State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Simmons v. Hall’s Motor Express

CASE NO. 3055 CRB-1-95-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 3, 1997

KEVIN SIMMONS

CLAIMANT-APPELLANT

v.

HALL’S MOTOR EXPRESS

EMPLOYER

and

HOME INSURANCE CO.

INSURER

and

WAUSAU INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert Byers, Esq., Regnier, Taylor, Curran & Eddy, City Place, Hartford, CT 06103. Notice also sent separately to the claimant.

The respondent employer and Home Insurance Co. were represented by James Moran, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430.

The respondent employer and Wausau Insurance Co. were represented by James Powers, Esq., Law Offices of Larry H. Lewis, 639 Research Parkway, Meriden, CT 06450.

This Petition for Review from the May 5, 1995 Finding and Dismissal of the Commissioner acting for the First District was heard May 10, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the May 5, 1995 Finding and Dismissal of the Commissioner acting for the First District. In that decision, the trial commissioner concluded that the claimant failed to sustain his burden of proof that surgery performed in January of 1994 was causally related to his prior injuries which occurred during the course of his employment with Hall’s Motor Express (“employer”) from 1984 through 1986. On appeal the claimant contends that the trial commissioner was precluded from deciding the issue of the compensability of the surgery because the attorney who represented the employer and Home Insurance Company conceded liability for such surgery during the formal hearing. The claimant further contends that he was not afforded due process because the notice of the formal hearing did not indicate that the compensability of the surgery was at issue. Finally, the claimant contends that the trial commissioner improperly determined that a February 18, 1986 automobile accident was not compensable.

Initially, we will address the motion to dismiss. The respondent employer and Wausau Insurance Company (“Wausau”) filed a motion to dismiss the claimant’s appeal on March 18, 1996 based upon the claimant’s failure to file a brief on or before March 15, 1996. However, the claimant filed a brief on March 15, 1996. A dismissal pursuant to Practice Bk. § 4055 is permissive rather than mandatory. Under the circumstances in this case, which include the claimant’s changing his legal representation, his timely brief, and his appearance at oral argument, we deny the motion to dismiss. See Salz v. Oliver’s Taverne, 12 Conn. Workers’ Comp. Rev. Op. 325, 1593 CRB-8-92-12 (July 5, 1994).

We will now address the claimant’s contention that attorney Monahan, who represented the employer and Home Insurance, conceded liability for the surgery during the formal hearing. The Supreme Court has stated: “[if] a party... unequivocally concedes a fact, such concession for the purposes of the trial, has the force of a judicial admission, and a party is bound thereby unless the court, in its reasonable discretion, allows the concession to be later withdrawn, explained or modified, if it appears to have been made by improvidence or mistake.” Dreier v. Upjohn Co., 196 Conn. 242, 248-49, n. 2 (1985) (citations omitted) (emphasis added).

In the instant case, attorney Monahan initially stated that he did not contest the compensability of the surgery.1 Attorney Powers, who represented the employer and its insurer Wausau, stated that the issue of the compensability of the surgery was not conceded and therefore needed to be adjudicated. (5/11/94 TR at p. 11). Immediately thereafter, attorney Monahan stated: “Well, I think there has been no formal adjudication of that issue, Commissioner. I would request that Your Honor hear it at this time.” (5/11/94 TR at p. 12). Attorney Monahan further explained his position: “My position is that while I don’t generally concede liability, I know of no evidence that there was any other intervening cause for this.” (5/11/94 TR at p. 12).

The trial commissioner advised the claimant’s attorney to present the case, and to call the first witness. (5/11/94 TR at p. 15). Therefore, it appears that the trial commissioner allowed attorney Monahan’s initial concession to be withdrawn. See Dreier, supra. Subsequently, during the formal hearings the claimant’s attorney did not renew her contention that the respondents had conceded compensability. Rather, the claimant’s attorney presented extensive testimony from the claimant. A further formal hearing was held on November 8, 1994. The trial commissioner issued a Finding and Dismissal on May 5, 1995 which included over fifty findings of fact. The trial commissioner concluded that the claimant failed to sustain his burden of proof that the surgery performed in 1994 was caused by any or all of the compensable injuries which had occurred approximately eight to ten years prior.

