieffelin remains viable in cases not governed by Uniform Administrative Procedure Act, despite 1989 amendment to § 4-183(j) C.G.S. equating remand with final judgment).

The type of “final judgment” that would trigger liability for repayment here would be a final adjudication that the claimant was not entitled to total disability benefits from May 17, 1991 through January 20, 1994. This must be distinguished from a final judgment on subsidiary evidentiary issues that affect the taking of evidence at trial. What the Appellate Court did in its decision was reverse this board’s January 12, 1999 and November 30, 1999 decisions, while ordering this board to remand the case to the commissioner for further proceedings regarding the disability claim. The Court noted its expectation that the trier would, on remand, “permit the [respondent] to conduct any additional cross-examination that it deems necessary and that the commissioner deems relevant to the issues before him or her.” Bailey, supra, 605 n. 8.

While the Appellate Court’s decision in Bailey on the evidentiary matters might conceivably constitute a final judgment within the meaning of Curcio insofar as it concludes the claimant’s right not to subject herself to an examination, the same is not true of the underlying issue of the claimant’s entitlement to benefits. That matter is still pending before this Commission, as neither a final award nor a final dismissal of the claim for total disability benefits has been entered. Therefore, the trial commissioner’s order for the claimant to repay $42,180.67 in benefits to the respondent pursuant to § 31-301(g) was premature. In light of our conclusion on this issue, we need not reach the respondent’s claims of error concerning the offset for attorney’s fees and allowable costs, the trier’s reliance on unsworn statements as a basis for these offsets, and the trier’s failure to award interest on the repayment amount. Those issues are rendered moot by our determination that this case has not yet reached final adjudication.

We do note, however, that with respect to the $12,000 attorney’s fee award, this board ruled in its November 30, 1999 opinion that the respondent was not liable to pay it directly, as it was not based upon a finding of unreasonable contest or undue delay. Rather, the trial commissioner had set a fee of $12,000, and invited the two law firms to either reach an agreement to apportion the fee, or to submit written claims so that he could apportion it. The Appellate Court affirmed that ruling, observing that the trial commissioner who issued the 1998 attorney’s fee award had gone outside the scope of this board’s remand order by attempting to carry forward the $12,000 fee from a prior commissioner’s 1995 award. “We conclude that the board properly concluded that the commissioner [in 1995] did not order the [respondent] to pay attorney’s fees to the [claimant]. . . . As neither party challenged the commissioner’s resolution of any attorney’s fees issue, the commissioner’s decision regarding attorney’s fees became final; the issue could not be relitigated.” Bailey, supra, 597-98. If it is later determined that the respondent is owed a repayment of benefits, this holding must be taken into account.

The parties also continue to disagree over the claimant’s obligations regarding discovery. At the January 22, 2003 formal hearing, the respondent’s counsel represented that none of her requests for discovery had been honored, which was preventing the case from progressing to a formal hearing on the merits. Transcript, p. 31-32. After some discussion, the claimant’s attorney stated that he had no objection to the trier ruling on the motion for discovery. Id., p. 38. The trial commissioner ordered the claimant to comply with the state’s Motion for Discovery as per the decision of the Appellate Court in Bailey, stating that compliance was ordered “jointly and severally against the Claimant and the Claimant’s attorney as to the extent he can obtain these records.” Findings, ¶ L.

The records sought are mental health records created prior to 1991, which Dr. Selig, the state’s examining psychiatrist, believes are necessary for a thorough medical examination. Dr. Selig has also advised that he needs certain records that are more recent. The trier found that the state has attempted to obtain the records, but the claimant has not complied with their requests for information. The trier added, “It is the expressed concern and request of the undersigned that the parties involved in this case use their best efforts to comply with the letter and the spirit of this decision and attempt to avoid further and ongoing litigation.” Id., ¶ O.

We remind the claimant that the Appellate Court strongly stressed the mandatory nature of an injured employee’s responsibility to submit to a medical examination, as long as the employer’s request is reasonable. Bailey, supra, 603-604. “A commissioner must always protect the substantial rights of the parties [which] include the right of the employer . . . independently to examine the claimant, to notice his deposition, and to insist on hearing his personal testimony at a formal hearing.” (Internal quotation marks omitted.) Id., 604, quoting Pietraroia v. Northeast Utilities, 254 Conn. 60, 72 (2000). As mentioned above, the court noted its expectation that the respondent would be allowed to follow through on its independent medical examination, and any necessary cross-examination as well. Bailey, supra, 605 n.8.

