Dixon v. The United Illuminating Co.

The claimant was represented by Donald C. Cousins, Esq., Cousins & Johnson, 2563 Main St., Stratford, CT 06497.

The respondents were represented by John M. Letizia, Esq., Byrne & Letizia, Woodbridge Corporate Park, 1764 Litchfield Tpke., Suite 106, Woodbridge, CT 06525.

This Petition for Review from the March 17, 1994 Ruling Relative to Deposition of Claimant Dependent Widow of the Commissioner acting for the Fourth District was heard January 27, 1995 before a Compensation Review Board panel consisting of Commissioners Nancy A. Brouillet, Amado J. Vargas and Michael S. Miles.

OPINION

AMADO J. VARGAS and MICHAEL S. MILES, COMMISSIONERS. The respondents have petitioned for review from the March 17, 1994 Ruling Relative to the Deposition of the Claimant Dependent Widow by the Commissioner for the Fourth District.1 The claimant, Jeanine Dixon, is the widow of Kenneth Dixon, who committed suicide on September 28, 1993. In 1987, the decedent suffered compensable injuries to his cervical and lumbar spine while working for the respondent employer. The claimant filed a notice of claim on October 20, 1993, alleging that the resulting pain and disability arising from the 1987 accident caused the decedent to become severely depressed, and substantially contributed to his suicide. The respondents filed a Form 43 contesting that claim. They allege that the decedent’s long history of alcohol abuse, non-work-related depression and domestic problems were the instrumental factors in causing his suicide.

The respondents sought to depose the claimant during the course of the discovery process in this matter, but her counsel objected on her behalf. The respondents filed a motion seeking to compel a deposition of the claimant and the production of her psychiatric records, charging that her actions were improperly inhibiting the discovery process and preventing them from preparing an appropriate defense to her claim.

At an informal proceeding, the commissioner denied the request to depose. He noted in his ruling that the parties had indicated that the case would involve extensive expert testimony regarding the decedent’s mental state at the time of his death. The challenged ruling stated, “[a]t the present time there does not seem any relevant evidence which the widow may supply concerning the medical issue on which seemingly the case may turn. Therefore, the objections to the taking of the widow’s deposition are sustained. Permission is not now granted to depose the claimant widow.” (Emphasis omitted.) The respondents timely petitioned for review from that decision, arguing that they cannot effectively defend this claim unless they can depose the claimant.

Subsequently, the respondents also filed a request for a ruling on the motion for production of the claimant’s psychiatric records, as it had not been addressed in the commissioner’s ruling on the deposition. Because the commissioner has not yet ruled on the issue of the psychiatric records, we cannot review that matter in this appeal. See also § 51-85 C.G.S. We note, however, that the respondents’ arguments in favor of allowing production of the claimant’s psychiatric records fail to address the fact that it is the decedent’s mental state at issue in this case, not the claimant’s. Notably, § 52-146f C.G.S.2 limits the disclosure of psychiatric communications to those specified and mandates that confidences be kept unless excepted under the statute.

Before addressing the merits of the appeal from the denial of the request to depose, we first must address the question raised by the claimant as to the ripeness of this matter for appeal. The claimant argues that the commissioner’s order sustaining her objections to the respondents’ request was interlocutory, insofar as it stated that permission “is not now granted” to depose her. (Emphasis added.) Because the commissioner still had room to later authorize a deposition, the claimant contends that the order was not appealable. Furthermore, the claimant maintains that the respondents could have requested a formal hearing concerning the ruling, but failed to do so, leaving this board with an inadequate record for review.

Section 31-301(a) gives this board jurisdiction to hear an appeal from “a decision of the commissioner upon a motion.” We have stated that the statute contemplates some jurisdiction in this board over “interlocutory rulings in the districts.” Poventud v. Eagle Four, 6 Conn. Workers’ Comp. Rev. Op. 72, 73, 775 CRD-5-88-10 (Dec. 30, 1988) (no error in commissioner’s refusal to rule on Motion in Limine; no basis for permitting motion given public policy behind Workers’ Compensation Act).

Recognizing that our system encourages full disclosure and cooperation, we agree with the respondent. Further, § 31-278 C.G.S. empowers the trial commissioner to order deposition testimony. The respondent sought to depose the claimant, who resided with the decedent, was the last person to speak to the decedent prior to his suicide, and discovered his body. Certainly, the respondent should be able to determine prior to the commencement of the formal proceeding what the claimant will testify to. In this instance, the trial commissioner erred in denying the deposition request.

