Petition for Writ of Certiorari — Bidoae v. Hartford Golf Club (No. 05-1110)

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“any person licensed and authorized to practice a healing

art, as defined in Section 20-1 and licenses under the

provisions of chapters 370, 372, and 373 to practice in

this state.”

Connecticut General Statutes Section 20-1 (CGSA § 20-1) in

relevant part defines healing arts and states:

“the practice of the healing arts means the practice of

medicine, chiropractic, podiatry, natureopath and, except

as used in chapters 284a and 388, the practice of

optometry.”

Connecticut General Statutes Section 31-278 (CGSA

§31-278) in relevant part states:

The Commissioner “shall. . .have power to summon and

examine under oath such witnesses, and may direct the

production of, and examine or cause to be produced or

examined, such books, records vouchers, memoranda,

documents, letters, contracts or other papers in relation to

any matter at issue as he may find proper, and shall have the

same powers in reference thereto as are vested in magistrates

taking depositions and shall have the power to order

depositions pursuant to section 52-148. He shall have power

to certify to official acts and shall have all power necessary

to enable him to perform the duties imposed upon him by the

provisions of this chapter. . .”

Connecticut General Statutes Section 31-298 (CGSA

31-298) in relevant part states that:

“The commissioner shall proceed, so far as possible in

accordance with the rules of equity. He shall not be

bound by the ordinary common law or statutory rules of

evidence or procedure, but shall make inquiry, through

oral testimony, deposition testimony or written and

printed records, in a manner that is best calculated to

ascertain the substantial rights of the parties and carry

out the provisions and intent >f this chapter. . .”

Social Security Act §223(d)(2)(A) provides in part that:

“an individual shall be determined to be under a

disability only if his physical or mental impairment or

impairments are of such severity that he is not only

unable to do his previous work but cannot, considering

his age, education, and work experience, engage in any

other kind of substantial gainful work which exists in the

national economy regardless of whether such work

exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work. For

the purposes of the preceding sentence (with respect to

any individual), work which exists in the national

economy means work which exists in significant

numbers either in the region where such individual lives

or in several regions of the country.”

Connecticut General Statutes Section 31-276 (CGSA

31-276) is set out at Appendix A51.

Connecticut General Statutes Section 31-307 (CGSA

31-307) is set out at Appendix A48.

STATEMENT OF THE CASE

The Petitioner filed a Workers Compensation Claim and

thereafter moved for permanent total disability benefits under

Connecticut General Statutes Section 31-307. In support of

the Petitioners position for total disability benefits she

disclosed a rehabilitation specialist expert. The Workers

Compensation Commission ordered the Petitioner to undergo

an Independent Medical Examination of the Petitioner. The

petitioner did not object to the examination but objected

when the Commissioner ordered the Petitioner to undergo an

examination by a non-physician which is in violation of

statute. The Commissioner sanctioned the Petitioner for not

submitting to an examination by a non-physician by refusing

to allow the Petitioner to submit evidence from her

rehabilitation specialist. After trial on the issue of permanent

total disability benefits the Petitioner appealed to the

Compensation Review Board citing that the rulings of the

Workers Compensation Commission were tn direct conflict

with statute and a violation of the Petitioners Constitutional

rights. The Compensation Review Board and thereafter the

Appellate Court upheld this decision reasoning that a

Workers Compensation Commissioner has the power and

duty to act in equity and not within statutory confines and

that the petitioners due process rights were not violated.

(Connecticut Compensation Review Boards opinion and

ruling is in the Appendix at AI8; The Connecticut Appellate

Courts ruling is in the Appendix at A2)

Petitioner filed this writ of certiorari to appeal the final

judgment of the Connecticut Appellate Court which is

repugnant to the United States Constitution.

REASONS FOR GRANTING THE WRIT

It is the responsibility of the United States Supreme Court

to review the final judgments rendered by the highest court of

the state when the judgment is repugnant to the Constitution or

the laws of the United States. In the case at bar, the decision

rendered by the Connecticut Appellate Court, the highest court

in the state in which a decision may be had, is violative of the

United States Constitution, Article I.

I. THE DECISION OF THE CONNECTICUT

APPELLATE COURT IS ERRONEOUS AND

VIOLATES FEDERAL CONSTITUTIONAL LAW

In the case at bar, the Connecticut Appellate Court held

that a Workers Compensation Commissioner can order a

claimant to undergo an examination, physical or mental, by a

non-physician in exercise of his equitable powers and that

these equitable powers usurp the statutes enacted by the

legislature governing these examinations. The Connecticut

Appellate Court further held that the due process of the

Untied States Constitution and the Connecticut Constitution

does not include a right to privacy in relation with

examinations of parties to a litigation and that 1f it did exist

that the Workers Compensation Commissions equitable

powers usurp this Constitutional Right.

The Constitution of the United States creates three (3)

separate branches of government each with “limited and

defined powers.” Citizen's Sav. & Loan Association of

Cleveland vs. City of Topeka, 87 U.S. 655, 663, 20 Wall.

655, 22 L.Ed. 455 (1874). These “limitations. . .grow out of

the essential nature of all free governments, . .without which

the social compact could not exist, and which are respected

by all governments . . .without which the social compact

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could not exist, and which are respected by all governments

entitled to the name.” /d. This theory applies to both our

state and national governments. /d. State courts, therefore,

have an affirmative duty to apply federal constitutional law

to their interpretations and decisions, even if the subject

matter of those decisions is strictly state law. Hartfield vs.

East Grand Rapids Public Schools, 960 F.Supp. 1259 (W.D.

Mich. 1997). State courts are bound to preserve the

separation of powers of our government systems.

In Connecticut the Legislature created and established

the Workers Compensation Commission to administer the

Workers Compensation system. Connecticut General

Statutes 31-276. “{T]he workers’ compensation commission,

like any administrative body, must act strictly within its

statutory authority” Dowling v. Slotnik, 244 Conn. 781, 712

A.2d. 396 (1998); citing Discuillo v. Stone & Webster, 242

Conn. 570, 698 A.2d. 873 (1997); Figueroa v. C&S Ball

‘ing, 237 Conn. 1, 4, 675 A.2d 845 (1996); Castro vy.

9 Fg VI aS SAV, & ,

Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1998).

“Although the Worker’s Compensation Act should be

broadly construed to accomplish its humanitarian purpose its

remedial purpose cannot transcend its statutorily defined

jurisdictional boundaries.” id. Citing: Adzima v.

UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924

(1997); Perille v. Raybestos-Manhattan-Europe, Inc., 196

Conn. 529, 541, 494 A.2d 555 (1985); Kinney v. State, 213

Conn. 54, 566 A.2d 670 (1989); Castro v. Viera, supra, at

426,. The “workers compensation commission cannot

modify, abridge, or otherwise change statutory provisions

under which it acquires authority unless statutes expressly

grant it that power.” Dowling supra. “ Compensation

commissioner ts administrator empowered to enforce statutes

concerming workmen’s compensation.” Chieppo v. Robert E.

McMichael, Inc. 169 Conn. 646, 363 A.2d 1085 (1975).

A THE APPELLATE COURT VIOLATED THE

SEPARATION OF POWERS CLAUSE IN

UPHOLDING AN ORDER TO ALLOW FOR

MEDICAL EXAMINATIONS BY NON-PHYSICIANS

The Independent Medical Examination Statute within

the Workers Compensation Act, Connecticut General

Statutes §31-294f, states:

“An injured employee shall submit himself to

examination by a reputable practicing

physician or surgeon, at any time while

claiming or receiving compensation, upon the

reasonable request fo the employer or at the

direction of the commissioner. The

examination shall be performed to determine

the nature of the injury and the incapacity

resulting from the injury. The physician or

surgeon shall be selected by the employer

from an approved list of physicians and

surgeons prepared by the chairman of the

Workers Compensation Commission and

shall be paid by the employer. .

Connecticut General Statutes § 31-275 in the Workers

Compensation act defines a Physician to include “any person

licensed and authorized to practice a healing art, as defined

in Section 20-1 and licenses under the provisions of chapters

370, 372, and 373 to practice in this state.”

Connecticut General Statutes § 20-1 defines healing arts

and states “the practice of the healing arts means the practice

of medicine, chiropractic, podiatry, naturopath and, except as

used in chapters 284a and 388, the practice of optometry.”

The Appellate Court, while specifically recognizing the

legislatures statutory directive concerning Independent

Medical Examinations, has ruled that the Independent

Medical Examination statute does not limit the equitable

powers of the Workers Compensation Commission to order a

claimant to undergo this type of examination with a non-

physician. In support of its conclusion the Appellate Court

has relied on two statutes, Connecticut General Statutes §31-

278 and §31-298.

Connecticut General Statutes §31-278 was enacted by

the legislature for the purpose of affording the Workers

~ Compensation Commission the power to conduct hearings

and states in relevant part that the Commissioner shall;

“have power to summon and examine under oath such

witnesses, and may direct the production of, and

examine or cause to be produced or examined, such

books, records, vouchers, memoranda, documents,

letters, contracts or other papers in relation to any matter

at issue as he may find proper, and shall have the same

power in reference thereto as are vested in magistrates

taking depositions and shall have the power to order

depositions pursuant to section 52-148. He shall have

power to certify to official acts and shall have all powers

necessary to enable him to perform the duties imposed

upon him by the provisions of this chapter...”

Connecticut General Statutes 31-278 “deals with the

manner in which testimony is obtained and hearings are

conducted.” Stickney v. Sunlight Const., Inc. 730 A.2d 630,

248 Conn. 754 (1999).

Connecticut General Statutes §31-298, the

Connecticut Legislatures grant of power to lax the traditional

rules of evidence, states, in relevant part;

“the commissioner shall proceed, so far as possible, in

accordance with the rules of equity. He shall not be

bound by the ordinary common law or statutory rules of

evidence or procedure, but shall make inquiry, through

oral testimony, deposition testimony or written and

printed records 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...”

The legislatures intention in enacting Connecticut

General Statutes Section 31-278 and 31-298 was to give the

Workers Compensation Commission the power to act

equitably with regards to the rules of evidence and procedure

along with acting equitably in conducting hearings. The

Legislature dictates that the Workers Compensation

Commission while exercising those equitable powers as

specifically defined shall do so within the confines of the

provisions of the Workers Compensation Act and intent of

the legislature in enacting those provisions. The Workers

Compensation Commissions grant of equitable powers is not

a cart blange right to surpass the express dictates of the

Workers Compensation Act but is limited by statute.

Connecticut General Statutes Section 31-294f limits the

Workers Compensation Commissions powers of equity by

clearly and unambiguously limiting physical and/or mental

examinations to qualified physicians and/or surgeons along

with other dictates, none of which include the power to seek

out equity in applying the medical examination statute which

the Appellate Court so clearly reasoned.’

