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Bailey v. State of Connecticut Greater Hartford Community College

CASE NO. 5603 CRB-1-10-11



OCTOBER 5, 2011












The claimant was represented by Brian W. Prucker, Esq., c/o American Legal Services, LLC, 212 Talcottville Road, Route 83, Vernon, CT 06066.

The respondent was represented by Donna H. Summers, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 28, 2010 Finding and Dismissal of the Commissioner acting for the First District was heard April 29, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Ernie R. Walker.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from a Finding and Dismissal which dismissed her claim with prejudice due to her failure to respond to discovery requests. A factual determination was made by the trial commissioner that the claimant had not responded to the respondent’s request for discovery and evinced no willingness to do so. As the trial commissioner acted in accordance with our remand order in Bailey v. State/Greater Hartford Community College, 5144 CRB-1-06-10 (October 15, 2007) (hereafter “Bailey V”) we affirm the Finding and Dismissal and dismiss this appeal.

We discussed the lengthy procedural history of this matter in Bailey V, and take notice of the numerous prior decisions of this board concerning this claim. Bailey v. State, 3152 CRB-5-95-8 (September 3, 1996) (Bailey I); Bailey v. State, 3694 CRB-1-97-9 (January 12, 1999) (Bailey II); Bailey v. State, 3922 CRB-2-98-10 (November 30, 1999) (Bailey III); and Bailey v. State/Greater Hartford Community College, 4744 CRB-1-03-10 (December 3, 2004) (Bailey IV). In Bailey V we considered a Motion to Dismiss granted by the trial commissioner in reliance on the Appellate Court decision in Bailey v. State, 65 Conn. App. 591 (2001) and summarized the history of this case.

The present appeal considers an issue which was the subject of previous appellate decisions issued during the course of this claim in Bailey v. State, 65 Conn. App. 591 (2001) and Bailey v. State/Greater Hartford Community College, 4744 CRB-1-03-10 (December 3, 2004) (hereafter Bailey IV). In those appeals the claimant’s failure to submit to an Employer/Respondent’s Medical Examination (here after RME) at the behest of the respondents was considered, and both times the claimant was ordered to present herself for a RME. Following Bailey IV we directed the claimant to “comply with the respondent’s Motion for Discovery” and advised the claimant that were she to fail to comply “the respondent may be entitled to seek dismissal of the pending claim for total disability benefits under § 31-294f.” The respondent filed a motion to dismiss representing that the claimant had failed to comply with the discovery order. Following a formal hearing, the trial commissioner granted the respondent’s Motion to Dismiss. Bailey V, supra.

In Bailey V we ordered a suspension of benefits to the claimant as a result of her failure to comply with a discovery order, deeming that remedy a more proportionate response to the noncompliance with discovery orders. In responding to a Motion for Reconsideration filed by the respondent we pointed out the respondent had the right to renew their discovery request and seek a new hearing on sanctions were the claimant to obstruct their discovery efforts. On October 14, 2008, the respondent filed a Renewed Motion to Dismiss representing the claimant had again refused to comply with the prior order that she undergo an examination by the respondent’s expert. They also stated the claimant had not responded to interrogatories or a Request for Production, which included a request for her current address. On February 16, 2010 the trial commissioner held a formal hearing and considered the Motion to Dismiss. She granted the Motion in her Finding and Dismissal dated October 28, 2010. She found the claimant had not complied with the respondent’s Interrogatories or Requests for Production. Findings, ¶ 11. She found the claimant had not made herself available for a Respondent’s Medical Examination. Findings, ¶ 12. The trial commissioner further found the claimant’s attorney had not proffered any current evidence or exhibits as to his client’s current address or her ability or inability to testify. The claimant’s attorney would not confirm whether his client was alive or dead. Findings, ¶ 13. Based on these factual findings the trial commissioner dismissed the claim with prejudice.

