|
CASE
NO. 5267 CRB-1-07-8
COMPENSATION
REVIEW BOARD
WORKERS’
COMPENSATION COMMISSION
DECEMBER
8, 2008
LISA
M. FLOOD
CLAIMANT-APPELLANT
v.
TRAVELERS
PROPERTY & CASUALTY
EMPLOYER
and
ST.
PAUL TRAVELERS
INSURER
RESPONDENTS-APPELLEES
APPEARANCES:
The
claimant appeared pro se.
The
respondents were represented by
Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury
Boulevard, Glastonbury, CT 06033.
This
Petition for Review from the
August 1, 2007 Finding and Dismissal of the Commissioner acting for the
Eighth
District was heard on June 27, 2008 before a Compensation Review Board
panel
consisting of Commission Chairman John A. Mastropietro and
Commissioners
Charles F. Senich and Scott A. Barton.
OPINION
JOHN
A. MASTROPIETRO, CHAIRMAN. The
claimant has petitioned for review from the August 1, 2007 Finding and
Dismissal of the Commissioner acting for the Eighth District. We find
no error,
and affirm the decision of the trial commissioner.1
The
trial commissioner found the
following facts which are pertinent to our review. The claimant, who
was
employed as a paralegal2 for the respondent insurance company, sustained
injuries on March 31, 2000, when she fell on a temporary walkway which
had been
erected at the worksite. She initially sought treatment on April 11,
2000 with
Murray I. Wellner, M.D., who testified at his deposition that his
office note
from this visit indicated the claimant had “hurt her left side of her
body,
neck, shoulder, left elbow, left lower extremity.” Findings, ¶ H.
The
claimant saw Dr. Wellner again
on May 2, 2000 at which time Dr. Wellner noted the claimant was
experiencing a
cervical sprain and tenderness in her left shoulder and wrist. On
February 2,
2001, the claimant sought treatment with John J. O’Brien, M.D., who
diagnosed
the claimant with bursitis/tendonitis in her left shoulder and reported
an
examination of the claimant’s lower back revealed “a level of pelvis
with
tenderness over the posterior superior iliac spines on both sides.”
Findings, ¶
L. The claimant and Dr. O’Brien terminated their doctor/patient
relationship on
August 7, 2001.
On
August 21, 2001, the claimant saw
Anthony J. Spinella, M.D. His report of that date chronicles the
claimant’s
fall on March 31, 2000 and the injuries she sustained to her left
shoulder and
lateral neck. Dr. Spinella also referenced a history of arthritis in
the
claimant’s left hip along with degenerative lumbar spondylolysis. Dr.
Spinella
referred the claimant for a consultation with J. William Healy, M.D., a
neurologist, who examined the claimant on November 7, 2001 and sent her
for
diagnostic tests.
On
May 25, 2002, the claimant
presented for treatment at Westside Chiropractic, LLC, where she saw
Darlene
Smith, D.C. Dr. Smith’s records include a history of the claimant’s
complaints
of pain in her left shoulder and left back/hip. Dr. Smith’s intake
notes also
indicate the claimant was involved in a motor vehicle accident in 1991
and that
in 1996 she experienced similar symptoms and underwent chiropractic
treatment
with Richard Duenas, D.C.3
On
August 6, 2002, the claimant saw
Vincent M. Santoro, M.D., who diagnosed a soft tissue injury to the
claimant’s
left shoulder. Dr. Santoro prescribed additional chiropractic treatment
and
articulated several restrictions on the claimant’s activities. In
addition,
because diagnostic tests of the claimant’s lumbar spine had revealed an
abnormality, Dr. Santoro referred the claimant to Gerald J. Becker,
M.D., whom
the claimant saw on August 14, 2002. In his report of that date, Dr.
Becker
opined that the claimant’s leg and back pain “were the result of an
aggravation
of degenerative disc disease attributable to the March 31, 2000 fall.”
Findings, ¶ V.
The
claimant subsequently began a
course of chiropractic treatment with Richard Duenas, D.C. On May 5,
2003, Dr.
Duenas issued a report in which he assigned the claimant permanent
partial
disability ratings of four (4%) percent of the cervical spine, two (2%)
percent
of the lumbar spine, and five (5%) percent of the left shoulder. On
June 13,
2004, Dr. Duenas provided a follow-up report in which he assigned a
corrected
rating of seven (7%) percent to the lumbar spine as a result of the
claimant’s
fall on March 31, 2000. In this report, Dr. Duenas also remarked that
the “MRI
findings taken 2 years and 3 months ago after your injury reveal
degenerative
disc changes with L4-5 left foraminal stenosis.” Findings, ¶ W.