The Workers Compensation Commission ts “not

permitted to seek out what [they] conceive to be the equities

of each particular case and ignore specific provisions of the

statute law which clearly control them.” Farmer v. Bieber-

Goodman Corp., 118 Conn. 299, 172 A. 95 (1934) quoting

Blodgett v. New Britain Trust Co., 108 Conn. 715, 719, 145

A.56, 58 (1929) internal quotations omitted. “Where the

language of a statute is unambiguous, the judiciary is

powerless to intervene even to remedy a mistake. To attempt

to do so would be a palpable exercise of legislative

functions.” /d. quoting McKay v. Fair Haven & W.R. Co., 75

Conn. 608, 611, 54 A. 923, 924 (1903) internal quotations

omitted.

The order compelling a claimant to undergo a physical

examination by a non-physician is in direct conflict with the

statutes. It is also allowing the Workers Compensation

Commission to act outside of the statutory guidelines,

perform duties outside of the Workers Compensation Act,

transcend statutes including transcending specifically

delineated powers instead of enforcing them, allowing to

take plain and unambiguous language and define as

something different, and extends the Workers

1. Rule 3S(a) of the Federal Rules of Civil Procedure which was

amended in 1991 to allow for courts to seek out equities in determination

of allowing examinations by other qualified non-physicians. The

Connecticut Legislature has not Amended its statutes to mirror or allow

for these types of examinations nor did the Appellate Court in the case at

bar rely on Rule 35(a) in making tts ruling.

Compensations equitable powers in a way that 1s unintended

and unlimited. ’

The Appellate Court by upholding this ruling surpassed

its power to review, acted outside of its powers to review and

interpret law, delved into the powers and stepped into the

shoes of legislative branch. The Appellate Court modified

and changed the Statute and legislatures directive to include

examinations by a non-physician whether »:quested by the

employer or ordered by the commissioner.

B. THE APPELLATE COURT VIOLATED THE

SEPARATION OF POWERS CLAUSE IN

UPHOLDING AN ORDER TO ALLOW FOR THE

SANCTION OF EXCLUDING WITNESSES

The Workers Compensation Commission ordered the

petitioner to undergo a physical/mental examination by a

non-physician in direct violation of the legislatures dictates

contained in Connecticut General Statutes 31-294f. The

petitioner objected to being subjected to an examination by a

non-physician and the Workers Compensation Commission

sanctioned the petitioner by not allowing her to produce

witnesses at a hearing.

The Appellate Court held that Connecticut Practice

Book §13-14 authorizes the Workers Compensation

2. In contradiction of Dowling v. Slotnick supra. (1998), Discuillo v

Stone & Webster, supra. . Figueroa v. C&S Ball Bearing, supra.. Castro v

Viera, supra.. ddzima vo. UAC Norden Division, supra, Perille v-

Ravbhestos-Manhattian-Europe, Inc. Supra., Kinney v. State, supra,

Chieppo v. Robert E. McMichael, Inc., 169 Conn. 646, 363 A.2d 1085

(1975), State v. States Emplovees’ Review Board, 239 Conn. 368, 687

A.2d 134 (1997), State vy. White, 204 Conn. 410, 528 A.2d S11 (1987)

and City of New Haven v. Whitney, 36 Conn. 373, 1870 WL L048 (1870).

Commission to impose sanctions against a claimant who

objects/refuses to undergo an examination by a non-

physician and that said imposition of sanctions is within the

sole discretion of the Workers Compensation Commission.

The Appellate Court further ruled that Connecticut General

Statutes §31-298 also allows the Workers Compensation

Commission broad discretion in imposing sanctions due to

the statutes direction in protecting the substantial rights of

the parties in carrying out the provisions of the Workers

Compensation Statutes.

According to Connecticut General Statutes §31-294f

“refusal of an injured employee to submit himself to a

reasonable examination under this section shall suspend his

right to compensation during such refusal.”

Practice Book §13-11 subsection (b) states that;

“any such request shall be complied with by the plaintiff,

unless, within ten days from filing of the request, the plaintiff

files in writing an objection thereto specifying to which

portions of said request objection is made and the reasons for

said objection. The objection shall be placed on the short

calendar list upon the filing thereof. The judicial authority

may make such order as 1s just in connection with the

request. No plaintiff shall be compelled to undergo a

physical examination by any physician to whom he or she

objects in writing.”

Connecticut General Statutes §31-294f explicitly sets

out a sanction for refusing to undergo a “reasonable”

examination which is to suspend the right to compensation.

Denying the claimant the right to submit evidence is

clearly not indicated in Connecticut General Statutes 31-

294f. While Connecticut General Statutes $31-298 states

that a Commissioner “shall not be bound by the ordinary

common law or statutory rules of evidence or procedure” the

Commissioners ruling was not an evidentiary or a procedural

ruling but clearly a sanction.

The Appellate Court cannot use the Legislatures grant of

power to conduct hearings to impose a sanction on the

petitioners objection to the order to undergo an examination

by a non-physician. The grant of equitable powers by the

Legislature to the Workers Compensation Commission is

limited by statute. The Legislatures clear and unambiguous

language dictates a specific sanction for refusing to undergo

a reasonable examination and does not provide for exception.

The use of Connecticut General Statutes Section 31-298 to

circumvent the directive of the Legislature as contained in

Connecticut General Statutes Section 31-294f ts in err.

The Workers Compensation Commission 1s “not

permitted to seek out what [they] conceive to be the equities

of each particular case and ignore specific provisions of the

statute law which clearly control them.” Farmer v. Bieber-

Goodman Corp., 118 Conn. 299, 172 A. 95 (1934) quoting

Blodgett v. New Britain Trust Co., 108 Conn. 715, 719, 145

A.56, 58 (1929) internal quotations omitted. “Where the

language of a statute is unambiguous, the judi¥iary is

powerless to intervene even to remedy a mistake. To attempt

to do so would be a palpable exercise of legislative

functions.” /d. quoting McKay v. Fair Haven & W.R. Co., 75

Conn. 608, 611, 54 A. 923, 924 (1903) internal quotations

omitted.

The Appellate Court by upholding this ruling surpassed

its power to review, acted outside of its powers to review and

interpret law, delved into the powers and stepped into the

shoes of legislative branch. The Appellate Court modified

and changed the Statute and legislatures directive for specific

sanctions and created its own.

C. THE APPELLATE COURT VIOLATED THE

PETITIONERS CONSTITUTIONAL RIGHTS UNDER

THE FOURTEENTH AMENDMENT

The Appellate Court legislated from the bench in ruling

that a medical examination, physical or mental, can be

ordered by the Workers Compensation Commission indirect

violation of Statute. By the Appellate Court failing to

implement and follow the statutory guidelines for this type of

examination, applying sanctions outside of the legislative

directive, punishing the Petitioner for objecting to a

physical/mental examination by a non-physician as defined

by statue and denying the petitioner the right to a fair hearing

violated the Petitioners Due Process Rights.

The vocational rehabilitation specialist who the

Commissioner ordered the claimant to submit to for an

examination was a non-physician. The claimant reasonably

objected to this examination but the Workers Compensation

Commission compelled the claimant to subject herself to this

examination anyways and sanctioned the Petitioner by not

allowing witnesses to testify. Our Supreme Court has

consistently stated that “To punish a person because he has

done what the law plainly allows him to do is a due process

violation of the most basic sort.” U.S.C.A. Const.Amend. 14.

The Legislature in Connecticut General Statutes Section31-

294f has unambiguously stated that one may be sanctioned

by refusing to undergo a reasonable examination. The

Workers Compensation Commissioners order for the

Petitioner to undergo an examination by a non-physician

when the Legislature has clearly determined that these types

of examinations were to be performed by a licenced

physicians and/or surgeons was unreasonable. The Petitioner

had every right to object and refuse to undergo the

examination ordered and the Workers Compensation

Commission by sanctioning the Petitioner was a violation of

the Petitioners Due Process rights.

Further, the Workers Compensation Commission

went outside of the directive statute governing these types of

examinations and relied on their grant of equitable powers to

_ order an examination by a non-physician and propound a

sanction different then the one the Legislature directed the

Workers Compensation Commission to propound upon

refusal. The Workers Compensation Commissions equitable

powers in conducting hearings, rules of evidence and

procedures cannot abridge the Petitioners Constitutional right

to procedural and substantive due process. The Workers

Compensation Commissions right to use their equitable

powers cannot be limitless leaving them with no standards as

to what is prohibited and what is not on a case by case basis

or with the power to abridge the statutes that they are

required to enforce.

The decision of the Workers Compensation

Commission to sanction the Petitioner as it did deprived the

Petitioners right to a fair hearing for permanent disability

benefits. The employer in the matter at hand had every legal

right to request and have ordered an examination by a

qualified physician/surgeon to contest the Petitioners

evidence but chose not to do so. Additionally, the Workers

Compensation Commission in applying its equitable powers

to hear evidence and facts could have requested or required a

show of proof that there were no vocational rehabilitation

specialist which qualified under statute, made a factual

and/or evidentiary ruling as to the qualification and/or ‘he

credibility and/or persuasiveness of both the Petitioners

witnesses and the employers witnesses had an examination

been ordered in accordance and within the confines of statute

and weigh the evidence. Instead, the Workers Compensation

Commission barred the Petitioner from presenting evidence

when she refused to undergo an examination by a non-

physician as she had every right to do denying her right to

due process and equal protection under the law.

ll. THERE I A CONFLICT OF LAWS BETWEEN

SOCIAL SECURITY’S DETERMINATION OF

DISABILITY AND THE WORKERS

COMPENSATIONS DETERMINATIONS OF

DISABILITY

The Petitioner is requesting that this court review and

take into consideration the issue of the impact of Social

Security disability determinations on Workers Compensation

disability determinations. In specific, the issue arises when a

worker becomes temporality and/or permanently unemployed

due to an injury which was work related. Said employee

applies for Social Security disability benefits due to that

injury which was work related and is determined to be totally

disabled. The employee also moves for Workers

Compensation benefits and despite the Social Security

determination of disability the Workers Compensation

Commission determines that worker to not be totally

disabled based upon the same injuries, evidence and inability

to work.

In the case at bar the Petitioner brought this issue

before the Connecticut Appellate Court. The Petitioner

argued that the issue of disability arising from the same

injury should hold collateral estoppel effect when the Social

Security Administration determines permanent disability for

that injury.

The Appellate Court held 1n the case at bar that the

standards of the Social Security Administration in

determining disability are not the same standards 1n

determination of disability in the Worker Compensation

Commission. The Appellate Court further held that to

successfully assert the doctrine of issue preclusion the issue

must have been litigated and determined between the parties

or their privies and that that determination was essential to

the decision in the prior case.

Connecticut has determined that one is “estopped by

the doctrine of collateral estoppel from relitigating in the

civil action the precise issue determined by a higher standard

of proof” in the prior action. Griffin v. Parker, 22 Conn.

App. 610, 579 A.2d 532 (1990), certification granted by

Griffin v. Parker, 216 Conn. 825, 582 A.2d 203 (1990) and

declined to address the issue in Griffin v. Parker 219 Conn.

363, 593 A.2d 124 (1991).

