author: LAVERY, C. J.

text:
    BARBARA TARDY v. ABINGTON CONSTRUCTORS, INC., ET AL.
    (AC 21378)
    Lavery, C. J., and Bishop and Daly, Js.
    Argued January 17 —
    officially released July 23, 2002

      Robert D. McGann, for the appellants (named defendant et al.).

      Amy M. Stone, for the appellee (plaintiff).
   Opinion

LAVERY, C. J.

This appeal concerns a claim for dependent’s death benefits that was filed by the plaintiff, Barbara Tardy, pursuant to General Statutes § 31-306 of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq. After the plaintiff filed her claim with the workers’ compensation commission, she submitted a motion to preclude the defendants, Abing-ton Constructors, Inc., Argonaut Insurance Company and Thomas J. Fay Insurance Adjusters, from contesting her right to receive death benefits. The workers’ compensation commissioner (commissioner) granted the motion on the ground that because the plaintiff had given proper notice of her intent to file a claim for death benefits, as she was required to do under General Statutes § 31-294c (a), the defendants’ failure to provide notice of their intent to contest the plaintiffs claim, in accordance with § 31-294c (b), precluded them from arguing that the plaintiff was not entitled to benefits. The workers’ compensation review board (board) affirmed the commissioner’s decision and this appeal followed.

In their appeal, the defendants raise the following claims: (1) the plaintiff was not required to file a notice of claim pursuant to § 31-294c (a) and, therefore, the defendants were not obligated to file a notice to contest in accordance with § 31-294c (b); (2) public policy prohibits granting a motion to preclude where the plaintiffs counsel did not inform the insurer’s counsel of the claim despite an ongoing course of contact; and (3) the form that the defendants filed upon the decedent’s death was the legal and practical equivalent of a notice to contest for the purpose of defeating the motion to preclude. We affirm the decision of the board.

At the healing before the commissioner, the parties stipulated to the facts and no formal testimony was heard. The stipulated facts and the commissioner’s findings reveal the following. The plaintiff is the surviving spouse of Michael Tardy. Michael Tardy suffered a compensable injury on February 17, 1991, while on the job for the defendant Abington Constructors, Inc., and received temporary total disability benefits until his death from a heart attack on August 24, 1998, in South Portland, Maine. The claim was administered by the defendant Argonaut Insurance Company, the workers’ compensation carrier for the defendant Abington Constructors, Inc., and Thomas J. Fay Insurance Adjusters. After Michael Tardy’s death, the defendants filed a form 36* * to discontinue his benefit payments, stating that his death was not work related. Shortly thereafter, the defendant Argonaut Insurance Company received a copy of a letter that the plaintiffs counsel had filed with the workers’ compensation commission stating that she did not dispute that Michael Tardy’s disability benefits should be terminated, but that “it appears that the work-related injury and its sequelae were substantial factors in causing the heart attack. Accordingly, I will be filing a Notice of Claim for widow’s benefits in the near future.” On October 13,1998, the plaintiff filed a form 30C notice of claim with the defendant Abington Constructors, Inc., and the workers’ compensation commission as required by § 31-294c (a). Neither the defendant Argonaut Insurance Company nor Thomas J. Fay Insurance Adjusters received the notice of claim until the plaintiff’s counsel filed a motion to preclude on November 19, 1998. The defendant Abington Constructors, Inc., did not file a notice to contest within twenty-eight days of its receipt of the plaintiffs notice of claim, as required by § 31-294c (b).

The plaintiffs motion to preclude was granted by the commissioner and affirmed by the board. The defendants now appeal to this court, asking us to reverse the order of preclusion and to order the commissioner to require the plaintiff to prove by a preponderance of the evidence that Michael Tardy’s death was causally related to his compensable injury. Additional facts will be provided as necessary.

I

The defendants make two arguments in support of their contention that the plaintiffs notice of claim was superfluous. First, they argue that because the decedent’s claim for benefits was accepted, the plaintiffs derivative claim does not require a separate notice. Second, they argue that this case raises an issue of the extent of the decedent’s disability, a circumstance where our Supreme Court has held that a separate notice is not required. We disagree with both contentions and conclude that the statutory scheme requires a dependent filing for a death benefit to file a separate claim, necessitating the employer to file a separate notice to contest.

Once an employer accepts a decedent’s underlying claim, the facts of that claim may not be retried, but rather are binding on a dependent’s subsequent claim for death benefits. See Biederzycki v. Farrel Foundry & Machine Co., 103 Conn. 701, 705, 131 A. 739 (1926). A dependent is entitled to death benefits if the decedent was entitled to benefits and the dependent can also show that (1) the employee died, (2) the claimant was a dependent under the act and (3) the decedent’s death was causally related to the compensable injuries. See id.; see also General Statutes § 31-306.

The parties agree that whether a separate notice of claim is required when a dependent pursues a death benefit is a question that our appellate courts have not previously addressed. For workers’ compensation appeals, “[i]t is well established that [although not dis-positive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Citations omitted; internal quotation marks omitted.) Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 603-604, 748 A.2d 278 (2000); see also 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 50 & (Cum. Sup. 2001) p. 238.

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Russell v. Mystic Seaport Museum, Inc., supra, 252 Conn. 604. Furthermore, “[w]e are mindful of the principles underlying Connecticut practice in [workers’] compensation cases: that the legislation is remedial in nature . . . and that it should be broadly construed to accomplish its humanitarian purpose.” (Internal quotation marks omitted.) Id., 604-605. With those standards in mind, we turn to the merits of the defendants’ appeal.

The defendants opined at oral argument that requiring a dependent spouse to file a separate notice of claim when the underlying claim has been accepted should founder on public policy grounds because it would create unnecessary paperwork for parties who agree that the spouse is entitled to benefits. That argument overlooks the relevant statute and the board’s prior precedent. As the plaintiff points out, the board concluded several years ago that a separate notice is required for a dependent’s claim for death benefits. See Sellew v. Northeast Utilities, 12 Conn. Workers’ Comp. Rev. Op. 135, 138 (1994) (“widow cannot rely on the claim filed by her deceased husband to satisfy the jurisdictional notice requirements of [General Statutes (Rev. to 1985)] § 31-294,” now General Statutes §§ 31-294a through 31-294g); see also Freeman v. Hull Dye & Print, Inc., 12 Conn. Workers’ Comp. Rev. Op. 259, 261 (1994) (same), rev’d on other grounds, 39 Conn. App. 717, 667 A.2d 76 (1995).

In response to the Sellew decision, the legislature in 1998 considered “An Act Concerning Notice of Claims,” House Bill No. 5076. If enacted, the bill would have amended § 31-294c (c) so that a notice of claim would not be required “in the case of a dependent survivor’s claim for benefits under § 31-306, as amended, as a result of death arising from an injury, if the decedent filed timely notice of a claim for benefits for the injury under this section prior to his death.” All of the witnesses and legislators who testified about the bill at the public hearing agreed that legislative action was necessary for a dependent to use a decedent spouse’s notice of claim rather than having to file a separate notice. See Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1,1998 Sess., pp. 13-14 (Connecticut Trial Lawyers Association); pp. 33-34 (Connecticut Business and Industry Association); pp. 98, 133 (Insurance Association of Connecticut); p. 110 (Connecticut AFL-CIO); p. 131 (Greater New Haven Chamber of Commerce); Conn. Joint Standing Committee Hearings, Labor and Public Employees, supra, Pt. 2, p. 510 (Connecticut Employees Union Independent, Local 511). Although the bill received a favorable committee vote, it was not voted on by the House of Representatives.

Rather, the legislature enacted what is now General Statutes § 31-306b, which contemplates the filing of a separate notice of claim. Section 31-306b (a) provides that “[n]ot later than thirty days after the date an employer or insurer discontinues paying weekly disability benefits to an injured employee under the provisions of this chapter due to the death of the injured employee, the employer or insurer shall send by registered or certified mail to the last address to which the injured employee’s workers’ compensation benefit checks were mailed, a written notice stating, in simple language, that dependents of the deceased employee may be eligible for death benefits under this chapter, subject to the filing and benefit eligibility requirements of this chapter.” (Emphasis added.) In the event that an employer does not comply with the notification requirement, § 31-306b (c) provides in relevant part that “[ejach dependent who, in the opinion of the commissioner, demonstrates that he was prejudiced by the failure of an employer or insurer to comply with the notice requirements of subsection (a) of this section shall be granted an extension of time in which to file a notice of claim for compensation with the deceased employee’s employer or insurer pursuant to section 31-294c . . . .” (Emphasis added.) Senator Edith G. Prague, who offered the language in the Senate, stated on the Senate floor that the purpose of the amendment was that “when an injured employee dies from the injuries that were incurred when he was working and was receiving workers’ [compensation] benefits for, the employer and the insurer, or the insurer, will notify, by registered certified mail, the widow or the surviving dependents of their ability to reapply for benefits for either the surviving spouse or the dependent children .... This part of the amendment will protect those people who do not realize that they can apply for benefits.” (Emphasis added.) 41 S. Proc., Pt. 6, 1998 Sess., p. 1808, remarks of Senator Edith G. Prague. Accordingly, we conclude that the legislature intended for a dependent filing for a death benefit to file a separate notice of claim.

