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. 5144 CRB-1-06-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 15, 2007

JANE BAILEY

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT GREATER HARTFORD COMMUNITY COLLEGE

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

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

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

This Petition for Review1 from the September 27, 2006 Finding Re: Motion to Dismiss of the Commissioner acting for the First District was heard April 27, 2007 before a Compensation Review Board panel consisting of the Commissioner Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The present appeal considers an issue which was the subject of previous appellate decisions issued during the course of this claim in Bailey v. State, 65 Conn. App. 591 (2001) and Bailey v. State/Greater Hartford Community College, 4744 CRB 1-03-10 (December 3, 2004) (hereafter Bailey IV). In those appeals the claimant’s failure to submit to an Employer/Respondent’s Medical Examination (here after RME)2 at the behest of the respondents was considered, and both times the claimant was ordered to present herself for a RME. Following Bailey IV we directed the claimant to “comply with the respondent’s Motion for Discovery” and advised the claimant that were she to fail to comply “the respondent may be entitled to seek dismissal of the pending claim for total disability benefits under § 31-294f.” The respondent filed a motion to dismiss representing that the claimant had failed to comply with the discovery order. Following a formal hearing, the trial commissioner granted the respondent’s Motion to Dismiss. The claimant has appealed. In considering this appeal we find while the trial commissioner had justification for reaching his decision, it was an error for him not to have applied a less severe sanction available under § 31-294f C.G.S. to address this situation. We therefore vacate his decision to grant the respondent’s motion to dismiss and remand this matter for further proceedings.

We take notice of the numerous prior decisions of this board concerning this claim: Bailey v. State, 3152 CRB 5-95-8 (September 3, 1996) (Bailey I); Bailey v. State, 3694 CRB 1-97-9 (January 12, 1999) (Bailey II) and Bailey v. State, 3922 CRB 2-98-10 (November 30, 1999) (Bailey III).3 Our review of the claimant’s arguments on appeal indicates she seeks to challenge many of the prior rulings regarding this case. For the reasons outlined in Hicking v. State/Dept. of Correction, 5026 CRB 2-05-11 (November 3, 2006) and Hicking v. State/Dept. of Correction, 4935 CRB-2-05-4 (April 10, 2006) we decline to consider such arguments. We also find the claimant’s argument that the Appellate Court’s decision in Bailey v. State, 65 Conn. App. 592 (2001) was erroneous to be ineffective. We must respect the opinions of a superior tribunal and cannot reach a determination on the same issue inconsistent with their unequivocal ruling. “We have noted that a lower court is bound to follow the specific direction of an appellate court’s mandate on remand. ‘[A] trial court cannot adjudicate rights and duties not within the scope of the remand. . . . It is the duty of the trial court on remand to comply strictly with the mandate of the appellate court according to its true intent and meaning.’” Id., 598.

We believe our proper scope of inquiry is based on whether the trial commissioner reached an appropriate decision on two points: a) his determination our orders in Bailey IV had not been carried out by the claimant and: b) his determination dismissal of her claim was an appropriate remedy for this defiance. “It has long been settled law that a trial commissioner’s conclusions must stand ‘unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’ Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993).” Testone v. C.R. Gibson Company, 5045 CRB-5-06-1 (May 30, 2007). We will consider the factual basis and the legal reasoning separately.

The trial commissioner reached the following findings of fact relevant to our inquiry.

5. The Claimant objects to the Motion To Dismiss on the grounds that they have repeatedly furnished records and authorizations and provided the State Respondent with a blank HIPAA authorization by certified mail. (Respondent’s Exhibit 2)
6. The Respondents replied that the furnishing of the authorization alone is not sufficient to satisfy the requirements of the various orders that comply with Discovery because the Respondent has not been provided with the names and addresses of the Claimant’s various treating physicians and other medical providers which would aid the Respondent’s independent medical examination. (Respondent’s Exhibit 4)
8. The Claimant has also failed to submit on three occasions to an independent medical examination pursuant to Connecticut General Statutes Section 31-294f. (Respondent’s Exhibit 1)

A review of the record indicates that the trial commissioner originally denied the respondent’s motion to dismiss on December 28, 2005 but directed the respondent to schedule a RME. The record also indicates counsel for the claimant acquiesced to this order when he agreed to schedule a formal hearing on the substance of the claim.