The
claimant returned to Dr. Becker
for additional treatment on April 12, 2004. Dr. Becker subsequently
assigned
the claimant permanent partial disability ratings in the amounts of
seven (7%)
percent of the cervical spine and fifteen (15%) percent of the lumbar
spine.
Dr. Becker attributed these ratings to the claimant’s fall of March 31,
2000.
However, during his deposition on August 16, 2006, Dr. Becker testified
that
after having reviewed Dr. O’Brien’s records, he realized that the
claimant had
provided a different history to Dr. O’Brien, thereby causing Dr. Becker
to
question what role the claimant’s fall in March of 2000 had actually
played
relative to the claimant’s degenerative back condition. As a result of
this
records review, Dr. Becker opined that “the March 2000 fall was
probably a
minor aggravation of her degenerative disc disease and not really a new
injury.” Findings, ¶ AA.
Dr.
Becker then testified that if
the trial commissioner were to conclude the claimant had sustained an
injury to
her back in the fall of March 2000, he would assign a two (2%) percent
permanent partial disability rating to the claimant’s back, which
rating was
“distinct and separate” from the claimant’s degenerative disc disease.
Dr.
Becker also stated that claimant’s fall in March of 2000 was not a
significant
factor in causing the degenerative changes in her back. Finally, Dr.
Becker
indicated that his opinions regarding the accuracy of the claimant’s
permanent
partial disability ratings were based upon “which history was actually
true,”
and the claimant’s “March 2000 fall was a small but not insignificant
[factor]
in the claimant’s ongoing symptoms.” Findings, ¶ DD.
At
the request of the respondents,
Steven E. Selden, M.D., saw the claimant for an orthopedic evaluation
on June
17, 2004. In his deposition of August 28, 2006, Dr. Selden testified “I
felt
[the claimant] had a strain of her lower back superimposed on a
pre-existing
arthritis which I referred to as degenerative changes.” Respondents’
Exhibit
14, p. 8. However, Dr. Selden further testified that “upon reviewing
the entire
record, the March 2000 incident was not a significant factor in the
claimant’s
ongoing back problems.” Findings, ¶ GG. Dr. Selden also retracted
his prior
assignment of a two (2%) percent permanent partial disability rating of
the
claimant’s lumbar spine, remarking that “a finding of hip tenderness is
not per
se documentation of back injury.” Findings, ¶ II.
Based
upon the foregoing evidentiary
submissions, the trial commissioner concluded that Dr. Selden’s
opinions
relative to the issue of the causation and compensability of the
claimant’s
back, hip and neck problems were “more credible and persuasive than
those
expressed by other physicians involved in this matter.” Findings,
¶ NN. The
trial commissioner found that the medical evidence in the record
documenting
the claimant’s prior medical treatment for these problems combined with
additional evidence which was “inconsistent with contemporaneous
medical
reports lead to this inescapable conclusion that [the claimant’s] back,
hip and
neck are not related to her fall of March 31, 2000. At best, those were
minor
insignificant injuries and selflimiting.” Id. The trial commissioner
ordered
the respondents to accept as compensable the claimant’s injury to her
left
shoulder and dismissed the claims as to the back, neck and hip.
The
claimant filed a Motion to
Correct and Amended Motion to Correct which were denied in their
entirety, and
this appeal followed. On appeal, the claimant disputes the accuracy of
a number
of the medical reports in the record and disagrees with many of the
statements
of both the witnesses who testified at trial and the medical providers
as
contained in their depositions. In essence, the claimant asserts, inter
alia,
that the trial commissioner made numerous errors in formulating his
findings by
relying on evidence which was inaccurate and/or unproven. She also
alleges that
the trial commissioner showed bias in favor of the respondents and that
counsel
for the respondents violated several Rules of Professional Conduct in
his
handling of the claim. Insofar as our review of the record indicates
the
claimant’s allegations as to bias and misconduct are groundless, we
will
confine our review of this appeal to an analysis of the alleged factual
errors
committed by the trial commissioner.