The claimant filed a Motion to Correct and a Motion to Submit Additional Evidence. These motions sought to introduce issues pertinent to whether the Appellate Court decision directing the claimant to undergo a respondent’s medical examination was proper. The trial commissioner denied both motions and the claimant has proceeded with this appeal.

The claimant raises a number of issues on appeal. The first issue she raises is an argument that she was denied due process. She argues that since the hearing notice for the February 16, 2010 formal hearing did not specifically reference the respondent’s Motion to Dismiss, that this omission prejudiced her ability to argue against the motion at the formal hearing. The record does not substantiate this claim of error.

The actual notice for the February 16, 2010 hearing was issued by the Commission on January 22, 2010 and referenced that it was rescheduling a hearing that was to have been held on October 21, 2009. The notice only referenced § 31-275 C.G.S., as dealing with the compensability and causal connection of the claim. We note that the respondent’s Motion to Dismiss had been filed well over a year prior to the notice in question having been sent to the claimant, and that the trial commissioner had yet to act on the Motion. The respondent argues that this circumstance should have constituted notice to the claimant that the Motion to Dismiss would be considered at the next formal hearing. We look to the transcript to ascertain whether this is an accurate representation of the situation.

We find recent cases such as DiDonato v. Greenwich/Board of Education, 5431 CRB-7-09-2 (May 18, 2010) and Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009) on point. “We have noted that on occasion, at the commencement of a formal hearing either the advocates or the trial commissioner will state on the record that an issue not specified on the hearing notice will be considered. See Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009) and Goulbourne v. State/Department of Correction, 5192 CRB-1-07-1 (January 17, 2008)”, DiDonato, supra. When a trial commissioner properly advises the parties of the issue at hand at the start of a formal hearing, we generally find any issues as to inadequate notice have been cured. “Any confusion as to the scope of the issues and the remedy under consideration by the tribunal was clearly resolved on the record prior to the conclusion of the formal hearing.” Valiante, supra.1 The trial commissioner in the present matter opened the hearing by stating on the record “[t]he issue for today is compensability and causal connection, but specifically there is a Respondent’s Motion To Dismiss, which is our primary reason for being here.” February 16, 2010 Transcript, p. 4. (emphasis added).

Counsel for the claimant could at that point have objected to consideration of the Motion to Dismiss, or sought a continuance of the hearing. The respondents in Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009) asserted prejudice from continuing with a hearing which raised new issues, interposed an objection; and we subsequently remanded the matter for further proceedings. The record of this hearing reflects that claimant’s counsel did not seek such relief when this issue was raised, but rather offered a detailed factual defense to the consideration of the Motion to Dismiss by claiming the respondent had obtained a medical examination of the claimant at a point many years in the past. February 16, 2010 Transcript, pp. 9-11.2 As a result, we do not find the claimant was prejudiced in any manner by the form of the notice for the formal hearing. The claimant’s argument therefore lacks merit.

Counsel for the claimant further asserts that the trial commissioner erred in determining the claimant was obligated to submit to a new examination. Counsel argues that the trial commissioner in this matter should have essentially conducted a de novo hearing as to the necessity of a respondent’s medical examination. Such a wide ranging inquiry by the trial commissioner would have gone well beyond the scope of our remand order in Bailey V. As a result, precedent in Fantasia v. Milford Fastening Systems, 86 Conn. App. 270 (2004) prevents a trial commissioner from exceeding the parameters of this panel’s decision remanding a matter.

In his September 16, 2002 ‘‘Articulation of Finding and Award,’’ the commissioner failed to follow the board’s order for articulation, and instead issued a new finding regarding the total temporary disability benefits and made a new award for benefits. By failing to supply an explanation of the reasoning behind his previous inconsistent findings, the commissioner departed from the board’s order for articulation….Although the board sometimes remands cases to a commissioner with orders to make specific findings or to conduct further proceedings, the commissioner in this case was limited to the specific direction given in the remand. Id., 285.

