CASE NO. 2294 CRB-2-95-2
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 13, 1996
NORWICH BOARD OF EDUCATION/NORWICH PUBLIC SCHOOLS
The claimant appeared pro se at oral argument. Notice also sent to Matthew Shafner, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., Groton, CT 06340.
The respondents were represented by Robert D. McGann, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.
This Petition for Review from the February 6, 1995 Finding and Dismissal of the Commissioner acting for the Second District was heard April 19, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 6, 1995 Finding and Dismissal of the Commissioner acting for the Second District. In that decision, the trial commissioner found that the claimant was employed by the respondent Norwich Public Schools as a school psychologist from October 20, 1986 through November 1988. The town’s Board of Education voted not to renew the claimant’s contract after evidence was presented at a hearing showing that the claimant failed to report for work on time, follow regulations, submit proper reports, or support co-workers, and that she had provided misleading or false information. The claimant filed a complaint with the Commission on Human Rights and Opportunities claiming unfair discharge, but it was dismissed on September 14, 1990 for lack of sufficient evidence. During the previous two years, the United States Department of Education had also dismissed complaints by the claimant alleging retaliatory dismissal, Civil Rights Act violations, and discrimination against a handicapped person on the part of the respondent.
Amidst these proceedings, the claimant filed a Form 30C with the Second District on April 13, 1989 alleging severe extrinsic asthma caused by exposure to smoke and asbestos during her tenure with the Norwich school system. The commissioner found that she had a long history of asthma and sensitivity to cigarette smoke, and that she was treated for allergies and symptoms of bronchitis in 1984 and 1985. During her employment with the respondent, she worked in six different schools, and testified that cigarette smoke permeated all of those facilities, even after smoking was banned in most areas of the Norwich public schools in October 1987. The claimant said that she began having breathing problems from the outset of said employment, and that these problems caused her to miss a lot of time from work. The commissioner observed that none of the contemporaneous doctors’ notes reflected that this fact was reported by the claimant.
The commissioner cited several doctors’ reports in his opinion. Dr. McGowan, an allergist, began treating the claimant in 1986, and diagnosed rhinitis, sinusitis, asthma, hypertension and hyperthyroidism. He believed that the claimant was able to work. He also testified that it would be purely speculative to say that the claimant had increased permanent lung disability because of her exposure to secondhand smoke while working for the Norwich school system, although he had advised the claimant to avoid cigarette smoke. The doctor also stated that the claimant did not get the full benefit of medical treatment because she was very selective and deceptive with information she gave to her treaters. The commissioner found that Dr. McGowan’s notes did not reflect complaints by the claimant of excessive exposure to secondhand smoke at the Norwich schools. The notes of Dr. Mlynarski, a throat specialist who treated the claimant in 1987, likewise contained no mention of complaints of smoke exposure. He thought that allergies such as recurrent rhinosinusitis were the main cause of the claimant’s symptoms.
Dr. Cullen, an occupational disease specialist, examined the claimant in 1989 at her attorney’s request. He testified that the claimant suffered from both environmental and psychological stressors, and that she had a 30 to 40 percent lung impairment caused by conditions related to her job in the Norwich schools. Although he agreed with Dr. McGowan that childhood exposure to smoke could cause permanent lung damage, he disagreed with Dr. McGowan’s insinuation that secondhand smoke exposure was not likely to be harmful to adults. Instead, he thought that exposure to smoke could awaken dormant symptoms. The commissioner noted, however, that Dr. Cullen’s October 2, 1989 report stated that it was a matter of speculation as to whether secondhand smoke and increased physical stress contributed to the claimant’s asthma.
The commissioner also cited the reports of Drs. DeGraff and Godar. Dr. DeGraff believed that the claimant’s exposure to smoke in Norwich worsened her condition, and that she had a 43 percent permanent partial disability of her lungs. However, Dr. DeGraff did not review any of the claimant’s prior medical records in making his diagnosis, instead relying on the history provided to him by the claimant. Dr. Godar obtained both a history from the claimant and her medical records, along with a pulmonary function test. He believed that her condition was identical before and after her employment in the Norwich school system, and that she would have been physically able to continue working there had her contract not been terminated. In his opinion, the smoke exposure was only a temporary aggravation of her asthma, which was generally well-controlled. He did not think that there was much medical evidence indicating that less than two years of exposure to secondhand smoke causes permanent aggravation of underlying asthma.