We
begin our analysis by reciting
the standard of deference we apply to a trial commissioner’s findings
and legal
conclusions. As this board articulated in Heilweil
v. Montville-Board of Education,
5161 CRB-8-06-11 (October 24, 2007), quoting McMahon
v. Emsar, Inc.,
5049 CRB-4-06-1 (January 16, 2007),
… the
role of this board on appeal is not to substitute its
own findings for those of the trier of fact. Dengler v. Special
Attention
Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial
commissioner’s
role as factfinder encompasses the authority to determine the
credibility of
the evidence, including the testimony of witnesses and the documents
introduced
into the record as exhibits. Burse v. American International Airways,
Inc., 262
Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App.
190, 195
(1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the
record
to support the factual findings of the trial commissioner, the findings
will be
upheld on appeal. Duddy
v. Filene’s (May Department Stores Co.),
4484 CRB-7-02-1 (October 23, 2002); Phaiah
v. Danielson Curtain (C.C. Industries),
4409 CRB-2-01-6 (June 7, 2002). This board may disturb
only those findings that are found without evidence, and may also
intervene
where material facts that are admitted and undisputed have been omitted
from
the findings. Burse, supra; Duddy,
supra. We will also overturn a
trier’s legal conclusions when they result from an incorrect
application of the
law to the subordinate facts, or where they are the product of an
inference
illegally or unreasonably drawn from the facts. Burse, supra; Pallotto
v. Blakeslee Prestress, Inc.,
3651 CRB-3-97-7 (July 17, 1998).
Having
reviewed the evidentiary
record in the instant matter, we find, contrary to the claimant’s
contentions,
that the medical reports contained therein along with the deposition
testimony
of several of the claimant’s treating physicians provide a reasonable
and
permissible basis for the trial commissioner’s inferences regarding the
noncompensability of the claimant’s neck and back problems. For
instance, as
the trial commissioner correctly discerned, Dr. Wellner’s records from
the
claimant’s initial office visits of April 11, 2000 and May 2, 2000
contain
absolutely no reference to a possible back injury. Although Dr. Wellner
subsequently indicated in his report dated September 29, 2004 that the
claimant
had “injured the left side of the back as well as her left shoulder,
neck and
left elbow” when she fell on March 31, 2000, Dr. Wellner stated during
his
deposition that when the claimant initially saw him at the office visit
of
April 11, 2000, she reported only that she had injured the left side of
her body,
neck, shoulder, left elbow, and left lower extremity. Respondents’
Exhibit 6,
p. 23.
Dr.
Wellner also testified that his
examination of the claimant on that date revealed “[c]ervical sprain,
tenderness, stiff plus two, decreased range of motion, seventy percent
capacity. Left shoulder tender and stiff. Range of motion, fair. Left
wrist
tender and stiff, left hip area, tender. Left knee, okay. Left foot
ache,
tender.” Id., pp. 23-24. There is no mention of a back injury.
Similarly, in
the note from the claimant’s office visit of May 2, 2000, Dr. Wellner
states,
“[i]mproving. Still complaining of left shoulder pain. Left armpit area
pain.
Left shoulder, left armpit intermittent. Neck, left hip, left foot,
okay. Left
wrist still sore. Examination, left shoulder, better range of motion,
left hand
stiffness. Left shoulder/neck better range of motion. Left stiffness.”
Id., p.
24. Again, there is no mention of a back injury. In addition, Dr.
Wellner
testified that he did not think a referral to an orthopedic physician
was
necessary at either of these two visits. Id., p. 42.
In
fact, the first reference to the
claimant’s back problems in Dr. Wellner’s chart does not occur until
the
claimant’s office visit of August 14, 2002, more than two years after
the date
of injury, at which time Dr. Wellner noted the claimant was
“[c]omplaining of
swelling, left side of body. Lower back still a problem. At work full
time.
Examination, back area, slightly tender and stiff. Assessment, back
sprain, low
extremity edema.” Id., p. 27. In response to an inquiry from
respondents’
counsel, Dr. Wellner indicated his chart did not contain any history as
to what
might have brought about the claimant’s back complaints on that date;
however,
Dr. Wellner was able to testify that the claimant’s complaint of
lowback pain
was recorded in the nonoccupational section of the claimant’s chart.
Id., p.
30.
The
conclusions of the trial
commissioner are further buttressed by the fact that although the
evidentiary
record appears to lack a medical record documenting a contemporaneous
account
of a back injury, it does contain records from Dr. Wellner referring to
the
claimant’s treatment for back complaints prior to the injury of March
31, 2000.
Dr. Wellner testified that in his report from the claimant’s physical
in March
of 1991, he had noted “a concern about backaches.” Id., p. 8. Dr.
