Opinion
CASE NO. 247 CRD-4-83
MARCH 13, 1985
Claimant was represented by Gregory P. Lynch, Esq.
Respondent-Employer was represented by William C. Brown, Esq.
This Petition for Review from the Fourth District Commissioner's July 12, 1983 decision granting a Motion For Permission To Inspect Premises was heard September 23, 1983 before a Compensation Review Division Panel consisting of the Commission Chairman, John Arcudi and Commissioners Robin Waller and Rhoda Loeb.
OPINION
Claimant, an employee of Carpenter Technology Corporation from 1972 until 1981 was diagnosed as having a disabling condition, metastatic epidermoid carcinoma and diffuse pulmonary fibrosis, in the Spring of 1981. Claimant's attorney by letter received in the office of the Fourth District Commissioner May 7, 1982 filed a timely notice asserting a workers' compensation claim for the diagnosed disease. Appended to the attorney's notice of claim was a letter from Dr. J. Bernard L. Gee of the Yale School of Medicine, a specialist in lung diseases. Dr. Gee's letter stated the patient was totally disabled on two grounds: (1) severe pulmonary fibrosis, and (2) a metastatic tumor deposit in the brain. The letter concluded, "My personal opinion of the likelihood of this being work-related is substantial but unproven."
The District file contains a 31-297(b) disclaimer of liability addressed to the Commissioner and the claimant. The claimant's name "JOSEPH THOMAS" is typed on the blank in the form for "name of employee" and "62 BUNNELL STREET, BRIDGEPORT, CT" is typed on the blank over the words "address of employee." This notice was mailed by the respondents June 16, 1981 and received in the Fourth District Office June 22, 1981. The reason given in that Form 43 for the contest is "Condition Not Related To Employment." There were no other papers filed in the District between June 22, 1981 and May 7, 1982.
At an informal hearing held July 2, 1982 claimant apparently requested permission for Dr. Gee to visit the employer's plant and do some atmospheric testing. Despite negotiations extending over several more informal hearings the employer had not granted this permission by June 29, 1983. On that date the claimant submitted to the Commissioner in writing a "Motion For Permission To Inspect Premises." That pleading requested permission "To have a physician, a technician, the claimant and perhaps a nurse take air samples and swab samples in the areas of the plant where Mr. Thomas was employed as a Tinsmith." That Motion granted July 12, 1983 is the basis of this appeal filed July 19, 1983.
Respondents base their appeal on two arguments: (1) the Commissioner lacked jurisdiction over the matter and (2) even if there were jurisdiction, Chapter 568 does not grant the Commissioner the power to order an inspection of the premises. Their first argument rests on the hypothesis that proof of a prima facie case is a necessary prerequisite to the Commissioner's jurisdiction and asserts that: (a) the claimant's physicians are unsure whether the condition is work related; (b) there is no evidence in the record that claimant is even an employee of Carpenter Technology.
This first reason of appeal is possibly the most tortured attack upon the concept of workers' compensation jurisdiction since its inception in 1913 Were this view to prevail then the Commissioner would have no power under 31-278, C.G.S. to subpoena witnesses or order production of books and records until evidence was taken and an employment relationship proven. Similarly, absent that proof, no claimant's attorney could exercise the subpoena powers listed in 51-85, C.G.S. All that a recalcitrant employer would need to do to stymy the whole litigation process is to deny the employment relation. The employment records needed to rebut that denial could not be forthcoming as the subpoena power would be lacking. Of course, in the 1981 disclaimer despite contrary assertions in the attorneys' pleadings, these respondents seem already to have admitted the employment relationship. The disclaimer does not deny Thomas's employee status but only that his condition was employment related. This would seem effectively to dispose of that part of appellants' no jurisdiction argument. We doubt in any case that appellants' attorneys really intended to question that Thomas was an employee.
Sec. 31-278. Powers and duties of commissioner. Each commissioner shall, for the purposes of this chapter, 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 hereto 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 . . . .
Sec. 51-85. Authority and powers of commissioners of the superior court. Each attorney-at-law admitted to practice within the state, while in good standing, shall be a commissioner of the superior court and, in such capacity, may, within the state, sign writs and subpoenas, take recognizances, administer oaths and take depositions and acknowledgments of deeds. Each such attorney may also issue subpoenas to compel the attendance of witnesses and subpoenas duces tecum in administrative proceedings. If, in any administrative proceeding, any person disobeys such subpoena or, having appeared in obedience thereto, refuses to answer any proper and pertinent question or refuses to produce any books, papers or documents pursuant thereto, application may be made to the superior court or any judge thereof for an order compelling obedience.
It is the argument's other part on which appellants appear to place more reliance. That proposition in brief states without proof that there were hazardous substances in Thomas' work environment there can be no finding of work relatedness by the Commissioner. Without such a finding, there is no workers' compensation jurisdiction. Without jurisdiction, the Commissioner cannot order an inspection to prove there were hazardous substances in that environment or even more briefly, without proof the Commissioner has no authority to permit a party to seek the proof which would give such authority. So framed, the proposition possesses Kafkaesque overtones of unreality. It is somewhat reminiscent of the arguments in labor arbitration matters more than a generation ago when it used to be argued the labor arbitrator could not hear a matter because it was not an arbitrable grievance, and he did not have the power to determine the liminal question of arbitrability, Hudson Wire Co. v. Winsted Brassworkers Union, 150 Conn. 546 (1963).
It is true that the commission is an administrative agency, not a common law court, and therefore its jurisdiction is only that derived from its statutory creation. There exists a venerable line of authority circumscribing the parameters of that jurisdiction, Walsh v. Waldron Sons, 112 Conn. 579 (1931), Farmer v. Bieber-Goodman Corporation, 118 Conn. 299 (1934), Rehtarchik v. Hoyt Messenger, 118 Conn. 315 (1934), Rossi v. Jackson Co., 120 Conn. 456 (1935), Vegliante v. New Haven Clock Co., 143 Conn. 571 (1956). A Principal reason for such strict judicial limitations on the statutory grant of authority lay in the judges' hostility toward worker compensation and employer liability laws in the first decades of the century, Hoxie v. New York, N.H. H.R.R. Co., 82 Conn. 352 (1909), Ives v. South Buffalo Rlwy, 201 N.Y. 271, 94 N.E. 431 (1911). "The very fear of unconstitutionality impelled the legislatures to pass over the ideal type of coverages, which would have been both comprehensive and compulsory, in favor of more awkward and fragmentary plans whose very weakness and incompleteness might insure constitutional validity," 1 Larson, Workmen's Compensation Law, Sec. 5.20, p. 38 (1984).
The 1913 Connecticut law conformed to Larson's description. As Justice Wheeler stated, "The Act is elective rather than compulsory in order to avoid a claim of its unconstitutionality . . . .," Powers v. Hotel Bond Co., 89 Conn. 143, 147 (1915). But the historical tides of statutory change and altered judicial interpretation have washed away much of the doctrinal underpinning for the earlier narrow limited view of workers' compensation jurisdiction. In fact for more than a quarter century Connecticut's law has been compulsory, no longer an elective one. Nonetheless, both the statutory language, e.g. "voluntary agreements," and judicial utterances about contract rather than tort choice of law, e.g. Morin v. Lemieux, 179 Conn. 501 (1980) have retained much of the pre-1959 conceptualism concerning the consensual nature of the workers' compensation obligation. Justice Parskey's opinion in Simaitis v. Flood, 182 Conn. 24 (1980) may be a first judicial declaration that workers' compensation rights and duties in Connecticut are no longer based on the concept of a voluntary contract between employer and employee.
Even if we assume the continuance of the early narrow jurisdiction for workers' compensation, those tribunals must at least have the necessary evidentiary and investigatory powers to decide whether that jurisdiction exists. In that sense appellants' arguments misconstrue the legal significance of jurisdiction here. The mere bringing of a workers' compensation claim unless it is fraudulent on its face gives the tribunal sufficient liminal jurisdiction over the res to invoke those necessary evidentiary and investigatory powers to decide ultimate jurisdiction and liability questions. Therefore we rule that the Commissioner had jurisdiction to order an inspection of the premises, Ciszewski v. Industrial Accident Board, 325 N.E.2d 270 (Mass. 1975).
Appellant's other major reason of appeal holds that the workers' compensation commissioner's power to obtain evidence in proceedings before him is limited. In the earliest years of our elective law, long before the 1959 amendments, the courts recognized the broad evidentiary powers of the Commissioners:
". . . He determines facts upon the classes of evidence allowed, . . . He may hear the applicant at his residence. He proceeds to hearings without regard to the ordinary rules of evidence. He may make his inquiry through oral or written and printed records best calculated to ascertain the substantial rights of the parties."
Powers v. Hotel Bond Co., supra 148-149.
This 1915 opinion by Justice Wheeler clearly declares that the Commissioner's evidentiary reach is not less than but greater than the court's evidentiary reach. In discussing evidentiary requirements in workers' compensation matters, Larson makes the distinction between rules based on probative value and those based on fair play and privilege, 3 Larson, Workmen's Compensation Law, Sec. 79.80-79.90 p. 15-426.287 — 15-426.298 (1984). He makes the point that the probative value rules are justified in the common law by the necessity to keep from the untrained lay juryman unreliable kinds of evidence whose true value would be difficult for him to judge. That consideration Larson points out is not a valid one with respect to the usually professionally trained workers' compensation adjudicator. In the same section of his treatise Larson cites the Massachusetts decision permitting a workers' compensation tribunal to promulgate evidentiary rules sanctioning an inspection and photography of the employer's premises, Ciszewski v. Industrial Accident Board, supra.
Professor Larson's discussion gives further philosophic justification to the broad language in Hotel Bond. Connecticut courts continue to follow Justice Wheeler's statement of workers' compensation evidentiary law, Nicotra v. Bigelow, Sanford Carpet Co., 122 Conn. 353, 360 (1937), Del Gaizo v. Veeder-Root, Inc., 133 Conn. 664, 667 (1947). 31-278, C.G.S. grants to a commissioner "all powers necessary to enable him to perform the duties" of the law in addition to the subpoena powers specifically enumerated. 52-149a specifically grants parties in workers' compensation proceedings the power to take depositions of medical witnesses. Respondents resort to an inclusio unius exclusio alterius argument to contend that since the right to discovery is not included in these two powers which are specifically enumerated, i.e. subpoenas and depositions, then neither Commissioner or parties in a workers' compensation proceeding have such discovery powers.
We do not agree. We think the broad statement of Commissioner's powers in 31-278 plus the Hotel Bond decision and its progeny authorize all the evidence producing modalities available to a court, Conn. Practice Book, Secs. 216-249. It makes no sense to hold that a statute making admissible in workers' compensation tribunals evidence inadmissible in court would nonetheless begrudge to such a tribunal power to obtain evidence equal to that of a court.
Therefore we affirm the Commissioner's decision granting the Motion For Permission To Inspect Premises.
Commissioners Waller and Loeb concur in this opinion.