CRB Case Annotations re: Section 31-298

Commissioner was not required to honor pro se claimant’s last-minute request to postpone Form 36 hearing, where it had already been postponed twice before. Granting of continuances is almost completely discretionary. With regard to issue of ex parte communication between nurse case managers/claims adjusters and treating physicians, CRB discussed July 12, 1999 Memorandum that creates safeguards designed to prevent respondent from unduly influencing doctor-patient relationship without cutting off communication entirely. See, Duddy, § 31-296. Discontinuance of payments; § 31-301. Factual findings; § 31-307.

Claimant stipulated at hearing that method-of-service issue raised in Motion to Preclude was no longer in dispute; trier nonetheless granted motion on basis of insufficient proof of proper service under § 31-321. Respondents appealed, and claimant did not actively object. CRB granted motion to reverse commissioner’s decision, as due process requires that parties be aware a factual element of a case is at issue. Remanded for further proceedings.

CRB affirmed trial commissioner’s ruling denying the respondent an opportunity to depose the treating physician where respondent waited until after 2 formal hearing sessions to schedule deposition and the closing of the evidentiary record. Additionally, trial commissioner’s failure to permit or rule on respondent’s request for sanctions on the basis of claimant’s counsel’s cancellation of a scheduled deposition was harmless error. The respondent ultimately was given an opportunity to cross-examine the claimant and given the three month period between formal hearing sessions, respondent had a sufficient opportunity to investigate claimant’s testimony and challenge its truth and veracity.

Trial commissioner ruled that claimant who wished to introduce testimony and reports of vocational rehabilitation expert would not be able to do so unless she consented to an examination by respondents’ vocational rehabilitation expert. CRB upheld ruling. Issue did not center around definition of “physician” in § 31-294f, but rather concerned more fundamental due process issues that grant a party the right to produce relevant evidence and to offer rebuttal evidence. Trier acted within authority granted him by § 31-298. Also cited at Bidoae, § 31-294f.

Board affirmed trier’s determination that claimant’s alleged Lyme disease was not caused by her employment, as the medical evidence was conflicting, and a medical expert testified that any tick bite the claimant may have gotten could have occurred in her own back yard or in the parks which she visited. The claimant argued that the trier erred in allowing in the deposition of the independent medical examiner. The board explained that the trier did not rely upon said deposition, as the deposition set forth extensive testimony regarding the physician’s opinion that the claimant did not have Lyme disease, but did not set forth an opinion regarding whether a tick bite occurred while at work or was more likely to have occurred during the claimant’s non-work hours. Thus, the deposition testimony was not necessary to the trier’s conclusion that any alleged tick bite did not occur at work. See, Green, § 31-275(1).

CRB affirmed trial commissioner’s ruling on claimant’s counsel’s Motion To Withdraw from representation of the claimant.

Claimant appealed trier’s finding that she had not proven that she had Multiple Chemical Sensitivity Syndrome on ground that notice had not been given that MCSS was at issue. Respondents contended that MCSS was not a scientifically tenable diagnosis. CRB ruled that case would have best been handled by allowing claimant to introduce evidence regarding MCSS at formal proceedings, which would have enabled trier to rule on both temporary total and partial disability, and to consider scientific viability of MCSS diagnosis. Remanded.

At the formal hearing, the trial commissioner explained to the claimant (acting pro se) that he needed to present medical evidence to refute the medical evidence presented by the respondents, specifically a written report and deposition of an independent medical examiner. The trial commissioner would not allow the claimant to present old medical records, as they did not address the limited issue at hand, namely the Form 36 filed on July 21, 1999. The board found no error, as decisions regarding the relevance and remoteness of evidence in workers’ compensation proceedings fall solely within the discretion of the trier of fact. See, Rodrigues, § 31-279-3; § 31-301-9; § 31-296, Voluntary agreements (discontinuance of payments).

The trier denied the claimant’s motion to preclude which sought to preclude the respondents from presenting evidence regarding the claimant’s alleged intoxication at the time of the alleged injury, as the intoxication defense had not been listed on the Form 43. The board explained that the issue of whether the respondents could present evidence of intoxication was an evidentiary issue rather than an issue of preclusion. Because of the discretion afforded a trier under § 31-298, the board was “not persuaded that any defense not listed in a Form 43 may subsequently never be asserted by a respondent.” Rather, the respondent is expected to make a diligent and timely investigation of the claim, and certainly during its investigation it may uncover evidence unknown to it which may support additional defenses. Thus, board ruled that the trier should assess the respondents’ due diligence in investigating the claim, and should decide whether the defense of intoxication was made in a timely manner. See Mason, § 31-284(a), § 31-294c, § 31-301, Appeal Procedure.

Where all facts were stipulated, and no testimony was taken, CRB did not need to adhere to its normal deferential standard of review. See, Rayhall, § 31-278, 31-295; also cited at Rayhall, § 31-307, 31-308(b).

Trial commissioner has broad discretion to determine whether a party has acted with sufficient diligence in gathering evidence to support or refute a given claim. CRB affirmed trier’s decision to deny request to depose independent medical examiner where trier concluded that respondents could have obtained claimant’s medical records and presented them to their examiner many months before formal hearing. Sufficient opportunity for examination of claimant was provided, and initial examination had already been performed. See, Briggs, § 31-301. Factual findings, § 31-301-9.

CRB held that claimant was not precluded from raising evidentiary issues on appeal, notwithstanding failure to initially appeal denial of motion to preclude. Though § 31-301(a) allows parties to appeal within ten days after a decision on a motion, CRB held that “it would be imprudent for a party to delay the progress of an action for many months at a time in order to immediately appeal every one of a commissioner’s interlocutory rulings to the Compensation Review Board.” Absent likelihood of irreparable harm resulting from immediate actualization of evidentiary ruling, parties should wait until merits have been decided before appealing. CRB also held that trier permissibly allowed deposition of respondents’ doctor into evidence, as both parties were present at deposition, and claimant had time to obtain further evidence in response to contents of deposition. See also, Kuba, § 31-294c.

Board affirmed the trial commissioner’s decision, including her ruling denying the entry of a superior court transcript as a full exhibit. The transcript was offered by the claimant to show that the respondents had agreed to pay temporary partial disability benefits, but the trial commissioner found that the transcript did not indicate such an agreement. See also, Baldino, § 31-308(a).

CRB reversed trier’s finding of total disability spanning from date of voluntary agreement to date of formal hearing. Respondent had not been sufficiently apprised that total disability was at issue where nine of ten hearing notices had listed “modification of award/VA” as only issue, and claimant’s counsel had expressed doubt that continuing total disability should be resolved at first formal hearing. Trier did not clarify that total disability would be ruled upon until after record was closed, and he refused to allow respondent to submit further evidence on claimant’s work capacity. Remanded. See, Audi, § 31-301-9, § 31-315; cited at Audi, § 31-296 voluntary agreements (discontinuance of payments), § 31-307.

The board affirmed the trial commissioner’s decision, including his denial of the claimant’s request to enter as an exhibit a deposition of a Colorado physician which had been taken in Colorado. The board noted that a trial commissioner is not required to allow every deposition into evidence, and further noted the importance of using physicians who are licensed in Connecticut, although the admission of testimony from an out-of-state physician is within the discretion of the trial commissioner. See, Kudlacz, § 31-315.

See, Cirrito, § 31-294d, § 31-300 (trier improperly denied attorney’s request to call opposing counsel to stand in order to question him regarding attorney’s fee petition), § 31-301. Factual Findings.

Trial commissioner did not violate due process rights of claimant by failing to remove action to Superior Court, as he had jurisdiction to decide issues surrounding claimant’s entitlement to COLAs, interest, attorney’s fee. Relaxed rules of discovery under § 31-298 prevail in this forum. No error in denying request for disclosure and production, which sought to have the insurer answer 38 interrogatories that would have constituted very extensive discovery. No due process violation in refusing to allow claimant such discovery, as claimant need not be given advance notice of every legal strategy a respondent intends to pursue at a hearing, and trier may simply decline to admit statements of witnesses at hearing if party is not given opportunity to cross-examine. Simplified hearing procedures in this forum entitled trier to restrict scope of evidence to be admitted in these proceedings. Also, no error in admitting exhibit that incorporated evidence of settlement negotiations where issue was whether insurer unduly delayed payment of interest during the time efforts to reach compromise were ongoing. No error in admitting accountant’s interest calculations despite his unavailability for cross-examination, as nature of calculation method could be discerned by comparing tables that had been prepared. See, Melendez, §§ 31-278, 31-300, 31-303; decision on motion in Melendez, 4178 CRB-2-00-1 (May 24, 2001) (claimant moved to correct/articulate CRB opinion), § 31-301. Appeal procedure.