THE COMMISSIONER: All right. So let’s give Attorney Donna Hixon-Smith enough time to have her IME and her deposition of the IME. How about the beginning of April?
MR. PRUCKER: That’s fine, your honor.

December 28, 2005 Transcript, p. 32.

On January 25, 2006 counsel for the respondent renewed their motion to dismiss representing that the claimant had refused to schedule herself for an interview with the respondent’s examiner. Respondent’s Exhibit 7 is a certified letter scheduling this interview for January 30, 2006 and requesting medical records. On January 10, 2006 the claimant’s counsel responded but did not represent his client would attend. See Respondent’s Exhibit 8. On January 11, 2006 respondent’s counsel reiterated her request to have the claimant’s attendance at the scheduled examination date confirmed, Respondent’s Exhibit 9, and repeated her request on January 17, 2006. Respondent’s Exhibit 10. On January 20, 2006 counsel for the claimant responded and again failed to confirm his client’s attendance and opined “should you cancel your IME it is your decision.” Respondent’s Exhibit 11.

On April 6, 2006 the trial commissioner held a hearing concerning the respondent’s Motion to Dismiss. Counsel for the claimant offered this explanation for his client’s nonattendance at the RME authorized by the trial commissioner at the December 28, 2005 hearing.

THE COMMISSIONER: Why haven’t you made your client available for this IME?
MR. PRUCKER: She’s not been able to be examined by an IME.

April 6, 2006 Transcript, p. 13.

At the hearing, counsel offered no medical evidence explaining the inability of his client to attend a RME. He rested his argument on the basis a RME performed prior to the Appellate Court’s 2001 ruling should be sufficient to address the respondent’s due process concerns. April 6, 2006 Transcript, p. 9.

Based on this record we conclude it is undisputed that in December 2005 the trial commissioner directed the claimant to attend a RME at the direction of the respondent and that she did not attend such a RME. We also note that the respondent did request medical records and that the claimant’s counsel did respond by providing a blank authorization form, and did not provide the names of medical providers sought by the respondent. We also note that compliance with the respondent’s discovery request was mandated by our holding in Bailey IV.4 Consequently, we sustain the factual findings of the trial commissioner.5

We also reject the argument presented by the claimant that the trial commissioner’s decision on December 28, 2005 to deny the respondent’s Motion to Dismiss created a “law of the case” situation estopping him from granting a Motion to Dismiss later on the same issues. The crucial flaw in this argument is the claimant failed to comply with the Commissioner’s December 28, 2005 order. It is clear from the record the trial commissioner denied the earlier motion based on the expectation of future compliance by the claimant which proved unjustified. Considering this fact, to find in favor of the claimant here based on a “law of the case” rationale would create a legal structure rewarding litigants who make representations to the tribunal they fail to perform.

We now turn to an analysis of whether the trial commissioner appropriately applied the law in granting the respondent’s Motion to Dismiss. The Supreme Court has adopted a three prong test to determine whether a case should be dismissed due to a party’s failure to adhere to discovery orders, which is more stringent than the “abuse of discretion” standard applied to most discretionary acts of a finder of fact. See In re Shaquanna M., 61 Conn. App. 592, 603 (2001). This test was promulgated in Millbrook Owners Assn. v. Hamilton Standard, 257 Conn. 1 (2001).

In order for a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met.
First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court’s intended meaning. This requirement poses a legal question that we will review do novo.
Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review.
Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion. Id., 17-18.

Our review of the facts on the record demonstrates clearly the first two prongs of this test have been satisfied. We believe the terms of the Appellate Court’s holding in Bailey, supra, are clear.