The defendants cite several cases in support of their contention that a separate notice of claim is not required. None applies. Because the plaintiffs claim for death benefits is separate from the decedent’s underlying claim; see Biederzycki v. Farrel Foundry & Machine Co., supra, 103 Conn. 704-705; it is of no aid to the defendants that a separate notice to contest would not be required if the plaintiff were pursuing on the decedent’s behalf a modification of the underlying claim. See Adzima v. UAC/Norden Division, 177 Conn. 107, 115, 411 A.2d 924 (1979). Rather, because this was a new claim, the employer was required to file a separate notice to contest stating the specific grounds on which it challenged liability. See Menzies v. Fisher, 165 Conn. 338, 347-48, 334 A.2d 452 (1973); see also General Statutes § 31-294c (b); cf. Adzima v. UAC/Norden Division, supra, 111-16 (distinguishing Menzies). It also is not relevant that the plaintiffs claim could have been barred under a voluntary compensation agreement between the decedent and the defendants; see Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 30, 682 A.2d 99 (1996); because no such agreement was made.

Because we conclude that the plaintiff properly complied with § 31-306b by filing a separate notice of claim and the defendants did not file a notice to contest within twenty-eight days as required by § 31-294c (b), the commissioner properly concluded that the employer was precluded from challenging the plaintiffs liability claim. See General Statutes § 31-294c (b) (2) (“employer shall be conclusively presumed to have accepted the com-pensability of the alleged injury or death”); Yuknat v. State, 9 Conn. App. 425, 426, 519 A.2d 622 (1987) (“com-pensability of the claim was conceded” where employer failed to file timely notice to contest).

II

The defendants’ next two claims are that (1) the plaintiffs notice of claim was not sufficient to allow the employer to make a timely investigation into the employee’s death to ascertain whether to file a motion to contest and (2) public policy should prohibit a motion to preclude where the plaintiffs counsel continues to communicate with the employer’s insurer representative without revealing that a notice of claim has been filed. Because the plaintiff complied with the statutory filing requirements, we do not find either of the defendants’ claims persuasive.

As to the sufficiency of the notice of claim, the defendants note that the death benefit claim listed the place of injury, not the place of death, and argue that one of the two claimants is listed as the decedent rather than as the decedent’s estate. They argue that this information “is clearly enough to prevent or hinder a timely investigation of the claim by the [defendants]” to determine whether to file a notice to contest.

As workers’ compensation is remedial legislation with a humanitarian purpose, we liberally construe its provisions in favor of the employee. Russell v. Mystic Seaport Museum, Inc., supra, 252 Conn. 604-605; Infante v. Mansfield Construction Co., 47 Conn. App. 530, 536, 706 A.2d 984 (1998), citing Bahre v. Hogbloom, 162 Conn. 549, 558, 295 A.2d 547 (1972). As a result, strict compliance with a notice of claim is not required as long as it puts the employer on notice to make a timely investigation. See Pereira v. State, 228 Conn. 535, 542-43 n.8, 637 A.2d 392 (1994); Dubois v. General Dynamics Corp., 222 Conn. 62, 67, 607 A.2d 431 (1992). Although the defendants characterize the notice of claim as containing “substantial errors,” they essentially argue that because the form developed by the workers’ compensation commission was created with injured employees in mind rather than dependents pursuing death benefits, even strict compliance with § 31-294c (a) would be insufficient. We disagree.

Section 31-294c (a) provides in relevant part that a notice of claim “may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident . . . and the name and address of the employee and of the person in whose interest compensation is claimed. . . .” The plaintiff completed form 30C, which the workers’ compensation commission created to comply with § 31-294c. See Collins v. West Haven, 210 Conn. 423, 431, 555 A.2d 981 (1989). Although the defendants correctly note that form 30C was created for injured employees rather than for dependents pursuing death benefits, a contention accepted by the board, whether the legislature should amend § 31-294c to require different information for one pursuing a death benefit is a decision best left to that branch of government. We previously have concluded that the language contained in the predecessor to § 31-294c (b) is clear and unambiguous and should be given its precise meaning. See Vachon v. General Dynamics Corp., 29 Conn. App. 654, 658-59, 617 A.2d 476 (1992), cert. denied, 224 Conn. 927, 619 A.2d 852 (1993). Accordingly, the plaintiffs compliance with the statute defeats the defendants’ claim.

As to the plaintiffs counsel’s ongoing course of contact, the defendants note that the notice of claim was filed on October 13, 1998, one day after Amy Lamson, the insurer representative, wrote to the plaintiffs counsel stating that “[a] review of the medical documentation in this case does not provide significant evidence with regard to the causal relationship of Mr. Tardy’s recent heart attack to the incident of 9/17/91. Therefore, we do not expect to argue a Widow’s Benefit claim associated with this matter” and asking the plaintiffs counsel to forward any contrary documentation to her. Rather than notify opposing counsel that she had filed a notice of claim, the plaintiffs counsel replied in a letter dated October 16, 1998, that she was waiting for a report from one of the decedent’s treating physicians and would forward it to Lamson “upon receipt.” Furthermore, the plaintiffs counsel wrote that once she received the medical report, “I will be in a better position to discuss settlement of a widow’s claim.”

Although sending a copy of the notice of claim to Lamson may have fostered good will, it was not statutorily required. Section 31-294c (a) provides in relevant part that “[n]otice of a claim for compensation may be given to the employer or any commissioner . . . .” The plaintiff complied with that provision. Accordingly, the defendants’ claim is without merit.

Ill

The defendants’ final claim is that the form 36 filed on August 31,1998, giving notice to discontinue Michael Tardy’s benefits was the “legal and practical” equivalent of a notice to contest, at least for purposes of defeating the plaintiffs motion to preclude. Because the letter stated that the employee’s death was caused “by a nonwork-related heart attack,” the defendants argue that the plaintiff was put on notice that they would challenge any later claim that she would bring. We disagree.

As we stated briefly in part I, § 31-294c (b) provides in relevant part that “[wjhenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested . . . .” (Emphasis added). The defendants argue that because the statute requires only a notice in accord with the one prescribed by the commission and because the board has applied a substantial compliance test that we have used to validate an employee’s technically imperfect notice of claim to cure an employer’s otherwise deficient notice to contest; see, e.g., Walter v. State of Connecticut/Services for the Blind, 14 Conn. Workers’ Comp. Rev. Op. 107 (1995); the notice to discontinue benefits to Michael Tardy was valid to contest the plaintiffs separate claim. We do not agree.

We need not agree at this time with the plaintiffs argument that under § 31-294c (b), an employer must file the form created by the commission to conclude that the notice to discontinue benefits here was insufficient to serve as a notice to contest. We also need not reach the issue of whether a “substantially compliant” notice to contest is valid. We again note, however, that workers’ compensation legislation is “ ‘remedial in nature . . . and that it should be broadly construed to accomplish its humanitarian purpose’ ”; Russell v. Mystic Seaport Museum, Inc., supra, 252 Conn. 605; and that it is construed in favor of the employee. Infante v. Mansfield Construction Co., supra, 47 Conn. App. 536.

Although the form 36 stated that it was discontinuing Michael Tardy’s benefits due to a “nonwork related heart attack,” the board stated that “[i]n the workers’ compensation arena, it is commonly understood that a form 36 does exactly what it purports to do—discontinue or reduce compensation that is currently being paid on account of an accepted claim.” We agree with the board’s conclusion that the form 36 was submitted to stop payments to Michael Tardy on account of his death, not to provide notice to the plaintiff that the defendants would contest a claim for death benefits. Accordingly, we disagree with the defendants’ claim.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       Under General Statutes § 31-306 (a), dependents of an employee are entitled to death benefits if the employee dies from an accident “arising out of and in the course of employment . . . .”

       Thomas J. Fay Insurance Adjusters is not a party to this appeal. We therefore refer in this opinion to Abington Constructors, Inc., and Argonaut Insurance Company as the defendants.

       General Statutes § 31-294c (a) provides in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given .... Notice of a claim for compensation may be given to the employer or any commissioner and shall state, in simple language, the date and place of the accident and the nature of the injury resulting from the accident . . . and the name and address of the employee and of the person in whose interest compensation is claimed. . . .”

       General Statutes § 31-294c (b) provides in relevant part: “Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commissioner stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. . . . [A]n employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death.”