After reviewing the evidence, the trial commissioner concluded that the claimant suffered from asthma prior to working for the respondent, and that there was no documentation in the medical reports or at the claimant’s dismissal hearing of her complaining about secondhand smoke exposure at work. Both Dr. McGowan and a lay witness who had worked with the claimant cast doubt on her credibility, and the reports of Drs. Godar and McGowan were more persuasive to the commissioner than those of Drs. Cullen and DeGraff. Accordingly, the commissioner found that the claimant had failed to prove that she suffered a compensable injury due to secondhand smoke and cold air exposure while working for the Norwich school system. The claimant has appealed that decision to the CRB.
First, we address the respondents’ Motion to Dismiss the claimant’s appeal. The February 22, 1995 motion is premised on the claimant’s failure to file reasons of appeal within ten days of the date she filed her petition for review, as required by Admin. Reg. § 31-301-2. The claimant’s Reasons of Appeal were filed on February 24, 1995, seventeen days after her February 7 petition for review. As we recently noted in Brown v. Interstate Pallet, 3064 CRB-3-95-2 (decided Oct. 25, 1996), the failure to file timely reasons of appeal makes an appeal voidable, not void. See Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697 (1987). In this case, the claimant is administering her own appeal without the assistance of an attorney, and her reasons of appeal were only a week late. The respondents were not prejudiced by this delay. We do not think it would be appropriate to dismiss the appeal of this pro se claimant under these circumstances.
Next, we reach the first of the claimant’s appellate issues: the untimeliness of the commissioner’s decision. The last formal hearing in this case was held on February 22, 1993. The respondents’ and claimant’s proposed findings of fact were filed on June 28 and July 6, 1993, respectively. According to § 31-300 C.G.S., the trial commissioner was required to issue a decision within one hundred twenty days of the last hearing. That was not done here. Instead, the commissioner issued his Finding and Dismissal on February 6, 1995, long after the statutory time limit had expired.
Recently, our Supreme Court held that the time period in § 31-300 is mandatory, and that prejudice need not be demonstrated to invalidate a late decision. Stewart v Tunxis Service Center, 237 Conn. 71, 76-80 (1996). However, the parties may waive a trial commissioner’s noncompliance with § 31-300, either explicitly or implicitly by conduct. Id., 80; Dichello v. Holgrath Corporation, 2249 CRB-5-94-12 (decided Sept. 5, 1996). In the Stewart case, this board was required on remand to decide whether the claimant had waived compliance with the 120-day time requirement. We stated that “when the 120-day time limit has long passed, and a party has made no indication that it has an objection to the lateness of a decision, this board is inclined to interpret that inaction as an intent to waive the 120-day time limit. A party shall not be allowed to choose to enforce its right to invalidate a ruling only after the party reviews the decision and decides that it is adverse to its interests, barring special circumstances.” Stewart v. Tunxis Service Center, 1684 CRB-6-93-4 (decided October 30, 1996). There, the claimant raised the issue of tardiness several times before the decision was actually issued, and we held that he had not waived the terms of § 31-300.
In this case, the claimant did not object to the lateness of the decision until after it was issued and her case was dismissed. She filed a Petition to Correct dated February 24, 1995 alleging financial prejudice from the delay; she also asserts in her brief that her attorney advised her to wait until the trial commissioner made a decision before attempting to file a lawsuit against Dr. McGowan “for malpractice, perjury and fraud,” and that she has now lost her right to sue the doctor because the statute of limitations for those lawsuits expired before the commissioner issued his decision. Implicit within this argument is the notion that the claimant chose to await the trial commissioner’s decision even though it was not forthcoming in a timely manner. Whether or not this was done at the advice of her attorney is immaterial to our analysis; it is apparent from the record and the arguments that the claimant did not seek to enforce her right to a timely decision under § 31-300 until after a ruling adverse to her interests had been released. We will not allow parties to acquire a type of veto power over a decision by failing to object to a late award until they have an opportunity to see whether they approve of the result. Thus, we hold that the claimant waived her right to enforce the 120-day time limit in § 31-300.