Trier did not err by admitting testimony of a doctor during rebuttal phase of claimant’s case. Practice Book rules regarding disclosure of witnesses do not technically apply in workers’ compensation forum, and respondents did not request that proceeding be continued so that they might depose witness or obtain his records. Also, caselaw no longer prohibits introduction of medical opinion that is based upon statements made by patient for purpose of enabling expert to testify in litigation, as Supreme Court overruled that doctrine in George v. Ericson, 250 Conn. 312 (1999). See, Donaldson, § 31-294d, § 31-301 Factual findings; also cited at Donaldson, § 31-307.

CRB declined to review trial commissioner’s granting of Motion to Quash a notice of deposition, as appellant declared at oral argument that subsequent developments had made the deposition unnecessary. Issue rendered moot. See also, Pantanella, § 31-300; prior decisions in Pantanella, 3937 CRB-1-98-11 (January 7, 2000), aff’d, 65 Conn. App. 46 (2001), § 31-299b, § 31-300, § 31-301. Factual findings, and cited at § 31-298, § 31-315; and Pantanella, 3377 CRB-1-96-7 (January 28, 1998), aff’d, 65 Conn. App. 46 (2001), § 31-298, § 31-299b, § 31-301. Factual findings, § 31-355(e).

Trier’s conclusion that state was “estopped” from denying compensability of psychiatric condition was not the basis of his finding of compensability; trier instead invoked “estoppel” only in evaluating the reasonableness of respondent’s defense. Though there was no proof that traditional equitable estoppel defense had been established, trier was using the term “estopped” more generally in light of the purpose and language of Chapter 568. See also, Vetre, § 31-297, § 31-300, § 31-307. Prior decisions in Vetre, 3948 CRB-6-98-12 (February 14, 2000), infra, § 31-301. Appeal procedure; and Vetre, 3443 CRB-6-96-10 (January 16, 1998), infra.

No error for trier to deny State’s last-minute request to convert formal hearing into a “pre-formal hearing.” Statute does not entitle parties to such a proceeding, and trier has full discretion regarding its scheduling. Further, “prejudice” to State was minimized because State was allowed to introduce independent medical examination into evidence later despite its own failing to begin preparation of case until shortly before formal. See also, Brown, § 31-307; also cited at § 31-296 Voluntary agreements (discontinuance of payments). Prior decision in Brown, 3100 CRB-2-95-6 (December 23, 1996), § 31-296 Voluntary agreements (discontinuance of payments), also cited infra.

See, Lafayette, § 31-275(1) (claimant sought to invoke collateral estoppel doctrine on strength of LHWCA ruling regarding causation).

CRB found that it was not error for trial commissioner to find that hearings were not requested or held for many years, as it was within the trier’s discretion to take administrative notice of prior hearings. See also, Wlodyka, § 31-307.

CRB found no error in trial commissioner’s taking administrative notice that prior hearings had been held on the issue of increased permanent partial disability. Board explained that although general rule is that trier should not review notes from prior informal hearings, in the instant case the commissioner merely referred to the fact that these hearings had been held. See also, Saleh, § 31-279-2, § 31-300, § 31-301-9, § 31-315.

CRB affirmed trier’s decision to deny respondent access to records from claimant’s 1960’s psychiatric hospitalization after conducting in camera inspection pursuant to earlier CRB decision. See Vetre, 3443 CRB-6-96-10 (January 16, 1998), infra. Board reaffirmed its earlier decision to honor the right of privacy granted by § 52-146e, establishing patient-psychiatrist privilege in workers’ compensation forum. Board also rejected respondent’s argument that trier’s in camera inspection was insufficient because neither a medical expert nor counsel was allowed to participate in record review. Solitary in camera review was appropriate. Trier may seek aid of expert if medical significance of information is beyond judicial ken. Appellate inspection of records revealed no abuse of discretion by trier. See also, Vetre, § 31-301. Appeal procedure; subsequent decision in Vetre, 3443 CRB-6-96-10 (November 28, 2000), supra, and § 31-297, § 31-300, § 31-307.

CRB affirmed trial commissioner’s scarring award, which mentioned another commissioner’s assessment made at a prior informal hearing. Board cautioned that a commissioner should not review notes from a prior informal hearing. However, reference to informal hearing was harmless error, because the trier specifically stated that his scarring award was based upon his “own observation” and upon a physician’s evaluation which was in the record. See also, Student, § 31-275(1), § 31-294d, § 31-308(c).

Pantanella v. Enfield Ford, 3937 CRB-1-98-11 (January 7, 2000), aff’d, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001).

See, Pantanella, § 31-299b, § 31-300, § 31-301. Factual findings. Also cited at § 31-315. Subsequent decision in Pantanella, 4220 CRB-1-00-4 (December 19, 2000), supra and § 31-300; prior decision in Pantanella, 3377 CRB-1-96-7 (January 28, 1998), aff’d, 65 Conn. App. 46 (2001), § 31-298, 31-299b, § 31-301. Factual findings, § 31-355(e).

Commissioner decided general question of law and specific applicability of § 31-284b to claimant, even though both parties had signed a “Stipulation As To Procedure” contemplating bifurcated proceedings, with respondent having interlocutory appeal rights. Facts of case had also been stipulated, but respondent wished to introduce evidence regarding prior settlement agreement should it lose on the general legal question. CRB held that workers’ compensation commissioner does not have authority to issue an advisory opinion; specific facts of case must be addressed in order for an award to ensue. However, respondent was misled into believing that proceedings had been bifurcated, and effectively had no opportunity to introduce its evidence. Remand for another hearing. See also, Sansone, § 31-306; cited at Sansone, § 31-284b.

Photocopies of medical reports were not admitted as full exhibits, but only for identification. Trier’s findings based on contents of those reports were vacated, and case was remanded for further proceedings. CRB also noted in footnote that it was not hearsay for claimant’s wife to testify that none of insurer’s representatives told her not seek out-of-state care for her husband. Statement (or omission) offered solely to show its effect on the hearer is not hearsay. See also, Johnson, § 31-275(9), § 31-294d.

Claimant objected to admission of IME deposition where physician did not recall having viewed videotape that showed another employee demonstrating claimant’s job duties. Videotape was not available during the deposition, but was viewed during the formal hearing by the trial commissioner and the claimant, who testified regarding alleged inaccuracies of said videotape. Board ruled that it was within the discretion of the commissioner to admit deposition and videotape. See also, Norwood, § 31-294d.

Claimant, a resident of Australia, refused to fly to United States in order to testify and submit to medical examination, protesting that he was too ill to travel. Trial commissioner dismissed his claim with prejudice, citing claimant’s failure to offer proof that he was medically unable to make the trip. CRB affirmed. Trial commissioner has authority to dismiss case where claimant refuses to attend hearings, and where he is not convinced that the claimant has adequately established an excuse for failing to appear. Reversed and remanded by Supreme Court. Though a commissioner has the power to dismiss a claim without adjudicating it on the merits if equity favors such a result, the trier here abused his discretion because procedures were available short of dismissal that would have protected both the claimant and the respondents’ legitimate interests. Prior decision in Pietraroia, 3597 CRB-8-97-4 (September 8, 1997), infra.

Claimant contended that trial commissioner erred in failing to allow into evidence the reports of two treating physicians, who were not authorized treating physicians. CRB agreed with claimant that even though the physicians were not authorized (and therefore their treatment was not compensable), as treating physicians their reports were admissible into evidence under § 52-174.