In the matter at bar the Standards of the Social

Security Act requires a higher standard of proof to determine

total disability then the standards set forth with in the

Workers Compensation Commission Act. §223(d)(2)(A) of

the Social Security Act states;

“an individual shall be determined to be under a

disability only if his physical or mental impairment or

impairments are of such severity that he is not only

unable to do his previous work but cannot,

considering his age, education, and work experience,

engage in any other kind of substantial gainful work

which exists in the national economy regardless of

whether such work exists in the immediate area in

which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he

applied for work. For the purposes of the preceding

sentence (with respect to any individual), work which

exists in the national economy means work which

exists in significant numbers either in the region

where such individual lives or in several regions of

the country.”

Connecticut General Statutes §31-307 governing total

disability, in part, states that “The following injuries of any

person shall be considered as causing total incapacity and

compensation shall be paid accordingly: (1) Total and

permanent loss of sight of both eyes, or the reduction to one-

tenth or less of normal vision; (2) the loss of both feet at or

above the ankle; (3) the loss of both hands at or above the

wrist; (4) the loss of one foot at or above the ankle and one

hand at or above the wnist; (5) any injury resulting in

permanent and complete paralysis of the legs or arms or of

one leg and one arm; (6) any injury resulting in incurable

imbecility or mental illness.”

“Incapacity, as that term is used under the Workers’

Compensation Act, means incapacity to work, as

distinguished from the loss or loss of use of a member of the

body.” “Total incapacity is defined as “the inability of the

employee, because of his injuries, to work at his customary

calling or at any other occupation which he might reasonably

follow.” Ravhall v. Akim Co. Inc., 263 Conn. 328, 819 A.2d

$03 (2003). “The test is not the employee’s ability or

disability because of his injury to do his old job but whether

he could do another job and earn as much money.” Clark v.

Henrv & Wright Mfg. Co. 136 Conn. 514. 72 A.2d 489

(1950). “A claimant may have some type of light duty

capacity and still be totally disabled under §31-307." Agosto

v. City of Bridgeport 3967 CRB-04-99-01 2000.

The Connecticut Supreme Court in Griffin v. Parker,

22 Conn. App. 610, 579 A.2d 532 (1990), certification

granted by Griffin v. Parker, 216 Conn. 825, 582 A.2d 203

(1990) and declined to address the issue in Griffin v. Parker

219 Conn. 363, 593 A.2d 124 (1991) has also abandoned

privity in favor of fairness.

Lastly, according to the Appellate Court “an issue is

actually litigated if it is properly raised in the pleadings or

otherwise, submitted for determination and in fact

determined.” The claimant filed for Social Security Benefits

for her disability that was caused by the injury sustained at

work. The Social Security Administration determined and

ruled that she was totally disabled. The issue before the

Workers Compensation Commission was the same exact

issue, 1.e. was the Petitioner Totally Disabled.

CONCLUSION

For the foregoing reasons as set forth in this Petition

For A Writ Of Certiorari, the Petitioner respectfully requests

that her Petition For A Writ Of Certiorari be granted.

Respectfully submitted,

AAAA Legal Services

Neil Johnson, Esq.

Counsel of Record

96 Webster Street

Hartford, CT. 06114

(860) 278-0468

276 Conn. 921, 888 A3d 87

Supreme Court of Connecticut

Rada Bidoae

Hartford Golf Club et al.

Decided November 9, 2005.

Neil Johnson, Hartford, in support of the petition.

Dominick C. Statile, Glastonbury, in opposition.

The plaintiff's petition for certification for appeal from the

Appellate Court, 9/ Conn. App. 470, 881 A.2d 418 (2005), is

denied.

Borden and Zarella, Js., did not participate in the

consideration or decision of this petition.

Conn. 2005,

Bidoae v. Hartford Golf Club

276 Conn. 921, 888 A.2d 87

RADA BIDOAE v. HARTFORD GOLF CLUB ET AL.

(AC 25603)

Lavery, C.J., and DiPentima and Gruendel, Js.

Argued June 2-officially released September 20, 2005

(Appeal from the workers’ compensation review board.)

Neil Johnson, for the appellant (plaintiff).

Joseph J. Passaretti, Jr. With whom was Dominick C.

Statile, for the appellees (defendants).

Opinion

LAVERY, C.J. The plaintiff, Rada Bidoae, appeals

from the decision of the workers’ compensation review

board (board) affirming the determination by the workers’

compensation commissioner (commissioner) that she was

not entitled to benefits pursuant to General Statutes § 31-

307. On appeal, the plaintiff maintains that the board

improperly affirmed the commissioner's decision (1) to

compel the plaintiff to undergo a vocational rehabilitation

examination by a honphysician and its subsequent decision

to exclude evidence from her own vocational rehabilitation

specialist, (2) that opinions by the Social Security

Administration are not binding on the workers’

compensation commission (commission) and (3) that the

plaintiff had not sustained her burden of proving her total

incapacity. We affirm the decision of the board.

On or about May 30, 1999, while working for the

defendant employer,' the Hartford Golf Club, the plaintiff

sustained a compensable injury to her back. She initially

was treated by the Connecticut MultiSpecialty Group, where

she was diagnosed with an acute low back sprain and lumbar

spondylosis. A magnetic resonance imaging procedure was

performed on June 27, 1999, which revealed a small disc

herniation. The plaintiff received follow-up care by Albert

Casale, a physician, who placed the plaintiff out of work on

June 22, 1999, but then released her to a light-sedentary duty

work capacity on July 20, 1999. In the fall of 1999, Casale

increased her work restrictions to encompass no excessive

bending and a ten pound weight restriction. The plaintiff

also received epidural injections at Saint Francis Hospital

and Medical Center in Hartford.

The plaintiff was then treated by Dr. W. Jay

Krompinger, a physician, who opined that the plaintiff had a

light-sedentary duty work capacity, and she eventually was

discharged after achieving maximum medical improvement.

On August 8, 2000, Krompinger found that the plaintiff had

an 8 percent permanent partial impairment to her back. He

diagnosed her with central back pain secondary to a

degeneration of her LS-L1 disc.

On September 18, 2000, the plaintiff underwent a

vocational rehabilitation examtnation with hank Lerner, a

nonphysician vocational rehabilitation specialist. The

defendants requested that the plaintiff submit to their own

vocational rehabilitation examination with David Suja,

another nonphysician, but she refused. The defendants

moved to compel the examination, and a formal hearing on

the issues was held before the commissioner. On July 24,

2001, the commissioner ordered the plaintiff to undergo the

defendants’ vocational examination. He further ordered that

if the plaintiff refused to submit to the examination, she

would precluded from entering evidence from her own

vocational expert. The plaintiff appealed from that decision

to the board, which affirmed the commissioner’s decision.

The plainuff then appealed from the board's decision to this

court, but we d¥smissed the appeal for lack of a final

decision.

A formal hearing was held on April 2, 2003,

regarding the plaintiff's claim of total incapacity. Testimony

was heard and evidence was submitted, but Lerner’s report

was not admitted as a full exhibit pursuant to the July 24,

2001 order because the plaintiff never submitted to the

defendants’ vocational rehabilitation examination. One June

24, 2003, the commissioner found in favor of the defendants

and dismissed the claim for total incapacity benefits. The

plaintiff appealed from that decision to the board, which

affirmed the commissioner’s decision. This appeal followed.

The plaintiff's arguments rest on the proposition that

the board improperly affirmed the decisions of the

commissioner. We note that “[t]he review [board;s]

hgearing of an appeal from the commissioner is not a de

novo hearing of the facts....[I]t 1s oblig[ated] to hear the

appeal on the record and not retry the facts. [T]he power and

duty of determining the facts rests on the commissioner, the

trier of facts....[T]he conclusions drawn by him from the

facts found must stand unless they result from an incorrect

application of the law to the subordinate facts or from an

inference illegally or unreasonably drawn from them.”

(Internal quotation marks omitted.) Rogers v. Laidlaw

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Transit, Inc., 45 Conn. App. 204, 206, 695 A.2d 1071

(1997). “On appeal, the board

must determine whether there is any evidence in the record

to support the commissioner's findings and award.” Bryan vy.

Sheraton-Hartford Hotel, 62 Conn. App. 733, 739, 774 A.2d

1009 (2001). We now turn to the plaintiff's arguments.

The plaintiff maintains that the board improperly

affirmed the commissioner’s decision to compel the plaintiff

to undergo a vocational rehabilitation examination by a

nonphysician and the commissioner’s subsequent decision to

exclude evidence from the plaintiff's own vocational

rehabilitation expert because of her refusal to comply with

the order. We disagree.

When the defendants attempted to compel the

plaintiff to submit to an evaluation with their vocational

rehabilitation expert, she refused, arguing that an

independent medical examination with a nonphysician

vocational rehabilitation specialist would be an invasion of

her personal privacy as defined by General Statues § 52-

178a.° She contends that because a nonphysician vocational

rehabilitation specialist does not practice a healing arts under

General Statutes § 20-1, * the commissioner cannot order

such an examination. She argues that the commissioner.

cannot transcend his statutorily defined jurisdictional

boundaries; see Dowling v. Slotnik, 244 Conn. 781, 800, 712

A.2d 396, cert. Denied sub nom. S/otnik v. Considine, 525

U.S. 1017, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998); and

absent specific authorization by the Workers’ Compensation

Act; General Statutes § 31-275 et seq.; a commissioner

cannot order a plaintiff to submit to an examination by a

nonphysician, such as a vocational rehabilitation specialist.

We disagree.

“Ordinarily, [an appellate] court affords deference to

the construction of a statute applied by the administrative

agency empowered by law to carry out the statu’s

purposes....{A]n agency’s factual and discretionary

determinations are to be accorded considerable weight by the

courts....Cases that present pure questions of law, however,

invoke a broader standard of review than is ordinarily

involved in deciding whether, in light of the evidence, the

agency has acted unreasonable, arbitrarily, illegally or in

abuse of its discretion....Furthermore, when a state agency's

determination of a question of law has not previously been

subject to judicial scrutiny....the agency is not entitled to

special deference.” (Citations omitted; internal quotation

marks omitted.) Burke v. Fleet National Bank, 252 Conn. |,

9-10, 742 A.2d 293 (1999). Whether General Statutes § 31-

294f * precludes a commissioner from compelling a plaintiff

to submit to vocational rehabilitation examination,

conducted by a person who ts not a physician, is a question

that has not been previously subject to judicial consideration.

As that novel issue presents to a question or law, our review

is plenary. Although the plain language of § 31-294f

authorizes physical or mental examinations “by a reputable

practicing physician

or surgeon,” and the defendants’ vocational rehabilitation

expert is not a medical doctor, § 31-278 provides in relevant

part that the commissioner “shall....have power to summon

and examine under oath such witnesses, and may direct the

production of, and examine or cause to produced or

examined, such books, records, vouchers, memoranda,

documents, letters, contracts or other papers in relation to

any matter at issue as he may find proper, and shall have the

same powers in reference thereto as are vested in magistrates

taking depositions and shall have the power to order

depositions pursuant to section 52-148. He shall have power

to certify to official acts and shall have all powers necessary

to enable him to perform the duties imposed upon him by the

provisions of this chapter....”. The commissioner’s abilities

are further expanded by Gencral Statues § 31-298, which

provides in relevant part that “the commissioner shall

proceed, so far as possible, in accordance with the rules of

equity. He shall not be bound by the ordinary common law

or statutory rules of evidence or procedure, but shall make

inquiry, through oral testimony, deposition testimony or

written and printed records, 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....”