       The parties were informed prior to oral argument that they should be prepared to discuss why the defendants’ appeal should not be dismissed for lack of a final judgment because the amount of the award had not been determined. See Matay v. Estate of Dember, 210 Conn. 626, 630, 556 A.2d 599 (1989). At oral argument, the parties agreed that the appeal was taken from a final judgment because if the judgment were affirmed, the plaintiff would receive the amount paid to the decedent, plus cost of living adjustments pursuant to § 31-306 (a) (2). As a result, there would be no need for additional evidence. See Szudora v. Fairfield, 214 Conn. 552, 556-57, 573 A.2d 1 (1990); but cf. Fantasia v. Tony Patano Mason Contractors, Inc., 54 Conn. App. 194, 200, 732 A.2d 822, cert. denied, 250 Conn. 927, 738 A.2d 655 (1999). We conclude that their analysis is on point. Accordingly, we review the defendants’ appeal.

       “A form 36 notifies the workers’ compensation commissioner and the person claiming benefits that the employer and its insurer intend to discontinue compensation payments.” Auger v. Stratford, 64 Conn. App. 75, 76 n.2, 779 A.2d 773 (2001).

       For example, Michael Tardy’s name was listed under the section entitled, “Injured Worker Information.”


source: Caselaw Access Project

author: WEST, J.

license: Public Domain

text:
    ALAN P. TOWBIN v. BOARD OF EXAMINERS OF PSYCHOLOGISTS
    (AC 20944)
    Lavery, C. J., and Schaller and West, Js.

      Argued May 1 —
    officially released July 23, 2002

      Patricia A. King, for the appellant (plaintiff).

      PaulJ. Lahey, assistant attorney general, with whom were Henry A. Saltón, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and
      Richard J. Lynch, assistant attorney general, for the appellee (board).
   Opinion

WEST, J.

The plaintiff, Alan P. Towbin, appeals from the judgment of the trial court dismissing his administrative appeal from the decision of the defendant board of examiners of psychologists (board), which sanctioned him for negligent, incompetent or wrongful conduct in violation of General Statutes § 20-192. On appeal, the plaintiff raises a number of claims that fall within several different categories, namely, that the court improperly dismissed his appeal because the board failed to base several of its findings on substantial evidence, sanctioned him where only one member of its hearing panel had heard witnesses testify, violated his constitutional rights to due process and to fundamental fairness, and imposed a penalty that is excessive and unsupported by good cause. We affirm the judgment of the trial court.

The record discloses the following procedural history and facts. In 1991, a woman (complainant) filed a complaint against the plaintiff with the department of public health services (department). At the time, the plaintiff was a licensed psychologist providing psychotherapy services. The department investigated the complaint and concluded that there was probable cause to believe that the plaintiff had violated § 20-192. In 1994, the department presented the board with a statement of charges against the plaintiff. A hearing panel consisting of one professional and two public members of the board thereafter held a five day contested hearing in accordance with General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act (UAPA). The plaintiff was represented by counsel and given the opportunity to respond to the charges, to cross-examine witnesses, to present evidence, including his own testimony, and to present argument on all issues involved in the case.

In 1996, the board rendered a decision, concluding that the department had proved that the plaintiff had violated the standards of professional conduct and § 20-192 by engaging in dual relationships with the complainant. In addition to a professional relationship, the plaintiff and the complainant had social and sexual relationships. In response to the decision, the plaintiff filed an appeal in the Superior Court, pursuant to General Statutes § 4-183 (a), and petitioned the board to reconsider its decision. In support of his appeal and his petition, the plaintiff claimed that the decision was not supported by expert opinion evidence and that the board had no authority to require that the plaintiff receive psychotherapeutic treatment as a condition of probation. The board, on its own motion and on the basis of a petition by the plaintiff, granted the plaintiffs request for reconsideration.

On May 13,1997, the board ordered the record opened and informed “the parties that a majority of the [panel] who will render the reconsidered decision in this matter are psychologists and that the [panel’s] experience, technical competence and specialized knowledge will be used in the evaluation of the evidence in accordance with [General Statutes] § 4-178 (8). Any motions relating to or resulting from this order must be received no later than May 30, 1997.”

A reconfigured hearing panel, the majority of which were professional members of the board, reconsidered the department’s charges against the plaintiff. Due to the panel reconfiguration, the board offered the plaintiff the opportunity to present additional expert testimony as to the standard of professional care of psychologists applicable to the facts of this case. The plaintiff took advantage of the opportunity and presented the testimony of two expert witnesses at the continued hearing. The panel, however, refused to let the plaintiff testify at the continued hearing. All new members of the panel received copies of the entire record and attested that they either had heard or had read the entire record.

On May 26, 1998, the board issued a proposed decision and gave the parties an opportunity to file exceptions and briefs, and to present oral argument with regard to the proposed decision. The board subsequently issued its decision on June 12, 1998. The board stated that the decision was based on the record and on the specialized knowledge of the board. The plaintiff appealed to the Superior Court.

The court concluded that the board properly found, on the basis of the evidence presented and the expertise of the board’s professional members, that the plaintiff had provided professional psychological care and treatment to the complainant’s older son, who was then a minor, between February and June, 1984. The boy stopped treating with the plaintiff in June, 1984. In March, 1985, another psychologist who was then treating the complainant’s older son, asked the plaintiff to serve as a consultant at a meeting with the complainant, her husband and her two sons.

The plaintiff and the complainant thereafter developed and engaged in social and sexual relationships that lasted from about October, 1985, to March, 1986. There was substantial evidence that the plaintiff and the complainant stayed together in a Branford motel and in a Boston hotel. They also engaged in sex several times a week, sometimes in the plaintiffs office. The plaintiff presented the complainant with gifts. Prior to the termination of their social and sexual relationships, the complainant arranged for the plaintiff to conduct psychological testing of her younger son. After the testing took place, the plaintiff met with the complainant to discuss treatment for the younger son. This meeting took place within a few days of the plaintiffs and the complainant’s termination of their nonprofessional relationships. The board found that care and treatment by a psychologist includes evaluation, diagnosis and involvement in subsequent psychotherapy or treatment or both. The board concluded that the plaintiffs contact with the complainant’s sons therefore constituted care and treatment.

At the original hearing, David Greenfield, a psychologist, gave expert testimony as to the standard of professional care of psychologists. Greenfield opined, and the board agreed, that dual relationships are relationships where the contractual psychologist-patient relationship is complicated by adding other relationships that are not specifically related to therapy. Psychologists are ethically bound to avoid dual relationships, as such relationships could impair their judgment or increase the risk of exploitation of clients, patients or consumers.

Greenfield also opined, and the board agreed, that parents of minors being treated by a psychologist are consumers and that the plaintiff was ethically bound to avoid dual relationships with the complainant. Greenfield further opined, and the board agreed, that the plaintiff engaged in dual relationships with the complainant, including but not limited to social, friendship and sexual relationships. The plaintiff thereby violated the ethical standards of care in place for psychologists practicing in Connecticut in 1985 and 1986. The violation occurred despite the fact that the dual relationships took place after the complainant’s older son stopped treating with the plaintiff and after the young man had reached the age of majority.

The board credited the complainant’s testimony that she and the plaintiff had had a sexual relationship and found that the plaintiff’s explanation of the nature of his relationships with the complainant was not credible. In concluding that the plaintiff violated § 20-192, the board found that the plaintiff’s “conduct demonstrates a serious failure of judgment, as was also found by [the plaintiff’s] expert, Ronald Ebert, [a psychologist]. [The plaintiff] continues to deny any wrongdoing and has offered an implausible explanation. Dr. Ebert acknowledged [the plaintiffs] denial of a sexual relationship with [the complainant], but conceded that if such relationship had occurred, it would have been even more reflective of poor judgment on the part of the [plaintiff].”

The board also found that with limited exceptions, “permitting [the plaintiff] to engage in any further treatment or therapeutic relationships as a psychologist, would present a danger to the public at this time. The [board found] that the [plaintiff] engaged in negligent, incompetent or wrongful conduct as a psychologist for the reasons” stated.

The board ordered that the plaintiff be placed on probation indefinitely with the following restrictions and conditions. While the plaintiff is on probation, (1) he shall not render treatment to patients or clients in any setting except nursing homes, where he may provide individual and group therapy to nursing home patients and consult with nursing home staff regarding psychological issues, (2) after being on probation for at least one year, the plaintiff may ask the board to withdraw or to modify the terms of his probation, (3) in asking the board to withdraw or to modify the terms of his probation, the plaintiff may employ, but is not required to employ, the following procedure: (a) submit to a psychological evaluation conducted by an independent psychologist approved by the department; (b) if the independent psychologist determines that the plaintiff would benefit from individual psychotherapy, the plaintiff should engage in individual psychotherapy on a clinically recommended schedule for at least one year of his probation; and (c) prior to seeking the withdrawal or modification of his probation, the plaintiff should submit to a psychological reevaluation. The board ordered that the plaintiff may not come before it more than once a year to ask that his probation be withdrawn or modified. The board may withdraw the plaintiffs probation or modify its terms if, in its discretion, the board finds that the charged circumstances that required the board to impose the previously mentioned sanctions on the plaintiff have been remedied sufficiently. The board assessed a civil penalty of $10,000 against the plaintiff, but stayed the payment of the penalty as long as the plaintiff complies with the terms of his probation. The board further ordered that the civil penalty shall be withdrawn if the plaintiff satisfactorily completes all of the conditions of his probation.

