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Chery v. Community Visiting Nurse & Home Care

CASE NO. 3654 CRB-07-97-07



FEBRUARY 13, 1998











The claimant was represented by Caryn Mullin, Esq., Berkowitz & Malowitz, Century Plaza South Tower, 100 Prospect St., Stamford, CT 06901.

The respondents were represented by Andrew A. Cohen, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Suite 106, Woodbridge, CT 06525.

This Petition for Review from the July 18, 1997 Order of the Commissioner acting for the Seventh District was heard September 5, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners John A. Mastropietro and Stephen B. Delaney.


JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the July 18, 1997 Order of the Commissioner acting for the Seventh District. They argue on appeal that the trial commissioner erred by ordering a medical examination pursuant to § 31-294f without allowing the parties to provide the physician with any outside information regarding the facts of this case. We agree in part with the respondents’ argument, and reverse the trial commissioner’s decision.

This matter began when the claimant filed a Form 30C on May 25, 1996 claiming that she had slipped on ice during the course of her employment on March 7, 1996, injuring her left shoulder and neck. It appears from documents in the record that she also suffers from a congenital brain condition/spinal deformity known as a Chiari malformation. The respondents, who have filed numerous Forms 43, state that they are disputing the claimant’s contention that her March 7, 1996 accident had an effect on that malformation, requiring her to have surgery for correction of the condition. We note that, as this case has not yet reached the formal hearing stage, there are neither findings nor transcripts for this board to rely on in establishing the underlying facts.

What is known is that, on July 18, 1997, the acting commissioner (see § 31-280(a)) ordered the claimant to submit to an examination under § 31-294f with Dr. Needham. He requested that the doctor provide a diagnosis, an opinion on causation, a discussion of the necessity of surgery, and both work capacity and permanent partial disability evaluations. The letter states that the respondent insurer and the claimant “will be responsible for supplying all medical information to [Dr. Needham] prior to the examination.” According to the respondents, the trier ordered further that the examiner’s opinion be based solely on his evaluation of the claimant and prior medical records, without considering deposition transcripts, employment records, or other documents.

The respondents have appealed that order. They argue that the claimant has misrepresented the history of her symptoms to some of her doctors in the past, which has led to the production of medical reports that reflect incorrect medical histories and offer unreliable opinions. They contend that, unless the commissioner’s examiner is able to review other information such as the subsequent depositions of those doctors, his evaluation will be based on a history that will reflect whatever facts the claimant chooses to disclose.1 The claimant objects that the respondents have already attempted to influence at least one independent medical examination by sending the doctor a letter that provided an incomplete history of the case that was favorable to the respondents. She argues that sending select portions of the deposition testimony and various legal pleadings to Dr. Needham would confuse him and taint the impartiality of the § 31-294f independent medical examination, which should be conducted without interference from counsel on either side.

A § 31-294f medical examination is usually expected to carry great weight by the parties to a workers’ compensation case. Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 321, 1829 CRB-3-93-9 (April 25, 1995), aff’d., 40 Conn. App. 918 (1996) (per curiam). The trial commissioner normally orders one when the evidence is in conflict, or when he believes it is insufficient to make a decision. Nieves v. SCM Company, 3317 CRB-6-96-4 (decided July 9, 1997). Although the commissioner is not bound to rely on that opinion, it often proves to be the key piece of evidence in the trier’s factual findings. See Gillis v. Waterbury Construction, 3337 CRB-5-96-5 (decided July 15, 1997). Thus, it is important that the commissioner-ordered exam be reliable.

We recently considered a case in which the trial commissioner had ordered a second § 31-294f examination to be held after finding flaws in the process by which the first examination was arranged. Barton v. Waterbury Company, 3428 CRB-5-96-9 (decided June 6, 1997). The respondents’ counsel had sent a letter to the physician (which was not simultaneously copied to the claimant) explaining their clients’ point of view before the examination was held, and counsel had also communicated ex parte with a previous commissioner in requesting that the exam be assigned to a different doctor. We upheld the trier’s authority to order another § 31-294f exam. “The commissioner’s authority to find the facts of a workers’ compensation case and to ‘make inquiry . . . in a manner that is best calculated to ascertain the substantial rights of the parties’ certainly entitles her to request an examination where she believes it necessary to reach a reliable conclusion . . . .” Id., quoting § 31-298 C.G.S. “It is imperative, therefore, that the commissioner be comfortable with the circumstances of the § 31-294f examination before she can be expected to consider the resulting report in her decision.” Id.

The instant case stands in a similar light. The most important facet of a § 31-294f examination is its impartiality and reliability. Where there is reason to question those qualities, the examination is of little use to the trial commissioner. We take heed of the claimant’s concern that the respondents should not be allowed to taint the integrity of a commissioner’s examination by offering a biased version of the facts to the examiner. The precaution that we discussed in Barton, i.e., that “the parties should have communicated with each other and reached an agreement on the contents of any letter to be sent to a prospective commissioner’s examiner before such a letter was sent,” is equally pertinent here. However, we do not believe that a commissioner is categorically precluded from allowing a § 31-294f examiner to consider information outside the medical reports of other doctors.

Where a trial commissioner thinks it would be appropriate, he or she has the discretion to allow the parties to submit documents to a § 31-294f physician that concern the patient’s medical history. These documents should be limited to whatever the trier of fact thinks would be useful and informative to the doctor without being misleading or overwhelming. Not every case requires such action to be taken, of course, but we are confident that in those cases where it is necessary, no undue prejudice will befall either party. Not only will the parties be able to review the items to be submitted to the physician, but they will also have ample opportunity to depose and cross-examine the medical examiner about any external information that was used in preparing the medical report. This procedure will help ensure that a wayward diagnosis based on an incomplete or falsified medical history will not become integral to the trier’s decision.

As the acting commissioner did not consider the possibility of submitting additional materials to Dr. Needham for the § 31-294f examination, we hereby vacate his order and remand this case to another commissioner.

Commissioners John A. Mastropietro and Stephen B. Delaney concur.

1 This argument is contained in a brief that was filed on September 11, 1997. The claimant has objected that the brief was due on August 20, 1997. The respondents filed a motion on September 2, 1997, requesting that they be given until September 11, 1997 to submit their brief. Due to the expedited nature of this appeal, we hereby grant that motion. We will thus consider all documents filed by both parties in support of their positions on appeal. BACK TO TEXT

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