“As our resolution of this appeal permits the defendant to request an independent medical examination of the plaintiff, we expect the commissioner, on remand, to permit the defendant to conduct any additional cross-examination that it deems necessary and that the commissioner deems relevant to the issues before him or her.” Id., 605, n.8.

The terms of our decision in Bailey IV are also unambiguous.

“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 respondent’s discovery requests, the respondent may be entitled to seek dismissal of the pending claim for total disability benefits under § 31-294f.” Id.

Finally, we conclude the trial commissioner’s December 28, 2005 order requiring the claimant to undergo a RME prior to a formal hearing was unambiguous. Unlike the circumstances in Millbrook Owners, supra, we believe counsel was clearly advised as to what the tribunal demanded. We have also concluded the facts on the record demonstrate that the order was violated.

Whether the final prong in the Millbrook Owners analysis was met requires us to evaluate the proportionality of the sanction against the magnitude of the violation. We note that the sanction is the dismissal with prejudice of a long standing and unresolved claim to which the issue of compensability was previously resolved in the claimant’s favor. On the other hand, the claimant’s continuous nonresponsiveness has thwarted the respondent from obtaining their due process rights since the 2001 Appellate Court decision of Bailey, supra. Our analysis must determine if the claimant’s conduct warrants this sanction, and as a result of statutes applicable to the Workers’ Compensation system, whether a less severe sanction might be a more appropriate remedy.

We do not believe the trial commissioner’s actions were capricious in nature since he clearly understood that he was obligated to enforce the statutes governing the Workers’ Compensation system. In particular, § 31-294f(a) C.G.S. provides statutory authority for the commissioner’s actions:

(a) An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. The examination shall be performed to determine the nature of the injury and the incapacity resulting from the injury. The physician or surgeon shall be selected by the employer from an approved list of physicians and surgeons prepared by the chairman of the Workers’ Compensation Commission and shall be paid by the employer. At any examination requested by the employer or directed by the commissioner under this section, the injured employee shall be allowed to have in attendance any reputable practicing physician or surgeon that the employee obtains and pays for himself. The employee shall submit to all other physical examinations as required by this chapter. The refusal of an injured employee to submit himself to a reasonable examination under this section shall suspend his right to compensation during such refusal. (Emphasis added)

In Bailey IV we spoke of the “mandatory nature” of the injured worker’s responsibility to submit to a medical examination. This is consistent with the wording of the statute which uses the mandatory term “shall.” “Absent an indication to the contrary, the legislature’s choice of the mandatory term “shall” rather than the permissive term “may” indicates that the legislative directive is mandatory.” Bailey, supra, 604. We find the presence of a specific sanction affixed for noncompliance clearly indicates the intent of the General Assembly was to make this obligation nondiscretionary. This interpretation is also consistent with the “plain meaning rule” we must apply when interpreting statutes pursuant to § 1-2z C.G.S. See First Union National Bank v. Hi Ho Shopping Ventures, 273 Conn. 287, 291 (2005).

The Supreme Court has endorsed the authority of a trial commissioner to dismiss a case for noncompliance with discovery orders.6 This case also causes us to consider whether in general a less severe remedy is favored by appellate precedent. In Pietraroia v. Northeast Utilities, 254 Conn. 60 (2000) the court 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. Furthermore, the statutory grant to the commissioner “to ascertain the substantial rights of the parties and carry out the provisions and intent of” the workers’ compensation laws; General Statutes § 31-298, necessarily carries with it the power to dismiss a claim in an appropriate case. The “substantial rights of the parties” include the right of the employer, in an appropriate case, independently to examine the claimant, to notice his deposition, and to insist on hearing his personal testimony at a formal hearing. Id., 71-72.

While the Supreme Court in Pietraroia concluded dismissal was legally available to a trial commissioner, it determined that dismissal of that claim with prejudice was an abuse of discretion. They concluded the commissioner needed to be satisfied “that no other procedures are reasonably available to meet the legitimate needs of both parties” Id. 75. The claimant in Pietraroia produced evidence from treating physicians he could not travel to Connecticut to attend a medical examination and claim hearing. In response, he proffered an alternative to the trial commissioner wherein he could appear telephonically for the hearing or be deposed by local counsel. He asked to be examined by physicians in Australia retained by the respondent. Id., 62-68; 75-78.