Wellner also
saw the claimant on June 24, 1991, following a motor vehicle accident
which
occurred on June 22, 1991, and wrote that the claimant “at that time
complained
of injury to her neck, left shoulder and mid back area.” Id., pp. 9-10.
Although the claimant subsequently indicated at the office visit of
October 14,
1991 that her “[n]eck, back area, all better, no more symptoms,” Id.,
p. 10.
Dr. Wellner testified that his intake note of February 21, 1994 reveals
that
the claimant reported experiencing back strain in December of 1992.
Id., pp.
5-6.
On
February 2, 2001, the claimant
commenced treatment with Dr. O’Brien. As mentioned previously herein,
in his
office note arising from this visit, Dr. O’Brien indicated the claimant
had
sustained a fall at work in which she had injured her left shoulder,
and he
also went on to report that, “[I]n addition to which, in November of
2000 she
moved and thinks she may have done something to her left leg as she is
now
having pain in her lower back and into the left leg….” Respondent’s
Exhibit 1.
Dr. O’Brien diagnosed “rotator cuff bursitis/tendonitis of her left
shoulder as
well as a lumbosacral strain with some referred left leg pain.” Id.
Neither in
this report nor in the subsequent three additional reports from Dr.
O’Brien
contained in the evidentiary record is there any attempt to link the
claimant’s
reported back problems to the workplace injury of March 31, 2000.
Moreover, in
his note of February 12, 2001, Dr. O’Brien wrote that based on x-rays
taken of
the claimant’s lumbar spine, he had diagnosed “significant facet joint
arthritis at L4-5 with sacrolization of L5, greater on the left than on
the
right with disc spaces in good condition ….” Id.
Consistent
with Dr. O’Brien’s
diagnosis, the evidentiary record is replete with medical reports from
the
claimant’s other treating physicians either diagnosing or reporting a
history
of degenerative disc disease. For example, Dr. Spinella, in his report
of
August 21, 2001, made this finding on the basis of x-rays showing
“degenerative
changes in the lower lumbar spine level and a possible spondylolysis or
atypical posterior element of L5, which could be arthritic or a
spondylolysis.”
Respondent’s Exhibit 5. Dr. Healy references a past history of left hip
arthritis in his report of November 7, 2001. Respondents’ Exhibit 2.
Dr.
Silverman’s intake notes of June 11, 2001 document left hip arthritis.
Respondents’ Exhibit 8.
In
addition, at his deposition, Dr.
Becker testified that the claimant had “arthritis involving her facet
joints
between L-4 and L-5” which “results in some narrowing of what’s called
the
foramen and that’s what’s referred to on the MRI scan from 8-15-02.”
Respondents’ Exhibit 13, p. 5. Dr. Becker opined that the claimant was
suffering from degenerative disc disease at multiple levels, which the
doctor
attributed in part to a congenital condition. Id., p. 6. Dr. Becker
also stated
that the degenerative changes “definitely” occurred prior to the injury
of
March 31, 2000. Id. Finally, Dr. Becker testified that the array of
symptoms
which had prompted the claimant to present to Dr. Wellner in November
of 1992
and Dr. Duenas in 1995 were consistent with a diagnosis of degenerative
disc disease.
Id., pp. 11-12.
Dr.
Duenas also referenced the
claimant’s degenerative disc disease in his letter of May 14, 2003 to
claimant’s then-counsel. In this letter, Dr. Duenas diagnosed a “lumbar
sprain/strain complicated by lumbar disc disease” and assessed the
claimant’s
lumbar spine as “[u]noperated on, stable, with medically documented
injury,
pain, and rigidity associated with moderate to severe degenerative
changes on
structural tests….” Claimant’s Exhibit B. Dr. Duenas’ chart is also
significant
for the intake notes taken by Darlene Smith, D.C., on May 25, 2002,
wherein Dr.
Smith documented that the claimant had received the treatment from Dr.
Duenas
in 1996 for the same symptoms.4 Id. See also Respondents’ Exhibit 7. In fact,
in his report of March 13, 1995, Dr. Duenas diagnosed a “chronic,
moderate spinal dysfunction of the cervicothoracic and lumbosacral
regions of
the spine with subsequent myofascial pain syndrome and probable
deconditioning.”
Claimant’s Exhibit D (emphasis added).
Finally,
in his deposition of August
8, 2006, Dr. Duenas testified that the claimant completed a history
form at her
office visit of March 4, 1995 in which she indicated her back problems
had
begun in “December 1993 or thereabouts” with a “slight pinching
sensation.”
