Opinion
CASE NO. 3680 CRB-07-97-08CLAIM NO. 700103956
OCTOBER 13, 1998
The claimant appeared on his own behalf.
The respondents were represented by James M. Hughes, Esq., McNamara Kenney.
This Petition for Review from the August 22, 1997 Finding and Award of the Commissioner acting for the Seventh District was heard May 8, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.
OPINION
The claimant has appealed from the August 22, 1997 Finding and Award of the Commissioner acting for the Seventh District. In that decision the trial commissioner concluded that the claimant sustained a temporary injury to his lungs due to exposure to cigar smoke. Furthermore, the trial commissioner found that the claimant's injury constituted an exacerbation of a pre-existing upper active airway disease, and concluded that the claimant did not sustain any permanent partial disability. In support of his appeal, the claimant contends that the evidence does not support the determination that the claimant suffered from a pre-existing disease, nor does the evidence support the determination that the claimant's injury was temporary in nature.
The main issue raised by the claimant is the trial commissioner's reliance on the January 22, 1997 medical report by Dr. Godar, who had previously conducted an independent medical examination ("IME") at the request of the respondents. Dr. Godar initially examined the claimant and issued a report on February 8, 1996. Subsequently, in response to a letter from the respondents, Dr. Godar issued a letter dated January 22, 1997. The claimant contends that the January 22, 1997 letter contains opinions which conflict with the prior report of February 8, 1996. Specifically, the claimant contends that in the initial report, Dr. Godar opined that the claimant sustained a ten percent permanent partial disability of the lungs due to the cigar smoke exposure while working for the respondent employer, and that Dr. Godar repeatedly indicated that the claimant did not suffer from a pre-existing disease. Without subsequently examining the claimant, Dr. Godar issued a subsequent report on January 22, 1997, which contradicts the prior report.
In Lee v. Norwalk, 13 Conn. Workers' Comp. Rev. Op. 23, 1626 CRB-7-93-1 (Nov. 7, 1994), the Board stated:
"It is incumbent upon the employer who requests an IME pursuant to § 31-294f to pay not only for the IME, but also to properly introduce the results of that examination into evidence. Thus, a subpoena or deposition of the examining physician should be arranged by the party seeking to introduce his or her testimony as evidence. To require a claimant to pay for the cost of the subpoena or deposition of an independent examiner in order to cross-examine him would unfairly burden the claimant." Lee v. Norwalk, 13 Conn. Workers' Comp. Rev. Op. 23, 25, 1626 CRB-7-93-1 (Nov. 7, 1994).
Subsequently, in Giovino v. West Hartford, 14 Conn. Workers' Comp. Rev. Op. 74, 76, 1912 CRB 1-93-12 (May 12, 1995), the Board explained that the decision in Lee was limited to the specific factual circumstances of that case. In Giovino, the claimant was the party offering the IME report. The Board explained in Giovino, supra, that:
(T)he party objecting to the medical report is not denied the opportunity to cross-examine a medical witness merely because the party offering the report fails to subpoena the medical witness or conduct a deposition. Rather, the objecting party must act with due diligence by obtaining a deposition or by subpoenaing the medical witness to appear at the formal hearing. If the objecting party chooses not to call the medical witness to testify or to be deposed, he assumes a calculated risk in presenting his evidence, and cannot wait until a decision is reached by the commissioner to complain on appeal that he was not afforded the opportunity to cross-examine the medical witness. Giovino, supra, at 77.
In the instant case, the trial commissioner's findings and conclusions are based largely upon the January 22, 1997 letter from Dr. Godar, which appears to contradict his prior report of February 8, 1996. The respondents introduced the January 22, 1997 letter at the formal hearing on January 30, 1997. The claimant appeared pro se during the formal hearings, and was not advised during the formal hearing that he had a right either to request that the respondents conduct a deposition of Dr. Godar, or in the alternative, that he had the right to himself pursue a deposition of Dr. Godar. (1/30/97 TR. at p. 37).
We note that a trial commissioner has the discretion to order a respondent to pay the appearance fee for a doctor deposed by the claimant. See Ferrara v. The Hospital of St. Raphael, 3260 CRB-3-96-2 (November 18, 1997).
Under these circumstances, we conclude that the claimant was not afforded a full and fair opportunity to present his case.
Accordingly, the trial commissioner's decision is vacated, and this matter is remanded to the Seventh District for a de novo hearing.
Commissioners Donald H. Doyle and Michael S. Miles concur.
Lorraine Lockery Administrative Hearings Specialist Compensation Review Board Workers' Compensation Commission