We note that in the present case, the claimant has a weaker argument in some respects than the claimant in Pietraroia. She produced no competent evidence excusing her nonappearance at a RME and offered no reasonable alternative to the trial commissioner regarding the respondent’s right to a RME. The alternative proffered by the claimant is to force the respondent to rely on evidence the Appellate Court has already deemed inadequate. However, unlike the claimant in Pietraroia the claimant in the present case has already had the issue of compensability determined in her favor. We are concerned the dismissal with prejudice of a claim already found compensable is inconsistent with the remedial and humanitarian basis of Chapter 568, and should only occur when all reasonable alternatives have been exhausted.

Such an alternative exists by imposing the suspension of benefits pursuant to § 31-294f(a) C.G.S. Upon imposition of such a suspension, this commission would only have the power to remove this suspension were the claimant to accede to the discovery requests of the respondent. Consistent with Pietraroia, imposition of such a sanction would protect the rights of both litigants and establish discovery procedures that meet the legitimate needs of both parties, and since it has been established under specific statutory authority, this sanction is reasonably available to the trial commissioner.

In our opinion, the presence of a substantial statutory penalty for the claimant short of outright dismissal with prejudice demonstrates that the rationale for the trial commissioner’s order did not achieve the third prong of the Millbrook Owners test. In reaching this conclusion we believe the precedent in Pietraroia requires the exhaustion of less severe sanctions prior to dismissal of a compensable claim with prejudice. We believe suspension of the claimant’s benefits at this point is a more proportionate response to the noncompliance with discovery orders.

The opinion in Pietraroia explains that a claim may find itself in “procedural limbo” when a claimant chooses not to submit to an examination.7 We conclude that this claim has arrived at its own “procedural limbo” due to the repeated noncompliance of the claimant with decisions reached by this panel and by the Appellate Court. Whether it emerges from this location should be a decision made by the claimant. As we believe she has the ability to rectify the situation by compliance with our orders and those of the Appellate Court, we believe that the statutory remedy of suspension of benefits is a more proportionate remedy at this juncture than dismissal with prejudice. We therefore vacate the Motion to Dismiss and remand this matter for further proceedings consistent with this opinion.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 We note that an extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 We clarify that this was not an examination held at the behest of the commissioner. We note that the record describes this as an “IME,” and a similar nomenclature is used in such cases as Bidoae v. Hartford Golf Club, 91 Conn. App. 470 (2005). We will refer to the proposed examination as a RME except when we are quoting the record. BACK TO TEXT

3 A complete history of the factual and procedural issues concerning this claim may be found in our prior Bailey opinions. BACK TO TEXT

4 Were the claimant unwilling to comply with our discovery order in Bailey IV she had an appropriate avenue for redress by appealing our decision to the Appellate Court to have this requirement overturned, limited or clarified. She did not avail herself of such a timely appeal and now contests the trial commissioner’s implementation of our decision. She also did not seek certification to the Supreme Court of the Appellate Court’s order in Bailey, supra. BACK TO TEXT

5 As the claimant did not file a Motion to Correct from the trial commissioner’s Finding Re: Motion to Dismiss, we must give the facts found conclusive effect. See Mleczko v. Haynes Construction Company, 5109 CRB-7-06-7 (July 17, 2007). BACK TO TEXT

6 In addition, the Appellate Court has reiterated the mandatory nature of attendance at a RME in Bidoae, supra, 475-478 (referring to it as an “IME.”) BACK TO TEXT

7 We reiterate that the Supreme Court has stated that dismissal is a viable option for a trial commissioner under certain circumstances. See Pietraroia, supra, 72. We do not concur with the trial commissioner the present circumstances warrant dismissal, however, owing to the other holdings in Pietraroia, supra. BACK TO TEXT

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