The claimant has filed a multitude of motions in conjunction with this appeal.1 The majority of those motions attempt to restate or expand upon the claimant’s appellate arguments. The proper method of stating one’s position on the merits of an appeal is to file a brief, which the claimant did. She also filed a reply brief to the appellees’ brief. Any arguments regarding errors made in the commissioner’s decision must be relegated to those documents, and we will not consider additional arguments (most of which are cumulative) mixed into the claimant’s many motions.
Several of the motions seek to introduce additional evidence. In order for this board to consider its introduction on appeal, the claimant must demonstrate that said evidence is material and that there were good reasons for her failure to present it below. Admin. Reg. § 31-301-9 C.G.S. None of the claimant’s motions meet that standard. Several other motions, such as the Motion to Reverse and the March 29, 1996 Motion to Correct, were procedurally improper, either because of tardiness or because they did not substantively correspond to the procedural rules of an appeal to the Compensation Review Board. See Admin. Reg. § 31-301-4 (Motion to Correct must be filed within two weeks of decision).
The only motions that would appear to have potential merit are those that allege that the commissioner relied on documents that were not properly introduced into evidence in making his decision. Again, however, that is an argument that is more properly raised in the Reasons for Appeal or in the appellate brief, rather than by motion. In fact, one of these motions was filed after oral argument, to which the respondents objected. We will not rule on this issue in the context of a motion; however, the sufficiency of the record to support the commissioner’s decision necessarily will be addressed below in reviewing the merits of this case.
The claimant objects to many of the commissioner’s findings and conclusions on the ground that they are not adequately supported by the evidence. We remind the claimant that this board acts as an appellate tribunal, meaning that once the commissioner finds specific facts, we may not change those findings unless there is no evidence to support them. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995); Ettienne-Modeste v. Bloomfield, 13 Conn. Workers’ Comp. Rev. Op. 327, 328, 1789 CRB-1-93-9 (April 26, 1995). We cannot reevaluate the credibility of a person’s testimony, or overrule a commissioner’s decision to believe a particular witness, because the trial commissioner has sole authority in that area. Webb, supra, 70. When there is conflicting medical evidence, the commissioner is entitled to choose the evidence he finds more believable. Ettienne-Modeste, supra, 329.
In any workers’ compensation case, the claimant has the burden of proving that she has suffered a compensable injury. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 41 (1996); see also Sylvia v. Victorian Salon, 14 Conn. Workers’ Comp. Rev. Op. 270, 1976 CRB-2-94-2 (Sept. 6, 1995). The respondents are not required to disprove that such an event has occurred. See Cummings, supra, 42. Here, the commissioner concluded that the claimant had not proven such an injury. He chose to credit the reports of Drs. Godar and McGowan over those of Drs. Cullen and DeGraff, and he found that the claimant had not conclusively demonstrated significant secondhand smoke exposure while working in the Norwich schools. The claimant has taken great objection at both of those findings, and has offered extensive arguments on appeal opposing them.
Although the trial commissioner cited in his findings two medical reports that were introduced as full exhibits, he primarily relied on the deposition testimony of each of the four medical experts in making his decision. The claimant has alerted this board to the fact that the deposition of Dr. McGowan was not marked as an exhibit by the trial commissioner. In fact, none of the depositions were marked as exhibits in this case. We have held in the past that a document not offered into evidence as a full exhibit cannot be relied upon in the findings, even if it is marked for identification. Cummings v. Twin Tool Mfg. Co., 12 Conn. Workers’ Comp. Rev. Op. 341, 343, 1542 CRB-1-92-10 (July 11, 1994), affirmed, 40 Conn. App. 36 (1996).