Respondents’ Exhibit 12, p. 12. Dr. Duenas also testified that “[t]he
motor
vehicle accident could have caused the degeneration or set into motion
the
degenerative disc disease. It could have been there before and it could
have
aggravated her condition.” Id., p. 33.
On
June 17, 2004, the claimant
underwent an orthopedic evaluation with Dr. Selden. At his deposition
of August
28, 2006, Dr. Selden testified that an x-ray taken in February of 2001
had
revealed a unilateral spondylolysis and that an MRI taken in August of
2002
displayed evidence of degenerative disc disease at multiple levels.
Respondents’ Exhibit 14, p. 7. Dr. Selden further testified that based
on his
review of the MRI, the degenerative changes rated “would take many
years to
develop.” Id., p. 8. Dr. Selden also indicated that at the time of
writing his
evaluative report of June 17, 2004, he had not had the benefit of
reviewing Dr.
O’Brien’s records and he had found Dr. Wellner’s notes to be illegible.
Id., p.
9. In light of his subsequent review of Dr. Wellner’s deposition
testimony and
a complete set of Dr. O’Brien’s reports, Dr. Selden indicated that his
findings
had changed since the time of writing his June 17, 2004 note.
Respondents’
Exhibit 14, pp. 1415. He testified that when the claimant had described
the
workplace incident to him, she had told him that “she had tripped and
fallen on
a walkway and had injured her neck, back and left shoulder.” Id., p. 5.
Unfortunately, that history was not consistent with the information
contained
in Dr. Wellner’s intake notes of April 11, 2000 and May 2, 2000.
Relative to
the discrepancy, Dr. Selden commented, “[t]here were no initial
complaints of
back pain that I could see. I know there were complaints of discomfort
in the
patient’s hip area. But I did not see documentation of back problems
per se.”
Id., p. 11.
Respondents’
counsel then drew Dr.
Selden’s attention to Dr. O’Brien’s report of February 2, 2001 wherein
Dr.
O’Brien had detailed the claimant’s history of the workplace incident
and then
written, “[i]n addition to which, in November of 2000 she moved and
thinks she
may have done something to her left leg as she is now having pain in
her lower
back and into the left leg….” See Respondents’ Exhibit 1. Dr. Selden
confirmed
that he had not received that information at the time of his initial
evaluation
of the claimant, and conceded when queried by respondent’s counsel that
it was
“fair to say Dr. O’Brien had apparently some reluctance in establishing
a
causal relationship between the low back complaints in [sic] the March
2000
incident.” Respondents’ Exhibit 14, p. 13.
In
light of his review of Dr.
Wellner’s deposition and Dr. O’Brien’s records, Dr. Selden testified,
. . .
based on the additional information which has been
supplied to me since I evaluated Ms. Flood on June 17, 2004, there
appears to
have been more problems with the lower back prior to the March 2000
incident
than which I had been aware. And based on the information I received,
my
opinion at this time is that I’m not able to state that the incident in
March
2000 was a significant factor. It appears to have been longstanding
problems
with the patient’s back besides this incident and I do not — with the
additional information, my opinion would have to be changed to where I
do not
feel that the incident was a significant factor in her ongoing back
problems.
Id.,
p. 14.
Dr.
Selden also retracted his
permanent partial disability rating of two (2%) percent of the lumbar
spine,
remarking that the “additional information I received would make me at
this
time feel that her permanency was all preexisting and that the incident
in
March of 2000 would have caused at most a temporary aggravation of her
condition.” Id., p. 15.
Ultimately,
the trial commissioner
found Dr. Selden’s medical opinion to be the most persuasive and
credible in
this matter, and it was his prerogative to do so. “It is the
quintessential
function of the finder of fact to reject or accept evidence and to
believe or
disbelieve any expert testimony. The trier may accept or reject, in
whole or
in part, the testimony of an expert.” (Internal citations omitted,
emphasis
added.) Tartaglino, supra, at 195. “It is . . . immaterial that the
facts
permit the drawing of diverse inferences. The [commissioner] alone is
charged
with the duty of initially selecting the inference which seems most
reasonable
and his choice, if otherwise sustainable, may not be disturbed by a
reviewing
court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988),
quoting Del
Vecchio v. Bowers, 296 U.S. 280, 287 (1935).