Trial commissioner did not err by relying on the medical opinion of a doctor whose “rebreathing diffusion capacity test” was allegedly disfavored by the general medical community. Section 31-298 gives the trier discretion to choose among alternative diagnostic methods in fulfilling fact-finding duties. CRB acknowledged existence of preferred procedures and medical protocols, but stressed the importance of maintaining a degree of flexibility regarding authorized diagnostic and treatment techniques where customized treatment proves necessary. CRB discussed impact of State v. Porter, 241 Conn. 57 (1997), which mildly relaxed the common-law standard in Connecticut for the admissibility of scientific evidence by changing the nature of the admissibility test. Panel decided that Porter corroborates the deferential approach sanctioned by this board. See also, Cabral, § 31-301. Factual findings.

Trial commissioner affirmed as to scope of proceedings after CRB remand where CRB granted, in part, the claimant’s Motion to Submit Additional Evidence. Trial commissioner refused to consider respondents’ evidence admitted after remand. That evidence tended to undermine the credibility and foundation of the additional report proffered by the claimant. CRB concluded the weight to be given the respondents’ evidence was a matter within the trier’s purview and noted that the report in question was cumulative of an earlier report given by the same physician. Appellate Court reversed, holding that the evidence was not cumulative, but rather constituted a recantation of previously admitted evidence, and that due process entitled the respondents to offer evidence in rebuttal of claimant’s evidence. Judgment directed.

No legal requirement that doctor’s diagnosis be obtained in the form of a hypothetical question. Acceptance of deposition into evidence was not an abuse of discretion, as non-hypothetical questions asked by respondent to its examiner did not rely improperly on underlying hearsay information. See also, Capra, § 5-145a, § 31-301. Appeal procedure.

Trial commissioner did not order the respondent to pay for the deposition of one of the claimant’s treating physicians/expert witnesses. Respondent claimed the necessity to pay for the deposition was pursuant to P.A. 97-106 (amending § 31-298), which was passed after the claimant’s date of injury. CRB held, inter alia, that P.A. 97-106 only affected a matter of procedure, thus making it applicable to the instant matter. Case remanded to determine the reasonableness of witness’ fee.

Claimant made a convincing argument regarding the inequitable nature of the formal hearing proceedings caused by the surprise introduction of medical reports that opposing counsel had promised to provide to the claimant. In order to provide her with a full and fair opportunity to present her case and to respond to the employer’s evidence, CRB remanded the matter to be heard de novo by another trial commissioner.

CRB reversed trial commissioner’s order that respondents pay for the cost of claimant’s witness, a vocational rehabilitation expert, as § 31-298 does not allow for same. See also, Aguayo, § 31-300.

Interlocutory appeal from two evidentiary decisions by trial commissioner. Trier must abide by restriction of proceedings on remand to disability period through January 20, 1994. Ruling that employer should be denied another independent medical examination or further opportunity to obtain records was within trier’s discretion; he felt that respondent had not pursued discovery with proper diligence. Parties had agreed that claimant would only have to testify on one occasion, and trier’s adherence to that agreement was reasonable as well. Appellate court reversed, holding that respondent had right under § 31-294f to demand examination at any time upon reasonable request, and commissioner should have worked with parties to ensure that respondent obtained examination with “all deliberate speed . . . and with consideration for the [claimant]’s psychological condition.” See also, Bailey, § 31-301. Appeal procedure. Subsequent decision in Bailey, 3922 CRB-2-98-10 (November 30, 1999), aff’d in part, rev’d in part, 65 Conn. App. 592 (2001), § 31-300, § 31-307, and cited at Bailey, § 31-284b, § 31-294d, § 31-301. Factual findings; prior decision in Bailey, 15 Conn. Workers’ Comp. Rev. Op. 433, 3152 CRB-5-95-8 (September 3, 1996), § 31-301. Appeal procedure, § 31-301. Factual findings.

The respondents argued on appeal that the trial commissioner erred in allowing the reports of the IME physician into evidence without requiring that the claimant conduct a deposition, even though it was the respondents who had requested the examination by the IME physician. During the formal hearing, the respondents were provided with the opportunity to depose or subpoena the physician, but chose not to, and thus cannot now claim that they were denied due process.

The claimant appeared pro se during the formal hearings. When the respondents introduced an IME report, the claimant was not advised that he had a right either to request that the respondents conduct a deposition, or in the alternative, that he had the right to himself pursue a deposition. The trial commissioner’s decision was largely based upon the IME report. Accordingly, the CRB remanded for a de novo hearing.

Parties agreed in 1990 stipulation that respondents would be responsible for lumbar surgery if treating physician prescribed it and if it was related to 1987 compensable injury. Claimant declined surgery at that time, but sought to have it several years later. Respondents offered evidence that subsequent incidents were the cause of the claimant’s back problems, while treating physician issued report in 1996 that ascribed L4-L5 discopathy to 1987 injury, and recommended surgery. Trial commissioner concluded stipulation was valid, and authorized the claimant to return to the treating physician for an opinion as to whether surgery as a result of the 1987 injury was appropriate. If the doctor opined that it was, the commissioner stated that he would be authorized to perform the surgery. CRB affirmed decision. Credibility issues regarding other doctors’ medical reports and claimant’s testimony were for trial commissioner to resolve, and the trier was not precluded by § 31-298 from seeking another examination by Dr. Lipow.

The respondents appealed from the trial commissioner’s denial of their Motion to Compel the claimant to testify at a deposition. The trial commissioner denied the motion because the claimant’s physician opined that it would threaten the claimant’s health (the claimant was awaiting a heart transplant). CRB remanded in order for the trial commissioner to issue a ruling regarding how the discovery process would proceed.

CRB set forth procedure for determining whether a non-attorney qualifies as an “accredited representative” under § 31-298. Instant case remanded, as trier’s refusal to allow union staffer to represent claimant was apparently premised solely on her lack of malpractice insurance.

Respondent argued that commissioner erred by failing to admit an independent medical examiner’s deposition into evidence. CRB affirmed. Respondent failed to mark deposition as an exhibit, making review more difficult, and discussion of deposition at formal hearing showed that respondent did not notify claimant of the deposition until the day before it was being held, which was two days before the formal hearing. Reasonable exercise of trier’s discretion to exclude it from evidence. See also, Tanzi, § 31-301. Factual findings.

No error in admitting testimony of psychologist into evidence and relying on it regarding causation of decedent’s suicide. Trier has wide discretion to admit expert opinion in workers’ compensation matters, and psychologists’ reports are generally admissible. Although psychologist was not specifically an expert in suicide, nor was she a medical doctor, she had experience in substance abuse, depression and chronic pain patients. This gave her opinion a sufficient foundation to warrant its entry into evidence; any other questions implicated the weight of the evidence rather than its admissibility. See also, Dixon, § 31-301. Factual findings.

Respondents objected to admission of IME report where IME doctor was located in Massachusetts. During formal hearing, respondents advised trial commissioner that they may wish to depose said doctor, but later on during the formal hearing the respondents decided to rest their case. As respondents chose the out-of-state doctor, and never attempted to depose him, there was no denial of due process.

Where evidence was apparently misplaced by this Commission, the trier had the authority to schedule a second formal hearing for the sole purpose of readmitting the misplaced exhibit. See also, Fenn, § 31-300, § 31-325.

Trier did not err by failing to include findings regarding prior convictions of alleged assailant, nor was he required to find for claimant based on fact that alleged assailant pleaded no contest to criminal charges of ridicule based on race and reckless endangerment. Exception allowing evidence of violent character based on prior convictions where a homicide defendant alleges self-defense on his own behalf does not automatically extend to other cases, and trier was not bound by ordinary evidentiary rules anyway. Factual findings based on testimony of several witnesses supported the trier’s finding that the claimant engaged in horseplay unrelated to work duties when he was injured. See also, Swaggerty, § 31-284(a), § 31-301. Factual findings.