One of the fundamental purposes of the

commissioner’s expansive evidentiary reach is to encourage

full disclosure and cooperation among t he parties the

pendency of a claim. Dixon vy. United Illuminating Co., 1996

CRB-4-94-3 (August 4, 1995), aff'd, 57 Conn. App. 51, 748

A.2d 300 cert. Denied, 253 Conn. 908, 753 A.2d 940 (2000).

“{A] commissioner must always protect the substantial rights

of parties [which] include the right of the

employer....independently to examine the claimant, to notice

his deposition, and to insist on hearing his personal

testimony at a formal hearing....Protecting such substantial

right is part and parcel of ensuring that each party in a

compensation proceeding receives a fair hearing. Workers’

compensation hearings must be conducted in a

fundamentally fair manner so as not to violate the rules of

due process....A fundamental principle of due process is that

each party has the right to receive notice of a hearing, and

the opportunity to be heard at a meaningful time and in a

meaningful manner....Each party has the right to produce

relevant evidence and to offer rebuttal evidence.” (Citations

omitted.) Bailey v. State, 65 Conn. App. 592, 604, 783 A.2d

491 (2001). Thus, the specific directive concerning the

procedure for obtaining mental or physical examinations by

physicians contained in § 31-294f does not detract from a

commussioner’s authority to act pursuant to the more general

provisions that may render such information discoverable.

Nonetheless, litigants are not without protection

against unnecessarily onerous application of the discovery

rules. As a general proposition, requiring the plaintiff to

submit to extensive vocational assessment procedures might

well be unduly burdensome. Here, however, to establish her

unemployability, the plaintiff retained a nonphysician

vocational rehabilitation expert who was prepared to testify

that examination and testing established the plaintiff's

present lack of capacity to perform in the workforce. The

plaintiff thereby overtly made vocational rehabilitation

assessment procedures material and necessary for the

defendants for the

purpose of rebuttal. The opportunity to present a competing

assessment of the plaintiff's vocational abilities by a

similarly qualified expert thus became imperative, given the

goal underlying our discovery rules of ensuring that both the

plaintiff and the defendant receive a fair trial. Under those

circumstances, it cannot be said that the commissioner

abused his discretion in finding that the need for the

discovery outweighed the burden on the protesting party and,

as a result, in compelling the discovery. Therefore, the

board properly affirmed the decision of the commissioner.

The plaintiff also argues that the board improperly

affirmed the commissioner’s decision to exclude evidence

from her own vocational rehabilitation specialist because of

her refusal to comply with the order to submit to the

defendants’ examination. We disagree.

“Practice Book § [13-14]’ authorizes the trial court to

grant a wide range of relief...for a party’s failure to [submit

to a physical or mental examination]. The determination of

whether to enter sanctions pursuant to [Practice Book § [13-

14] and, if so, what sanction or sanctions to impose, is a

matter within the sound discretion of the trial court....In

reviewing a claim that this discretion has been abused the

unquestioned rule is that great weight is due to the action of

the trial court and every reasonable presumption should be

given in favor of its correctness....[ T]he ultimate issue ts

whether the court could reasonable conclude as it did.”

(Citation omitted; internal quotation marks omitted.) Amba

Al0

Realty Corp v. Kochiss, 67 Conn. App. 149, 151-52, 786

A.2d 1137 (2001), cert. Denied, 259 Conn. 912, 789 A.2d

993 (2002).

Additionally, the commissioner has broader

discretion over evidence than does a trial court. General

Statutes § 31-298 provides in relevant part that “the

commissioner shall proceed, so far as possible, in accordance

with the rules of equity. He shall not be bound by the

ordinary common law of statutory rules of evidence or

procedure, but shall make inquiry, through oral testimony,

deposition testimony or written and printed records, 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....”” (Emphasis added.) In accordance with the

broad sanction power of Practice Book § 31-298 that the

commissioner protect the substantial rights of the parties

while exercising his broad, equitable powers to take

evidence and to carry out the provisions of chapter 568 of

the General Statues, we hold that the commissioner did not

abuse his discretion in precluding the plaintiff from

admitting evidence from her vocational rehabilitation expert

when she disregarded the commissioner’s order to submit to

an examination by the defendants’ expert. Thus, the board

properly affirmed the decision of the commissioner.

The plaintiff next argues that the board was without

jurisdiction to decide that she did not meet the requirements

for total incapacity because the Social Security

Administration has deemed her totally disabled from work

for purposes of receiving of social security disability

benefits. We disagree and conclude that a finding by the

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Social Security Administration that the plaintiff is disabled

for purposes of social security disability benefits does not

preempt a workers’ compensation commission from making

its own independent determination concerning ability to

work.

The claim in essence ts a collateral estoppel, or issue

preclusion argument. “[{C Jollateral estoppel precludes a

party of relitigating issues and facts actually and necessarily

determined in an earlier proceeding between the same parties

or those in privity with them upon a different claim.”

Dowling v. Finley Associates, Inc., 248 Conn. 364, 373-74,

727 A.2d 1245 (1999).

“An issue 1s actually litigated if it is properly raised

in the pleadings or otherwise, submitted for determination,

and in fact determined.” (Emphasis in original; internal

quotation marks omitted.) Id., 374. We have determined

that the issue of total incapacity was not actually litigated.

The standards of the Social Security Administration in

adjudicating total disability are not the same standards used

by our workers’ compensation commission and, thus, a

commissioner may decline to admit them into evidence. See

Krajewski vy. Atlantic Aerospace Textron, 15 Conn. Workers’

Comp. Rev. Op. 44, 2120 CRB-6-94-8 (Nov. 28, 1995)."

Additionally, “[t]o assert successfully the doctrine of

issue preclusion...a party must establish that the issue sought

to be foreclosed actually was litigated and determined in the

prior action between the parties or their privics, and that the

determination was essential to the decision in the prior case.”

Al2

(Internal quotation marks omitted.) Dowling v. Finley

Associates, Inc., supra, 248 Conn. 374. We note that the

defendants in this case were not parties to the Social Security

Administration action and were not in privity with any of the

parties. Se Mazziotti v. Allstate Ins. Co., 240 Conn. 799,

813,695 A.2d 1010 (1997) (collateral estoppel “requires an

identity of issues between the prior and subsequent

proceedings and operates only against the same parties or

those in privity, with them”). Additionally, any right to

intervene in thé social security action “does not, in the

absence of its exercise, subject one possessing it to the risk

of being bound by the result of the litigation....”. 47 Am. Jur.

2d 77, Judgements § 659 (1995); see also Young v.

Metropolitan Property & Casualty Ins. Co., 60 Conn. App.

107, 115, 758 A.2d 452 cert. denied, 255 Conn. 906, 762

A.2d 912 (2000). Therefore, the prior findings should not be

given preclusive effect, and we hold that the findings of total

disability by the Social Security Administration are not

binding on the workers’ compensation commission.

The plaintiff also contends that the board improperly

affirmed the commissioner's decision that she had not

sustained her burden of proving that she met the

requirements for total incapacity benefits. We disagree.

“[{T]he power and duty of determining the facts rests

on the commissioner, the trier of facts.... The conclusions

drawn by him from the facts found must stand unless they

result from an incorrect application of the law to subordinate

facts or from them.” (Citation omitted; internal quotation

marks omitted.) Dichello v. Holograth Corp., 49 Conn. App.

339, 352-53, 715 A.2d 765 (1998).

Al3

General Statutes § 31-307 (a) provides in relevant

part that a plaintiff shall receive benefits “[i]f any injury for

which compensation is provided under the provisions of this

chapter results in total incapacity to work....” The plaintiff

relies on Osterlund v. State, 135 Conn. 498, 66 A.2d 363

(1949), for the proposition that when a plaintiff is capable of

working, but “his physical condition due to his mjury ts such

that he cannot in the exercise of reasonable diligence find

employer who will employ him, he is just as much totally

incapacitated as though he could not work at all.” Id., 506-

507; see also Hildvegi v. Nidec Corp., 3607 CRB-05-97-05

(June 15, 1998) (although plaintiff had light duty capacity,

she was temporarily totally disabled because she was not

capable of any degree of work and not employable on basis

of physical restrictions, age, limited education, lack of

transferable skills). The plaintiff here argues that her claim

is such a case. We disagree.

The plaintiff is a fifty-four year old woman who

emigrated to the United States in 1991. Her only job in the

United States has been working as a housekeeper for the

Hartford Golf Club. Although she attended college for four

years and worked as a biology and chemistry teacher in

Romania, her attempts to secure other work, including a

teacher's aide position, have failed. Here, difficulty stems

from the fact that while she is conversationally competent in

English, she is not fluent and has been unable to pass a

driver's license examination. In 2000, Krompinger opined

that the plaintiff was capable of sedentary work only, but

that she may be a candidate for social security disability

benefits because of her educational background and

functional capacity. Jay Cudrin, a psychologist, examined

the plaintiff for the purpose of a social security disability

determination and opined that the plaintiff was afflicted with

depressive disorder that may be secondary to her medical

condition and that her 1Q bordered on mental retardation, but

that “there is no doubt that this score grossly underestimated

her actual intelligence level. Her performance on this test

was severely hampered by her problems with English and the

fact that lived in another country until about ten years ago.”

He also stated that she had severe problems with consistent

attention and concentration.

The plaintiff has not proven that she is eligible for §

31-307 benefits. Although she has proven that she has the

ability to perform in a light duty capacity only, she has not

shown that she has made adequate attempts to secure gainfis!

employment or that she truly is unemployable.

The plaintiff also argues that she is suffering from a

mental illness attributable to her accepted injury and,

therefore, should be eligible for § 31-307 benefits. We

disagree. Section 31-307 ( c) (6) provides that “any injury

resulting in incurable imbecility or mental illness” shall be

considered as causing total incapacity. We agree with the

defendants that although Cudrin stated the plaintiff's

depressive disorder “may be secondary to her medical

condition,” the plaintiff has not met her burden of proving

that the mental illness is causally related to her work-related

injury or that any alleged mental illness is incurable.

We conclude that sufficient evidence existed to

support the commissioner's determination that the plaintiff

had not sustained her burden of proof in regard to her claim

of total disability. Therefore, the board properly atfirmed

the findings of the commissioner on this claim.

The decision of the workers” Compensation review

board is affirmed.

In this opinion the other judges concurred.

'The employer’s workers’ compensation insurance carrier is also

a defendant in this action.

“General Statutes § 52-178a provides: “In any action to recover

damages for personal injuries, the court or judge may order the plaintiff

to submit to a physical examination by one or more physicians or

surgeons. No party may be compelled to undergo a physical examination

by any physician to whom he objects in writing submitted to the court or

judge.”