Further,
in light of the
inconsistent history given by the claimant to several of her treating
physicians, it was permissible for the trial commissioner to infer that
the
resulting medical assessments were suspect because they were
“derivative of the
claimant’s narrative.” Do
v. Danaher Tool Group,
5029 CRB-6-05-12 (November 28, 2006). In Abbotts
v. Pace Motor Lines, Inc.,
4974 CRB-4-05-7 (July 28, 2006) aff’d, 106 Conn. App. 436 (2008), cert.
denied,
287 Conn. 910 (2008), this board affirmed the decision of a trial
commissioner
to dismiss a claim after having “deemed [a doctor’s] report flawed
based on an
inaccurate patient history.” Such determinations cannot be reversed on
appeal,
as they fall squarely within the trial commissioner’s purview. It is
well
settled that,
Credibility
must be assessed . . . not by reading the cold printed
record, but by observing firsthand the witness’ conduct, demeanor and
attitude
. . . . An appellate court must defer to the trier of fact’s assessment
of
credibility because [i]t is the [fact finder] . . . [who has] an
opportunity to
observe the demeanor of the witnesses and the parties; thus [the fact
finder]
is best able to judge the credibility of the witnesses and to draw
necessary
inferences therefrom . . . . As a practical matter, it is inappropriate
to
assess credibility without having watched a witness testify, because
demeanor,
conduct and other factors are not fully reflected in the cold, printed
record.
Abbotts
v. Pace Motor Lines, Inc.,
4974 CRB-4-05-7 (July 28, 2006), quoting Burton v.
Mottolese, 267 Conn. 1, 40 (2003).
“As
with any discretionary action of
the trial court, appellate review requires every reasonable presumption
in
favor of the action, and the ultimate issue for us is whether the trial
court
could have reasonably concluded as it did.” Daniels v. Alander, 268
Conn. 320,
330 (2004) citing Burton, supra, at 54. In the instant matter, we
conclude that
the inferences drawn by the trial commissioner are well-grounded in the
evidentiary record; consequently, “[o]ur holding in Wierzbicki
v. Federal Reserve Bank of Boston,
4147 CRB19911 (December 19, 2000) [appeal dismissed, A.C.
21533, June 14, 2001] is dispositive of this appeal. ‘If the trier is
not
persuaded by the claimant’s evidence, there is nothing that this board
can do
to override that decision on appeal.’ ” Reeve
v. Eleven Ives Street, LLC,
5146 CRB-7-06-10 (November 5, 2007).
The
claimant has also filed a Motion
to Correct and an Amended Motion to Correct, both of which were denied
in their
entirety by the trial commissioner. Before examining the claimant’s
proposed
corrections, it would perhaps be helpful to review the standard of
review
governing such motions. As this board has previously observed, we “may
not
alter a commissioner’s findings unless they are unsupported by the
evidence or
unless they fail to include admitted or undisputed material facts.” Pallotto
v. Blakeslee Prestress, Inc.,
3651 CRB-3-97-7 (July 17, 1998), quoting Knoblaugh
v. Greenwood Health Center, 13
Conn. Workers’ Comp. Rev. Op. 150, 152, 1608
CRB-1-92-12 (February 6, 1995). “A material fact is one that will
affect the
outcome of the case.” Tovish v. Gerber Electronics, 32 Conn. App. 595
(1993),
appeal dismissed, 229 Conn. 587 (1994). Thus, “[a] Motion to Correct
also may
be denied properly where the corrections are immaterial because the
outcome of
the case would not be altered by the substituted findings.” Pallotto,
supra, quoting Knoblaugh,
supra. See also Webb
v. Pfizer, Inc.,
14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12,
1995); Plitnick
v. Knoll Pharmaceuticals,
13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (November 7,
1994).
In
light of this rather stringent
standard, our review of the record suggests that the trial commissioner
was
under no compunction to grant any of the claimant’s proposed
corrections. We
have already pointed out that the claimant requested that the trial
commissioner draw a distinction between the job title of paralegal and
legal
secretary. (See footnote 2, supra.) While the claimant’s precise job
classification
is obviously of great significance within the parameters of her
employment,
such a correction is simply not germane to the inquiry at hand. The
claimant
also sought amendments to several of the factual findings to reflect
more fully
the diagnoses of her various treating physicians; again, while a
thorough
comprehension of the full ramifications of her ailments is obviously of
great
concern to the claimant in her attempts to get well, the extent to
which she
desires the trial commissioner to detail her physical infirmities goes
well
beyond the scope required in order to ascertain the compensability of
her neck
and back injuries.
We do
concede that the claimant is
correct in pointing out that her car accident occurred in 1991, not
1999. (See
Amended Motion to Correct, ¶ 5.a) Similarly, neither Dr. Wellner
nor Dr. Duenas
appear to have entered reports into the record documenting back
treatment in
1989. See Amended Motion to Correct, ¶ 7. However, as the trial
commissioner’s
factual findings do not suggest that he relied on either the medical
reports
associated with the auto accident or the alleged reports of treatment
in 1989
in reaching his conclusions, the corrections sought would not affect
the
outcome of the case and as such the trial commissioner was under no
obligation
to grant them.
The
claimant has also propounded
several items which she describes as “new facts” in her Motion to
Correct; we
would respectfully point out to the claimant that a Motion to Correct
is simply
not the appropriate forum to introduce information which was not
previously
brought to the attention of the trial commissioner or opposing party.
Section
31-301-4 C.G.S.5 clearly limits the scope of an appellant’s request
for corrections to the findings articulated in the trial commissioner’s
written
decision. In addition, many of the corrections sought by the claimant
represent
a thinly veiled attempt “to have the commissioner conform his findings
to the
[claimant’s] view of the facts.” D’Amico v. Dept. of Correction, 73
Conn. App.
718, 728 (2002), cert. denied, 262 Conn. 933 (2003). Clearly, “[t]he
[claimant]
cannot expect the commissioner to substitute the [claimant’s]
conclusions for
his own.” Id.
The
claimant also protests the
respondent’s counsel’s use of hypothetical questions while conducting
the
depositions of Dr. Becker and Dr. Selden, contending that Dr. Becker
“was given
proposed evidence that was not accepted nor proved,” Amended Motion to
Correct,
¶ 13, and asserting with regard to the evidence proposed to Dr.
Selden that,
“[t]he information and facts were false for the most part.” Id., ¶
14. Again,
we would respectfully point out to the claimant that the law with
regard to the
use of hypothetical questions is well established. “It is within the
discretion
of the trial court to determine whether the hypothetical question was
so
lacking in the essential facts as to be without value in the decision
of the
case.” Gulia v. Ortowski, 156 Conn. 40, 48 (1968); Floyd v. Fruit
Industries,
Inc., 144 Conn. 659, 666 (1957). In addition, this board has previously
remarked that, in keeping with the trial commissioner’s authority and
obligation to weigh all of the evidence presented, “[t]he trier of fact
has all
the evidence before her, and possesses the expertise to appreciate when
the
relevance of a medical opinion may have been tainted by the
introduction of
spurious or misleading information.” Capra
v. Dept. of Correction,
3791 CRB4984 (April 27, 1999). In summary, our review of the
appellant’s Motion
to Correct and Amended Motion to Correct indicates that “[e]ven if the
commissioner had made the proposed changes or additions to his
findings, they
would not have changed his final conclusion….” D’Amico, supra, at 729.
In light
of this determination, we find no error in the trial commissioner’s
denial of
the claimant’s Motions to Correct.6
Finally,
we note that the claimant
has expressed dissatisfaction with the failure of the trial
commissioner to
render her competent guidance during her prosecution of this claim,
complaining
that, “Commissioner Delaney has provided poor advice to the claimant on
more than
one occasion during these proceedings.” Appellant’s Brief, p. 7. Unfortunately, the claimant’s remarks in this
regard merely
serve to betray her profound misunderstanding of the trial
commissioner’s role
and underscore quite clearly the perils of selfrepresentation.
The trial
commissioner is not charged with the responsibility of “advising” the
parties
who appear before him during the course of the trial. The trial
commissioner is
expected to review the evidence submitted by the parties and to issue a
decision
on the merits. The trial commissioner may also insure that no unfair
advantage
is taken of the pro se claimant but may not litigate her case
for her.
Our review of the record in the instant matter indicates that the trial
commissioner afforded the claimant considerable latitude on a number of
occasions in light of her pro se status, and opposing counsel
likewise
frequently demonstrated lenience bordering on indulgence. Thus, while
we are
sympathetic to the claimant’s legal difficulties, we do not find that
the trial
commissioner in any manner or fashion breached his duties of
impartiality and
objectivity or his responsibility to be certain that the claimant
received an
opportunity to be fully heard.
Having
found no error, the August 1,
2007 Finding and Dismissal of the Commissioner acting for the Eighth
District
is hereby affirmed.
Commissioners
Charles F. Senich and
Scott A. Barton concur in this opinion.