The plaintiff appealed from the board’s 1998 decision to the trial court, claiming that the board improperly (1) found that the plaintiffs testimony was implausible, his conduct violated the standard of care and his continuing to practice psychotherapy presents a danger to the public, (2) failed to have all members of the reconfigured panel hear the witnesses testify, (3) imposed an excessive penalty and (4) denied the plaintiff due process of law due to the long delay between the time of his improper conduct and the rendering of the board’s decision. After reviewing the record and the parties’ briefs and hearing oral argument, the court dismissed the plaintiffs appeal. The plaintiff appealed to this court.

“We review the issues raised by the plaintiff in accordance with the limited scope of judicial review afforded by the [UAPA] .... Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . [Constrained by a narrow scope of review] [n] either this court nor the trial court may retry the case or substitute its own judgment for that of the administrative agency on the weight of the evidence or questions of fact. . . . Our ultimate duty is to determine, in view of all of the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion. . . .

“The substantial evidence rule governs judicial review of administrative fact-finding under the UAPA. General Statutes § 4-183 (j) (5) and (6). An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . The substantial evidence rule imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and . . . provide[s] a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action. . . . The United States Supreme Court, in defining substantial evidence in the directed verdict formulation, has said that it is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” (Citations omitted; internal quotation marks omitted.) Elf v. Dept. of Public Health, 66 Conn. App. 410, 417-19, 784 A.2d 979 (2001).

“The present appeal is from the decision of the trial court. We review that decision only to determine whether it was rendered in accordance with the [UAPA].” (Internal quotation marks omitted.) Pet v. Dept. of Health Services, 228 Conn. 651, 660-61, 638 A.2d 6 (1994).

I

The plaintiffs first claim is that the court improperly dismissed his appeal upon concluding that the board’s decision was not predicated on its finding that the plaintiffs testimony was not credible. In other words, the plaintiff claims that because the panel did not believe his testimony that he did not have a sexual relationship with the complainant, it concluded that the opposite must be true. The plaintiffs claim fails because there is substantial evidence in the record to support the board’s conclusion that he engaged in a sexual and a social relationship with the complainant.

The plaintiff asserts his claim on the basis of a comparison of statements from the board’s 1996 decision and its 1998 decision. To wit, the 1996 decision stated that the plaintiffs “overwhelming failure to provide a plausible explanation leads [the board] to conclude that he and [the complainant] were engaged in a sexual relationship.” The 1998 decision stated that the plaintiffs “overwhelming failure to provide a plausible explanation confirms the [board’s] conclusion that he and [the complainant] were engaged in a sexual relationship.” The plaintiff argues that the subtle change in language is proof that the board concluded that he had a sexual relationship with the complainant on the basis of his testimony.

“The substantial evidence standard is satisfied if the record provides a substantial basis of fact from which the fact in issue can be reasonably inferred. ... In determining whether an administrative finding is supported by substantial evidence, the reviewing court must defer to the agency’s assessment of the credibility of witnesses. . . . The reviewing court must take into account contradictory evidence in the record . . . but the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence . . . .” (Citations omitted; internal quotation marks omitted.) Id., 668.

The court noted that the board’s 1998 decision contained findings that the board credited the complainant’s testimony that she and the plaintiff had had a sexual relationship although the board did not believe that the complainant accurately had reported all of the details of the relationship. The board found that the plaintiff and the complainant had sexual relations in motel or hotel rooms in Branford and Boston. The plaintiff gave the complainant a wooden box bearing the symbol of a heart and books. The board found that the plaintiffs testimony was not credible because he was unable to provide a plausible explanation as to the nature of his relationship with the complainant. The board concluded that the plaintiffs testimony was so implausible that it raised serious questions about what he was attempting to hide. The plaintiffs testimony that he had a business, but not a sexual, relationship with the complainant was not credible. He could not describe the content of their business conversations. The complainant’s name was in the plaintiffs appointment book; the two met frequently and for long periods of time. The plaintiff permitted the complainant to make arrangements for the Boston hotel room and sought no alternative to sharing the room with her.

On the basis of our review of the record, we conclude that the court properly declined to set aside the board’s conclusion that the plaintiff had had a sexual relationship with the complainant. The conclusion is supported by substantial evidence and the panel’s assessment of the more credible of the conflicting testimony. Nothing in the record supports the plaintiff s suggestion at oral argument that the board had shifted the burden of proof to him to prove that he did not have a sexual relationship with the complainant. The court determined that the plaintiffs “failure to provide a plausible explanation of his relationship with [the complainant] confirmed the [board’s] conclusion that he and [the complainant] had a sexual relationship, but was not the basis for that finding.” The plaintiff also argued that the board’s conclusion was improper because the board did not find the complainant credible. We agree with so much of the plaintiffs argument that the board did not find the complainant’s testimony as to the details of their relationship was accurate, but that is beside the point. The issue before the board was not when and where they had relations, but whether they had them.

The board found that in response to the complainant’s testimony, the plaintiff did not offer a plausible explanation as to why he did not get a separate room when he spent the night with her in a Boston hotel or why he gave her gifts. The members of the hearing panel, like members of a jury, may rely on their everyday experiences in assessing the credibility of witnesses. Common sense does not take flight at the hearing room door. See State v. Vasquez, 53 Conn. App. 661, 665, 733 A.2d 856 (“[i]n considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct”), cert. denied, 250 Conn. 922, 738 A.2d 662 (1999).

We also note that even if the record did not provide substantial evidence of a dual relationship of a sexual nature, which we conclude that it does, the board also concluded that the plaintiff violated § 20-192 because he had social and friendship relationships with the complainant as well. In fact, the plaintiff admitted that he had a social relationship with the complainant. Where there is substantial evidence in the record to support any basis or stated reason for the board’s decision, the court must sustain that decision. Heithaus v. Planning & Zoning Commission, 258 Conn. 205, 224, 779 A.2d 750 (2001); DeBeradinis v. Zoning Commission, 228 Conn. 187, 199, 635 A.2d 1220 (1994). The board’s decision can be supported on the basis of the plaintiffs social relationship with the complainant alone. The court therefore properly declined to sustain the plaintiffs appeal.

II

The plaintiffs second claim is that the court improperly dismissed his appeal because there was no substantial evidence that he violated the standard of care by engaging in sexual and social relationships with the complainant. We do not agree.

On the basis of its review of the record, the court found substantial evidence in Greenfield’s testimony as an expert witness as to the standard of care to which psychologists were to adhere in 1985 and 1986. It also concluded that the majority of the hearing panel consisted of professional members of the board, who are entitled to rely on their own expertise. General Statutes § 4-178 (e); see also Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 525, 560 A.2d 403 (1989) (“[a]s long as the board hearing and deciding a licensing matter is composed of at least a majority of experts in the field involved in the case, the board may rely on its own expertise in evaluating charges against persons licensed by the board and the requisite standard of care by which to judge such cases”).

Greenfield opined, and the panel agreed, that psychologists are forbidden to have dual relationships with patients or with the parents of minor patients. The parents of minor patients are consumers. The psychologist-patient relationship is complicated by other relationships that are not specific to therapy. Dual relationships, including social and sexual relationships, are forbidden because of their potential to impair the psychologist’s professional judgment and to increase the risk of exploitation of clients, patients or consumers.

Greenfield also opined that dual relationships with the parents of minor patients continue to be forbidden when the patient reaches the age of majority- He further opined that the plaintiff violated the standard of care by engaging in dual relationships with the complainant after treating her older son. The board found, on the basis of the expertise of its panel members, that the plaintiff had violated the standard of care despite the fact that his dual relationships with the complainant occurred after the older child had reached the age of majority.

By comparison, the plaintiff presented testimony from two experts who opined that the plaintiff had not violated the standard of care. One, Ebert, however, opined that the conduct to which the plaintiff had admitted demonstrated a serious failure of judgment. Ebert acknowledged that the plaintiff had denied having had a sexual relationship with the complainant, but conceded that if such a dual relationship had occurred, it would have been even more reflective of poor judgment on the part of the plaintiff. The board chose to believe Greenfield. It concluded that the plaintiffs conduct compromised the older son’s ability to return to the plaintiff for treatment.

On appeal to this court, the plaintiff contends that he did not violate the standard of care by engaging in dual relationships with the complainant after her older son had reached the age of eighteen because she no longer was a consumer. He takes exception to the panel’s finding that Greenfield’s testimony was credible rather than the testimony of either of his experts. The long recognized rule, however, is that the trier of fact is the arbiter of credibility, and appellate courts do not pass on such determinations. See Powers v. Olson, 252 Conn. 98, 105, 742 A.2d 799 (2000). A further weakness in the plaintiffs argument is Ebert’s testimony concerning the plaintiffs failure of judgment.