‘General Statutes § 20-1 defines “healing arts” as “the practice

of medicine, chiropractic, podiatry, naturecopathy and, except as used in

chapters 384a and 388, and sections 19a-16a to 19a-16c, inclusive, the

practice of optometry.”

‘General Statutes § 31-294f (a) provides that “[aJjn injured

employce shall submit himself to examination by a reputable practicing

physician or surgeon, at any time while claiming or receiving

compensation, upon the reasonable request of the employer or at the

direction of the commission. The examination shall be performed to

determine the nature of the injury and the incapacity resulting from the

injury. The physician or surgeon shall be selected by the employer from

an approved list of physicians and surgeons prepared by the chairman of

the Workers’ Compensation Commission and shall be paid by the

employer. At any examination requested by the employer or directed by

the commissioner under this section, the injured employee shall be

allowed to have in attendance any reputable practicing physician or

surgeon that the employee obtains and pays for himself. The employee

shall submit to all other physical examination as required by this chapter.

The refusal of an injured employee to submit himself to a reasonable

examination under this section shall suspend his right to compensation

during such refusal.”

‘General Statutes § 31-278 (17) provides that the definition of a

physician “includes any person licensed and authorized to practice a

healing art, as defined in section 20-1, and licensed under the provisions

of chapters 370, 372 and 373 to practice in this state.”

“The plaintiff argues that allowing such examinations will allow

the defendants to send the plaintiff to unqualified individuals. We

disagree. In order to allow an expert opinion into evidence, the

commissioner must determine that the witness is qualified to give such an

opinion and that there is a factual basis for the opimon. See State v

Al6

Asherman, 193 Conn. 695, 716, 478 A.2d 227 (1984), cert. denied, 470

U.S. 1050 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

’Practice Book § 13-14 provides in relevant part: (a) If any

party...has failed to submit to a physical or mental examination...the

judicial authority may, on motion, make such order as the ends of justice

require.

“(b) Such orders may include the following:

“(1) The entry of a nonsuit or default against the party faility to

comply;

(2) The award to the discovering party of the costs of the

motion, including a reasonable attorney's fee;

*(3) The entry of an order that the matters regarding which the

discovery was sought or other designated facts shall be taken to be

established for the purposes of the action in accordance with the claim of

the party obtaining the order;

(4) The entry of an order prohibiting the party who has failed to

comply from introducing designating matters in evidence;

“(5) If the party failing to comply is the plaintiff, th entry of a

judgement of dismissal...”

“The plaintiff contends that the holding in Krajewski is not

applicable to this case because it reviewed benefits under General

Statutes § 31-308a and not Gencral Statutes § 31-307. We disagree.

After reviewing both § 223 (d) (2) (A) of the Social Security Act; 42

U.S.C. § 423, as amended; relevant federal regulations and § 31-307, we

conclude that the standards for determining total disability also are not

Al7

the same in those sections and that the holding in Krajewski

is therefore applicable.

CASE NO. 4693 CRB-6-03-7

CLAIM NO. 601019458

COMPENSATION REVIEW BOARD

RADA BIDOAE V. HARTFORD GOLF CLUB

JUNE 23, 2004

APPEARANCES: _ The claimant was represented by Neil

Johnson, Esq., AAAA Legal Services,

96 Webster Street, Hartford, CT

06114.

The respondents were represented by

Dominick Statile, Esg., Montstream &

May, P.O. Box 1087, 655 Winding

Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the

June 24, 2003 Finding and Dismissal

of the Commissioner acting for the

Sixth District was heard January 23,

2004 before a Compensation Review

Board panel consisting of the

Commission Chairman John A.

Mastropietro and Commissioners A.

Tomas White and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The

claimant, Rada Bidoae, has appealed from the June 24, 2003

Al9

Finding and Dismissal of the Commissioner acting for the

Sixth District. We affirm the decision of the trial

commissioner.

The pertinent facts are as follows. The claimant was

employed as a housekeeper with the respondent, Hartford

Golf Club since 1991. On May 30, 1999 the claimant

injured her back while in the course of her employment.

After her initial treatment with Connecticut Multi Specialty

Group she was diagnosed with an acute low back strain with

lumbar spondylosis. The claimant was temporarily totally

disabled from June |, 1999 through June 9, 1999.

Thereafter, Ms. Bidoae was released to light duty capacity

by St. Francis Care. On June 27, 1999 the claimant

underwent an MRI of the lumbar sacral spine which revealed

a small disc herniation at T12-L1 and L1-L2 and moderate

spondylosis at LI-L2. The respondents noted Ms. Bidoae

had a pre-existing back injury in 1997. She was also

involved in a motor vehicle accident on February 21, 1998

and sustained injuries to her back and neck as a result. X-

rays taken of the claimant’s lumbar and cervical spine at that

time revealed a narrow L5-SI interspace and a narrow C5-

C6 dise space and subluxation at CS.

Ata formal hearing held on July 24, 2001 a trial

commissioner ordered if the claimant did not Qubmit to the

respondent's vocational examination within a reasonable

time period at the formal hearing she would be precluded

from producing any evidence relevant to her own vocational

expert’s assessment. That trial commissioner's order was

the subject of a prior appeal, Bidoue v. Hartford Golf Club,

4424 CRB-6-01-8 (June 27, 2002). In that appeal, the

claimant primarily contended that a vocational rehabilitation

specialist falls outside the scope of § 31-294fC.G.S. This

statue

BEST AVAILABLE COPY

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allows the employer or commissioner to request the

employee undergo an examination by a practicing physician

or surgeon in order to determine the nature of the worker’s

injury and related incapacity. While we agreed with the

claimant that § 31-294f was inapplicable to the

determination

of this issue we held “a trier is acting well within his

authority if he rules that she [the claimant] cannot offer such

evidence without giving her employer and its workers’

compensation insurer an opportunity to offer relevant

rebuttal evidence by scheduling their own vocational

rehabilitation examination.” Id. Therefore, we upheld the

trial commissioner’s determination that the claimant be

precluded from offering her own vocational expert’s

evidence if she did not submit to the respondent’s vocational

expert’s examination. To date the claimant has not

submitted to such.

The claimant raises the same issue regarding the

rehabilitation expert in this appeal as she did 1n her prior

appeal. This issue was the subject of an earlier appeal and

for that reason we will not address the issue a second time.

Matey v. Dember, 3153 CRB-5-95-8 (January 10, 1987),

aff'd in part and rev'd in part, 256 Conn. 456 (2001);

Cuascut and VMMC v. Waldbaum’'s Foodmart, 16 Conn.

Workers’ Comp. Rev. Op. 3, 3111 CRB-8-96-6 (October |,

1996). Therefore, the findings regarding the admissibility of

the claimant’s vocational expert's evidence shall stand.

On June 22, 1999 Dr. Albert Casale, an orthopedic

surgeon, placed the claimant out of work. On July 6, 1999,

upon the claimant's request, Dr. Casale placed the claimant

out of work for two additional weeks but told the claimant

she would need to return to work after that period passed.

On July 20, 1999 Dr. Casale placed the claimant on a light

A2|

duty sedentary work capacity.

On December 23, 1999 the claimant was seen by Dr.

Jay Krompinger, an orthopedic surgeon, who opined that

claimant had a sedentary work capacity. Dr. Krompinger

diagnosed the claimant with central back pain secondary to a

degeneration of an LS-S1 disc and treated her with physical

therapy, epidural injections and a brace. On August 8, 2000

Dr. Krompinger assigned the claimant an cight percent

permanent partial disability to her lumbar spine. The trial

commissioner who heard the merits of the claim found the

claimant had not sustained her burden of proof that she was

permanently and totally disabled as a result of her May 30,

1999 work-related injury. He therefore dismissed the claim.

The claimant has appealed this finding. The thrust of

the claimant’s remaining issues on appeal concern the

commissioner’s alleged error in failing to find the claimant

was totally disabled pursuant to § 31-307 C.G.S.' The

claimant in her brief alleges the combination of the following

factors would mandate a finding of total disability, citing

'The claimant raised several additional issues in her Brief which

were not raised in her Reasons for Appeal. Specifically, the claimant

alleges the respondent benefitted from an illegal and improper

communication with the claimant's treating physician. Additionally, the

claimant contends the trial commission erred in failing to award interest

and attorney's fees under § 31-300 C.G.S. As these issues were not

raised in a timely fashion, they are not discussed in this opinion.

Furthermore, there was no testimony or evidence submitted regarding any

alleged illegal communications at the formal hearing. Additionally. we

note an award of interest under § 31-300 is assessed at the discretion of

the trial commissioner. Delcarmine v. Fire Prevention Service, Inc., §

Conn. Workers” Comp. Rev. Op. 123, 311 CRD-7-84 (June 27, 1988).

As this opinion affirms the trial commissioner's decision to deny total

disability benefits to the claimant. we would logically support a finding

that does not include interest and attorneys fees

A22

Osterlund v. State, 135 Conn. 498 (1949). The claimant is a

54-year-old, 1991 Russian immigrant. She is not fluent in

English. Ms. Bidoae has only worked in the United States as

a housekeeper for the respondent-employer. She has been

unsuccessful at obtaining a teacher’s aid position. The

claimant has not been able to pass a driver’s license

examination. Due to her language barrier, she has been

unable to find other jobs. In May 2000 Dr. Krompinger

opined that the claimant was only capable of sedentary work,

but due to her Ajucational background and functional

capacity she may be a candidate for Social Security

Disability. Jay Cudrin, PhD examined the claimant for the

purpose of a Social Security Disability determination.

Claimant’s Exhibit A, July 15, 2002 report. Dr. Curdin

opined the claimant was afflicted with depressive disorder

that may be secondary to her medical condition and that [.Q.

bordered on mental retardation. He stated that she had

severe problems with consistent attention and concentration.

The claimant has the burden of proving she is eligible

for § 31-307 benefits. Cummings v. Twin Tool Mfg., 40

Conn. App. 36, 42 (1996); LaPierre v. UTC/Pratt &

Whitney, 4305 CRB-8-00-10 (October 23, 2001). The trial

commissioner must decide whether a claimant has met that

burden as a factual matter and pessesses the sole authority to

determine which of the medical, Cocumentary or testimonial

evidence is reliable or unreliable. Duddy v. Filene's (May

Department Stores Co.), 4484 CRB-7-02-1 (October 23,

2002; Pallott v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7

(July 17, 1998). If there is evidence in the record to support

the inferences drawn by the trier of fact, we cannot disturb

those findings on review. Phaiah v. Danielson Curtain (CC.

Industries), 4409 CRB-2-01-6 (June 7, 2002).

A23

In Osterlund, supra, 506-507, the court stated that if

an employee is able to perform some gainful employment,

however, “his physical condition due to his injury is such

that he cannot in the exercise of reasonable diligence find an

employer who will employ him, he is just as much totally

incapacitated as though he could not work at all.” The

claimant argues because of her physical incapacity combined

with her lack of skills and failed attempts to find

employment, she should be deemed totally disabled. We

disagree. There was ample evidence to support the trier’s

finding that the claimant was not totally disabled.

