Lee v. City of Norwalk

The claimant was represented by Eric L. Reinken, Esq., Reinken & Koffsky, 1200 Summer St., Suite 103, Stamford, CT 06905.

The respondent was represented by Barbara L. Coughlan, Esq., Tierney, Zullo, Flaherty & Murphy, P.C., 134 East Ave., P. O. Box 2028, Belden Station, Norwalk, CT 06852.

This Petition for Review from the January 21, 1993 Finding and Dismissal of the Commissioner acting for the Seventh District was heard January 28, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl, and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant, Stanley B. Lee, has petitioned for review of the Seventh District Commissioner’s January 21, 1993 Finding and Dismissal of his claim for compensation. The claimant, a sanitation worker for the respondent City of Norwalk, struck a co-worker while backing up his garbage truck on the morning of August 31, 1987. As a result of that injury, the co-worker lost his right leg. The commissioner found that, although the claimant was aware that the city would pay for his legal representation and hold him harmless for any recovery in the co-worker’s ensuing lawsuit, he nonetheless became extremely nervous before his September 11, 1989 deposition. His anxiety continued beyond that date, progressing to the point where he needed to be prescribed medication and, when that failed to cure him, to see a psychiatrist. The psychiatrist reported that the claimant’s symptoms seemed to have been precipitated by the deposition, and recommended his admission to the substance abuse unit at a Westport hospital. After evaluation at the hospital, it appeared questionable as to whether the claimant currently had an alcohol problem. Depression and anxiety were instead thought to be the claimant’s primary difficulties, but he refused to be transferred to a psychiatric unit. He was discharged on March 2, 1990 and received subsequent outpatient therapy and medication.

An independent medical examination was requested by the employer and performed on August 8, 1991 by Dr. Gerald H. Flamm, a psychiatrist. Although Flamm did not testify, his written report was introduced into evidence. The report indicated that he could not say with reasonable medical probability that the claimant’s condition was related to the accident or deposition. The commissioner quoted substantially from that report in finding that the claimant had failed to meet his burden of establishing that his injury arose out of the August 31, 1987 incident or the surrounding litigation. On appeal, the claimant argues that the commissioner improperly admitted Dr. Flamm’s report into evidence over his objection. We agree with the claimant and remand this case for further proceedings.

Workers’ compensation commissioners are not bound by common law or statutory rules of evidence, “but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” General Statutes § 31-298. “Nonetheless, procedural due process is a requirement of adjudicative administrative hearings, including those held before workmen’s compensation commissioners, and the admission of hearsay material such as letters without an opportunity to cross-examine is ordinarily a deprivation of procedural due process.” Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974).

It is undisputed that Dr. Flamm performed an independent medical examination of the claimant at the request of the respondent, and that he was not a treating physician. Unlike the report of a treating physician, an IME’s signed report is not made admissible as a business entry in personal injury suits pursuant to General Statutes § 52-174 (b). Although under § 31-298 the commissioner technically is not bound by that evidentiary provision, we think that the reasoning behind limiting that hearsay exception to treating physicians is no less applicable in workers’ compensation cases. The indicia of reliability present in a treating physician’s report are not present in the report of an IME, which renders the latter inadmissible hearsay. Thus, the admission of Dr. Flamm’s report into evidence was improper.

Both parties acknowledge that the claimant timely objected to the introduction of Dr. Flamm’s report at the formal hearing. The respondent criticizes the claimant, however, for not attempting to subpoena Dr. Flamm. See § 52-174 (c). This was not the claimant’s responsibility. It is incumbent upon the employer who requests an IME pursuant to § 31-294f to pay not only for the IME, but also to properly introduce the results of that examination into evidence. Thus, a subpoena or deposition of the examining physician should be arranged by the party seeking to introduce his or her testimony as evidence. To require a claimant to pay for the cost of the subpoena or deposition of an independent examiner in order to cross-examine him would unfairly burden the claimant.

We also cannot hold the improper admission of the report as harmless error. It appears from the findings that the commissioner’s dismissal of the claim rests almost exclusively on Dr. Flamm’s report. The remainder of the findings seems largely consistent with the claimant’s contention that the legal proceedings following the truck accident caused his symptoms. The absence of an opportunity to cross-examine Dr. Flamm very likely caused substantial prejudice to the claimant.

We reverse the ruling of the trial commissioner on the admissibility of the independent medical examiner’s report and remand this matter for further proceedings consistent with this opinion.