Lee v. ABB Combustion Engineering

The claimant was represented by Leon Rosenblatt, Esq., 10 North Main St., West Hartford, CT 06107-1988.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the August 8, 1994 Denial of the Respondents’ Motion for Discovery and Production by the Commissioner acting for the First District was heard May 5, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the First District Commissioner’s August 8, 1994 denial of their Motion for Discovery and Production. In that motion, the respondents requested that “the claimant, Donna Lee, produce any office notes, records, handwritten or type-written memorandum or reports and the complete file of Dr. Kenneth Colby,” a psychologist who provided treatment to the claimant. The commissioner denied that motion on the ground that the requested materials were beyond the power of the claimant to produce. We reverse the decision of the trial commissioner.

Before we get into the merits of this case, we will address the claimant’s motion to dismiss the respondents’ appeal. The claimant contends that the August 15, 1994 petition for review was untimely filed because the commissioner originally denied the respondents’ motion for production during a formal hearing on May 5, 1994. The respondents counter that a written decision from which to appeal was necessary, and the commissioner did not reduce his decision to writing until August 8, 1994. The respondents are correct. Although § 31-301(a) C.G.S. allows a party ten days “after a decision of the commissioner upon a motion” to file an appeal, § 31-300 C.G.S. requires the commissioner to send each party a written copy of his findings after the conclusion of any hearing. Cases involving the ten-day appeal period, such as Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994), clearly contemplate the issuance of a written decision in order to trigger the running of the limitation period. Id., 303. Also, an appeal without a written decision would be logistically difficult, as this Board would not have a suitable record to review. Therefore, the appeal period began running on August 8, 1994, and the claimant’s motion to dismiss is denied.

The claimant has filed a workers’ compensation claim alleging that she suffers from hypertension caused by stress as a result of her employment with the respondent. Her alleged date of injury is February 11, 1991. Various health professionals have treated the claimant, including Dr. Kenneth A. Colby, a psychologist. In the process of opposing the claim, the respondents sought an independent medical examination for the claimant with Dr. Selig, a forensic psychiatrist. According to the respondents, the only doctor who has refused to provide Dr. Selig with a complete medical file regarding his treatment of the claimant is Dr. Colby. Dr. Selig testified that he could render an opinion without Dr. Colby’s records, but believed that a proper evaluation would include a review of those records, particularly considering the alleged difficulty Dr. Selig had been having obtaining information from the claimant about her past psychiatric history. (Transcript of May 5, 1994, p. 48).

Dr. Colby did testify in this case regarding his discussions with the claimant and the history she provided him with, although the commissioner did not permit him to render an expert opinion as to the cause of the claimant’s malady or as to the extent of her disability. During that testimony, Dr. Colby repeatedly referred to notes he had taken during his sessions with the claimant. (Transcript of August 9, 1993, pp. 145-46.)1 In response to an earlier subpoena by the respondents, Dr. Colby had provided reports to Dr. Selig. When asked about his notes, however, the psychologist indicated that they were intended for his personal use only, and would prove cryptic to outsiders, including other professionals such as psychiatrists. Dr. Colby has continued to withhold these notes, even though the claimant and her attorney have agreed to authorize their production.

The respondents’ motion to order production of the notes was denied by the commissioner on the ground that it was beyond the power of the claimant to produce those notes. The commissioner also noted in his oral ruling on the motion that the respondents had refused to allow the psychologist to testify as an expert, and yet sought production of his notes--a position that seemed unfair to the commissioner. (Transcript of May 5, 1994, p. 95)2 The respondents now argue before this Board that it was error for the commissioner to deny their request.

Section 52-146c(b) C.G.S. provides that all communications and records thereof relating to a psychologist’s treatment of an individual are privileged, “and a psychologist shall not disclose any such communications unless the person or his authorized representative consents to waive the privilege and allow such disclosure.” Such communications are not privileged “where a party introduces her psychological condition as an element of her claim or defense ‘and the judge finds that it is more important to the interests of justice that the communications be disclosed than that the relationship between the person and the psychologist be protected.’” Cabrera v. Cabrera, 23 Conn. App. 330, 335 (1990) (emphasis in original), quoting § 52-146c(c)(2) C.G.S. In order for a party to either give or withdraw consent to allow disclosure, such consent or withdrawal of consent must be made in writing. Section 52-146c(4).

Here, there is no dispute that the claimant, through her attorney, has repeatedly stated that she is amenable to the disclosure of Dr. Colby’s notes, and that the claimant herself specifically signed a document authorizing the release of Dr. Colby’s records pertaining to her counseling. As this waiver of privilege has not been withdrawn by the claimant, Dr. Colby was not entitled to ignore the respondents’ subpoena regardless of his personal reluctance to hand over his notes. In Connecticut, the patient-physician privilege is a right of confidentiality belonging solely to the patient. Felber v. Foote, 321 F. Supp. 85, 88 n.8 (D. Conn. 1970). Consequently, Dr. Colby had no independent standing in this case to assert the statutory privilege of § 52-146c once said privilege was waived by the claimant.

In denying the motion for production, the commissioner noted that the claimant did not have the power to produce the requested materials. We disagree. Section 31-294f(b) specifically requires that all medical reports “concerning any injury of an employee sustained in the course of his employment shall be furnished to the employer, employee or attorney.” Although this statute does not specifically mention notes, we have no reason to believe that they are intended to be treated any differently than other types of medical reports.

Moreover, Dr. Colby was called as a witness by the claimant, and testified in this case. Section 31-278 gives the commissioner the power to direct production of records and other papers “in relation to any matter at issue as he may find proper,” as well as “all powers necessary to enable him to perform the duties imposed on him by the provisions of this chapter.” The commissioner was thereby empowered to order Dr. Colby to release his notes to the respondents as soon as he submitted himself to the jurisdiction of the commissioner by testifying on the claimant’s behalf. See Thomas v. Carpenter Technology Corp., 2 Conn. Workers’ Comp. Rev. Op. 127, 131, 247 CRD-4-83 (March 13, 1985), affirmed, 198 Conn. 804 (1986). We hold, therefore, that the commissioner had jurisdiction to order production of the notes from both Dr. Colby and the claimant. Failure to produce those notes would necessarily result in Dr. Colby’s testimony being stricken from the record in its entirety. See State v. Pierson, 208 Conn. 683, 688 (1988) where mental capacity of victim challenged, cross-examination of psychiatric social worker must be allowed, or victim’s testimony would be stricken); State v. Pettersen, 17 Conn. App. 174, 180 (1988) (failure of victim to waive privilege against disclosure would require her testimony to be wholly stricken).

The trial commissioner is reversed. Dr. Colby is ordered to produce all relevant records and notes requested by the respondents. If Dr. Colby does not comply with this ruling, we order that his testimony be stricken from the record.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.

1 It is unclear whether Dr. Colby used his notes to refresh his recollection while on the witness stand. The respondents’ counsel did not seek to examine the notes at that time under the rules surrounding the “present recollection refreshed” rule of evidence, see State v. Grimes, 154 Conn. 314, 323 (1966), so we need not consider that as a factor in reviewing the commissioner’s decision. BACK TO TEXT

2 The respondents may not have exhibited much leniency toward the claimant by taking this posture toward Dr. Colby’s testimony, but the commissioner wisely chose not to rely on this fact in denying the motion for production. The issue of qualification to diagnose as a “physician” under §§ 31-275(17) and 20-1 C.G.S. is completely separate from the issue of psychologist-patient privilege, and there is no legal conflict between the respondents’ arguments as to those issues in this case. BACK TO TEXT