An independent medical examination was performed

by Dr. Peter R. Barnett. Dr. Barnett found the claimant was

“capable of sedentary and ambulatory work avoiding any

activities which place bending, lifting, twisting or prolonged

unrelieved standing stresses on the lower back.”

Respondent's Exhibit 6. The claimant testified that she

attended college for four years in her native country,

Romania. April 2, 2003 Transcript, p. 33. The claimant

testified that she worked as a Biology and Chemistry teacher

in Romania. Id., pp. 21, 23. She testified that she attended

Community Technical College in Hartford. Id.. p. 23.

Altheugh the claimant vaguely testified that she applied for

some positions and was unable to obtain those jobs, Id. p. 22,

there was no comprehensive testimony nor other evidence

submitted regarding the claimant's unsuccessful job search.

Dr. Cudrin stated the claimant was “conversationally

competent in English.” He opined the claimant's remarks to

him “suggested that although she had physical limitations,

she was able to handle many activities of daily living and

routine repetitive tasks.” Claimant's Exhibit A. Although

Dr. Cudrin found the claimant's IQ test scored bordering

mental retardation he stated, “there is no doubt that this score

A24

grossly underestimated her actual intelligence level. Her

performance on this test was severely hampered by her

problems with English and the fact that she lived in another

country until about 10 years ago.” /d.

Furthermore, Dr. Cudrin’s examination was based on

a determination for Social Security Disability benefits.

Similarly, Dr. Krompinger opined the claimant may be a

candidate for Social Security Disability. However, we have

repeatedly held that decisions regarding Social Security

Disability are not material to Workers’ Compensations

claims insofar as the standards used by the Social Security

Administration differ from those used by the Workers’

Compensation Commission. Bailey v. Stripling Auto Sales,

Inc. d/b/a Willimantic Dodge/Nissan, \5 Conn. Workers’

Comp. Rev. Op. 369, 3095 CRB-2-95-6 (June 28, 1996);

Krajewski v. Atlantic Aerospace Textron, 15 Conn. Workers’

Comp. Rev. Op. 44, 2120 CRB-6-94-8 (November 28,

1995). For these reasons we believe the trial commission

had ample evidence to support his findings and we will not

overturn those findings on review.

Therefore, we affirm the June 24, 2003 Finding and

Dismissal of the Commissioner acting for the Sixth District.

Commissioners A. Thomas White and Charles F.

Senich concur.

RADA BIDAOE

6 Goshen Street

Hartford, CT 06106

CLAIMANT

VS.

HARTFORD GOLF CLUB

134 Norwood Road

West Hartford, CT 06117

EMPLOYER

ESUS

P.O. Box 5001

Hartford, CT 06102

INSURER

APPEARANCES:

A25

: STATE OF CONNECTICUT

> WORKERS’

: COMPENSATION

: COMMISSION

: SIXTH DISTRICT

: FILE #601019458

: JUNE 24, 2003

The claimant was represented by Atty. Neil Johnson c/o

AAAA Legal Services, 96 Webster Street, Hartford, CT

06114.

The respondents were represented by Atty. Dominick Statile

c/o Montstream & May, P.O. Box 1087, 655 Winding Brook

Dr., Glastonbury, CT 06033.

FINDING AND DISMISSAL

Pursuant to statutory notice to all parties, a formal

hearing was held before the undersigned Commissioner at

the Sixth District, New Britain, Connecticut on April 2.

2003. On June 17, 2003, the record was closed upon the

A26

filing of Proposed findings and Briefs.

BASED UPON THE EVIDENCE PRESENTED, THE

FOLLOWING FACTS ARE FOUND:

The claimant, Rada Bidaoe, had been

employed with the Hartford Golf Club as a

housekeeper since 1991.

The claimant's job duties were to clean the

woman’s locker room by cleaning up trash

and cleaning the sinks and showers.

On May 30, 1999, the claimant injured her

back while in the employ of the respondent

Hartford Golf Club, picking up a box of paper

while cleaning the woman's locker room.

(Claimant’s Ex. A)

The claimant first received treatment at the

Connecticut Multi Specialty Group where she

was diagnosed with an acute low back strain

with lumbar spondylosis. (Claimant’s Ex. A)

The claimant was temporarily totally disabled

from Jun 1, 1999 through June 9, 1999. At

that time she was released to light duty

capacity by St. Francis Care with lifting up to

20 pounds and bending, stooping, climbing up

to 10 minutes at a time. (Claimant's Ex. A)

On June 27, 1999, the claimant underwent an

MRI of the lumbar sacral spine which

revealed a small disc herniation at T12-L.1

and LIOL2

A27

and moderate spondylosis at LI-L2 and

moderate spondylosis at L1-L2. (Claimant’s

Ex. A)

The claimant was then seen by Dr. Albert

Casale an orthopedic surgeon. On June 22,

1999, Dr. Casale placed the claimant out of

work. (Claimant’s Ex. A)

On July 6, 1999, the claimant returned to Dr.

Casale and requested an additional two weeks

out of work. Dr. Casale placed the claimant

out of work for two more weeks but told the

claimant she would have to return to work

after the two weeks elapsed. (Claimant’s Ex.

On July 20, 1999, the claimant returned to Dr.

Casale who placed her on a light duty

sedentary work capacity. Dr. Casale

increased the claimants work activities in the

fall of 1999. (Claimant’s Ex. A)

The claimant was seen by Dr. Jay

Krompinger an orthopedic surfeon on

December 23, 1999 at which time he opined

that the claimant had the capability of a

sedentary work capacity. (Claimant's Ex. A)

At no time was the claimant ever released or

placed out of work due to her May 39, 1999

work related injury. (Claimant’s Ex. A)

Dr. Krompinger diagnosed the claimant with

A28

central back pain secondary to a degeneration

of an LSOS1 disc with treatment consisting of

physical therapy, epidural injections and a

brace. (Claimant’s Ex. A)

A tormal hearing was held before

Commissioner Stephen Delaney and on July

24, 2001 Commissioner Delaney issued a

Finding and Order concerning vocational

examination. (Respondent's Ex. 2)

In said Finding Commissioner Delaney

ordered the claimant to submit to the

respondert’s vocational examination within a

reasonable time period or the claimant would

be precluded from producing any evidence

relevant to her own vocational expert's

assessment at the formal hearing.

(Respondent's Ex. 2)

The claimant has to date refused to submit to

a respondent’s vocational examination.

On August 8, 2000, Dr. Jay Krompinger

assigned the claimant an eight percent (8%)

permanent partial disability to her lumbar

spine. (Claimant’s Ex. A)

The claimant had a pre-existing back injury in

1997 and was treated by Dr. Paradis for said

injury. (Claimant's Ex. A)

The claimant was also involved in a motor

vehicle accident of February 21, 1998 and

sustained injuries to her neck and back as a

A29

result of said motor vehicle accident.

X-rays of the claimant’s lumbar and cervical

spine revealed a narrow L5-S1 interspace and

a narrow C5-C6 disc space and a subluxation

at CS. (Respondent’s Ex. 4)

The claimant was also treated at the Nutmeg

Pain Center subsequent to her February 21,

1998 motor vehicle accident. (Respondent’s

Ex. 3)

It is the claimant’s contention that based upon

the opinion of her treating physician she 1s

permanently and totally disabled employed.

ISSUE:

Has the claimant sustained her burden of proof that she 1s

permanently and totally disabled as a result of her May 30,

1999 work related injury?

BASED ON THE FOREGOING, IT IS HEREBY FOUND,

ADJUDGED AND ORDERED:

A. The claimant has not sustained or met her burden of

proof that she is permanently and totally disabled as a result

of her May 30, 1999 work related injury.

B. The claimant did not present any evidence concerning

her work capacity from a vocational rehabilitation

specialist/expert.

C. The claimant refused to submit to the respondent's

vocational examination and therefore the claimant was

A30

precluded at the time ef this formal hearing from

producing any evidence relevant to her own vocational

expert’s assessment at the formal hearing.

D. | find that the claimant’s claim for permanent total

benefits is Dismissed.

E. In all other respects, this file shall remain open, subject to

further nears at the request of the parties or the

Commissioner:

IT IS SO FOUND, CONCLUDED AND ORDERED.

BY THE COURT,

ASSISTANT CLERK-APPELLATE

A3]

RADA BIDOAE : STATE OF CONNECTICUT

6Goshen Street

Hartford, CT 06106

CLAIMANT : WORKERS? COMPENSATION

: COMMISSION

VS.

HARTFORD GOLF

CLUB : SIXTH DISTRICT

134 Norwood Road

West Hartford, CT 06117

EMPLOYER - FILE #601019458

MASTERCARE

P.O. Box 805

Wallingford, CT 06492

INSURER : JULY 24, 2001

APPEARANCES:

The claimant was represented by Atty. Neil Johnson c/o

AAAA Legal Services, 96 Webster Street, Hartford, CT

06114.

The insurer was represented by Atty. Dominick Statile c/o

Montstream & May, 655 Winding Brook Drive, P.O. Box

1087, Glastonbury, CT 06033-6087.

FINDING AND ORDER RE: VOCATIONAL

EXAMINATION

Pursuant to statutory notice to all parties, a formal

hearing was held before the undersigned on May 8, 2001.

The following facts are found:

A32

The claimant, Rada Bidoae, (hereinafter referred to as

the claimant) sustained an eight percent (8%)

permanent partial disability to her back on May 8,

1999 which arose out of and in the course of her

employment with the respondent/employer, the

Hartford Golf Club (hereinafter referred to as the

respondent).

The claimant's treating physician, Dr. W. Jay

Krompinger, opined in his report of May 4, 2000, “I

suspect she is a candidate for social security”.

The claimant sought an evaluation on the issue of her

work capacity from a vocational rehabilitation

specialist/expert, Mr. Hank Lerner. An

employability assessment report was issued on

September 18, 2000.

It is the claimants contention based upon the

assessment and opinions of her vocational

rehabilitation expert, she is permanently and totally

disabled from employment.

The claimant seeks to support this claim by

introducing into evidence at a formal hearing the

testimony/report of Mr. Lerner, her vocational expert.

The respondents attempted to schedule the claimant

for an evaluation with their vocational rehabilitation

expert, Mr. David Saja.

The claimant has refused to submit to this evaluation.

The claimant objects to an independent examination

A33

with a vocational rehabilitation specialist who ts not a

physician or surgeon by definition in accordance with

Connecticut General Statute Section 31-294f.

The claimant further contends that an independent

medical examination by a vocational rehabilitation

specialist would be an invasion of a persons personal

privacy as defined by Connecticut General Statute

Section 52-178a. Connecticut General Statute

Section 31-294f states in pertinent part,

‘An injured employee shall submit himself to

examination by a reputable practicing physician or

surgeon at any time while claiming or receiving

compensation, upon reasonable request of the

employer or at the direction of the Commissioner.”

A physician as defined by Connecticut General

Statue Section 31-275(17) includes any person

licensed and authorized to practice a healing art as

defined in Connecticut General Statute Section 20-1.

