CASE NO. 1641 CRB-8-93-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 21, 1995
STONE SAFETY CORP.
LIBERTY MUTUAL INSURANCE COMPANY
The claimant was represented by Andrew Dwyer, Esq., Mihaly & Kascak, 925 White Plains Road, Trumbull, CT 06611.
The respondents were represented by James Sullivan, Esq., Maher & Williams, 1300 Post Road, Fairfield, CT 06430.
This Petition for Review from the January 28, 1993 Ruling on Notice of Intention to Discontinue or Reduce Payments (Form 36) of the Commissioner acting for the Eighth District was heard February 25, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The claimant has filed a petition for review from the ruling of the Eighth District Commissioner on the respondents’ Notice of Intention to Discontinue or Reduce Payments (Form 36). The claimant contends that the commissioner engaged in an improper ex parte communication with the claimant’s treating physician, that there were deficiencies in the Form 36 filed by the respondent, and that the commissioner drew an impermissible conclusion from the evidence before him. We reverse the trial commissioner and remand this matter for a new hearing.
The claimant sustained a work-related injury to her left foot on January 30, 1989. A voluntary agreement was approved on June 29, 1989. On October 12, 1992, the respondents filed a Form 36 asserting that the claimant had reached maximum medical improvement and that any further payments should be considered an advance on specific disability benefits. The claimant timely contested the Form 36. Prior to the formal hearing on January 26, 1993, the veteran, experienced commissioner engaged in an ex parte telephone conversation with the claimant’s treating physician regarding the ability of the claimant to perform light work. Neither party was privy to that discussion. At the formal hearing, the commissioner referred to the ex parte telephone conversation, stating that it consisted of his asking the physician to clarify his opinion as to whether the claimant could perform light work, in response to which the physician sent a letter to the commissioner and both parties’ counsel expressing that opinion. The commissioner relied on General Statutes § 31-298 in denying the claimant’s ensuing motion for disqualification.
Although § 31-298 states that the commissioner “shall not be bound by the ordinary common law or statutory rules of evidence or procedure, 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 . . . ,” we do not believe that it permits a workers’ compensation commissioner who is in the process of hearing a case to engage in an ex parte conversation with a witness regarding the existence of a fact at issue. Despite § 31-298, “procedural due process is a requirement of adjudicative administrative hearings, including those held before workmen’s compensation commissioners.” Balkusv. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). It is a fundamental requirement of a fair administrative hearing that “the one who decides shall be bound in good conscience to consider the evidence, to be guided by that alone, and to reach his conclusion uninfluenced by extraneous considerations . . . . Nothing can be treated as evidence which is not introduced as such.” Henderson v. Department of Motor Vehicles, 202 Conn. 453, 458 (1987), quoting Morgan v. United States, 298 U.S. 468, 480 (1936). “Ex parte communications with persons outside the agency are plainly improper under this standard for administrative adjudication.” Henderson v. Department of Motor Vehicles, supra, 458.
General Statutes § 4-181 (a) unequivocally prohibits an agency decisionmaker from communicating, in connection with any issue of fact, with any person unless all parties have been given an opportunity to participate. Similarly, Canon 3 § A (4) of the Code of Judicial Conduct prohibits a judge from initiating or considering ex parte communications concerning a pending proceeding. The rationale behind preventing ex parte communications in judicial or other administrative proceedings is equally applicable to workers’ compensation hearings. We thus hold that the commissioner’s ex parte communication with the claimant’s treating physician was a valid ground for disqualification.
Connecticut courts require that the substantial rights of a party be prejudiced before an agency decision is overturned for a violation of §4-181. Henderson v.Department of Motor Vehicles, supra, 202 Conn. 457. The burden is on the agency to prove that no prejudice resulted from the ex parte communication because “the agency usually is in a better position to ascertain the content of any communications with its employees than is a party outside the agency.” Id., 459-60. See also Martone v. Lensink, 207 Conn. 296 (1988). The situation before this Board is different in that it would be the respondent, not the commissioner, who would be normally defending the commissioner’s decision. Interpreting our supreme court’s decisions to require either party to prove or disprove the existence of prejudice would make little sense, for neither party is typically in a good position to determine the actual content or effect of ex parte communications. In this case, for example, the details of the conversation between the commissioner and the treating physician are unknown to both parties. We therefore hold that the appropriate remedy here is to remand the case for entirely new proceedings before a different commissioner.
The trial commissioner is reversed and the case is remanded for a de novo hearing.
Commissioners Nancy A. Brouillet and Michael S. Miles concur.