Accordingly, the trial commissioner’s decision is overruled and the claimant is ordered to submit to a deposition prior to a formal proceeding. Further, this matter is remanded to the Fourth District for further proceedings.

NANCY A. BROUILLET, COMMISSIONER, concurring in part and dissenting in part. Although I agree with most of the majority opinion, and concur that the trial commissioner ruled improperly on the motion to compel the claimant’s deposition, I do not think that we should order the claimant to submit to a deposition. Rather, I believe that another procedure is more appropriate. My thoughts are as follows.

I agree that this board has some jurisdiction over interlocutory rulings, as our appellate jurisdiction is somewhat broader than that of the Appellate Court over an appeal from a decision of this board. Marshall v. UTC/Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 204, 205-06, 1317 CRD-1-91-10 (Sept. 27, 1993; Poventud v. Eagle Four, 6 Conn. Workers’ Comp. Rev. Op. 72, 73, 775 CRD-5-88-10 (Dec. 30, 1988). However, common sense dictates that there must be some limit to the types of interlocutory appeals that should be permitted in workers’ compensation proceedings. Otherwise, the policy behind the Workers’ Compensation Act cited in Poventud, supra, i.e. “to provide an injured worker with a speedy remedy and resolution of his claim,” could be confounded by an endless stream of appeals to and remands from the CRB, delaying an award of benefits ad infinitum.

In this case, for example, even though a written decision was issued on the respondents’ motion, this board has little information to review, as no formal hearings had yet been held when the respondents appealed. The commissioner instead held at an informal proceeding that “permission is not now granted to depose the claimant’s widow” reasoning that there seemed to be no relevant evidence regarding the decedent’s mental state in the widow’s possession. No formal hearing was sought on the request to depose, however, and the resulting paucity of the record makes it impossible to determine whether the commissioner’s failure to compel the claimant’s testimony was a proper exercise of his discretion. See Soares v. Glass Industries, 12 Conn. Workers’ Comp. Rev. Op. 189, 194, 1377 CRB-3-92-1 (May 4, 1994).

Nevertheless, it is clear that our system encourages full disclosure and cooperation, as recognized by the majority. It is also clear that the claimant’s testimony would likely be pivotal to the case, as she was a factual witness to the decedent’s death. The commissioner’s power to order a deposition under § 31-278 C.G.S. is an important grant of investigative authority, especially given that lay persons may represent a party to a workers’ compensation claim. It was beyond the commissioner’s authority, however, to deny the right to depose the claimant in this case, because the legislature has created a separate mechanism for use here.

Section 51-85 C.G.S. provides attorneys with the power to take depositions and to issue subpoenas to compel the attendance of witnesses in administrative proceedings. The section further provides that “[i]f, in any administrative proceeding, any person disobeys such subpoena or, having appeared in obedience thereto, refuses to answer any proper and pertinent question or refuses to produce any books, papers or documents pursuant thereto, application may be made to the superior court or any judge thereof for an order compelling obedience.” If the commissioner at the informal hearing felt that the request to depose the claimant was improper, he should have refused to order the deposition pursuant to § 31-278, and advised the respondents to follow the procedure outlined in § 51-85 to seek an order of a superior court judge compelling the deposition. The legislature provided the commissioners with neither enforcement power nor with power to deny the right to depose a witness. Section 31-278.

In light of § 51-85, I would hold that the commissioner’s ruling was improper because it exceeded his authority and conflicted with the procedure outlined by that statute. Accordingly, his decision should be vacated, and the respondent should be instructed to follow the procedure set forth in § 51-85 to obtain an appropriate order. I also note that § 31-278 uses the word “may” instead of “shall” with respect to the trial commissioner’s power to order a deposition. The inclusion of that discretionary language and the sparseness of the record before us make it inappropriate for this board to order that a deposition go forth under § 31-278.

1 In a recent opinion, our Supreme Court vacated an order to transfer this case out of the Fourth District, and remanded it for further proceedings. Dixon v. United Illuminating Co., 232 Conn. 758 (1995). BACK TO TEXT

2 Section 52-146f C.G.S. provides: “Communications or records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of the claim or defense, or, after the patient’s death when his condition is introduced by a party claiming or defending through or as a beneficiary of the patient, and the court or judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between the patient and the psychiatrist be protected.” BACK TO TEXT