Our Supreme Court has stated: “Admissions of a conclusory nature are not necessarily determinative... as a court may be justified in deviating from any such admission if unsupported by the underlying facts in evidence.” Dreier v. Upjohn, 196 Conn. 242, 249 (1985). In the instant case, it was within the discretion of the trial commissioner to allow Monahan’s initial concession to be withdrawn. Thus, the trial commissioner properly considered the issue of the compensability of the surgery. Whether a surgical procedure is causally related to a compensable injury is a factual determination for the trial commissioner. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994) aff’d., 39 Conn. App. 935 (1995). The power and duty of determining the facts rests on the commissioner as the trier of fact. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

In the instant case, the trial commissioner found that the claimant sustained injuries while working for the respondent employer on April 25, 1984, October 8, 1984, November 26, 1984, December 18, 1985, and February 7, 1986. The claimant also sustained injuries while working for a subsequent employer from 1986 until July of 1988, including injuries to his face when a hydraulic hose blew out. The trial commissioner made findings based upon medical reports by Dr. Griswold, a chiropractor who treated the claimant on approximately 120 occasions; Dr. Filipini, an orthopedic surgeon who diagnosed only a soft tissue injury and encouraged the claimant to return to work; and several other physicians who treated the claimant. The trial commissioner concluded:

Due to the opinions of numerous medical providers, and examiners which disclosed an absence of cervical symptoms, and an absence of neurological positive findings between April 25, 1984, and the surgery in 1994, I find that the proposed causal connection is based on conjecture and surmise and is within the realm of speculation. (Finding No. 55).

Clearly, the trial commissioner’s determination was dependent on the weight and credibility which he accorded the evidence. The determination is supported by the record, and thus may not be disturbed. Fair, supra.

We next address the claimant’s argument that the notice of the formal hearings did not afford due process. This board has stated that “notice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.” McVety v. Sidetex Corporation, 14 Conn. Workers’ Comp. Rev. Op. 340, 342, 2050 CRB-3-94-5 (Sept. 20, 1995) aff’d., 43 Conn. App. 912 (1996) (per curiam), quoting Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 110 (1971). In the instant case, the notice of the formal hearings stated the issues as: “payment of medical (surgical) expenses and temporary total benefits.” Furthermore, at the May 11, 1994 hearing the respondents’ representatives advised the claimant’s attorney that they did not concede liability for the surgery. The claimant thus had adequate notice and ample opportunity to present his case on May 11, 1994 and at the continued hearing on November 8, 1994.

Finally, we will address the claimant’s contention that the trial commissioner improperly found that the automobile accident of February 18, 1986 was not compensable. The trial commissioner found that the claimant did not claim the February 18, 1986 accident to be compensable. (Finding No. 2). However, the claimant did, in fact, claim the accident to be compensable. (11/8/94 TR at p. 6). Moreover, Attorney Powers specifically and unequivocally conceded that the February 18, 1986 accident was compensable and was accepted by the respondent employer and Wausau. (11/8/94 TR at p. 8). Accordingly, the trial commissioner’s finding that the February 18, 1986 accident “is not being claimed as compensable” is not supported by the record. The trial commissioner’s decision is thus reversed as to this issue only.

The trial commissioner’s decision is affirmed, with the exception of the issue of the compensability of the February 18, 1986 accident which is reversed.

Commissioners George Waldron and Robin L. Wilson concur.

1 ATTORNEY MONAHAN: “He now, apparently, has-- has had surgery to his neck. The doctors relate it back to his series of injuries. We don’t contest that. It is our position that both carriers are on it.” (5/11/94 TR at p. 11) BACK TO TEXT

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