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Bailey v. State9/11/2001
Argued May 31
The plaintiff, Jane Bailey, appeals from the November 30, 1999 decision of the workers' compensation review board (board) reversing in part and affirming in part the decision of the workers' compensation commissioner (commissioner). The plaintiff claims that the board improperly reversed that portion of the commissioner's decision awarding her $12,000 in attorney's fees. The defendant, the state of Connecticut, cross appeals from the board's decisions of January 12, 1999 and November 30, 1999. On its cross appeal, the defendant claims that the board improperly upheld the commissioner's decision to grant the plaintiff's motion for a protective order that precluded the defendant from requesting an independent medical examination of the plaintiff. We affirm the board's November 30, 1999 decision to reverse the commissioner's award of $12,000 in attorney's fees. We conclude, however, that the commissioner improperly precluded the defendant from requesting an independent medical examination of the plaintiff. Accordingly, we reverse the board's January 12, 1999 and November 30, 1999 decisions in all other respects and remand the case to the board with direction to remand the matter to the commissioner for further proceedings consistent with this opinion.
The following facts and procedural history are relevant to the present appeals. In June, 1994, the commissioner found that the plaintiff had suffered from a compensable psychiatric condition related to workplace stress that she experienced in 1991. Neither party appealed from that decision. After conducting further hearings, the commissioner issued a supplemental finding and award in August, 1995. The commissioner, in that finding and award, found that the plaintiff was totally disabled from May 17, 1991, to January 20, 1994, and ordered the defendant to pay specific compensation and fees owed to the plaintiff. The commissioner also found a reasonable attorney's fee to be $12,000. The commissioner, however, did not order the defendant to pay that amount.
The defendant appealed to the board from that supplemental finding and award. On September 3, 1996, the board reversed the commissioner's finding and award, and remanded the matter to the commissioner for further proceedings to determine the extent of the plaintiff's disability. See Bailey v. State, 15 Conn. Workers' Comp. Rev. Op. 433 (1996). This court dismissed the plaintiff's appeal from that decision for lack of a final judgment. Thereafter, the commissioner conducted further hearings to ascertain the extent of the plaintiff's disability between the date of her injury and January 20, 1994.
On August 14, 1997, the commissioner granted the plaintiff's motion for a protective order. That order precluded the defendant from conducting further crossexamination of the plaintiff and from requesting an independent medical examination of the plaintiff. The commissioner subsequently denied the defendant's motion for clarification of that order. The defendant appealed to the board from those interlocutory orders. On January 12, 1999, the board affirmed the commissioner's rulings insofar as they related to the plaintiff's claim for benefits through January 20, 1994. Bailey v. State, No. 3694 CRB-01-97-09 (January 12, 1999).
The commissioner ultimately issued his findings of facts and his award on remand. The commissioner ordered the defendant to pay to the plaintiff temporary total disability payments and medical bills for the period of April 30, 1991, through January 20, 1994. The commissioner also ordered the state to pay to the plaintiff ''the $12,000 attorney's fee award previously assigned by [the commissioner] which has not been appealed'' and an
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