State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Falkowski v. W. E. Bassett Company

CASE NO. 5711 CRB-4-11-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 3, 2012

EMILIA FALKOWSKI

CLAIMANT-APPELLANT

v.

W. E. BASSETT COMPANY

EMPLOYER

and

GALLAGHER BASSETT SERVICES, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Patrick D. Skuret, Esq., The Law Offices of Daniel D. Skuret, P.C., 215 Division Street, PO Box 158, Ansonia, CT 06401-0158.

The respondents were represented by Brian L. Wolinetz, Esq., Natale & Wolinetz, 750 Main Street, Suite 600, Hartford, CT 06103.

This Petition for Review from the November 30, 2011 Finding and Order of the Commissioner acting for the Fourth District was heard June 22, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. Counsel for the claimant in this matter has appealed from a Finding and Order which imposed a $100 fine against the appellant pursuant to § 31-288(b)(2) C.G.S. We find one averment of error in this appeal to be meritorious. We find that sanctions under our statute must be assessed against a party, not against counsel of record. We remand this matter to the trial commissioner so that he may proceed in a manner consistent with the statute.

The trial commissioner reached the following findings of fact in the Finding and Order. A request was made for a commissioner’s examination in this matter on May 24, 2011. Claimant’s attorney agreed to submit the necessary medical records by June 14, 2011. The trial commissioner noted that both attorneys were present at the emergency informal hearing of May 24, 2011 and were advised that if the necessary medical records were not provided in a timely fashion, the commissioner would determine if sanctions were warranted. The medical records were not received by June 14, 2011. An emergency pro forma formal hearing was noticed on July 18, 2011, to be held July 29, 2011. The issue cited under special instructions was failure to submit a medical packet for the commissioner’s examination. All parties were told to appear with no cancellations being allowed. Attorney Daniel D. Skuret, II, appeared on July 29, 2011 in place of Attorney Patrick Skuret, who was said to be unable to attend. After hearing from Attorney Daniel D. Skuret, II, who professed inability to respond to the reason the June 14, 2011 deadline was missed, a $100 fine was imposed.

The trial commissioner scheduled a second formal hearing for Friday afternoon, August 12, 2011, to allow Attorney Patrick Skuret to appear and discuss the failure to submit the medical packet by the June 14, 2011 deadline. Attorney Patrick Skuret testified that he discovered the medical records he had were not complete and it took some time to gather all the records so a complete packet could be given to the commissioner’s examiner. He notified Commission staff in July that the packet was going to be late.

The trial commissioner found that counsel was properly notified that the medical records required for the commissioner’s examination were required by June 14, 2011, but did not advise the staff of the Commission that they were not available until July, and that counsel neglected to seek an extension of time to provide the medical records. The trial commissioner found that undue delay occurred in the provision of the medical records and imposed a $100 fine on claimant’s counsel pursuant to § 31-288(b)(2) C.G.S.

The appellant filed a Motion to Correct which was denied. He then filed the present appeal. He argues that the statute does not permit the imposition of a fine against counsel. He also argues that the facts found by the trial commissioner were in error, and there was no undue delay. We note, however, that our precedent indicates that a trial commissioner has broad discretion in determining whether a party’s conduct warrants the imposition of sanctions. See Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008). We also note that we may not usurp the fact-finding prerogative of the trial commissioner. See Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999) and Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

This tribunal has made clear in a number of rulings that a trial commissioner should act to ensure the claimant’s right to a prompt adjudication of contested claims is preserved. “The purpose of the system ‘is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.’”. Pietraroia v. Northeast Utilities, 254 Conn. 60, 72 (2000), cited in Monaco-Selmer v. Total Customer Service, 5622 CRB-3-10-12 (January 19, 2012). In Casey v. Northeast Utilities, 249 Conn. 365 (1999) the Supreme Court pointed out that “[t]he workers’ compensation system is also designed to minimize the adverse effects that administrative delays could have on the financial status of an injured employee.”. Id., at 379. Monaco-Selmer, supra.

Over the past few years, committees of cognizance of the General Assembly have received testimony as to whether claims were being resolved in a sufficiently expeditious manner. In response to the expressed concerns as to delays in the adjudication process the Commission issued Memorandum No. 2010-04: Commissioner’s Examination Procedure–Effective August 1, 2010 on July 27, 2010. This memorandum specifically outlined the appropriate standards for scheduling a commissioner’s examination, and delineated responsibility for obtaining the necessary medical records. This memorandum specifically directed trial commissioners to consider the imposition of sanctions if the responsible party failed to provide timely medical records to the commissioner’s examiner.

We note that the Memorandum herein could lead to sanctions against the claimant for a delay in the process. When this Commission considers issues of administrative compliance we do not differentiate between the actions of claimants or respondents. Our precedent makes clear we expect both parties at a hearing to conduct themselves in a responsible and professional manner. See for example Mankus v. Mankus, 4958 CRB-1-05-6 (August 22, 2006), aff’d, 107 Conn. App. 585 (2008), cert. denied, 288 Conn. 904 (2008), “we do not condone the use of misrepresentation or artifice by either claimants or respondents before this Commission.”. (Emphasis added.) We also note that the Supreme Court has specifically authorized this Commission to take even the harsh measure of dismissing a claim with prejudice when a claimant’s actions act to impede the respondent’s ability to litigate a claim in a fair and timely fashion.

In Pietraroia, supra, the Supreme Court considered the issue of a claimant who refused, for medical reasons, to attend a hearing or a medical examination within the State of Connecticut. The respondents moved to dismiss the claim and the trial commissioner granted the motion. We affirmed this decision and while the Supreme Court reinstated the claim on appeal, they made clear that the dismissal of a claim for noncompliance with a commissioner’s order was a permissible remedy.