The plaintiff also argues that because the older son had reached the age of majority, the young man could make his own decision as to whether to reenter therapy with the plaintiff. This argument has two flaws. First, it overlooks the board’s finding that the dual relationships compromised the older son’s ability to return to the plaintiff for treatment. Second, the plaintiff again ignores the board’s other finding that supports its decision, which is that at about the time the plaintiff and the complainant were ending their social and sexual relationships, the plaintiff provided psychological services to the complainant’s younger son, who was a minor. See Heithaus v. Planning & Zoning Commission, supra, 258 Conn. 224. Consequently, we conclude that the court properly dismissed the plaintiffs appeal because there is substantial evidence in the record to support the board’s conclusion that the plaintiff violated the standard of care for psychologists by engaging in dual relationships with the mother of his minor patients.

Ill

The plaintiffs third claim is that the court improperly dismissed his appeal because the record lacked substantial evidence to support the board’s conclusion that the plaintiffs offering psychotherapy services was a danger to the public. The plaintiff also claims that the board failed to provide him with notice of this finding and a meaningful opportunity to rebut it. We disagree.

In reviewing the plaintiffs claim, the court first noted with respect to the claim that the board was not required to make a finding that the plaintiff posed a danger to the public. Section 20-192 provides that the board may take any action set forth in General Statutes § 19a-17 if it finds that a license holder has “acted negligently, incompetently or wrongfully in the conduct of his profession . . . .” The court concluded that the board’s finding that the plaintiff was a danger to the public was related to its placing the plaintiff on probation and was not a basis for its conclusion that the plaintiff had violated the standards of professional conduct or that he had acted negligently, incompetently or wrongfully. We agree.

The court also concluded that the record contained overwhelming evidence that the plaintiff had engaged in a sexual relationship with the complainant. The plaintiff continues to deny that he had a sexual relationship with the complainant. One of the plaintiffs expert witnesses testified that acknowledging behavior is a critical step in reshaping future behavior. More significantly, however, the plaintiff continues to maintain that a psychologist is forbidden from having a sexual relationship with only a patient or former patient. The plaintiff does not acknowledge that a psychologist is forbidden from having dual relationships with a consumer. The court therefore found substantial evidence in the record to support the board’s conclusion that the plaintiff presented a danger to the public.

Furthermore, the court found that in both the 1996 and 1998 decisions, the board concluded that the plaintiffs continuing to practice psychotherapy presented a danger to the public. The plaintiff petitioned the board to open the hearing on the basis of the 1996 decision. The board opened the hearing on its own motion and on the basis of the plaintiffs petition, and reconfigured the hearing panel to consist of a majority of professional members to ensure that its decision was based on expert testimony, and it notified the plaintiff that the board would be relying on its own expertise. The plaintiff does not challenge the board’s right to rely on the expertise of its professional members on the hearing panel.

The board provided the plaintiff with an opportunity to present additional evidence at a continued hearing. The plaintiff presented two experts who testified that the plaintiff did not present a danger to the public. The hearing panel was free to disbelieve that testimony. See Dore v. Commissioner of Motor Vehicles, 62 Conn. App. 604, 610, 771 A.2d 962 (2001). One of the plaintiffs experts, however, testified that the plaintiffs conduct demonstrated “a pattern of lack of judgment,” even if the plaintiff had only a business relationship with the complainant.

In 1998, the board issued a proposed decision and invited the plaintiff to respond to it by taking exceptions or by presenting a brief or oral argument. The record demonstrates that there is no basis for the plaintiffs claim that he did not have notice of the board’s finding that he was a danger to the public or that he was not offered a meaningful opportunity to rebut the board’s conclusions.

We agree with the court’s analysis as well as its conclusion that the hearing panel properly refused to permit the plaintiff to testify as to whether his continuing to practice psychotherapy represented a danger to the public. In response to the board’s opening of the record, the plaintiff presented the testimony of two expert witnesses. At the conclusion of the experts’ testimony, the plaintiffs counsel called the plaintiff to testify and represented that the plaintiffs further testimony would be consistent with the testimony of one of his experts. The hearing panel refused to let the plaintiff testify on the ground that his testimony would be cumulative. General Statutes § 4-178 (1) permits the board to exclude evidence that is unduly repetitious. For all of the foregoing reasons, the court properly excluded the plaintiffs testimony on the issue of whether his practicing psychotherapy presented a danger to the public.

For the reasons stated, there is no merit to the plaintiffs claim that the court improperly dismissed his appeal with respect to the board’s finding that the plaintiffs practicing psychotherapy was a danger to the public.

IV

The plaintiffs fourth claim is that the court improperly sustained the board’s decision because only one of the three panel members heard the testimony of witnesses. The plaintiffs claim lacks merit.

Due to the reconfiguration of the panel, the panel consisted of one public and two professional members of the board. One of the professional members had been a member of the original panel and heard all of the testimony. The two new members of the panel attested that they had received a copy of the record and reviewed it in its entirety. The plaintiffs claim is governed by General Statutes § 4-179 and our Supreme Court’s decision in Pet v. Dept. of Health Services, supra, 228 Conn. 651.

Section 4-179 (a) provides in relevant part: “When, in an agency proceeding, a majority of the members of the agency who are to render the final decision have not heard the matter or read the record, the decision, if adverse to a party, shall not be rendered until a proposed final decision is seived upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the members of the agency who are to render the final decision.” (Emphasis added.) The substantial evidence in the record demonstrates that the members of the panel either heard the testimony of witnesses or read the record.

Our Supreme Court has held that “the procedures required by the UAPA exceed the minimal procedural safeguards mandated by the due process clause.” (Internal quotation marks omitted.) Pet v. Dept. of Health Services, 207 Conn. 346, 356-57, 542 A.2d 672 (1988). “The express assumption of § 4-179 is that a board may render a final decision even when no board member has heard the evidence or read the record, provided that the board complies with the designated UAPA procedural safeguards.” Pet v. Dept. of Health Services, supra, 228 Conn. 673. “In regard to administrative proceedings, [our Supreme Court has] held that where hearings are required by statute, a [board] member need not be present in order to participate in decisions [i]f that member acquaints himself sufficiently with the issues raised and the evidence and arguments presented at the public hearing in order to exercise an informed judgment.” (Internal quotation marks omitted.) Id.

Here, we conclude that the board exceeded the procedural due process requirements set forth in § 4-179. At least one of the panel members heard the testimony of all witnesses. The panel members who did not hear all of the testimony attested that they had read the record. The board also served a proposed final decision on the plaintiff and gave him an opportunity to respond to it before a final decision was rendered. The court therefore properly dismissed the plaintiffs appeal.

V

The plaintiffs fifth claim is that the delay between the time of the improper conduct and the administrative proceedings violated his constitutional right to due process and to fundamental fairness, and that the court improperly concluded otherwise. The board argues that we should not review this claim because it was not raised at the hearing. We decline to review this claim for the following reasons.

The plaintiff claims that because the alleged improper conduct occurred in 1985 and 1986, the complainant did not lodge her complaint until 1991, the department did not file charges until 1994 and the decision was not rendered until 1998, he was denied his constitutional right to a fair trial due to delay and that he was prejudiced by his dimmed memory. The parties have not cited to any place in the record where evidence of the reason for any delay and alleged prejudice was presented to the board. The board’s decision contains no findings related to delay or prejudice resulting therefrom.

Practice Book § 5-2 provides that “[a]ny party intending to raise any question of law which may be the subject of an appeal must either state the question distinctly to the judicial authority in a written trial brief under Section 5-1 or state the question distinctly to the judicial authority on the record before such party’s closing argument and with sufficient time to give the opposing counsel an opportunity to discuss the question. If the party fails to do this, the judicial authority will be under no obligation to decide the question.” In the past, this court has considered claims that were “perhaps less than clear when raised on the record” as long as they were distinctly addressed in a posttrial brief. Biller Associates v. Rte. 156 Realty Co., 52 Conn. App. 18, 24, 725 A.2d 398 (1999), aff'd, 252 Conn. 400, 746 A.2d 785 (2000).

On the basis of our review of the record, we conclude that the plaintiff asserted his timeliness claim in special defenses to the board’s charges. The plaintiff has not drawn our attention to evidence in the record that he presented on the issue of timeliness, delay or prejudice. He did not raise his special defenses in his brief or oral argument in response to the board’s proposed decision. Furthermore, the board’s decision contains no factual findings that are relevant to the plaintiffs claim before this court. The record is therefore inadequate for our review, and it was established long ago that appellate courts do not make factual findings. See Killion v. Davis, 257 Conn. 98, 102, 776 A.2d 456 (2001).