In the present case, the specific language in Bailey V limited the scope of the trial commissioner’s inquiries. Pursuant to Fantasia, supra, she needed to follow this direction. The additional proceedings were limited to a resolution of the pending discovery dispute. We pointed this out in our ruling on the respondent’s Motion for Reconsideration, issued December 7, 2007.

The respondent suggests as an alternative that if this Board did not reinstate the trial commissioner’s original dismissal order that this Board should order this matter remanded for a new evidentiary hearing consistent with the standards in Pietraroia and Millbrook Owners. We do not believe such a remand order is appropriate or necessary. In Bailey V we remanded the matter for “further proceedings consistent with this opinion.” We believe the respondent can obtain the same relief as they seek in the instant motion were they to reinstitute their pending discovery requests and fail to resolve their dispute with the claimant. At such a time, they may request an evidentiary hearing before the trial commissioner on the merits of dismissing the claim with prejudice. Id.

The trial commissioner followed the scope of our remand as to the issues considered in her Finding and Dismissal. In doing so, she did not follow the direction favored by counsel for the claimant, who argues the trial commissioner was obligated to relitigate the issue as to the propriety of a respondent’s medical examination. Claimant’s Brief, pp. 23-30. While counsel for the claimant acknowledges this commission is bound by decisions made by the Appellate Court, Claimant’s Brief, p. 28, the remainder of his argument rejects the implication that Bailey v. State, supra, constitutes a binding “law of the case” precedent on the issues herein. We do not agree. The issue as to whether the respondent was entitled to have another medical examination of the claimant was already litigated and determined by a higher court. It is now the “law of the case.”

The “law of the case” doctrine stands for the proposition that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” Breen v. Phelps, 186 Conn. 86, 99 (1982). “In essence [the doctrine] expresses the practice of judges generally to refuse to reopen what (already) has been decided…. New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored….” Id.

Gilbert v. Ansonia, 5342 CRB-4-08-5 (May 14, 2009).

We note that when the Appellate or Supreme Court has ruled on an issue, this Commission may not choose to reach an inconsistent independent determination on that issue. Had the trial commissioner determined the respondent was not entitled to examine the claimant, she would have reached such an inconsistent determination.

The trial commissioner did need to reach one independent factual finding in this matter which was not bound by an earlier “law of the case” determination. She needed to ascertain if the claimant’s noncompliance with discovery orders was sufficiently egregious as to warrant dismissal of the claim with prejudice. She reached this conclusion in Conclusions, ¶¶ C and D, of the Finding and Dismissal. She found the claimant was in noncompliance with discovery orders and further concluded the noncompliance was not justified.

C. The Claimant offered no credible or persuasive evidence to support her noncompliance.
D. In light of prior orders of the Compensation Review Board, the length of time which has passed since October, 2007, the Compensation Review Board suspending benefits until compliance, I find that the appropriate remedy is dismissal of this claim with prejudice.

In reviewing this decision the Compensation Review Board may not revisit the trial commissioner’s factual determinations Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988) and an appellate panel such as ours must extend “every reasonable presumption” in favor of the fact-finder’s decision Daniels v. Alander, 268 Conn. 320, 330 (2004). In the present matter the trial commissioner reached subordinate factual findings that the claimant had not complied with discovery requests, had not made herself available for a medical examination, and counsel would not confirm whether the claimant was alive or dead. Findings, ¶¶ 11-13. Our review of the hearing transcript confirms these findings were rooted in evidence. February 16, 2010 Transcript, pp. 17-18. In light of this factual background, we must apply the test promulgated in Millbrook Owners Assn. v. Hamilton Standard, 257 Conn. 1 (2001).