Trier concluded car accident occurred outside course of claimant’s employment. Affirmed. Respondents’ questioning of claimant on witness stand about prior arrests was not referred to in trier’s decision, and even assuming it was irrelevant, a trial commissioner is unlikely to be swayed by the introduction of irrelevant evidence. Introduction of claimant’s no-fault auto insurance claim at supplemental formal hearing not improper. Impact of that item likely minimal, and trier has the right to accept evidence until the time the record is formally closed. CRB agreed that telephonic deposition compromised claimant’s ability to effectively cross-examine witness, but claimant failed to object to the introduction of that deposition into evidence. Evidentiary rulings must be preserved by an objection before they may be considered on review by an appellate body.

Pantanella v. Enfield Ford, 3377 CRB-1-96-7 (January 28, 1998), aff’d, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001).

No error for trier to refuse to hold record open so CIGA attorney could depose treating physician where counsel had already been given sufficient opportunity to do so, but had not acted with due diligence. Further, failure to mark deposition as an exhibit for identification after it was denied admission as a full exhibit prevented the CRB from taking notice of its existence on appeal. See, Pantanella, § 31-299b, § 31-301. Factual findings, § 31-355(e). Subsequent decisions in Pantanella, 4220 CRB-1-00-4 (December 19, 2000), supra and § 31-300; Pantanella, 3937 CRB-1-98-11 (January 7, 2000), aff’d, 65 Conn. App. 46 (2001), § 31-299b, § 31-300, § 31-301. Factual findings. Also cited supra and at § 31-315.

Trier has discretion to admit psychiatric records where claimant raised mental condition as part of claim and where interests of justice favor their introduction into evidence. In this case, trier should have conducted in camera inspection of claimant’s psychiatric records from 1960’s hospitalization before ruling that those records were too remote to be relevant. Subsequent decisions at Vetre, 3443 CRB-6-96-10 (November 28, 2000), supra, and § 31-297, § 31-300, § 31-307; Vetre, 3948 CRB-6-98-12 (February 14, 2000), supra.

A commissioner can order a respondent to pay the appearance fee for a doctor deposed by the claimant. Although not mandatory, such an order is permissible, and respondents contested extent of disability here, so a separate hearing was not required before the order could be made. See also, Ferrara, § 31-301. Factual findings.

Spears v. Spears, 2082 CRB-2-94-6 (October 30, 1997), dismissed for lack of a final judgment, A.C. 17819 (January 15, 1998).

Supreme Court has stated that a fact conceded by a party has the force of a judicial admission, with the court retaining the discretion to allow its withdrawal if made by improvidence or mistake. CRB would apply a similar rule in workers’ compensation proceedings. However, the “admission” in this case concerned a purely legal question not susceptible to judicial admission, and the issue was thus obviated. See also, Spears, § 31-278.

Commissioner is not bound by ordinary rules of evidence under this statute. Broad discretion existed to determine admissibility of hospital record. Claimant had reasonable basis to object at trial that said record was incomplete, and that single 1986 blood pressure reading was not a reliable indicator of hypertension. No error. See also, Leary, § 7-433c.

Claimant’s attorney believed that he had restricted the disputed issue below to the date the claimant found out he was hypertensive. Trial commissioner proceeded to rule that notice was untimely. Despite policy against cases being tried piecemeal, a party must be aware that a certain element of a case is at issue. Here, the date notice of injury was provided and the form and method of that notice were never discussed. Case remanded to trial commissioner for further proceedings on the notice issue.

Claimant, who lives in Australia and claims to be unable to travel due to infirmity, was ordered by trier to attend a deposition, independent medical examination, and a formal hearing in Connecticut by 9/1/97, or “absent good cause,” the trier might declare a mistrial. Claimant appealed that ruling. Held: Appeal is not premature, as the claimant has manifested a clear intent to disobey order akin to “anticipatory breach” in contract law. No error on merits of appeal; trier has discretion to order a claimant to appear in this state so that he may be confronted by respondents. Due process applies to all parties in workers’ compensation proceedings. Also, claimant had not offered evidence to show that he was actually incapable of travel. Subsequent decision in Pietraroia, 3838 CRB-8-98-6 (August 18, 1999), rev’d, 254 Conn. 60 (2000), cited supra.

Conetta v. Stamford, 16 Conn. Workers’ Comp. Rev. Op. 228, 3231 CRB-7-95-12 (June 23, 1997), appeal dismissed, 246 Conn. 281 (1998).

CRB noted in earlier decision that trier had attached a copy of the Stamford city charter to her decision and referred to it in her findings, but had not taken it into evidence or administratively noticed it. On remand, the trier ruled that the charter would be excluded from evidence “in accordance with the remand directive.” She ultimately dismissed the claim. Realizing that the trial commissioner had misunderstood the nature of its previous ruling in this case, and that this had likely affected her decision, the board ordered that the case be reheard. It was assigned to a different commissioner in order to preserve the vital appearance of impartiality in Commission proceedings. See also, Conetta v. Stamford, 13 Conn. Workers’ Comp. Rev. Op. 68, 1491 CRB-7-92-8 (December 29, 1994), § 31-294c, § 31-275(1), § 31-301. Factual findings.

At the first formal hearing in this case, the commissioner apparently recommended to the respondents that they advance $6000 to the claimant until the continuation of the proceedings. She then stated that she would consider rendering a decision if that amount was not paid. When the advance was not tendered, the claimant requested that the trier issue a decision. Instead, she scheduled a second formal hearing, at which she expressed anger at the insinuation that she had communicated ex parte with either party or that there were “monies involved” in her communication with claimant’s counsel. The respondent requested that she disqualify herself, but she declined. Eventually, a decision was issued in the claimant’s favor. Held: the appearance of impropriety is the benchmark of whether disqualification should occur, not actual impartiality. Even though the trier undoubtedly believed that she had not prejudged the case, the record shows that she suggested an advance to the claimant, and felt the need to defend herself from allegations of bias. To a neutral observer, there would be a suspicion that the commissioner had already decided this case. Decision vacated; new trial.

Claimant argued that trier improperly decided the issues of total disability and entitlement to § 31-308a benefits after limiting the formal hearing to the issue of causation. Affirmed. At the first formal hearing, compensability and benefits were both at issue, and the claimant introduced evidence regarding both. At the end of the hearing, the parties agreed to leave the record open only for the introduction of specific items. The next formal hearing was held several years later, and the claimant was represented by different counsel, who wanted to introduce further evidence. The trier decided that the previous agreement limiting the evidence applied despite the change in counsel. He admitted the previously discussed evidence, and then closed the record “on causation.” CRB held that the trier was not required to exercise his discretion to allow further evidence; claimant was not denied due process. See also, Hodgdon, § 31-301. Factual findings.

Claimant was hurt in a chemical explosion at Connecticut Aerosol on June 14, 1974, which injury was accepted as compensable. He subsequently worked for other employers, and made a claim against them for repetitive trauma injuries to his right leg and vascular system, which was dismissed for failure to file a timely claim. The claimant then sought to collect temporary total disability benefits from Connecticut Aerosol, alleging that his condition was due to the 1974 injury, and denying the occurrence of intervening repetitive trauma. Trier took notice of 1993 Finding and Dismissal in making his decision here. CRB held that a party cannot present his case in a piecemeal fashion, taking a second bite at the apple after a first attempt fails. Claimant not entitled to seek compensation from original employer now that his claim for compensation against subsequent employers for the same time period failed in prior proceedings. Issue of total disability from 1990 through date of formal hearings has now been litigated, and trier did not err by holding that the claimant was bound by his prior allegations of repetitive trauma. See also, Brown, § 31-301. Factual findings.

Within discretion of trial commissioner to limit claimant’s testimony to events within relevant time period. See, Liano, § 31-279-3, § 31-298, § 31-307; also cited at § 31-296 Voluntary agreements (discontinuance of payments). Subsequent decisions at Liano, 3561 CRB-4-97-3 (June 3, 1998), rev’d in part, 55 Conn. App. 75 (1999), cert. denied, 252 Conn. 909 (1999), § 31-300; Liano, 3447 CRB-4-96-10 (January 6, 1998), aff’d, 51 Conn. App. 905 (per curiam), cert. denied, 248 Conn. 907 (1999), § 7-433c; companion decision at Liano, 3299 CRB-4-95-10 (March 25, 1997), § 31-294c, § 31-297, § 31-301. Factual findings; prior decision at Liano, 14 Conn. Workers’ Comp. Rev. Op. 201, 2033 CRB-4-94-5 (July 25, 1995), appeal and cross appeal dismissed, lack of final judgment, A.C. 15082 (June 6, 1996), cert. denied, 238 Conn. 906 (1996), § 7-433b, § 31-300, § 31-310.

See, Rindos, § 31-279-2, Attendance at hearings.

Insurer sent timely notice of intent to transfer neck injury on October 25, 1993. However, commissioner found that compensation paid through January 24, 1994 was for other injuries, as claimant was not yet disabled on account of neck. Further, doctor’s opinion did not make clear whether pre-existing arthritic condition in cervical spine made resulting disability materially and substantially greater. Commissioner “dismissed without prejudice” the insurer’s claim for transfer, subject to two conditions: that parties stipulate medical causation not at issue, and that respondents “have paid 104 weeks of disability on behalf of cervical spine.” Trier also granted Motion to Correct, adding a finding that claimant’s initial disability was due to all injuries, including cervical spine. Held: corrected finding plainly contradicts original finding, and is inconsistent with conclusion that 104 weeks not yet paid. Also, commissioner clearly did not believe that respondents had met burden of proving entitlement to transfer, but tried to leave claim open by dismissing without prejudice. Such a decision is not appropriate in workers’ compensation proceedings. If respondents cannot prove case, commissioner should dismiss claim unconditionally. Dismissal “without prejudice” left parties uncertain as to effect of decision and proper course of action to take thereafter. This was not a meaningful disposition of the case. CRB remanded the matter for clarification of findings on the two open issues, limited to the evidence in the record. Respondents did not request further evidence at formal hearing, and are not entitled to “second bite at the apple.” See also, Santora, § 31-349 and § 31-315.

Pinto v. General Signal Corp., 2277 CRB-5-95-1 (January 22, 1997), dismissed for lack of a final judgment A.C. 16874 (October 30, 1997).

See, Pinto, § 31-315.

See, Brown, § 31-296 Voluntary agreements (discontinuance of payments). Subsequent decision in Brown, 4053 CRB-2-99-5 (July 27, 2000), aff’d, 66 Conn. App. 882 (2001), infra and § 31-307; also cited at § 31-296 Voluntary agreements (discontinuance of payments).

Minneman v. Norwich/Board of Education, 2294 CRB-2-95-2 (December 13, 1996), aff’d, 47 Conn. App. 913 (1997)(per curiam), cert. denied, 243 Conn. 962 (1998).

Although a document not offered into evidence normally may not be relied on in the findings, even if marked for identification, the depositions in this case were properly used in the decision. Both parties’ attorneys were present at the depositions, and they agreed on the record that said depositions would be forthcoming. Neither appeared to contemplate that a formal introduction into evidence of the transcripts would be necessary. See also, Minneman, § 31-300, and § 31-301.

Blassingame v. Acme Steel Co., 16 Conn. Workers’ Comp. Rev. Op. 20, 3007 CRB-6-95-3 (October 8, 1996), aff’d, 45 Conn. App. 914 (1997)(per curiam).

Trial commissioner did not err by failing to award claimant the costs of certain medical examinations and testimony; although § 31-298 authorizes the commissioner to award such fees, it does not require such an award in any given case. See also, Blassingame, § 31-308.

Commissioner relied on doctor’s report that was not part of the exhibits and transcripts. As this report was the sole basis of the commissioner’s finding of permanent partial disability, the case was remanded for further findings. See also, Mahoney, § 31-294d.

Commissioner found that no evidence was presented to establish employment relationship between claimant and alleged employer. Claimant argues that commissioner should not have determined jurisdiction because it was not made an issue in the hearing notice, and it was undisputed among the parties. Held, claimant must establish elements of claim, including employment relationship and its causal link to an injury, to prove entitlement to compensation. No proof provided that parties had agreed to jurisdiction. Allingham v. Burns International Security, 14 Conn. Workers’ Comp. Rev. Op. 333, distinguished; there, parties had assumed jurisdictional issue settled by stipulation, and commissioner did not give them a chance to address that issue before ruling on it. See also, Norton, § 31-301. Appeal procedure.

Mulroy v. Becton Dickinson, 15 Conn. Workers’ Comp. Rev. Op. 455, 2295 CRB-8-95-2 (September 6, 1996), aff’d, 48 Conn. App. 774 (1998).

Commissioner has discretion to determine relevancy and remoteness of evidence. No error in limiting scope of bias inquiry regarding doctor’s departure from employer, as his testimony was not fundamental to the decision, and exploring such a peripheral issue would have required significant extra time and testimony. Also, regardless of a possible private arrangement between claimant and UConn Medical Center, commissioner had authority to order respondents to pay testimonial fees for medical center employees. See also, Mulroy, § 31-301, Factual findings and Mulroy, 16 Conn. Workers’ Comp. Rev. Op. 7, 2295 CRB-8-95-2 (October 2, 1996), § 31-301c (Interest added to award affirmed on appeal). Also see later Mulroy, 4083 CRB-5-99-7 (September 29, 2000), § 31-349.

Social Security records were excluded from evidence, but claimant never attempted to introduce them. No appealable issue. See also, Bailey, § 31-278, and § 31-308a.

Trial commissioner dismissed claimant’s work-related emotional stress claim (which was not yet excluded by § 31-275(16) at time of injury). Commissioner had discretion under § 31-298 to exclude a physician’s reports that were expressly prepared for use in workers’ compensation claim. See, Zawisza v. Quality Name Plate, Inc., 149 Conn. 115 (1961). However, commissioner erroneously failed to consider admitting the reports of a treating psychologist, as the Act allows inclusion of psychologists’ reports into evidence. De novo trial ordered. See also, Harris, § 31-275(17). Subsequent decision at Harris, 3762 CRB-1-98-1 (February 23, 1999), aff’d, 56 Conn. App. 912 (2000)(per curiam), cert. denied, 253 Conn. 907 (2000), § 31-294f, § 31-301-9, § 31-315.

Nelson v. Deb’s Inc., 15 Conn. Workers’ Comp. Rev. Op. 274, 2228 CRB-3-94-12 (June 20, 1996), aff’d, 45 Conn. App. 909 (1997)(per curiam), appeal dismissed, 244 Conn. 349 (1998).

Trial commissioner had authority to admit signed, undated document into evidence; statute grants broad discretion. See also, Nelson, § 31-275(9) for details of case.

Commissioner improperly left total disability issue open for claimant to produce additional evidence. Parties are not entitled to present their cases piecemeal, and the absent wage records cited by the commissioner have no discernible impact on the total disability issue. (Vargas, C., dissenting) (commissioner must be given discretion to hear claim in the manner he deems appropriate; no jurisdictional bar against postponing a decision to await further evidence).

Commissioner found no insurance on date of injury; respondent argued on appeal neither it nor Second Injury Fund knew proceedings were closed on issue of insurance. Held: respondent placed several documents related to insurance issue into evidence. In light of concurrent Superior Court suit on insurance issue, commissioner properly chose to award claimant benefits immediately. If civil proceedings establish existence of insurance contract, respondent can seek modification of award to allow reimbursement from insurer.

McClinton v. Bridgeport, 15 Conn. Workers’ Comp. Rev. Op. 39, 2079 CRB-4-94-6 (November 28, 1995).

CRB affirmed commissioner’s determination that the claimant suffered from a stress disorder which caused her to be temporarily totally disabled, and that her condition was caused by a prior compensable head injury. Contrary to arguments made by the respondents, in reaching his determination a trial commissioner may rely upon a medical report which is the result of a commissioner-ordered examination.

Commissioner had vacated his decision in order to allow CIGNA to present a brief, which CIGNA had not done due to legitimate confusion. Based upon the compelling circumstances regarding due process in this case, CRB concluded that the commissioner properly exercised his discretion in granting the motion to vacate.