These depositions, however, are not of the same ilk as most documents. Both parties’ attorneys were present at the deposition of each doctor, thus giving each party an opportunity to question the witnesses.2 The authenticity of the deposition is thus not an issue. Moreover, the parties agreed at the August 27, 1991 formal hearing that the depositions would be forthcoming, and that a final formal hearing would subsequently be scheduled to conclude and close the record and to schedule briefs. Neither attorney contemplated that a formal introduction of those transcripts into evidence would be necessary. (August 27, 1991 Transcript, p. 20-21.) Under these circumstances, it was perfectly appropriate for the commissioner to rely on those depositions in his decision.3
The question now becomes whether the doctors’ testimony and reports supported the commissioner’s findings. The claimant vehemently attacks the credibility of Dr. McGowan both as a medical professional and as a person, and attempts to refute his testimony by citing details of his treatment and other doctors’ reports. However, it is not the place of this board to become involved with issues of personal credibility. Dr. McGowan’s deposition is accurately cited in the findings. He stated that the claimant had asthma prior to 1986, and that it was speculative at best as to whether smoke exposure in the Norwich school system made her condition worse. Despite the claimant’s strenuous objections in her briefs and motions, there is in fact no evidence that the claimant actually complained to a doctor about her work-related smoke exposure until the time when she filed her claim. We cannot say, therefore, that Dr. McGowan’s testimony was unreliable as a matter of law.
Additionally, the commissioner cited an October 2, 1989 report of Dr. Cullen that stated “whether the smoking and the increased physical stress of walking a longer distance contributed to the worsening of your asthma can only be a matter of speculation, but is certainly possible.” The commissioner was not required to ignore this opinion in favor of Dr. Cullen’s subsequent testimony that cigarette smoke exposure had likely worsened the claimant’s condition; instead, the commissioner considered both opinions in evaluating Dr. Cullen’s testimony. Similarly, the commissioner was not required to accept Dr. DeGraff’s testimony as being more credible than Dr. Godar’s testimony. It is clear that the commissioner considered all of the doctors’ opinions, and simply believed that the medical evidence did not establish the existence of a compensable injury in this case. This board does not have the power on review to tell the trial commissioner that he should have believed the claimant’s witnesses instead of the respondents’. If a trial commissioner does not accept a claimant’s version of the facts surrounding an alleged injury, or the opinions of her doctors about the cause of her injury, there is very little this panel can do about it on appeal.
Accordingly, the trial commissioner’s decision is affirmed.
Commissioners George A. Waldron and Robin L. Wilson concur.
1 These motions consist of the following: Motion to Submit Additional Evidence for Cause (filed on October 3, 1995); Motion for the CRB to Reverse Commissioner Robin Waller, Decision dated February 6, 1995 (filed on December 18, 1995); A Motion for the CRB to Reopen the Claimant’s case in order to submit additional evidence (filed on January 16, 1996); Motion for the Request to Submit Further Evidence for Cause (filed on March 14, 1996); Motion to Submit Additional Evidence to Correct, under C.G.S. 31-301-4 (filed on March 20, 1996); Motion to Reverse Commissioner Waller’s Findings: C.G.S. 31-301(c) (filed on March 20, 1996); Motion to Correct Commissioner Waller’s Findings of February 6, 1995, under Section 31-301-4 (filed on March 29, 1996); Motion for Rectification of Record (filed May 15, 1996); and Motion for Rectification of Record (Addendum) (filed May 17, 1996). The claimant also filed several other motions that were directed to the trial commissioner rather than this board, including a Petition to Correct, two Motions to Submit Evidence to Correct, and a Motion to Open. All but the Motion to Open were denied by the trial commissioner, and the latter was not ruled on. BACK TO TEXT
2 This includes the deposition of Dr. McGowan, which the claimant objects to on the ground that she was not personally given an opportunity to cross-examine him. The presence of her attorney at the deposition, however, offered her equivalent protection under the law. BACK TO TEXT
3 We also note at this time that the claimant’s attorney agreed to allow the respondents to introduce into evidence the transcript of the Norwich Board of Education’s termination proceedings against the claimant. (Transcript, p. 19-20). Thus, the claimant’s argument that this transcript was improperly admitted into evidence cannot succeed on appeal. BACK TO TEXT