It is well known that “an appellate court is under no obligation to consider a claim that is not distinctly raised at the trial level. Practice Book § 60-5; Yale University v. Blumenthal, 225 Conn. 32, 36 n.4, 621 A.2d 1304 (1993) . . . .” (Internal quotation marks omitted.) Burnham v. Karl & Gelb, P.C., 252 Conn. 153, 170-71, 745 A.2d 178 (2000). This rule applies to appeals from administrative proceedings as well. See Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 632, 613 A.2d 739 (1992); Jutkowitz v. Dept. of Health Services, 220 Conn. 86, 95, 596 A.2d 374 (1991). Although he argues that his claim is one of constitutional magnitude and fundamental fairness, the plaintiff has not sought review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error doctrine embodied in Practice Book § 60-5 and provided the legal analysis required for such review.

The plaintiff, however, asks this court to review his claim under the exceptional circumstances doctrine of Imperial Casualty & Indemnity Co. v. State, 246 Conn. 313, 714 A.2d 1230 (1998), in which our Supreme Court reviewed a claim raised for the first time on appeal. In Imperial Casualty & Indemnity Co., our Supreme Court observed that courts of appeal “review a case on the theory upon which it was tried and decided by the trial court . . . .” (Citation omitted; internal quotation marks omitted.) Id., 320. In exceptional circumstances, however, an appellate court may review a claim not raised at trial. “[S]uch exceptional circumstances may occur where a new and unforeseen constitutional right has arisen between the time of trial and appeal or where the record supports a claim that a litigant has been deprived of a fundamental constitutional right and a fair trial.” (Emphasis added; internal quotation marks omitted.) Id., 321. As we have noted, the board’s decision does not contain factual determinations that would constitute an adequate record, and the plaintiff did not bring the matter to the board’s attention when he was invited to do so. He therefore has waived his claim. See Jutkowitz v. Dept. of Health Services, supra, 220 Conn. 95.

The plaintiff raised the present issue when he appealed to the trial court. The court reviewed the claim pursuant to the exceptional circumstances doctrine. Here, the plaintiff asks us to reverse the court’s judgment on the basis of two trial court cases in which practitioners’ administrative appeals were sustained due to the length of time between the alleged improper acts and the filing of charges, and because the hearings deprived the practitioners of a constitutional right. The cases on which the plaintiff relies are Koff v. Medical Examining Board, judicial district of New Britain, Docket No. CV 98 0492722 (February 9, 1999) (24 Conn. L. Rptr. 88), and Baer v. Board of Examiners in Podiatry, judicial district of Hartford, Docket No. CV 96 0562722 (January 6, 1998) (21 Conn. L. Rptr. 165). Superior Court decisions are not binding on this court. See Commission on Hospitals & Health Care v. Lakoff, 214 Conn. 321, 333, 572 A.2d 316 (1990).

Furthermore, because the plaintiff has presented his claim to this court as if Baer and Koff are binding on us, he has not provided a constitutional analysis of the question at hand. To our knowledge, the cases have not been challenged on appeal. By comparison, the board has raised significant legal issues calling into question the reasoning of Baer and Koff. Neither case is before us now, and we decline to consider the question. The controlling law is Joyell v. Commissioner of Education, 45 Conn. App. 476, 486, 696 A.2d 1039 (state agency not subject to statute of limitations unless declared by legislature; laches may not be invoked against governmental agency), cert. denied, 243 Conn. 910, 701 A.2d 330 (1997). See also State v. Goldfarb, 160 Conn. 320, 323, 278 A.2d 818 (1971), quoting State v. Shelton, 47 Conn. 400, 404 (1879).

The plaintiff implies that we should overrule Joyell. Our rules of practice and our own policy do not permit a panel of this court to overturn decisions of this court. See Practice Book §§ 70-7, 71-5; Consiglio v. Trans-america Ins. Group, 55 Conn. App. 134, 138 n.2, 737 A.2d 969 (1999) (“[C]ourt’s policy dictates that one panel should not, on its own, reverse the ruling of a previous panel. The reversal may be accomplished only if the appeal is heard en banc.”).

VI

The plaintiffs last claim is that the board’s sanction is not supported by good cause because the board’s conclusions lack factual support. In other words, the plaintiff claims that the board abused its discretion. We do not agree.

As a result of finding that the plaintiff violated § 20-192 because he acted negligently, incompetently or wrongfully in the conduct of his profession, the board placed the plaintiff on probationary status, restricted his practice and imposed a $10,000 civil penalty. The civil penalty was stayed and will be executed only if the plaintiff violates the terms of his probation and may be withdrawn if the board restores the plaintiffs license. After one year of probationary status, and yearly thereafter, if necessary, the plaintiff may ask the board to restore his license if he can demonstrate that the circumstances that led to his probation have been remedied.

“If the penalty meted out is within the limits prescribed by law, the matter lies within the exercise of the [board’s] discretion and cannot be successfully challenged unless the discretion has been abused. . . . Sentencing is an inherently fact bound inquiry. In an administrative appeal, a reviewing court can do no more, on the factual questions presented, than to examine the record to determine whether the ultimate findings were supported, as the statute requires, by substantial evidence.” (Citation omitted; internal quotation marks omitted.) Pet v. Dept. of Health Services, supra, 228 Conn. 677-78.

Section 20-192 permits the board to take any action set forth in § 19a-17 if a license holder acts negligently, incompetently or wrongfully in the conduct of his profession. Among other things, § 19a-17 permits the board, after a finding of good cause, to place a practitioner on probationary status, to limit his practice and to assess a civil penalty of up to $10,000. The sanctions the board imposed on the plaintiff fall within the action permitted by § 19a-17. As we have concluded previously, there is substantial evidence in the record to support the board’s decision. The court therefore properly dismissed the plaintiffs appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 20-192 provides that the board of examiners of psychologists “may fake any action set forth in section 19a-17, if the license holder: Has been convicted of a felony; has been found by the board to have employed fraud or deceit in obtaining his license or in the course of any professional activity, to have violated any provision of this chapter or any regulation adopted hereunder or to have acted negligently, incompetently or wrongfully in the conduct of his profession-, practiced in an area of psychology for which he is not qualified; is suffering from physical or mental illness, emotional disorder or loss of motor skill, including but not limited to, deterioration through the aging process or is suffering from the abuse or excessive use of drugs, including alcohol, narcotics or chemicals. The Commissioner of Public Health may order a license holder to submit to a, reasonable physical or mental examination if his physical or mental capacity to practice safely is the subject of an investigation. Said commissioner may petition the superior court for the judicial district of Hartford to enforce such order or any action taken pursuant to section 19a-17. Notice of any contemplated action under said section, of the cause therefor and the date of hearing thereon shall be given and an opportunity for hearing afforded as provided in the regulations adopted by the Commissioner of Public Health. The Attorney General shall, upon request, furnish legal assistance to the board. Any person aggrieved by any action of the board may appeal therefrom as provided in section 4-183, except such appeal shall be made returnable to the judicial district where he resides. Such appeal shall have precedence over nonprivileged cases in respect to order of trial.” (Emphasis added.)
      Amendments to § 20-192 subsequent to 1985 are technical in nature and do not affect the present case.

       We decline to identify the complainant to protect the privacy of her children, who were the plaintiffs patients. See General Statutes § 52-146c.

       On July 1, 1993, the department of health services became known as the department of public health and addiction services. See Public Acts 1993, No. 93-381, §§ 9, 39. On July 1, 1995, the department of public health and addiction services became known as the department of public health. See Public Acts 1995, No. 95-257, §§ 12, 21, 58.

       In July, 1992, prior to initiating charges against him, the department offered the plaintiff the opportunity to attend a compliance conference to demonstrate his compliance with the lawful requirements to retain his license.

       General Statutes § 20-186 (a) provides in relevant part: “The Board of Examiners of Psychologists shall consist of five members appointed by the Governor, three of whom shall be practicing psychologists in good professional standing and licensed according to the provisions of this chapter and two of whom shall be public members. Each such member shall be a resident of this state. No member of said board shall be an elected or appointed officer of any professional association of psychologists or have been such an officer during the year immediately preceding his appointment. The Governor shall designate one member as chairman of said board and shall fill any vacancy therein by appointment for the unexpired portion of the term. No member shall serve for more than two full consecutive terms commencing after July 1, 1980. . . .” (Emphasis added.)

       The plaintiffs appeal from the 1996 decision therefore became moot.

       The board concluded that the department did not sustain its burden of proof as to its allegations that the plaintiff had provided psychotherapeutic care and treatment to the complainant during the time referenced in the statement of charges or that he had failed to maintain complete psychological records of his diagnosis, assessment, treatment or prognosis of the complainant. It also concluded that the department did not sustain its burden of proof as to its allegation that the plaintiff had engaged in a business relationship with the complainant.

       General Statutes § 4-183 (j) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decision are ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       In support of his claim, the plaintiff cites Novak v. Anderson, 178 Conn. 506, 423 A.2d 147 (1979). “It is established law that it is error for a court to submit to the jury an issue which is wholly unsupported by the evidence.
      . . . While it is true that it is within the province of the jury to accept or reject a board’s testimony, a jury in rejecting such testimony cannot conclude that the opposite is true. ... A jury cannot, from a disbelief of a board’s testimony, infer that a plaintiffs allegation is correct.” (Citations omitted.) Id., 508.