The claimant further contends a vocational

rehabilitation specialist is not authorized to practice a

healing art and therefore would not be covered under

Connecticut General Statute Sections 31-294f, 31-

275 and 20-1.

11. It 1s the respondent's contention that the clammant

must submit to their vocational examination to be

performed by Mr. Saja or be precluded from entering

trom her own expert on the employability issue.

12. In support of their position, the respondents contend

that the Workers’ Compensation Commissioner

derives its power and authority from tts enabling

A34

statutes. Pursuant to Connecticut General Statute

Section 31-278, each Commissioner is empowered

with extensive authority in determining how to

preside over a claim.

The respondents further contend that the powers of

the Commissioner are further expanded as set forth in

Connecticut General Statute Section 31-298 which

states in pertinent part,

“the Commissioner shall proceed so far as possible,

in accordance with the rules of equity. He shall not

be bound by the ordinary common law or statutory

rules of evidence of procedure, but shall make

inquiry though oral testimony, deposition testimony

or written records, in a manner that 1s best calculated

to ascertain the substantial rights of the parties and

carry out the provisions and intent of this chapter.”

The evidentiary power of the Commissioner has been

stated to be even greater than the evidentiary reach of

the Superior Court. Powers v. Hotel Bond Co. 89

Conn. 143, 148-149 91915) and Costelli v. Blakeslee

Arpaia Chapman, 2159 CRB-3-94-9 (1/11/96)

One of the fundamental purposes of the

Commiussioner’s expansive evidentiary reach 1s to

encourage full disclosure and cooperation among the

parties during the pendency of a claim. Dixon v.

United Illuminating Co. 1996 CRB-4-94-3 (8/4/95)

The respondents further contend that pursuant to

Connecticut Reg. 31-283a-2, the Commissioner,

claimant, respondent or any other interested party,

may request a claimant undergo vocational

A35

rehabilitation services, if eligible. An integral part of

this program is the performance of a vocational

evaluation.

The respondents further contend that by analogy, that

while there is no statute which requires an individual

to undergo an examination other than a physical

examination, the Practice Book has reviewed an

interpreted Connecticut General Statute Section 52-

178a to include physical and mental examinations.

Practice Book Section 13-11(a) provides in pertinent

part,

“In any civil action, where the judicial authority finds

it reasonable probable that evidence outside the

record will be required, in which the mental or

physical condition of a party-—is material to the

prosecution or defense of said action, the judicial

authority may order the party to submit to a physical

or mental examination by a physician”.

Based upon the above statutes and relevant Practice

Book citations, the respondent contends that when a

party puts his/her physical or mental condition in

dispute they are required to undergo af examination

with a doctor of the opposing parties choosing.

Lastly, the respondents assert in the event the

claimant refuses to submit to such an examination

after an order, relevant case law and the Federal

Rules of Civil Procedure should be followed and the

claimant should be prohibited from introducing

his/her expert evidence on the issue.

A36

Based upon the above, the claimant asserts that a

strict construction of Connecticut General Statutes

31-294f and those limitations articulated by our

courts as well as a claimed right to privacy support

the position that she should not be required to

undergo a vocational examination as requested by the

respondent.

Based upon the above, the respondent asserts the

Commissioner has the broad powers and authority to

order a vocational examination and as such, an order

should enter to achieve equity, fair play, full

disclosure and cooperation between the parties.

Failure to comply with such an order should result in

the claimants preclusion to submit her vocational

evidence on the issue of employability.

WHEREFORE, UPON ALL THE EVIDENCE BEFORE

ME, | AM SATISFIED, CONCLUDE AND FIND THAT:

The claimant, Rada Bidoae, sustained an eight

percent (8%) permanent partial disability to her back

on May 8, 1999 which arose out of an in the course

of her employment with the respondent/employer,

Hartford Golf Club.

The claimant's treating physician, Dr. W. Jay

Krompinger, opined in his report of May 4, 2000, “I

suspect she is a candidate for social security”.

The claimant sought an evaluation on the issue of her

work capacity from a vocational rehabilitation

specialisVexpert, Mr. Hank Lerner. An

employability assessment report was issued on

September 18, 2000.

A37

It is the claimants contention that based upon the

assessment and opinions of her vocational

rehabilitation expert, she is permanently and totally

disabled from employment as a result of her injuries.

The claimant seeks to support this claim by

introducing into evidence at a formal hearing the

testimony/report of Mr. Lerner, her vocational expert.

The respondents attempted to schedule the claimant

for an evaluation with their vocational rehabilitation

expert, Mr. David Saja.

The claimant has refused to submit to this evaluation.

The claimant objections to an independent medical

examination with a vocational rehabilitation

specialist who is not a physician or surgeon by

definition in accordance with Connecticut General

Statute Section 31-294f.

The claimant has put her vocational total disability

claim at issue in this matter.

No evidence of any physical/mental impairments was

introduced which inhibit or prohibit the claimant

from undergoing such an examination.

Administrative notice 1s taken that a vocational

examination Is not a traditional physical examination.

A majority of vocational rehabilitation experts are

not physicians. Medical records are reviewed and

other testing 1s performed.

QO.

A38

A duty to adhere to the strict construction of

applicable statutes and those limitations articulated

by the courts must be balanced against the concepts

of equity, fair play, full disclosure and cooperation.

I find and conclude the consideration and protection

of the substantive rights of the respondent outweigh

the claimants assertions of strict statutory

construgtion, limitations and a claimed right to

Resolving these threshold issues, | find and conclude

that Connecticut General Statute Section 31-278 and

Section 31-298 as well as pertinent case law, vest in

this Commissioner the power and authority to order

the claimant to undergo the respondents vocational

examination.

Applicable case law and the Connecticut Practice

Book provide guidance and direction for fashioning a

remedy in the event of a parties refusal to comply

with such an order to undergo the examination. |

find, conclude and adopt this remedy.

WHEREFORE, IT [S ORDERED, AWARDED,

ADJUDGED AND DECREED THAT:

The claimant is ordered to submit to the respondent's

vocational rehabilitation examination within a

reasonable time period or she will be precluded from

producing any evidence relative to her vocational

experts assessment or report at the formal hearing.

A39

Stephen B. Delaney

Commiussioner-Sixth District

A40

CASE NO. 4424 CRB-6-01-8 :;COMPENSATION REVIEW

CLAIM NO. 601019458 -BOARD

RADA BIDOAE

CLAIMANT-APPELLANT :WORKERS’

‘COMPENSATION

‘(COMMISSION

V. JUNE 27, 2002

HARTFORD GOLF CLUB

EMPLOYER

and

MASTERCARE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES: _ The claimant was represented by Neil

Johnson, Esq., AAAA Legal Services,

96 Webster Street, Hartford, CT

06114.

The respondents were represented by

Jean Malloy, Esq., Montstream &

May, L.L.P., Salmon Brook Corporate

Park, 655 Winding Brook Drive,

Glastonbury, CT 06033-6087.

This Petition for Review from the July

24, 2001 Finding and Order of the

Commission acting for the Sixth

District was heard February 22, 2002

A4l

before a Compensation Review Board panel

consisting of the Commission Chairman John A.

Mastropietro and Commissioners Donald H. Doyle,

Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The

claimant has petitioned for review from the July 24, 2001

Finding and Order of the Commissioner acting for the Sixth

District. She contends on appeal that the trier erred by

ordering that the admission of certain evidence be

conditioned upon her acceding to an examination by a

vocational rehabilitation specialist who was not also a

physician within the meaning of § 31-294fC.G.S. We find

no error, and affirm the trial commissioner's decision.

The trial commissioner found that the claimant

sustained and 8% permanent partial disability to her back

following a May 8, 1999 injury that arose out of and in the

course of her employment with the respondent Hartford Golf

Club. Her treating physician stated on May 4, 2000 his

suspicion that she he had become a candidate for social

security. The claimant sought a work capacity evaluation

from Hank Lerner, a vocational rehabilitation specialist, who

issued an employability assessment report on September 18,

2000. Based on his assessment, she contends that she is

permanently and totally disabled from all employment. At

the formal hearing, she sought to support her claim by

introducing Lerner’s testimony.

The respondents then attempted to schedule her for

an evaluation with David Saja, another vocational

rehabilitation expert. The claimant refused to submit to that

A42

evaluation, arguing that an independent medical examination

with such a specialist would be an invasion of her personal

privacy as defined by § 52-178a C.G.S.’ Because a

vocational rehabilitation specialist does not practice a

healing art under § 20-1 C.G.S.*, she asserts that § 31-294f

and § 31-275 do not permit an order for such an exam. The

respondents, meanwhile, argued that the commissioner’s

evidence-gathering powers encompass such an order. They

also argued that Admin. Reg. § 31-238a-2’ allows any party

to request that a claimant undergo vocational rehabilitation

‘Section 52-178a provides, “In any action to recover damages

for personal injuries, the court or judge may order the plaintiff to submit

to a physical examination by one or more physicians or surgeons. No

party may be compelled to undergo a physical examination by any

physician to whom he objects in writing submitted to the court or judge.”

u . - ~- . ee én . .

“Section 20-1 defines “healing arts” as “the practice of

medicine, chiropractic, podiatry, naturcopathy and, except as used in

chapters 384a and 388 the practice of optometry.”

‘Administrative Reg. § 31-283-2 states, “As provided in Section

31-283a of the general statutes, a disabled employee may be eligible for

vocational rehabilitation benefits, provided the Chairman or his designee

finds that:

(1) The employee, employer, insurance carricr, physician,

Commissioner, or other interested party has requested vocational

rchabilitation services by completing and filing an application

signed by the applicant for vocational rehabilitation benefits

with the Chairman or his designee.

(2) There exists a permanent impairment which substantially

disables the employee for a significant period of time from

performing the worker's most recent or customary type of work

and that such permanent impairment is a direct result of any

injury found to be compensable under Chapter 568 of the

veneral statutes by a Commissioner, voluntary agreement, an

award; or in licu of those, a stipulation approved by a

Commissioner,”

A43

services, if eligible, which presupposes that a claimant be

asked to submit to a vocational evaluation. The trier agreed

with the respondents’ position. He held that the relevant

statutes, together with the Practice Book’ and concepts of

equity, fair play, full disclosure and cooperation, allow a

respondent to seek an examination with a vocational

rehabilitation expert if a claimant wishes to offer her own

evidence of like kind. The trier therefore ordered that she

either submit to the examination, or be precluded from

offering her own vocational rehabilitation expert's report

into evidence. The claimant has appealed from that ruling.

