mp. Rev. Op. 72, 73 (1998); see id. (declining to review commissioner's refusal to rule on motion in limine filed to address admissibility of physician's testimony, despite widespread use of that motion in Superior Court, because "[o]ur legislators in 1913 did not envision that claims procedure would be encumbered with the pleading formalities required in the courts"); cf. Gonirenki v. American Steel & Wire Co. , 106 Conn. 1, 9, 137 A. 26 (1927) ("we do not understand that [commissioners] have ever adopted a procedure requiring pleadings as in our courts, or that demurrers, motions to dismiss, and like pleadings, are any part of the established procedure before them"). Indeed, commissioners necessarily have broad authority with respect to the scope of motions to dismiss, insofar as there is no statute or regulation specifically governing them beyond the fact that the "statutory language [of § 31–298 ] is capacious enough to include the power to dismiss a claim in an appropriate case." Pietraroia v. Northeast Utilities , 254 Conn. 60, 71, 756 A.2d 845 (2000) ; see also id., at 72, 756 A.2d 845 (commissioner has authority under § 31–298 to dismiss claim without adjudicating its merits, if claimant fails to appear for trial or independent medical examination because otherwise "claim would remain in a procedural limbo"). We have recognized that such dismissals have been made with or without prejudice.
Nonetheless, it is evident that proportionality is not substantively different from the requirements previously articulated in cases addressing the general rubric of abuse of discretion—that nonsuit must be a "last resort"; Fox v. First Bank , 198 Conn. 34, 39, 501 A.2d 747 (1985) ; and "the only reasonable remedy available to vindicate the legitimate interests of [the other parties and the court]." Pietraroia v. Northeast Utilities , 254 Conn. 60, 75, 756 A.2d 845 (2000) ; see also Zocaras v. Castro , 465 F.3d 479, 483 (11th Cir. 2006) ("[d]ismissal of a case with prejudice is considered a sanction of last resort, applicable only in extreme circumstances" [internal quotation marks omitted] ), cert. denied, 549 U.S. 1228, 127 S.Ct. 1300, 167 L.Ed.2d 113 (2007). Accordingly, rather than establishing a different standard for nonsuit in the context of a discovery sanction, this court articulated in Millbrook a term that provides more meaningful guidance regarding the exercise of discretion that applies to all sanctions of nonsuit.
Although it is true that, ordinarily, a commissioner is not required to accept as true the opinion of any medical expert; Daly v. DelPonte, 225 Conn. 499, 517, 624 A.2d 876 (1993); in this case there was no basis reflected in the record for the commissioner to discount the August, 2004 vocational report or the July, 2008 vocational report, both of which were the results of evaluations that were more appropriately scheduled in conjunction with the April, 2005 date on which the plaintiff claimed benefits and were closer in time to the 2008 and 2009 hearing dates. See Loring v. Planning & Zoning Commission, 287 Conn. 746, 759, 950 A.2d 494 (2008) (“must be some basis in the record to support the [trier of fact's] conclusion that the evidence of the [expert witness] is unworthy of belief” [internal quotation marks omitted] ); Pietraroia v. Northeast Utilities, 254 Conn. 60, 756 A.2d 845 (2000) (commissioner abused his discretion in dismissing in part workers' compensation claim, because there was no basis on record to disregard written medical opinions indicating that plaintiff was unavailable). Compare Cummings v. Twin Tool Mfg. Co., 40 Conn.App. 36, 42–43, 668 A.2d 1346 (1996) (commissioner specifically rejected testimony when no evidence supported expert's conclusion).
We also note that this panel upheld the power of the trial commissioner to order a party to attend a deposition in Pietraroia v. NortheastUtilities, 3597 CRB-8-97-4 (September 8, 1997), noting "[i]f anything, a workers' compensation commissioner is entitled to go beyond what the statutory rules of evidence allow in determining what evidence should be admitted in a compensation proceeding." The Supreme Court overruled this panel on other grounds, finding this decision was an abuse of discretion as it sought to dismiss a claim with prejudice if the claimant (who lived in Australia) failed to attend a hearing in the State of Connecticut. Pietraroia v. Northeast Utilities, 254 Conn. 60 (2000). While the Supreme Court in its Pietraroia decision directed the Commission to find a less burdensome means to obtain the claimant's testimony and medical examination, the Supreme Court did not question the power of a trial commissioner to order a party to submit to discovery.
" (Internal quotation marks omitted.) Id., 604, quoting Pietraroia v.Northeast Utilities, 254 Conn. 60, 72 (2000). As mentioned above, the court noted its expectation that the respondent would be allowed to follow through on its independent medical examination, and any necessary cross-examination as well.