In accordance with the ruling of the Appellate Court, we affirm the trial commissioner’s order that the claimant and her attorney produce the records sought by the respondent in its Motion to Compel Discovery. Should the claimant fail to comply with the respondents’ discovery requests, the respondent may be entitled to seek dismissal of the pending claim for total disability benefits under § 31-294f.

Accordingly, we reverse the trial commissioner’s order that the claimant repay benefits pursuant to § 31-301(g), and affirm his order that the claimant comply with the respondent’s Motion for Discovery.

Commissioners A. Thomas White, Jr., and Charles F. Senich concur.

1 At the time of the claimant’s injury, § 31-301(b) C.G.S. stated, “During the pendency of any appeal of an award made pursuant to this chapter, the claimant shall receive all compensation and medical treatment payable under the terms of the award to the extent the compensation and medical treatment are not being paid by any health insurer or by any insurer or employer who has been ordered . . . to pay a portion of such award. All such compensation and medical treatment shall be paid by the second injury and compensation assurance fund pursuant to section 31-354. If, upon completion of the appeal process, the claimant is found to have a compensable injury, the employer or insurer shall be responsible for payment of such benefits and shall reimburse the second injury fund for all sums previously expended.” This section was later moved to § 31-301(f) via Public Act 91-32. The statute was then amended effective July 1, 1995 by Public Act 95-277, § 9(f), which eliminated the second injury fund’s involvement in the process and made a compensation award directly payable by the employer or insurer during the pendency of an appeal. In Coley v. Camden Associates, Inc., 243 Conn. 311 (1997), our Supreme Court determined that P.A. 95-277, § 9(f) was a procedural statute that should be applied retroactively to “all cases not actually transferred to the fund prior to the date it became effective, July 1, 1995.” Id., 323. Liability in this case thus lay with the state in its capacity as the claimant’s employer, as benefits were paid to the claimant on January 31, 1996. The claimant acknowledges in her brief that benefits in this case were paid directly by the state. Brief, p. 8. BACK TO TEXT

2 We note that the respondent’s Motion for Repayment dated October 17, 2001 refers to a previous attempt by the respondent to secure repayment following this board’s 1996 opinion in Bailey. That motion, which was filed during the 1998 remand hearings, was denied. BACK TO TEXT

3 Public Act 84-133 added § 31-301(b), which required the Second Injury Fund to pay any unpaid portions of occupational disease awards during the pendency of an appeal from such an award. Public Act 86-27 expanded that provision to include all awards made under Chapter 568. BACK TO TEXT

4 Those who testified in support of Public Act 84-133 recognized that the appeal process in a workers’ compensation case can take years, and that private health insurance would stop paying for medical care once a trial commissioner found a claimant’s condition compensable. Conn. Joint Standing Committee Hearings, Labor and Employment, Pt. 1, 1984 Sess., p. 166, testimony of Rep. Kiner and Ms. Tianti. In the words of one legislator, H.B. 5211 was meant to “restore equity in a system where currently we believe that equity is lacking. . . . During an appeal, that is, after the Workers’ Comp Commissioner has rendered his award, the claimant will receive the benefits due him from the second injury fund. The money expended from the fund, at the close of appeal, will be repaid to that second injury fund.” 27 H.R. Proc., Pt. 6, 1984 Sess., p. 867, remarks of Rep. Kiner. Proponents of the measure stressed that the “payment pending appeal” process was intended to be carried through until the “final adjudication;” Conn. Joint Standing Committee Hearings, Labor and Employment, Pt. 1, 1984 Sess., p. 153, testimony of Ms. Melley; for as long as the case “works its way through the court system;” Id., p. 167, testimony of Rep. Kiner; and “during the period of contested claims, just so [the claimant] can survive and not lose everything they’ve owned.” Id., p. 180, testimony of Mr. McKinnon. We further note that an attorney representing the Alliance of American Insurers, Mr. Robert Teitenberg, commented that his clients saw problems with the bill insofar as “if a worker is receiving benefits during the pendency of an appeal, he’s probably living off them and if he loses, he has nothing to reimburse the fund with.” Id., p. 243. This concern did not deter the legislature from passing this provision. BACK TO TEXT

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