John v. State of Connecticut University of Conn. Health Center

CASE NO. 3729 CRB-03-97-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 1, 1999

WENDY JOHN

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/UNIVERSITY OF CONN. HEALTH CENTER

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Francis P. Cipriano, Esq., Law Offices of Francis P. Cipriano, 1220 Whitney Avenue, P.O. Box 6503, 700 State Street, Hamden, CT 06517.

The respondent was represented by Philip M. Schulz, Esq., Assistant Attorney General, P.O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.

This Petition for Review from the November 12, 1997 Finding and Dismissal of the Commissioner acting for the Third District was heard August 21, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 12, 1997 Finding and Dismissal of the trial commissioner acting for the Third District. In that decision the trial commissioner concluded that claimant failed to sustain her burden of proof regarding her claim of an injury on October 13, 1994. In support of her appeal, the claimant contends that it was error for the trial commissioner to allow the employer to introduce evidence at the formal hearing which had not previously been disclosed to the claimant. The claimant contends that the employer’s withholding of medical evidence violates the open discovery process in workers’ compensation cases, and effectively denied the claimant the right to a fair hearing.

In the instant case, the trial commissioner dismissed the claimant’s claim that she sustained an accidental injury on October 13, 1994. The trial commissioner found, based upon the employer’s presentation of evidence, that the claimant had been treated at the Holyoke Hospital in Massachusetts for her back and knees approximately three weeks prior to the alleged injury. (Finding No. 24 and 26). The trial commissioner further found that the claimant failed to provide a history of the prior injury to her treating physician, which raised a “credibility issue.” (Finding E).

In support of her appeal, the claimant argues that the employer failed to provide the claimant with any of the medical records regarding the Massachusetts injury which the employer introduced at the formal hearing on July 9, 1997. The claimant contends that she issued a signed release of medical documents to the employer with the specific agreement that the employer would provide the claimant’s attorney with all medical records obtained through said release. Moreover, the claimant contends that it was also unfair for the employer to submit all of the medical records except one (the September 20, 1994 report by Dr. Guistolisis) at a formal hearing, and that the claimant only after the formal hearing discovered that this had occurred.

During the formal hearing, when the employer introduced the medical records regarding the Massachusetts injury, the claimant’s attorney objected as follows:

ATTORNEY CIPRIANO: Well, the objection is we haven’t had any of this information prior to today. We asked for this, and I think in fairness of cooperation and being fair about this, not trial by ambush, we gave an authorization a year ago, over a year ago, and basically said anything you get you send to us. And I talked to this gentleman [Attorney Beizer] two times before today and he said nothing but Doctor Krompingers report and I just think in fairness, Commissioner, to expedite this hearing, I should have been provided that.

ATTORNEY BEIZER: If I can respond, Commissioner? In fairness, he asked what exhibits we planned to present. I said Dr. Krompingers. I had no plans to use any of this if the Claimant got up and told the truth about her pre-existing injury. This is used for impeachment purposes only. I don’t plan to enter it into evidence.

(7/9/97 TR. at p. 32-33) (emphasis added).

Subsequently, during the formal hearing the employer’s attorney did enter said exhibits as full exhibits despite strenuous objection by the claimant’s attorney. Id. at p. 56-60. The claimant’s attorney repeatedly argued to the trial commissioner that the employer’s attorney had failed to honor his agreement to provide copies of all medical evidence obtained through the use of the claimant’s written release prior to the formal hearing. Id. The employer’s attorney did not deny this agreement, but merely argued that he could offer “anything” for impeachment purposes. Id. at 58.

We have repeatedly explained that the workers’ compensation system encourages full disclosure and cooperation among the parties during the adjudication process. Dixon v. United Illuminating Co., 14 Conn. Workers’ Comp. Rev. Op. 215, 1996 CRB-4-94-3 (Aug. 4, 1995); Pietraroia v. Northeast Utilities, 3597 CRB-8-97-4 (Sept. 8, 1997). Pursuant to § 31-278, a trial commissioner “shall make inquiry, through oral testimony, deposition testimony or written and printed record, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” Thus, the trial commissioner has broad discretion to rule on evidentiary issues, and his rulings “will not be set aside unless that discretion is abused.” Pietraroia, supra.

We find the following quote from the Connecticut Appellate Court to be relevant to the case at hand. “Both our Supreme Court and the United States Supreme Court have stated: ‘The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them.’” Lapia v. Stratford, 47 Conn. App. 391, 399 (1997) (citations omitted). In the instant case, the claimant makes a convincing argument regarding the inequitable nature of the proceedings caused by the surprise introduction of medical reports which opposing counsel had promised to provide to the claimant’s counsel. (See 7/9/97 TR. at p. 32-33, 56-60). Under these circumstances, in order to provide the claimant with a full and fair opportunity to present her case and to respond to the employer’s evidence, we conclude that this matter should be heard de novo by another trial commissioner.

This matter is remanded to the Third District.

Commissioner Michael S. Miles and Stephen B. Delaney concur.