What’s Good For the Goose…

Emilia Falkowski v. W.E. Bassett Company & Gallagher Bassett Services, Inc., 5711CRB-4-11-12, 40007604

The CRB upheld the trial commissioner’s determination that sanctions may be imposed against a claimant for an undue delay of a case. In the past, this sanction has been levied almost unilaterally against respondents. This case provides for an interesting recitation of case law on the issue of undue delay.

 In this case, the trial commissioner had ordered a commissioner’s exam and further ordered that all of the necessary medical records be provided to the commission by a date certain. The date came and went without the commissioner having received the medical records requisite to having a meaningful commissioner’s exam. As a consequence, the commissioner imposed a $100.00 fine against the claimant’s counsel for his undue delay. The CRB remanded the matter to the trial commissioner to direct the fine be levied against the party, rather than the counsel, pursuant to the underlying statute, 31-288(b). The CRB decision specifically references a memorandum promulgated by the chairman’s office regarding the procedures for commissioner’s exams, and the language in the memorandum allowing the imposition of sanctions if the party responsible for providing medical records fails to do so in a timely fashion.  The CRB upbraided claimant’s counsel for its “lack of respect to the tribunal and the administrative procedures utilized to accomplish the purpose of the Act.”

 Clearly, had claimant’s counsel requested an extension and provided some reasonable explanation prior to the expiration of the date certain for production of the records, the commissioner would not have levied the sanctions. The take-away from this case is, as the CRB reminds us, is: “the purpose of the system is to provide a prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.”

And there really is an Easter bunny.

A Specious Defense of Temporary Total Benefits, and Sua Sponte Sanctions

LEE VS. CULTEC, INC. CASE NO. 5546 CRB-7-10-4 (FEBRUARY 25, 2011) In a case in which the respondent originally accepted a cervical injury, but ignored the treating physician’s recommendation for a referral to a spine specialist, during which period of time the claimant was deemed to be totally disabled by the treating internist, the respondent could not cry foul when its belated-RME determined that the claimant had a work capacity for some indeterminate period prior to his examination. Respondent conducted an RME only after the respondent claimed that the trial commissioner did not have  competent evidence upon which to determine that the claimant was temporarily and totally disabled for the period of time between the injury and the date of the finding and award, almost a year later. Using unvarnished language, the CRB characterized the respondent’s arguments as specious, finding that there was plenty of evidence in the record to sustain the commissioner’s decision that the claimant was totally disabled. Further, the CRB determined that having limited the claimant to treating with general practitioners, the respondent could not then fairly criticize the opinion from such physicians.

The CRB upheld the trial commissioner’s sua sponte finding that the respondent’s egregious behavior in failing to provide appropriate medical treatment prior to the finding and award, and then formulating a defense payment of temporary total  benefits by attacking the quality of his treatment and credibility of the treating physicians, which they foisted upon the claimant, (by not allowing the referral to his spinal specialist),  merited a penalty under 31-288(b)(1). In affirming the trial commissioner’s 31-288(b)(1) penalty, the CRB indicated that 31-300 attorney’s fees sanction had been properly noticed and because of the similarity in the statutes between 31-300 and 31-288(b)(1), respondent could not claim it was deprived of due process. Specifically, the CRB stated “we do not find the two sanction statutes so dissimilar that the respondent was unable to prepare an effective defense regarding §31-288(b)(1) CGS.