Notably, the foregoing jurisdictions, like Iowa, place a high value on getting benefits in the hands of injured workers. See Ex parte Lumbermen's Underwriting Alliance, 662 So.2d 1133, 1137 n. 3 (Ala.1995) (referring to “the public policy behind the adoption of workers' compensation acts—to provide necessary day-to-day financial support to an injured worker and the worker's dependents”); Pietraroia v. Ne. Utils., 254 Conn. 60, 756 A.2d 845, 854 (2000) (noting that the workers' compensation act “is remedial and must be interpreted liberally to achieve its humanitarian purposes” (internal quotation marks omitted)); Metal Trims Indus., Inc. v. Stovall, 562 So.2d 1293, 1297 (Miss.1990) (“Because of the broad policy declarations made by the Mississippi Legislature in adopting the Worker's Compensation Act, this Court has given liberal construction to the compensation statutes.”); Fitzgerald v. Tom Coddington Stables, 186 N.J. 21, 890 A.2d 933, 938 (2006) (“We have consistently held that our statutory workers' compensation scheme is remedial social legislation and should be given liberal construction in order that its beneficent purposes may be accomplished.”
As for the policies underlying the Workers' Compensation Act, requiring employers to pay a hospital's billed rates or negotiated rates as provided under chapter 368z is consistent with the original intent of that act to require that employers pay the same rates as the general public. See Burge v. Stonington, supra, 219 Conn. at 587–88, 594 A.2d 945; Covey v. Honiss Oyster House, Inc., supra, 117 Conn. at 284, 167 A. 807. It is also consistent with the underlying purpose of the Workers' Compensation Act to provide prompt and efficient resolution in any workers' compensation proceeding; see Pietraroia v. Northeast Utilities, 254 Conn. 60, 74, 756 A.2d 845 (2000); because requiring employers to pay the hospital's published rates would avoid a mini-trial for determining what actual costs are in every instance in which an injured employee receives hospital care. Additionally, reducing health care costs—the purpose of the current hospital deregulation scheme—is consistent with recent workers' compensation reform that was aimed at reducing costs to employers. See 37 H.R. Proc, Pt. 1, 1994 Sess., pp. 711, 713, remarks of Representative Joseph Courtney (discussing possibility of cost savings from deregulating hospitals); 36 H.R. Proc., Pt. 18, 1993 Sess., p. 6145, remarks of Representative Michael P. Lawlor (purpose of 1993 revisions to Workers' Compensation Act was to “effect a dramatic decrease in the cost of workers' compensation in Connecticut”).
The board found that the evidentiary record in the full hearing did not support a finding that the claimant intended to release his compensation claim in exchange for the $70,228.51. Having concluded that the claimant was receiving nothing for the waiver of his previously accepted claim, the board properly affirmed the commissioner's refusal to approve the stipulation as a full and final settlement of the claimant's workers' compensation claim. Further, “[t]he [act] ‘provides the sole remedy for employees and their dependents for work-related injuries and death.’ ” Pietraroia v. Northeast Utilities, 254 Conn. 60, 74, 756 A.2d 845 (2000), quoting Green v. General Dynamics Corp., 245 Conn. 66, 71, 712 A.2d 938 (1998). The spirit and purpose of the act, which is remedial in nature and should be construed broadly to accomplish its humanitarian purpose; see, e.g., Szudora v. Fairfield, 214 Conn. 552, 557, 573 A.2d 1 (1990); also supports the board's decision to affirm the commissioner's refusal to approve the agreement pursuant to § 31–296.
Fox v. First Bank, supra, at 39, 501 A.2d 747. ‘[T]he sanction of dismissal should be imposed only as a last resort, and where it would be the only reasonable remedy available to vindicate the legitimate interests of’ the other party and the court. Pietraroia v. Northeast Utilities, 254 Conn. 60, 75, 756 A.2d 845 (2000).” Millbrook Owners Assn., Inc. v. Hamilton Standard, supra, 257 Conn. at 16–17, 776 A.2d 1115.
(Internal quotation marks omitted.) Pietraroia v. Northeast Utilities, 254 Conn. 60, 74, 756 A.2d 845 (2000). If the failure to allege an essential fact is treated as subject matter jurisdictional, potentially meritorious claims will be subject to dismissal without affording the plaintiff the opportunity to amend the complaint to correct the defect. See Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 501, 815 A.2d 1188 (2003) ("the primary difference between the granting of a motion to dismiss for lack of subject matter jurisdiction and the granting of a motion to strike is that only in the latter case does the plaintiff have the opportunity to amend its complaint" [internal quotation marks omitted]).