In order for a trial court’s order of sanctions for violation of a discovery order to withstand scrutiny, three requirements must be met.
First, the order to be complied with must be reasonably clear. In this connection, however, we also state that even an order that does not meet this standard may form the basis of a sanction if the record establishes that, notwithstanding the lack of such clarity, the party sanctioned in fact understood the trial court’s intended meaning. This requirement poses a legal question that we will review do novo.
Second, the record must establish that the order was in fact violated. This requirement poses a question of fact that we will review using a clearly erroneous standard of review.
Third, the sanction imposed must be proportional to the violation. This requirement poses a question of the discretion of the trial court that we will review for abuse of that discretion. Id., 17-18.

See also, Smart v. Corbitt, 125 Conn. App. 788, 796 (2011).

In Bailey V we concluded that at that juncture the first two prongs of Millbrook Owners had been satisfied by the trial commissioner’s order. The discovery order was reasonably clear and the order was violated. Nothing has changed herein and the record clearly demonstrates the first two prongs of Millbrook Owners, were violated by the claimant. The only issue for our review is whether dismissal with prejudice was a sanction proportional to the violation. In Bailey V, we determined that a lesser penalty of suspension of benefits was a more proportionate penalty. The trial commissioner determined in this instance dismissal was an appropriate proportionate sanction. Under these circumstances we defer to her judgment.

In issuing Bailey V we reviewed the circumstances and determined it was appropriate to allow the claimant another opportunity to escape her “procedural limbo” and reach an accommodation with the respondent as to their discovery requests. It is now abundantly clear that the claimant and her counsel have no intention of ever providing any additional discovery to the respondent. The claimant in Pietraroia v. Northeast Utilities, 254 Conn. 60 (2000) offered reasonable alternative means to the respondent to obtain necessary information when he objected to being examined in Connecticut. The claimant herein has not offered such an alternative. The Pietraroia decision stands for the proposition a court may order a matter dismissed for “unjustifiable disobedience of its orders.” Id., 71. The trial commissioner found the claimant’s noncompliance unjustified. Given the totality of the circumstances, we cannot find this conclusion arbitrary and capricious. Smart, supra, 796-797.3

In Bailey V we determined the claimant “has the ability to rectify the situation by compliance with our orders and those of the Appellate Court.” The trial commissioner determined this did not occur. Her conclusion is supported by the record. Accordingly, we affirm the Finding and Dismissal, affirm the dismissal of this claim with prejudice, and dismiss this appeal.

Commissioners Scott A. Barton and Ernie R. Walker concur in this opinion.

1 We have ordered a remand for further proceedings when the nature of the circumstances prejudiced a party with the introduction of new evidence or a new issue. See Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009). In the present matter, the Motion to Dismiss in question had been filed over one year prior to the date of the hearing, and the issue of whether the claimant should undergo a respondent’s medical examination had been the subject of prior hearings for many years; unlike Ghazal when new issues were introduced on the eve of the formal hearing. BACK TO TEXT

2 On appeal, counsel for the claimant asserts the trial commissioner should have ordered a “31-305 hearing” on the “parameters” of a respondent’s examination. Claimant’s Brief, p. 22. Counsel never sought such a hearing, and we note that this is an obsolete statutory reference as this statute was repealed in 1991. We therefore find this argument unpersuasive. BACK TO TEXT

3 We reject the claimant’s argument that the trial commissioner committed legal error in denying her Motion to Correct. The trial commissioner is not obligated to adopt the legal opinions and factual conclusions of a litigant. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718 (2002). We also find the trial commissioner did not commit legal error in denying the claimant’s Motion to Submit Additional Evidence. The documents in question were generated subsequent to the February 16, 2010 hearing and reference activities subsequent to the hearing. The claimant should have obtained documentary information supportive of her arguments prior to the hearing. Gibson v. State/Department of Developmental Services-North Region, 5422 CRB-2-09-2 (January 13, 2010). BACK TO TEXT


   You have reached the original website of the
   Connecticut Workers' Compensation Commission.

   Forms, publications, statutes, and most other
   information is now located at our NEW site: