CASE NO. 1888 CRB-1-93-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 22, 1995
STATE OF CONNECTICUT/DEPARTMENT OF AGRICULTURE
SECOND INJURY FUND
JESSE M. FRANKL, CHAIRMAN. The pro se claimant has filed a Motion for Rectification/Articulation dated September 11, 1995 in conjunction with her appeal to the State of Connecticut Appellate Court. She seeks various corrections to the opinion this board issued in Griffith-Patton v. State of Connecticut/Department of Agriculture, 1888 CRB-1-93-11 (decided March 10, 1995). We will address each of her objections in turn.
With respect to the claimant’s counsel, John Q. Gale, Esq.: this board declines to characterize his representation as “hostile.” The claimant requested that he withdraw his appearance on her behalf, and Attorney Gale filed a Motion to Withdraw. We denied that motion because it is the policy of the Compensation Review Board that an attorney who initiates the CRB process may not withdraw unless replacement counsel is named. Thus, he was required to remain on record as her counsel. There was no indication from Attorney Gale’s performance at oral argument that he was acting against his client’s interests, and we have no reason to believe that he was. It was the ethical duty of Attorney Gale to represent the client to the best of his ability, and we are confident that he did so in this case.
With respect to the tape recorded evidence of a conversation between the claimant and her supervisor: this board stands by its denial of the Motion to Submit Additional Evidence concerning this item. The claimant had already testified as to the substance of that conversation, and the tape recording would only have served to bolster the credibility of her testimony on that issue. The claimant’s claim was dismissed by the trial commissioner, however, not because of her lack of credibility, but because she did not file a claim within one year of the date of her injury. Introducing the tape recording as evidence would not change the fact that her claim was filed too late.
With respect to the claimant’s medical leave: being placed on medical leave is not the same as filing a workers’ compensation claim. It is undisputed that a claim was not timely filed in accordance with the version of § 31-294 in effect at the time of the claimant’s injury, which provided that “[n]o proceedings for compensation . . . shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident . . . .” Exceptions to this requirement are made if a hearing is held or requested within one year, or if a voluntary agreement is submitted within the year, or if the employee is furnished with medical care as provided in § 31-294. Medical leave by itself is not one of the exceptions.
In our opinion, we considered whether the medical care that the claimant received satisfied the latter exception to § 31-294. We deferred to the trial commissioner’s determination that the claimant’s treatment, which was paid for by her health insurance, was insufficient to trigger that exception. Again, we note that this board cannot usurp the commissioner’s fact-finding function. We cannot make findings of fact during our consideration of an appeal, especially when they rest on the credibility of testimony. As discussed in our opinion, the commissioner’s finding was permissible under our caselaw.
With respect to our use of the word “alleged”: the commissioner chose to describe the claimant’s assertions as allegations. This board cannot recharacterize them as facts, as we would be making a factual finding if we did so. Moreover, the “allegations” all concern the claimant’s medical condition and the conduct surrounding her injury; they have no bearing on the timeliness of her claim, which was the dispositive issue. Thus, arguing over the truth of her assertions will have no effect on the outcome of this case.
With respect to the date of the claimant’s incapacity: we merely stated that it began “by 1992,” a date taken from the commissioner’s findings. We did not mean to imply that the claimant was alleging that it did not begin earlier. There is no actual finding of incapacity or of its onset date, and it is not relevant to the outcome of the case.
Similarly, the description of Dr. Venters as a psychiatrist is taken from the findings. No correction of that fact was sought by the claimant in her Motion to Correct. Based on the title under Dr. Venters’ signature, it does seem that he is in fact a Clinical Psychologist. Recharacterizing him as a psychologist, however, would not change the outcome of this case, and if anything would be to the claimant’s detriment, as she is attempting to satisfy the “medical care” exception to § 31-294.
We therefore decline to correct our March 10, 1995 opinion.
Commissioners Nancy A. Brouillet and Michael S. Miles concur.