1
We note that two Motions for Extension of Time and a request for
postponement
of oral argument were granted during the pendency of this appeal. BACK
TO TEXT
2
The claimant has pointed out that she was actually employed as a legal
secretary. See Amended Motion to Correct, ¶ 2. A review of
the
appellant’s Motions to Correct is set out at another point in the body
of this
Opinion. BACK
TO TEXT
3
The claimant has pointed out that the prior chiropractic treatment
occurred in 1995.
See Amended Motion to Correct, ¶ 5.a. As
mentioned previously herein, a
review of the appellant’s Motions to Correct is set out at another
point in the
body of this Opinion. BACK
TO TEXT
4
The claimant testified at trial that Dr. Smith’s intake notes were in
fact
inaccurate because the prior treatment occurred in 1995. See
October 25,
2006 Transcript, p. 37. The claimant also testified that the symptoms
she
experienced at that time were not the same. “I said that the person who
I saw
initially was Karen Smith and that she had wrote down some simple
comments that
you mentioned stated [sic], ‘Same treatment as 1995.’ And I disagree
with that.
And I also stated that these doctors can say whatever they want and in
the
first place the 1995 records from Dr. Duenas were very technical, very
in
depth.… So I disagree with the history from Karen Smith because she has
reduced
it to something simple and she is not my treating physician. She was
there as
an emergency. I went to her on Saturday.” November 17, 2006 Transcript,
p. 4.
The
claimant also discounted the
opinion of several other treating physicians. For instance, in response
to
respondent’s counsel’s inquiry as to why Dr. O’Brien inserted language
regarding a discussion between him and the claimant regarding the
causation of
her injury into his report dated August 7, 2001 (See
Respondents’
Exhibit 1), the claimant replied, “[b]ecause I think he has a bad
temper,
that’s why. And I think he’s padding his case to come up with an excuse
for
holding me up for an hour and a half in medical appointments 3-4 times
a year.”
November 17, 2006 Transcript, p. 5. When respondents’ counsel
questioned the
claimant regarding whether she had told Dr. O’Brien she thought she
might have
injured her back during a move in November of 2000, the claimant
disputed Dr.
O’Brien’s “interpretation”, replying, “No, I didn’t. I gave him the
history
that I did something to my leg and I was referring to a bruise. I
didn’t refer
to all the rest that he made up.” October 25, 2006 Transcript, p. 41.
When
respondents’ counsel queried the claimant as to why there is no mention
of a
back injury in Dr. Silverman’s note of August 13, 2001, the claimant
explained
that the lack of a reference to a back complaint “[d]oesn’t matter
because
she’s not an orthopedic physician and we did not even have the full
diagnosis.”
Id., p. 32. The claimant also challenged Dr. Duenas’ linkage between
her
earlier back problems and the motor vehicle accident of 1991, stating,
“[h]owever, it brings into question whether or not this should have
been
claimed through Geico and that was Dr. Duenas’ doing. The fact that he
said it
was related to the rear-ender, I don’t believe it was.” Id., p. 15. The
claimant also asserted she would have received the same treatment from
Dr.
Duenas regardless of whether she had reported a low back injury because
“[a]
chiropractor gives the same treatment to everyone.” November 17, 2001
Transcript, p. 15. Finally, with regard to respondents’ counsel’s
inquiry as to
why Dr. Healy’s report of November 7, 2001 did not contain any
reference to the
claimant’s low back complaints, the claimant commented, “[t]hat doesn’t
mean a
thing because Dr. Healy couldn’t even see if he had a helium balloon
floating
above him in the sky, he wouldn’t notice it; okay?” Id., p. 8. BACK
TO TEXT
5
Sec. 31-301-4 C.G.S. (Rev. to 1999) states, in pertinent part, that
“[i]f the
appellant desires to have the finding of the commissioner corrected
he
must, within two weeks after such finding has been filed, unless the
time is
extended for cause by the commissioner, file with the commissioner his
motion
for the correction of the finding and with it such portions of the
evidence as
he deems relevant and material to the corrections asked for . . . .
(emphasis
added) BACK
TO TEXT
6
At the CRB hearing held in this matter on June 27, 2008, the claimant
indicated
she wished to submit additional evidence into the record. As the
claimant had
failed to file a Motion to Submit Additional Evidence, and the ensuing
discussion revealed that most, if not all, of the materials were
duplicates of
documents already admitted into evidence, we decline to address the
submission
of these materials on appeal. BACK
TO TEXT
State
of Connecticut
|