       The plaintiff testified in part as follows:
      “Q: How would you characterize the relationship you had with [the complainant]?
      “A: Well, that I knew her socially. And I’ve known her for about two years, would be more accurate.
      “Q: So you had a social relationship with [the complainant]?
      “A: Dm (yes).
      “Q: Did you have a social relationship with [the complainant]?
      “A: Well, there was a social aspect to our relationship.”

       General Statutes § 4-178 provides in relevant part: “In contested cases ... (8) the agency’s experience, technical competence, and specialized knowledge may be used in the evaluation of the evidence.”

       Ebert testified in part as follows: “I think in response to the earlier question about what would the impact be on the child here, certainly, it is my opinion that if there had been a sexual relationship, that would have had much greater impact on the child in terms of being able to come back into treatment than if there had not been such a relationship.
      “Also, the degree of poor judgment would increase, if that’s the right direction. But there would be more poor judgment, for what that’s worth.”

       The courtproperly distinguished General Statutes § 20-192 from General Statutes § 20-13c, which governs the actions of the Connecticut medical examining board. Section 20-13c provides in relevant part: “In each case, the board shall consider whether the physician poses a threat, in the practice of medicine, to the health and safety of any person. If the board finds that the physician poses such a threat, the board shall include such finding in its final decision and act to suspend or revoke the license of said physician.”

       General Statutes § 19a-17 (c) provides in relevant part: “Such board or commission or the department where appropriate may summarily suspend a practitioner’s license or permit in advance of a final adjudication or during the appeals process if such board or commission or the department finds that a practitioner . . . represents a clear and immediate danger to the public health and safety if he is allowed to continue to practice.”

       We also agree with the board’s argument that the finding was merely superfluous as to General Statutes § 20-192, as that statute does not require the board to make a finding as to whether the plaintiff is a danger to the public.

       The plaintiff alleged in his first special defense: “The instant proceeding violates constitutional principles of due process in that the statutory scheme upon which the instant proceeding is founded does not contain a statute of limitations.” In his second special defense, the plaintiff alleged: “The instant complaint is barred by the doctrine of laches.”

         This opinion does not address whether the court properly considered the plaintiffs claim pursuant to Baer and Koff.

       The plaintiff, in his reply brief, asserts the most extraordinary proposition that Baer and Koff have overruled Joyell. Trial courts are bound by legal precedent. See State v. Porter, 241 Conn. 57, 61, 698 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998).

       General Statutes § 19a-17 provides in relevant part: “(a) Each board . . . may take any of the following actions, singly or in combination, based on conduct which occurred . . . subsequent to the issuance of a . . . license upon finding the existence of good cause ... (5) Place a practitioner ... on probationary status and require the practitioner ... to . . . (B) Limit practice to those areas prescribed by such board ... (6) Assess a civil penalty of up to ten thousand dollars ....
      “(b) Such board . . . may withdraw the probation if it finds that the circumstances which required action have been remedied.”


author: SPEAR, J.

text:
    STATE OF CONNECTICUT v. ROBERT GALLICHIO
    (AC 21632)
    Lavery, C. J., and Schaller and Spear, Js.

      Argued February 20 —
    officially released July 23, 2002

      Stephen F. Cashman, for the appellant (defendant).

      Joy K. Fausey, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, chief state’s attorney, and Terri L. Sonnemann, deputy assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Robert Gallichio, appeals from the judgment of conviction of operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a) (2) as a second offender pursuant to § 14-227a (h). The defendant claims that the court improperly (1) instructed the jury on the application of the statutory rebuttable presumption that allows the jury to determine the defendant’s blood alcohol level at the time of the alleged offense and (2) found that the state had proven beyond a reasonable doubt that the defendant was a second offender pursuant to § 14-227a (h). The state concedes and we agree that there was insufficient evidence for the court to conclude that the defendant was a second offender, and, accordingly, we reverse the judgment of conviction as to the enhanced sentence pursuant to § 14-227a. We reject the defendant’s first claim and affirm the judgment of conviction of operating a motor vehicle while under the influence of intoxicating liquor.

The jury reasonably could have found the following facts. On November 7, 1999, at approximately 10:53 p.m., a Newington police officer stopped the defendant after witnessing him operating his motor vehicle erratically. After the defendant failed several field sobriety tests, the officer arrested him. At the police station, the defendant submitted to a breath test at approximately 11:21 p.m. that measured his blood alcohol content (BAC) at 0.207 percent. The officer administered a see-ond test at approximately 11:54 p.m. that measured the defendant’s BAC at 0.189 percent. Both test results indicated a BAC in excess of 0.10 percent, a BAC in violation of the limit established by § 14-227a. The state filed a two part information, charging the defendant in the first part with operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a and in the second part with previously having been convicted of the same offense pursuant to § 14-227a (h). The jury found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor, and the trial court found the defendant guilty of being a second offender pursuant to § 14-227a (h). This appeal followed.

I

The defendant first claims that the court improperly instructed the jury on the application of the rebuttable presumption contained in § 14-227a (c). Specifically, the defendant asserts that the court improperly instructed the jury that if it found the six conditions precedent set forth in § 14-227a (c); see footnote 3; for the admissibility of the results of a chemical analysis, it could then determine the BAC of the defendant at the time of the alleged offense. He argues that the instruction relieved the state of its burden of proving beyond a reasonable doubt that the defendant had an elevated BAC at the time of the offense because the charge (1) allowed the jury to find an elevated BAC on the basis of criteria applicable only to the admissibility of the chemical analysis and (2) transformed the admission of the chemical analysis results into a conclusive presumption as to the defendant’s BAC at the time of the alleged offense.1 ** The first argument is subsumed in our discussion of the argument concerning the conclusive presumption.

The defendant objected to the court’s instruction, arguing that the presumptive language was improper. The court overruled the objection and stated that it had relied on State v. Nokes, 44 Conn. App. 40, 44, 686 A.2d 999 (1996), in composing its instructions.

Before addressing the merits of the defendant’s claim we first state our standard of review. A defective instruction on an essential element of the crime charged raises a constitutional issue. “An alleged defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled. . . . State v. Spillane, 255 Conn. 746, 757, 770 A.2d 898 (2001); see also State v. Cerilli, 222 Conn. 556, 584 n.16, 610 A.2d 1130 (1992) (perceiv[ing] no functional difference between harmless error standard requiring court to determine, on whole record, whether constitutional error harmless beyond reasonable doubt, and standard of whether there was no reasonable possibility that jury was misled).” (Internal quotation marks omitted.) State v. Williams, 258 Conn. 1, 26, 778 A.2d 186 (2001).

In Nokes, we stated that “[t]o pass constitutional muster, a presumption must be cast as a permissive inference [that] suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion. ... A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the juiy that the suggested conclusion should be inferred based on the predicate facts proved. Francis v. Franklin, 471 U.S. 307, 314, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985).

“Instructions relating to § 14-227a (c) should fulfill the legislature’s intent that a jury may infer a defendant’s blood alcohol content at the time of the offense under appropriate factual circumstances. Accordingly, we construe . . . statutory inferences as permissive inferences that a jury may draw under appropriate circumstances in which such an inference is rational or reasonable. State v. Gerardi, [237 Conn. 348, 360, 677 A.2d 937 (1996)].

“If . . . other facts or circumstances are introduced and the totality of the evidence could reasonably and logically support the inference, then the juiy may be instructed that it may draw such a permissive inference. . . . [T]he jury must be instructed that it may infer facts only upon finding sufficient predicate statutory and nonstatutory facts and circumstances that are rationally connected with the ultimate facts inferred. Id., 361. . . . [T]he ultimate fact to be proven is that the defendant’s blood alcohol content at the time of the offense was 0.10 percent or greater. According to the statute, this fact may be presumed if the jury finds that after testing according to statutory requirements, the test results show that the defendant’s blood alcohol content was 0.10 percent or greater. To find this ultimate fact, the jury must first determine if the statutory guidelines were followed. The test must have been performed by a proper person, the device used must be shown to have been working properly, and the test must have been performed within the proper time frame.” (Internal quotation marks omitted.) State v. Nokes, supra, 44 Conn. App. 44-45.

We conclude that the trial court improperly charged the jury with respect to the statutory rebuttable presumption because it cast its instructions in terms of a rebuttable presumption rather than a permissive inference. Specifically, the court stated: “Now, also, part of the statute says, in any prosecution under this section, it shall be a rebuttable presumption that the results of such chemical analysis establish the ratio of alcohol in the blood of the defendant at the time of the alleged offense. So, in order for that, you’ll also have to then take into [account] the other aspects of this particular statute. I’ll read them to you.

* * *

“So, those are the things that you look at and come to the conclusion, then, if it comes that, you established that those things have been accomplished, then the readings of the tests raise a rebuttable presumption that that was the volume of alcohol in his blood at the time of operation. Okay.

“I’ll read that to you again. If a rebuttable presumption that the results of such chemical analysis establish the ratio of . . . alcohol in the blood of the defendant at the time of the alleged offense. A rebuttable presumption, basically said, you can accept it unless you feel that it hasn’t been established, okay. So, you can take that concept in that statute into consideration and your determining what the blood alcohol content of the defendant was at the time of the operation of the motor vehicle.” See footnote 4.

In St,ate v. Nokes, supra, 44 Conn. App. 44, this court concluded that an instruction regarding § 14-227a (c), which was cast in rebuttable presumption language, even though such language was used in the statute, was improper. This court further concluded that although the instruction was improper, any error was harmless. This court based its decision on State v. Gerardi, supra, 237 Conn. 356, in which our Supreme Court held that an instruction containing rebuttable presumption language violated the due process clause and that the error was not harmless beyond a reasonable doubt. The trial court in Gerardi charged the jury in terms of a mandatory rebuttable presumption rather than a permissive inference when instructing on possession of a machine gun for an aggressive or offensive purpose pursuant to General Statutes § 53-202 (d), (e) and (g). “In Gerardi, [our Supreme Court] concluded that the legislature could not have intended that the jury be required to infer that a defendant possessed a machine gun for an offensive or aggressive purpose from the mere fact that the gun was unregistered or that the jury was required to infer that all the occupants of a vehicle possess a machine gun simply because it is located in that car. The legislature could have intended only that a jury may infer possession under appropriate factual circumstances.” State v. Nokes, supra, 45-46.

“Although the Gerardi charge did not specifically instruct the jury that it was the defendant’s burden to rebut the presumptive evidence, that was clearly the implication of the words used. The Nokes charge did not inform the jury that a presumption was to be taken as sufficient proof by itself of an element of the crime, but it did require the presumptions to be overcome by the defendant through the introduction of other evidence and allowed the jury to decide whether the defendant’s evidence successfully rebutted the presumptions.” (Internal quotation marks omitted.) Id., 43-44. Like the instruction in Woices, the court’s instruction here did not inform the jury that a presumption was to be taken as sufficient proof by itself of an element of the crime, but it did require the presumptions to be considered with “other aspects of [the] particular statute” and allowed the jury to “accept [the rebuttable presumption] unless you feel that it hasn’t been established.” See footnote 4. Pursuant to Nokes, we conclude that the trial court’s jury instructions were improper.

The Nokes court, however, determined that even though the instruction was improper, it was harmless. We now must determine whether the instruction here was harmless beyond a reasonable doubt. See id., 44. We look to the evidence, the issues in the case and the entire charge to assess the harmlessness of such an improper instruction. State v. Prioleau, 235 Conn. 274, 288, 664 A.2d 743 (1995). “In performing harmless error analysis, we keep in mind that [i]n determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . State v. Spillane, supra, [255 Conn. 757]; State v. Anderson, 227 Conn. 518, 532, 631 A.2d 1149 (1993) (charge considered from standpoint of its effect on jury in guiding it to proper verdict).” (Internal quotation marks omitted.) State v. Williams, supra, 258 Conn. 26.

We conclude that the court’s instruction was harmless beyond a reasonable doubt. The court explained to the jurors that they may draw reasonable inferences and explained what an inference was by using examples to demonstrate the concept. The court charged the jury that to find the defendant guilty, it must find that the state proved the subsidiary facts beyond a reasonable doubt before drawing any inferences from those facts. The court further explained to the jury that to determine whether the ratio of alcohol in the defendant’s blood exceeded the statutory limit, it may consider the statute and each of the statutory requirements.

Furthermore, the court did not limit the jury’s consideration to those elements, but told the jurors they could consider them in determining the blood alcohol content of the defendant. The two blood tests were performed approximately thirty-three minutes apart, which is after thirty minutes, but before two hours, as required by the statute. The jury could have concluded from the evidence before it that the defendant was afforded an opportunity to telephone his attorney prior to taking the test, that he consented to the taking of the test, that a qualified person performed the test properly, that the device was working properly and that the test was performed within the proper time frame. From these subsidiary facts, the jury reasonably could have found beyond a reasonable doubt the ultimate fact that the defendant’s blood alcohol content exceeded the statutory requirement of 0.10 percent at the time of the offense. Moreover, the trial court charged the jury that to find the defendant guilty, it must find that the state proved beyond a reasonable doubt that the defendant’s blood alcohol content was 0.10 percent or more at the time of the incident. See id., 46. Under these circumstances, there is no reasonable possibility that the jury was misled, i.e., the improper instruction was harmless beyond a reasonable doubt.

II

The defendant’s second claim is that the state failed to prove beyond a reasonable doubt that he was a second offender pursuant to § 14-227a (h). He asserts that the state did not produce any evidence that he was the same Robert Gallichio whose record of conviction was introduced into evidence. The state concedes that, although identical names are evidence that each name refers to the same person, standing alone, it is not proof beyond a reasonable doubt that the defendant is the person who was convicted. See State v. Grady, 153 Conn. 26, 33, 211 A.2d 674 (1965). We agree that there was insufficient evidence for the court to have concluded beyond a reasonable doubt that the defendant and the person named in the record of the conviction were one and the same.

The judgment is reversed as to the enhanced sentence for previously having been convicted of operating a motor vehicle while under the influence of intoxicating liquor and the case is remanded with direction to render judgment of guilty of operating a motor vehicle while under the influence of intoxicating liquor and not guilty under the second part of the information.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides in relevant part: “No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if such person operates a motor vehicle on a public highway of this state ... (2) while such person has an elevated blood alcohol content. For the purposes of this section, ‘elevated blood alcohol content’ means (A) a ratio of alcohol in the blood of such person that is ten-hundredths of one per cent or more of alcohol, by weight

       General Statutes § 14-227a (h) provides in relevant part: “Any person who violates any provision of subsection (a) of this section shall ... (2) for conviction of a second violation within ten years after a prior conviction for the same offense, (A) be fined not less than one thousand dollars nor more than four thousand dollars, (B) be imprisoned not more than two years, one hundred twenty consecutive days of which may not be suspended or reduced in any manner, and sentenced to a period of probation requiring as a condition of such probation that such person perform one hundred hours of community service, as defined in section 14-227e, and (C) have such person’s motor vehicle operator’s license or nonresident operating privilege suspended for three years or until the date of such person’s twenty-first birthday, whichever is longer . . .

       General Statutes § 14-227a (c) provides in relevant part: “Except as provided in subsection (d) of this section, in any criminal prosecution for violation of subsection (a) or (b) of this section, evidence respecting the amount of alcohol or drug in the defendant’s blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant’s breath, blood or urine shall be admissible and competent provided: (1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the Department of Public Safety and was performed in accordance with the regulations adopted under subsection (e) of this section; (4) the device used for such test was checked for accuracy in accordance with the regulations adopted under subsection (e) of this section; (5) an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed or, if requested by the police officer for reasonable cause, an additional chemical test of a different type was performed to detect the presence of a drug or drugs other than or in addition to alcohol, provided the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented that the test was commenced within two hours of operation. In any prosecution under this section it shall be a rebuttable presumption that the results of such chemical analysis establish the ratio of alcohol in the blood of the defendant at the time of the alleged offense, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such defendant is twelve-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and the analysis thereof accurately indicate the blood alcohol content at the time of the alleged offense.”

         The relevant portion of the court’s instruction provided: “Now, also, part of the statute says, in any prosecution under this section, it shall be a rebuttable presumption that the results of such chemical analysis establish the ratio of alcohol in the blood of the defendant at the time of the alleged offense. So, in order for that, you’ll also have to then take into account the other aspects of this particular statute. I’ll read them to you.
      “One, the defendant was offered a reasonable opportunity to telephone an attorney prior to the performance of the test, and he consented to taking the test upon which such analysis was made. Two, a true copy of the report of the test results were mailed or personally delivered to the defendant within twenty-four hours. Three, the test was performed by or at the direction of a police officer according to the methods and with equipment approved by the department of public health. And, then four, that the device used for such tests was checked for accuracy in accordance with the regulations— the test was before or after. And an additional chemical test of the same type was performed at least thirty minutes after the initial test was performed. And that the evidence is presented that the test was commenced within two hours of the operation, okay.
      “So, those are the things that you look at and come to the conclusion, then, if it comes to that, you established that those things have been accomplished, then the readings of the tests raise a rebuttable presumption that that was the volume of alcohol in his blood at the time of operation. Okay.
      “I’ll read that to you again. If a rebuttable presumption that the results of such chemical analysis establish the ratio of . . . alcohol in the blood of the defendant at the time of the alleged offense. A rebuttable presumption, basically said, you can accept it unless you feel that it hasn’t been established, okay. So, you can take that concept in that statute into consideration and your determining what the blood alcohol content of the defendant was at the time of the operation of the motor vehicle.”