Respondent requested a postponement of the commissioner’s hearing on the day prior to the hearing, which commissioner denied. Section 31-279-4 states in part that no party can assume the granting of a continuance to produce witnesses at a later date. It is within the broad discretion of the commissioner to grant or deny a continuance, and such a decision is virtually unreviewable. CRB concluded that it was within the trial commissioner’s discretion to conduct the formal hearing and to issue a decision without the respondent’s participation.

Senoski v. Corometrics, Inc., 14 Conn. Workers’ Comp. Rev. Op. 344, 1906 CRB-8-93-11 (September 22, 1995), appeal dismissed, A.C. 15289 (April 30, 1996).

CRB affirmed commissioner’s determination that the claimant’s tendonitis was not caused by her use of a glass-pulling machine at work. Claimant on appeal objected to the showing of a video of another person using the glass-pulling machine. Because the claimant failed to make a timely objection to the admission of the video film at the formal hearing, the CRB would not consider the matter on appeal. Trial commissioner made a credibility determination based upon the transcript of claimant’s testimony (taken by a prior commissioner who had since retired) of the claimant regarding the use of the machine and based upon viewing the video. See also, Senoski, § 31-275(1).

McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 2050 CRB-3-94-5 (September 20, 1995), aff’d, 43 Conn. App. 912 (1996)(per curiam).

See, McVety, § 31-294 (due process requirements as to notice and hearing; parties must have chance to be heard).

Smith v. Aetna Life & Casualty, 14 Conn. Workers’ Comp. Rev. Op. 336, 2006 CRB-1-94-3 (September 20, 1995), aff’d, 43 Conn. App. 910 (1996)(per curiam).

Trial commissioner had discretion to deny admission of letter of resignation as evidence, as its credibility would have been questionable, and claimant could have testified to its substance. See also, Smith, § 31-294c, and § 31-301. Factual findings.

Claimant, respondent stipulated to existence of subject matter jurisdiction. Trial commissioner found this improper, and found that facts did not support jurisdiction. Petition for review was received fourteen days after award; it noted that the commissioner’s decision was received by regular mail. Held, normally CRB would require a finding as to date notice of appeal sent. See, Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994). However, two reasons prevent doing so here. First, § 31-321 was not complied with in sending notice of decision, thus potentially prejudicing claimant. Second, trial commissioner deprived the claimant of due process by dismissing claim for lack of subject matter jurisdiction without notifying parties that it was at issue; parties had assumed it was stipulated, and did not have a chance to be heard. Remanded.

Pascarelli v. Moliterno Stone Sales, 14 Conn. Workers’ Comp. Rev. Op. 328, 2115 CRB-4-94-8 (September 15, 1995), aff’d, 44 Conn. App. 397 (1997).

See, Pascarelli, § 31-287 (CRB deferred to commissioner’s decision to honor bankruptcy stay); See also, Pascarelli, § 31-310.

Claimant contended that trial commissioner did not have jurisdiction to decide no further treatment necessary when issue at hearing was payment of prescription bills. CRB affirmed: because medical reports were already in evidence, claimant was not denied opportunity to present his argument. Issues surrounding prescriptions substantially similar to those surrounding further medical treatment; decision not beyond scope of commissioner’s jurisdiction. Also, evidence supported finding that further treatment was unnecessary.

Trial commissioner should have allowed respondents’ request to depose claimant widow; our system encourages full disclosure and cooperation, and commissioner has power to order such a deposition under § 31-278. Failure to produce psychiatric records could not be addressed, as that issue was not ruled on by trial commissioner (although CRB noted that § 52-146f applies). Board also had jurisdiction to hear appeal from this particular interlocutory ruling. (Brouillet, C., dissenting in part) (discusses need for limitation on interlocutory appeals; no written decision in this case, so review inhibited. Also, no formal hearing on request to depose. Respondents should have used § 51-85 procedure to obtain deposition of witness; ruling exceeded commissioner’s authority and conflicted with that procedure). See also, Dixon, § 31-278.

Yablonski v. Danbury Hospital, 14 Conn. Workers’ Comp. Rev. Op. 212, 1968 CRB-7-94-2 (July 27, 1995), aff’d, 43 Conn. App. 912 (1996)(per curiam).

CRB affirmed the trial commissioner’s determination that the claimant sustained a traumatic brain injury as a result of an attack by a patient. The respondents specifically objected to the admission of a medical report signed by a clinical neuropsychologist who treated the claimant. The respondents contended that the report was not admissible pursuant to § 52-174(b) C.G.S. CRB found no error on the basis that under § 31-298, the trial commissioner had the discretion to admit the medical reports of the claimant’s treating neuropsychologist. The respondents failed to exercise their opportunity to cross-examine the doctor, and cannot complain on appeal that they did not receive due process. Distinguished Lee v. Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 1626 CRB-7-93-1 (November 7, 1994) and stated that Lee was limited to the specific factual circumstances of that case.

CRB has power to take judicial notice of matters of fact; decision to do so is discretionary, and depends on nature of subject. Here, commissioner erred in not giving parties prior notice and opportunity to be heard before construing Notice of Claim to be for permanent partial disability benefits; meaning of notice was susceptible to more than one explanation, and parties should have had a chance to contest its meaning. See also, Burr, § 31-308(b).

The trial commissioner found that the claimant failed to sustain her burden of proof that she suffered any injuries which were causally related to her employment. Specifically, the trial commissioner found that the claimant, a registered nurse, failed to establish that her symptoms were causally related to a vaccine which had been administered in the course of her employment. In support of appeal to CRB, claimant contended that the deposition of her treating physician and a rubella screen were improperly admitted into evidence. CRB found no error as claimant’s attorney attended the deposition and had not objected to the admissibility of the rubella screen which the respondents submitted as an exhibit at the deposition.

Trial commissioner denied motion for discovery and production seeking psychologist’s records on the ground that it was beyond claimant’s power to produce his notes. CRB reversed. Section 52-146c(b) privilege does not extend to situation where party introduces her psychological condition as part of her claim, and claimant here agreed to waive her privilege. Psychologist did not have independent standing to assert statutory privilege. Also, notes requested here must be produced under § 31-294f(b), and commissioner had power under § 31-278 to order psychologist to release his notes as soon as he submitted himself to jurisdiction of commissioner by testifying for claimant. See also, Lee, § 31-301.

Claimant objected to admission of hearsay documents and hearsay testimony regarding his unsatisfactory work record, contending it was irrelevant. CRB found no error. Discussion of hearsay, due process, and irrelevant evidence. Distinguishes Lee v. Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 1626 CRB-7-93-1 (November 7, 1994). See also, Peters, § 31-275(1), and § 31-301. Factual findings.

Giovino v. West Hartford, 14 Conn. Workers’ Comp. Rev. Op. 74, 1912 CRB-1-93-12 (May 12, 1995).

Respondents objected to claimant’s submission of an IME at formal hearing on basis of hearsay. The IME had been arranged at the request of the respondents. CRB held that an independent medical exam report is admissible at a formal hearing provided the objecting party has an opportunity to cross-examine the author. If the objecting party does not act with due diligence by failing to either depose or subpoena the authoring physician, the objecting party cannot later complain that it did not have the opportunity to cross-examine. CRB distinguished holding in Lee v. Norwalk, 1626 CRB-7-93-1 (November 7, 1994) by stating that “the decision in Lee was limited to the specific factual circumstances of that case.” See also, Giovino, § 31-294c, and § 31-310.

Commissioner found claimant’s back injury compensable. Respondent’s sole contention on appeal was that the commissioner improperly admitted a handwritten note by claimant’s treater. CRB found no error, citing § 31-298. Moreover, even without that note, the commissioner’s decision was amply supported by the record.

Second Injury Fund claimed no formal hearing held, and no consent to factual stipulation between claimant and employer. Held, record shows formal hearing was held on transfer of claim to Fund, where a Fund attorney appeared. As to stipulation, Fund had opportunity to sign it or present evidence against it, and commissioner did not rely on it anyway. No error. See also, Pereira, § 31-301(f), and § 31-349.

Not enough evidence in record to support finding that insurer was negligent in administering claim. Commissioner should not presume existence of evidence that is not in the record without giving notice to both parties; due process considerations are implicated. See also, Southard, § 31-315.

