IN RE: VMMC/Heck v. Rawal Technical Services, Inc.

The appellant medical provider was represented by David Brown, Esq., Brown & Welsh, P. C., Meriden Executive Park, 538 Preston Ave., P. O. Box 183, Meriden, CT 06450-0183.

The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033.

This Motion for Costs and Fees was heard June 27, 1996 before a Compensation Review Board panel consisting of Commissioners George A. Waldron, Donald H. Doyle, Jr., and Robin L. Wilson.

RULING ON MOTION FOR COSTS AND FEES

GEORGE A. WALDRON, COMMISSIONER. This case began when the appellant Veterans Memorial Medical Center petitioned for review from a May 12, 1995 letter sent by the chairman of the Workers’ Compensation Commission to the VMMC’s attorney denying its 696 informal hearing requests. Oral argument was conducted on April 1, 2 and 3, 1996, concerning the appeals in all 696 cases. The VMMC had alleged in each case that it provided medical treatment to a person who indicated at the time service was rendered that his injury was connected to his employment. In all of those cases, the VMMC sought a hearing at the district office regarding its medical bills, but provided this Commission with nothing more than a hearing request form listing the name and address of the medical provider (VMMC), the person who received medical attention, the alleged employer, and the alleged insurer, if known.

This board subsequently issued a decision on those appeals, In re: Veterans Memorial Medical Center, 3063 CRB-8-95-5 (decided May 20, 1996). There, we stated that the VMMC had alleged insufficient jurisdictional facts to warrant a hearing on the subject matter jurisdiction of this Commission over the VMMC’s claims. See also Figueroa v. C&S Ball Bearing, 237 Conn. 1 (1996). We noted in our decision that there were a variety of scenarios uncovered at the three-day oral argument session, including a number of claims which had already been accepted as compensable, and a number of cases in which VMMC had either been paid or granted a hearing, but had neglected to withdraw the appeal. Pomeranz, Drayton & Stabnick, one of the many law firms that represented various respondents in the VMMC cases, has now filed a Motion for Costs and Fees on behalf of several of its clients, alleging that the appellant should have withdrawn its appeals in four of those cases.

In this particular case, the claimant suffered compensable injuries in 1978, 1980 and 1991, which were the subject of a full and final stipulation approved on August 22, 1994 by the commissioner acting for the Fifth District. The claimant received $27,500 under that agreement. The appellant filed a Motion to Reopen that Stipulation on September 18, 1995, alleging that the claimant had treated at the VMMC in May and June of 1991, and that he had advised the hospital that his treatment was related to a work injury. The VMMC claimed to have sent bills for their services and copies of medical records to the employer and the insurer over the course of the next two years, without being paid. (No bills were sent to the claimant.) Then, their office was advised in May 1995 that the case had been settled the prior August. The appellant sought to reopen the stipulation for ascertainment of liability of payment of its charges, even though the stipulation seems to specify that the claimant is responsible for any further medical treatment relating to his condition.

An informal hearing had also been scheduled pursuant to statutory notice in the Fifth District on September 18, 1995, at which the issue was to be the payment of medical bills. According to the respondents, the hearing was not held because of confusion regarding the proper identity of counsel. Meanwhile, the appeal from the chairman’s May 12, 1995 letter denying hearings on the VMMC cases remained pending before the CRB. Although this claim was one of the many cases named in the appeal, the medical provider took no action to withdraw the appeal with respect to this case before the April 2, 1996 oral argument. Instead, VMMC and the respondents were both represented at oral argument, where respondents’ counsel stated that an informal hearing had already been scheduled on the issue of medical bills, and that the claim had been stipulated. The VMMC filed a withdrawal of its appeal the next day.

As part of its objection to the respondents’ Motion for Costs and Fees, VMMC argues that the issue of the chairman’s letter was not necessarily made moot by the subsequent granting of hearings by some district offices in certain cases. We do not find that argument persuasive here. The chairman’s original order dismissing VMMC’s 696 hearing requests was predicated on the fact that VMMC had not included with those requests any proof that a compensable workers’ compensation claim existed. In that order, he stated that the this Commission lacked subject matter jurisdiction “until there is established a claim of connection to a compensable injury.” In re: Veterans Memorial Medical Center, supra. However, it is manifest in this case that the claimant’s injuries have been accepted as compensable and made the subject of a stipulation, thus meeting the criterion set forth in the chairman’s order. In fact, a hearing had been scheduled on the payment of medical bills, and a Motion to Reopen has been filed. The chairman’s letter had nothing to do with the cancellation of that hearing, and is no longer applicable to this case, now that the appellant has shown the existence of a workers’ compensation claim. This appeal should have been withdrawn long before April 2, 1996.

We recognize that the huge number of claims involved in this appeal played a big part in the appellant’s failure to withdraw cases that had already been resolved. However, we cannot agree with VMMC’s contention that the respondents are as much to blame as the appellant for not taking steps to ensure that this appeal was withdrawn. We noted in our May 20, 1996 VMMC decision that there were a number of claims listed among the appealed cases that should have been withdrawn. As the party pursuing these claims, VMMC had the sole power to withdraw its petitions for review. In prosecuting an appeal of this magnitude, it was incumbent upon VMMC—and not the various respondents—to take special care to insure that the valuable resources of this commission would not be wasted by spending time reviewing and discussing settled cases. That was not done properly. Now, some of the parties who were forced to pay counsel to defend such claims are understandably unhappy that their own financial resources were also wasted.

Section 31-301(e) C.G.S. provides that, where applicable, the procedure in appealing a commissioner’s award is the same as the procedure used in appealing a superior court decision to the supreme court. According to the Rules of Appellate Procedure, a party may have costs and attorney’s fees imposed against it for presenting unnecessary, unwarranted, or frivolous issues on appeal, as well as for disregarding the rules governing withdrawal of appeals. Practice Book § 4184B(4), (5), (8). Practice Book § 4165.4 also states that no costs shall be taxed in favor of either party upon reservation of a workers’ compensation case by this board or upon appeal from this board, “provided that if an appeal is found by the court either to be frivolous or to be taken for the purpose of vexation or delay, the court may tax costs in its discretion against the person so taking the appeal.” We have concluded that the appellant allowed unnecessary and frivolous issues to remain before this board on appeal, inconveniencing both the staff of this commission and the attorneys for all parties. Thus, under the authority of the aforementioned statutes, we hold that the appellant VMMC is liable for the costs and fees incurred by the respondents in this appeal. See also § 51-84(b) C.G.S. (Attorneys subject to rules of all courts, and may be fined for transgressing a court’s rules and orders).

The respondents’ Motion for Costs and Fees is granted, and the matter is remanded for a determination of the costs incurred.