The main thrust of the argument in the claimant’s

bricf is that a vocational rehabilitation specialist falls outside

the scope of § 31-294f, which allows the employer or the

commissioner to request that an injured employer submit

himself “to examination by a reputable practicing physician

or surgeon,” in order to determine the nature of the injury

and resultant incapacity. “Physician,” in turn, is defined by

§ 31-275(17) as any person authorized and licensed to

practice a healing art, as defined by § 20-1. She takes the

position that, absent specific authorization by the Workers’

Compensation Act, a {rial commissioner cannot invoke the

general provisions of % 45-278 C.G.S. and § 31-298 C.G:S.

to order a claimant t sisomit to an examination by a non-

physician such as @ vecational rehabilitation specialist. She

"Specifically, the trial commissioner cited P.B. § 13-1 1(a) which

States, “In any civil action, in any probate appeal, or in any administrative

appeal where the judicial authority finds it reasonable probable that

evidence outside the record will be required, in which the mental or

physical condition of a party, or of a personal in the custody of or under

the legal control of a party, is material to the prosecution or defense of

said action, the judicial authority may order the party to submit to a

physical or mental examination by a physician or to produce for

examination the person in party’s custody or legal control.”

A44

then cites a number of cases that stress the proposition that

the remedial purpose of the Act cannot transcend its

statutorily-defined jurisdictional boundaries. See, e.g.,

Dowling v. Slotnick, 244 Conn. 781, 800 (1998). In her

view, the trial commissioner lacked the authority to rule that

he would exclude her vocational rehabilitation expert’s

testimony and reports unless she consented to an

examination by a vocational rehabilitation specialist of the

respondent’s choosing. Indeed, at oral argument, the

claimant’s counsel went so far as to say that the Act intends

to give the claimant an advantage by creating evidentiary

restrictions for employers and insurers that do not equally

constrain injured employees who are seeking benefits.

With respect to this line of reasoning, the only mutual

perspective we share with the claimant is our agreement with

her point that § 31-294f does not apply in this instance.

Given that she seeks to introduce testimony by her own

vocational rehabilitation expert in support of her permanent

total disability claim, we do not see the respondent’s request

for an examination by a similar expert as being primarily

grounded in the rights granted to employers by § 31-294f.

Rather, the respondents’ requests strikes a chord that 1s more

basic to the principals of due process: the notion that one is

entitled to confront a witness on equal terms, by addressing

any relevant issue that has been placed into dispute by a

party seeking some sort of recovery. The respondents raised

in their brig the case of Cook v. Miller, 103 Conn. 267

(1925), A Supreme Court opinion which held that a

defendant in a civil negligence suit was entitled to obtain a

physical examination of the plaintiff, whose injuries were the

basis of the pending claim. Though that case may have dealt

with a doctor’s examination, the underlying principle was

quite clear: it would be a gross violation of justice for a

plaintiff to be able to introduce expert testimony on an issue

A45

related to her physical or mental condition without

permitting the defense to introduce expert testimony of a like

kind.

As noted in the recent case of Bailey v. State, 65

Conn. App. 592 (2001), § 31-298 C.G.S. grants broad

authority to a commissioner to carry out the provisions of the

Workers’ Compensation Act. The statute states the trier

“shall not be bound by the ordinary common law or statutory

rules of evidence or procedure, but shall make inquiry,

through oral testimony, deposition testimony or written and

printed records, 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.” (Emphasis added).

In doing so, he must endeavor to protect the parties’

substantial rights, which include the right of the employer to

examine the claimant independently, to notice his deposition,

and to insist on hearing his personal testimony at a formal

hearing. Bailey, supra, 604, citing Pietraroia v. Northeast

Utilities, 254 Conn. 60, 71-72 (2000). The fundamental right

of a party to be heard at a meaningful time and in a

meaningful manner includes the right to produce relevant

evidence and to offer rebuttal evidence. Bailey, supra;

Bryan v. Shereton-Hartford Hotel, 62 Conn. App. 733, 740

(2001).

Where a claimant seeks to claim entitlement to total

disability benefits by offering the testimony and reports of a

vocational rehabilitation specialist, a trier is acting well

within his authority if he rules that she cannot offer such

evidence without giving her employer and its workers’

compensation insurer an opportunity to offer relevant

rebuttal evidence by scheduling their own vocational

rehabilitation examination. Such a ruling is clearly designed

to protect the rights of all parties by creating a level playing

A46

field. We strongly reject the insinuation of the claimant's

counsel that this system is designed to give the claimants the

advantage of being able to offer certain types of evidence

that may not be made under such circumstances, and § 31-

294f would not preclude such an examination. As the trier

noted, the Practice Book also supports such a ruling, and the

respondents would in any case be entitled to apply for

vocational rehabilitation services for the claimant pursuant to

§ 31-283s. These factors all support the decision below.

The trial commissioner’s decision ts accordingly

affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J.

Vargas concur.

APPELLATE COURT

STATE OF CONNECTICUT

NO. A.C. 23245

RADA BIDOAE

HARTFORD GOLF CLUB ET AL.

September 11, 2002

ORDER

AFTER HEARING AS TO WHY THE APPEAL SHOULD

NOT BE DISMISSED FOR LACK OF A FINAL

JUDGEMENT, IT IS HEREBY ORDERED THAT THE

APPEAL IS DISMISSED.

NOTICE SENT: September | 1, 2002

AAAA LEGAL SERVICES

MONTSTREAM & MAY

CRDCDO1I 0004424

TOPAC

es ‘

A48

C.G.S.A. § 31-307

Connecticut General Statutes Annotated Currentness

Title 31. Labor

Chapter 568. Workers’ Compensation Act (Refs & Annos)

Part B. Workers’ Compensation (Refs & Annos)

§ 31-307. Compensation for total incapacity

a) If any injury for which compensation is provided under

the provisions of this chapter results in total incapacity to

work, the injured employee shall be paid a weekly

compensation equal to seventy-five per cent of his average

weekly earnings as of the date of the injury, calculated

pursuant to section 31-310, after such earnings have been

reduced by any deduction for federal or state taxes, or both,

and for the federal Insurance Contributions Act made from

such employee's total wages received during the period of

calculation of the employee's average weekly wage pursuant

to said section 31-310; but the compensation shall not be

more than the maximum weekly benefit rate set forth in

section 31-309 for the year in which the injury occurred. No

employee entitled to compensation under this section shall

receive less than twenty per cent of the maximum weckly

compensation rate, as provided in section 31-309, provided

the minimum payment shall not exceed seventy-five per cent

of the employee's average weekly wage, as determined under

section 31-310, and the compensation shall not continue

longer than the period of total incapacity.

1. (b) Notwithstanding the provisions of subsection (a)

of this section, any employee who suffers any injury

or illness caused by his employer's violation of any

health or safety regulation adopted pursuant to

chapter 571 or adopted by the federal Occupational

A49

Safety and Health Administration and listed in 29

CFR, Chapter XVII, after the violation has been cited

in accordance with the provisions of section 31-375

or the provisions of the Occupational Safety and

Health Act of 1970, 84 Stat. 1601 (1970), 29 USC

658 and not abated within the time fixed by the

citation, provided the citation has not been set aside

by appeal to the appropriate agency or court having

jurisdiction, shall receive a weekly compensation

equal to one hundred per cent of the employee's

average weekly earnings at the time of the injury or illness.

as causing total incapacity and compensation shall be paid

accordingly: (1) Total and permanent loss of sight of both

eyes, or the reduction to one-tenth or less of normal vision;

(2) the loss of both feet at or above the ankle; (3) the loss of

both hands at or above the wrist; (4) the loss of one foot at or

above the ankle and one hand at or above the wrist; (5) any

injury resulting in permanent and complete paralysis of the

legs or arms or of one leg and one arm; (6) any injury

resulting in incurable imbecility or mental illness.

(d) An employee who has suffered the loss or loss of the use

of one of the members of his body, or part of one of the

members of his body, or the reduction of vision in one eye to

one-tenth or less of normal vision, shall not receive

compensation for the later injury in excess of the

compensation allowed for the injury when considered by

itself and not in conjunction with the previous incapacity

except as provided in this chapter.

(ec) Notwithstanding any provision of the general statutes to

the contrary, compensation paid to an employee for an

ASO

employee's total incapacity shall be reduced while the

employee is entitled to receive old age insurance benefits

pursuant to the federal Social Security Act. The amount of

each reduced workers’ compensation payment shall equal the

excess, if any, of the workers' compensation payment over

the old age insurance benefits.

C.G.S.A. §31-276

Connecticut General Statutes Annotated Currentness

Title 31. Labor

Chapter 568. Workers’ Compensation Act (Refs & Annos)

Part A. Workers’ Compensation Commission.

Compensation Commissioners. Employer's Liability

(Refs & Annos)

1. Workers’ Compensation Commission.

Compensation Commissioners. (Refs & Annos)

§31-276. Workers’ Compensation Commission.

Compensation commissioners. Nomination by Governor.

Appointment by General Assembly. Terms of office.

Removal. Selection of a chairman

(a) There shall be a Workers' Compensation Commission to

administer the workers' compensation system. There shall be

sixteen workers’ compensation commissioners. On or before

the date of the expiration of the term of each commissioner or

upon the occurrence of a vacancy in the office of any

commissioner for any reason, the Governor shall nominate a

competent person to fill that office. Subsequent to July 1,

1993, each person nominated by the Governor to serve as a

commissioner shall have been a member in good standing of

the Connecticut bar for at least five years preceding the

nomination, provided the Governor shall not be precluded

from renominating an individual who has previously served as

a commissioner. The commissioners shall, upon nomination

by the Governor, be appointed by the General Assembly as

prescribed by law. They shall serve for a term of five years,

but may be removed by impeachment. The Governor shall

from time to time select one of the sixteen commissioners to

serve as chairman of the Workers' Compensation Commission

at the pleasure of the Governor. The commissioner selected

by the Governor to be chairman shall have previously served

as a compensation commissioner in this state for at least one year.

(b) Notwithstanding the provisions of subsection (a),

on and after October |, 1988, any commissioner

whose term expires on December thirty-first shall

continue to serve until the next succeeding March

thirty-first.

Assembly for a compensation commissioner shall be referred,

without debate, to the committee on the judiciary, which shall

report thereon within thirty legislative days from the time of

reference, but no later than seven legislative days before the

adjourning of the General Assembly. Each appointment by the

General Assembly of a compensation commissioner shall be

by concurrent resolution. The action on the passage of each

such resolution in the House and in the Senate shall be by

vote taken on the electrical roll-call device. No resolution

shall contain the name of more than one nominee. The

Governor shall, within five days after he has notice that any

nomination for a compensation commissioner made by him

has failed to be approved by the affirmative concurrent action

of both houses of the General Assembly, make another

nomination to such office.

(d) Notwithstanding the provisions of section 4-19, no

vacancy in the position of a compensation commissioner shall

be filled by the Governor when the General Assembly is not

in session unless, prior to such filling, the Governor submits

the name of the proposed vacancy appointee to the committee

on the judiciary. Within ten days, the committee on the

judiciary may, upon the call of either chairman, hold a special

meeting for the purpose of approving or disapproving such

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proposed vacancy appointee by majority vote. Failure of the

committee to act on such proposed vacancy appointee within

such ten-day period shall be deemed to be an approval.

(ec) Each commissioner shall be sworn to a faithful

performance of his duties. After notice and public hearing the

Governor may remove any commissioner for cause and the

good of the public service. Each compensation commissioner

shall devote his full time to the duties of his office and shall

not be otherwise gainfully employed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.