Respondents contended that doctor’s conclusion regarding apportionment was unreliable because it was based on claimant’s own representations. Zawisza v. Quality Name Plate, Inc., 149 Conn. 115 (1961). Held: Zawisza similar, but inapplicable. There, claimant had sought medical expert who would diagnose a compensable injury in the face of four contrary medical opinions; here, contested examination was ordered by commissioner, and claimant had no motivation to lie on issue of apportionment, as claimant’s recovery would be unaffected. Therefore, commissioner did not err in admitting testimony of doctor. Also, trier entitled to accept part of expert’s testimony and reject other parts, so long as parts are not interdependent. See also, Nasinka, § 31-301. Factual findings.

Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 1720 CRB-4-93-5 (April 21, 1995).

Request for disqualification of commissioner normally need not be considered if raised for the first time on appeal. Code of Ethics for Workers’ Compensation Commissioners requires recusal where trier’s impartiality might reasonably be questioned; fact that commissioner represented former clients against one of the parties does not automatically create such a situation. Also, no error in failure to continue hearing; appellant did not indicate that he had additional evidence, and cannot show prejudice. Moreover, a commissioner’s decision to grant or deny a continuance is virtually unreviewable. See Admin. Reg. § 31-279-4. Lastly, commissioner was entitled to restrict hearing to issue of employment relationship; respondent would have opportunity to present evidence concerning other issues later. See also, Muniz, § 31-275(9).

Commissioner engaged in ex parte communication with claimant’s treating physician regarding her light work capability. Held: broad scope of § 31-298 does not stretch so far as to allow a commissioner currently hearing a case to engage in ex parte communication with a material witness. See § 4-181(a) C.G.S.; Canon 3 A (4) of Code of Judicial Conduct.

CRB affirmed denial of benefits where commissioner found claimant lacked credibility regarding alleged injury and where alleged injury occurred due to horseplay initiated by claimant. Commissioner had wide discretion to allow continuance for pro se claimant to present witnesses. Also, no error in commissioner’s admission of testimony regarding prior acts of horseplay which were objected to by claimant. See also, Simmons, § 31-275(1), § 31-294c, and § 31-284(a).

Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (April 12, 1995), appeal dismissed, A.C. 14747(June 29, 1995).

I. Respondents contended that trial commissioner exhibited bias at formal hearing by acting as claimant’s attorney and by having ex parte communication with claimant. A trier may not exhibit a position of “advocacy” in the case before him. Labow v. Labow, 13 Conn. App. 330 (1988). Discussion regarding propriety of assisting pro se claimants at hearings. CRB found no bias. Also, no bias found regarding alleged ex parte communication, where communication regarded procedural as opposed to substantive matter (citing § 12 of Code of Ethics). II. Issue of temporary total benefits remanded to afford due process where commissioner repeatedly stated during formal that temporary total benefits would not be an issue at the formal, but then awarded temporary total in Finding and Award. CRB agreed with respondents that they were not afforded notice of that issue or opportunity to present evidence. See also, Cummings, § 31-294d.

Commissioner did not err by allowing into evidence depositions of doctors who testified in LHWCA proceedings. Statute grants commissioner broad discretion to determine admissibility of evidence, and evidentiary ruling cannot be set aside absent a clear abuse of discretion. Because depositions were not expressly relied on in award, it is uncertain whether their admission would constitute harmful error. However, fact that insurers were not party to LHWCA proceedings did not lessen employer’s interest in defending its own liability, and commissioner could reasonably have determined that respondent represented insurers’ position closely enough to render doctors’ depositions probative. Difference in burden of proving compensability did not require inadmissibility of depositions. Also, evidence other than decedent’s lost testimony exists to support finding of total disability, including wife’s testimony and medical reports. CRB declined to declare a mistrial. See also, York, § 31-294c.

Phelan v. Soda Construction Co., 14 Conn. Workers’ Comp. Rev. Op. 389, 1979 CRB-3-94-3, 2107 CRB-3-94-7 (October 17, 1995).

See, Phelan § 31-310.

Not improper for commissioner to require additional hearing upon decision that evidence surrounding payment of benefits unclear; commissioner not required to render decision on insufficient evidence. This is not the same as an improper failure to exercise discretion. See also, Schiano, § 31-293.

Trier’s decision to proceed with formal hearing absent a party’s appearance affirmed on appeal where record discloses prior formals had been repeatedly cancelled and formal hearings rescheduled where same party failed to appear. See also, Weglarz, § 31-300.

Lee v. Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 1626 CRB-7-93-1 (November 7, 1994).

Reversed. Trier erred in basing the dismissal of stress claim on an IME report improperly admitted into evidence where claimant timely objected to the admission of said report and was denied the opportunity to cross examine the IME physician. See also, Lee, § 31-275(1) and § 31-294f.

Hirth v. United Parcel Service, 12 Conn. Workers’ Comp. Rev. Op. 353, 1497 CRB-1-92-8 (August 2, 1994).

Trier’s refusal to hold open evidentiary proceedings so that respondents would have the opportunity to depose physician and admit deposition into evidence upheld on appeal. CRB held respondents’ due process was not violated as there existed sufficient time for discovery prior to the trial date which notice indicated the trial would conclude on that scheduled date. Further, respondents failed to show how the deposition evidence would aid their defense of the claim. See also, Hirth, § 31-301. Appeal procedure and § 31-279-3, Request for continuance.

Cummings v. Twin Tool Mfg. Co., 12 Conn. Workers’ Comp. Rev. Op. 341, 1542 CRB-1-92-10 (July 11, 1994), aff’d, 40 Conn. App. 36 (1996).

A factual finding which relies on a document not offered into evidence, but marked for identification only, must be stricken. Additionally, findings not properly before trier, i.e. continued medical treatment, must be vacated. See also, Cummings, § 31-296, § 31-301. Factual findings, § 31-301-9. Additional evidence and § 31-307.

Flowers v. Benny’s of Connecticut, 12 Conn. Workers’ Comp. Rev. Op. 162, 1527 CRB-2-92-10 (April 26, 1994).

The claimant contended that trier erred in admitting into evidence certain irrelevant testimony of witnesses regarding claimant’s conduct. The admission and use of alleged irrelevant evidence is generally harmless and will not be the basis of appellate reversal. See also, Flowers, § 31-275(1) and § 31-301. Appeal procedure and Factual findings.

Vetro v. Banton Dry Wall, Inc., 12 Conn. Workers’ Comp. Rev. Op. 154, 1316 CRD-3-91-10 (April 22, 1994).

Record before CRB fails to support respondent employer’s claim they were precluded from presenting evidence or from participating in proceedings below. See also, Vetro, § 31-301. Appeal procedure and § 31-301-9. Additional evidence.

Morris v. A & A Acoustics, 12 Conn. Workers’ Comp. Rev. Op. 221, 1488 CRB-7-92-8 (March 22, 1994).

Claimant’s challenge to impartiality of commissioner’s conduct of the formal hearing below not supported by the record. See also, Morris, § 31-301. Factual finding and § 31-301-9. Additional evidence.

Besitko v. McDonald’s Restaurant, 12 Conn. Workers’ Comp. Rev. Op. 111, 1415 CRB-8-92-5 (February 28, 1994).

Remanded as trier must limit decision to issues before him. It was improper to order payment of medical bills where issue was not before trier nor were medical bills introduced into evidence. See also, Besitko, § 31-294d.

Besade v. Interstate Security Services, 12 Conn. Workers’ Comp. Rev. Op. 103, 1383 CRB-2-92-2 (February 28, 1994), aff’d, 37 Conn. App. 903 (1995).

Trier did not abuse his discretion in allowing a leading question on direct examination to stand. See also, Besade, § 31-301. Factual findings and § 31-308(a).

Maylott v. Williams, 11 Conn. Workers’ Comp. Rev. Op. 320, 1353 CRD-6-91-12 (December 23, 1993).

Trier’s failure to close record at the conclusion of a formal hearing and granting continuances is not an abuse of discretion. Also, claimant’s objection to doctor’s deposition unwarranted as claimant had notice of the deposition, was present at its taking, and exercised his right to cross-examine physician. See also, Maylott, § 31-301. Factual findings.

Furrey v. Wells Fargo Alarm System, 11 Conn. Workers’ Comp. Rev. Op. 192, 1307 CRD-3-91-9 (September 22, 1993).

Trier admitted into evidence a journal article which had not been adopted or approved by the AMA or the ADA. Medical experts testified that the challenged article is generally accepted as authoritative for making impairment ratings. Therefore, it was up to the trial commissioner to determine the admissibility and weight to be given the evidence. See also, Furrey, § 31-308(c).

Petta v. Waterbury Hospital, 11 Conn. Workers’ Comp. Rev. Op. 161, 1310 CRD-5-91-9 (August 23, 1993).

Commissioner has the authority to order payment of deposition fees where there exists a finding to support such an order. Where no finding exists, no payment can be ordered. See also, Petta, § 31-299b, § 31-300, § 31-301. Appeal procedure and § 31-308a.

Crochiere v. Enfield/Board of Education, 10 Conn. Workers’ Comp. Rev. Op. 165, 1069 CRD-1-90-7 (August 27, 1992), aff’d, 227 Conn. 333 (1993).

CRB affirmed trial commissioner’s decision to exclude the transcribed testimony of a female student on the basis that respondent did not satisfy the exceptions to the hearsay rule. Specifically, respondent’s claim the witness was unavailable and therefore, transcripts should be admitted, was based upon two phone calls to schools outside this state. A party seeking to proffer evidence that a witness was unavailable must do so by a showing of due diligence to procure the attendance of the absent witness. State v. Aillon, 202 Conn. 385, 391 (1987). See also, Crochiere, § 31-275(1), § 31-284(a), § 31-294c, § 31-301. Factual findings and Appeal procedure.

Ruh v. Della Construction Co., 9 Conn. Workers’ Comp. Rev. Op. 269, 1034 CRD-7-90-6 (December 5, 1991).

Remanded as trier concluded evidentiary hearings without giving claimant the opportunity of cross-examine as provided by § 52-174(c). See also, Ruh, § 31-301 Factual Finding, § 31-307. Total disability.

Straub v. Bolt Technology Corporation, 9 Conn. Workers’ Comp. Rev. Op. 212, 1130 CRD-3-90-11 (September 12, 1991).

Respondents had ample opportunity below to depose or cross-examine treating physician and or any other physician concerning their claim that trier erred in awarding a 15% loss of use of the lumbar spine. See also, Straub, § 31-308(b), § 31-294f.

Tomkus v. Upjohn Company, 9 Conn. Workers’ Comp. Rev. Op. 163, 972 CRD-3-90-1 (June 28, 1991).

Trier has wide discretion in allowing leading questions on direct examination. See also, Tomkus, § 31-294c & § 31-301. Factual findings.

Merchant v. J.S. Nasin Company, 9 Conn. Workers’ Comp. Rev. Op. 122, 952 CRD-2-89-11 (May 1, 1991).

Trier has broad discretion to determine both the relevancy and remoteness of evidence. It was not an abuse of discretion in ruling federal social security medical vocational guidelines inadmissible where claimant was being paid social security retirement benefits and not social security disability benefits. See also, Merchant, § 31-301. Appeal procedure.

Colas v. Marriott Food Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 939 CRD-7-89-11 (February 26, 1991).

Trier’s failure to admit document into evidence or take administrative notice of it would not have affected the result of the decision. One respondent sought to admit a letter (notice of claim) from claimant’s counsel in order to support a Motion to Preclude. CRD held that while the letter which purported alternative theories for the basis of the compensation claim was sufficient notice under § 31-294, the letter would not support the preclusive effects of § 31-297(b) as it was not a direct assertion of a claim against the other respondents. See also, Colas, § 31-298, § 31-307b, § 31-294c and § 31-349.

Laime v. American Standard, 9 Conn. Workers’ Comp. Rev. Op. 62, 914 CRD-2-89-9 (February 6, 1991).

CRD remanded matter to trial commissioner where decision was issued as a result of an informal hearing and there was no record of the proceedings below. See also, Laime, § 31-301. Appeal procedure.

Case v. McClinch Crane, 7 Conn. Workers’ Comp. Rev. Op. 92, 727 CRD-7-88-4 (October 4, 1989).

See, Case, § 31-301. Appeal procedure.

Moccia v. Dr. Martin Ecker, 7 Conn. Workers’ Comp. Rev. Op. 10, 620 CRD-7-87 (June 22, 1989).

Error for trial commissioner to permit cross-examination concerning statements at informal hearing, Daniele v. Angelo Monarca, Inc., 6 Conn. Workers’ Comp. Rev. Op. 25, 519 CRD-3-86 (1988). Error for trial commissioner to use the adverse inference rule on failure to produce an eyewitness. Turner v. Scanlon, 146 Conn. 149, 161 (1959). Remanded. CAVEAT: This inference known as the Secondino or adverse inference rule has been amended in part by P.A. 89-153 to be codified as amending § 52-174(b).

Mauro v. General Dynamics Corporation/Electric Boat Division, 713 CRD-2-88-3 (1989).

See also, Mauro, § 31-301. Appeal procedure. Case ordered remanded for trial proceedings so a transcript record can be prepared.

Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (January 13, 1989), no error, 212 Conn. 441 (1989).

Trial commissioner’s admission of evidence was merely harmless error.

Fappiano v. Nutmeg Concrete Inc., 6 Conn. Workers’ Comp. Rev. Op. 29, 652 CRD-3-87 (September 27, 1988).

(1) Payment of transcript fees is to be made by party ordering transcript (§ 51-63(e)), (2) Deposition fees are to be paid by party taking deposition, see Conn. Prac. Book § 247(b), (3) Commissioner may order respondents to pay expert witness fees.

Daniele v. Angelo Monarca, Inc., 6 Conn. Workers’ Comp. Rev. Op. 25, 519 CRD-3-86 (1988).

Statements made at informal conferences are similar to common law statements made during settlement discussions and are therefore not ordinarily admissible. Cf. § 52-549s(c) C.G.S.

Debarros v. A.L. Singleton, 6 Conn. Workers’ Comp. Rev. Op. 22, 498 CRD-5-86 (September 19, 1988), no error, 21 Conn. App. 107 (1990).

See, Debarros, § 31-301. Factual findings.

Todd v. Jazlowiecki, 6 Conn. Workers’ Comp. Rev. Op. 9, 493 CRD- 6-86 (August 26, 1988), no error, 20 Conn. App. 805 (1989)(per curiam).

Rules of evidence do not preclude physicians who were not authorized treating physicians from testifying. See also, Todd, § 31-278, § 31-294d.

Bergin v. Waterbury, 5 Conn. Workers’ Comp. Rev. Op. 156, 537 CRD-5-86 (August 2, 1988).

OSHA and EPA regulations may be submitted into evidence.

Adams v. Stop & Shop, 4 Conn. Workers’ Comp. Rev. Op. 80, 380 CRD-2-85 (June 4, 1987).

Commissioner may allow treatment with out-of-state physician.

Evans v. Lightolier, Inc., 4 Conn. Workers’ Comp. Rev. Op. 69, 517 CRD-2-86 (May 20, 1987).

Adopted § 52-148d as rule for the furnishing of depositions.

Diogostine v. Somers Thin Strip, 3 Conn. Workers’ Comp. Rev. Op. 139, 282 CRD-5-83 (January 22, 1987).

An unsigned doctors report which is a photostat of a signed original arguably in claimant’s possession is admissible. Also, claimant’s argument that he was denied the opportunity to cross-examine fails where commissioner evidenced his intention to hold further hearings. See also, Diogostine, § 52-174.

Kiley v. Executone of Fairfield, Inc., 2 Conn. Workers’ Comp. Rev. Op. 103, 107 CRD-7-81 (August 29, 1984).

Psychological treatment fees payable if commissioner determines, inter alia, they are reasonable.

Aquino v. Mt. Vernon Die Casting Co., 2 Conn. Workers’ Comp. Rev. Op. 72, 159 CRD-7-82 (July 11, 1984).

Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (June 19, 1984).

Commissioner is the arbiter under statute to determine reasonableness of medical fees.