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. Id., 71-72.

We cited Pietraroia in Bailey v. State/GHCC, 5144 CRB-1-06-10 (October 15, 2007), where the respondent sought to dismiss a claim for the claimant’s failure to attend an employer/respondent’s medical examination. We remanded the matter for a suspension of benefits deeming that a more proportionate sanction. Given the precedent in Pietraroia and Bailey where onerous penalties were considered for a claimant’s failure to attend a medical examination, we find imposition of statutory monetary penalties on a claimant for delaying a medical examination to be consistent with Chapter 568.

Obviously, when a commissioner’s examination cannot be performed because the witness lacks the necessary medical records, the situation is totally obstructive to the prompt adjudication of the claim, and cannot be tolerated. We do not expect trial commissioners to sit idly by and allow such delays to occur without consequence. We have previously held that, “[w]e believe the use of statutory monetary sanctions by trial commissioners seeking to enforce orders of this Commission is essential to the performance of this Commission’s statutory mission.” Hummel v. Marten Transport, Ltd., 5303 CRB-5-07-11 (May 14, 2008), aff’d, 114 Conn. App. 822 (2009), cert. denied, 293 Conn. 907 (2009). The circumstances herein clearly rise to a factual situation where a trial commissioner should entertain whether sanctions should be imposed. See, for example, Lee v. Cultec, Inc., 5546 CRB-7-10-4 (February 25, 2011), where a delay in authorizing medical treatment caused the imposition of sanctions.1 2

A party may not be sanctioned unless there is a factual predicate that supports the imposition of sanctions. McFarland v. State/Dept. of Developmental Services, 115 Conn. App. 306, 323 (2009). Given the paramount importance in expediting commissioner’s examinations, we believe the factual record herein would support a finding of undue delay. At the point in time counsel became aware that the commissioner’s deadline to produce documents could not be met, it was their obligation to communicate this to the trial commissioner. That did not occur and this neglect delayed the case without just cause. We also believe that failure to advise the trial commissioner of the delay demonstrates a lack of respect to the tribunal and the administrative procedures utilized to accomplish the purpose of the Act.

Nonetheless, we must examine this case to ascertain if the decision is consistent with the applicable statute and relevant appellate precedent. Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007). The appellant argues that the sanction award is inconsistent with the terms of § 31-288(b)(2) C.G.S. The appellant argues the statute does not permit counsel to be sanctioned by the trial commissioner, and that all such sanctions must be levied against the party represented by counsel. Appellant’s Brief, pp. 13-14. We look to the plain meaning of the statute (see § 1-2z C.G.S.) in resolving this question. The statute reads as follows:

(2) Whenever either party to a claim under this chapter has unreasonably, and without good cause, delayed the completion of the hearings on such claim, the delaying party or parties may be assessed a civil penalty of not more than five hundred dollars by the commissioner hearing the claim for each such case of delay. Any appeal of a penalty assessed pursuant to this subsection shall be taken in accordance with the provisions of section 31-301.

Upon reviewing the plain meaning of the statute, we concur that a trial commissioner is limited to levying a sanction against a party to the litigation, and not counsel of record. “[T]he workers’ compensation system in Connecticut is derived exclusively from statute. . . . A commissioner may exercise jurisdiction to hear a claim only ‘under the precise circumstances and in the manner particularly prescribed by the enabling legislation.’”. Cantoni v. Xerox Corp., 251 Conn. 153, 160 (1999), citing Discuillo v. Stone and Webster, 242 Conn. 570, 576 (1997). The statute the trial commissioner relied upon only permits a sanction to be levied against a party litigant.

We do recognize this creates a circumstance where the claimant may be penalized for their counsel’s mistakes. The statute herein is clear that both claimants and respondents are the responsible party that deals with the burden when sanctions are levied at counsel. We may not act in a manner inconsistent with statute.

As a result, we must vacate the sanctions in this matter. The trial commissioner may wish to determine if a hearing to assess sanctions against the claimant is warranted in this matter. We remand this matter to the trial commissioner for further proceedings consistent with this opinion.

Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.

1 As we noted in Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008), rev’d on other grounds, 298 Conn. 620 (2010), the power to sanction a litigant for noncompliance with a commissioner’s orders is akin to the power a trial judge possesses to find a litigant in contempt.

Connecticut tribunals continue to have the common law power to sanction misconduct which occurs during the course of legal proceedings. See Keeney v. Buccino, 92 Conn. App. 496 (2005).

“The court’s authority to impose civil contempt penalties arises not from statutory provisions but from the common law. . . . The penalties which may be imposed, therefore, arise from the inherent power of the court to coerce compliance with its orders. In Connecticut, the court has the authority in civil contempt to impose on the contemnor either incarceration or a fine or both.” Id., at 513. See also, Daniels v. Alander, 268 Conn. 320, 329 (2004).

The passage of the Workers’ Compensation Act in 1913 supplanted the common law rights existing as of that date. See Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375 (1997) and Powers v. Hotel Bond Co., 89 Conn. 143 (1915). The General Assembly saw fit when enacting the enabling Act for this Commission to vest trial commissioners with the statutory authority to sanction parties for misconduct before the tribunal. This legislation enables trial commissioners to force parties to adhere to orders of the tribunal. BACK TO TEXT

2 While our precedent speaks to the potentially devastating costs of delay to an injured claimant, we cannot ignore that unwarranted delays and expenses to respondents contesting claims also create an onerous burden on the workers’ compensation system; if for no other reason than the diversion of scarce adjudicatory resources from other meritorious cases awaiting resolution. BACK TO TEXT

Workers’ Compensation Commission

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