State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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DeMartino v. L.G. DeFelice, Inc.

CASE NO. 3524 CRB-04-97-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 18, 1998

HENRY DEMARTINO

CLAIMANT-APPELLANT

v.

L.G. DEFELICE, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondents were represented by James Sullivan, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the January 9, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District was heard September 19, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The pro se claimant has petitioned for review from the January 9, 1997 Finding and Dismissal of the Commissioner acting for the Fourth District. He has also filed a Motion to Submit Additional Evidence. The claimant argues on appeal that the trial commissioner erred by finding that he was not temporarily totally disabled between July 3, 1995 and July 15, 1996. We affirm the trial commissioner’s decision.

The trial commissioner found that the claimant suffered a compensable injury to his back on November 6, 1985. His authorized treating physician is Dr. Bloomgarden, who has performed three surgical procedures on the claimant, the last being a lumbar discectomy on March 22, 1994. The claimant, who resides in Florida, became temporarily totally disabled on that date. On April 28, 1995, Dr. Bloomgarden issued a report stating that he had been shown a videotape of the claimant from December 1994 that showed him washing his boat and engaging in other physical activities. The doctor reported that the claimant was clearly capable of light duty work, and had reached maximum medical improvement. He recommended that the claimant return to work with a 25-pound weight restriction. The respondents filed a Form 36, which was approved by the Fourth District office on July 3, 1995.

The claimant subsequently pursued a further temporary total disability claim. The commissioner ordered Dr. Druckemiller to perform a § 31-294f examination, leading to a report that described the claimant’s condition as stable. Dr. Druckemiller felt that, without surgery, the claimant could not return to heavy labor, and would have to restrict his movements and his lifting. The respondents authorized Dr. Opalak to perform surgery based on that report, and the claimant was placed on temporary total disability benefits as of July 15, 1996. The trier ruled that the claimant could not collect temporary total disability benefits for the year prior to that date, however, as Dr. Bloomgarden’s report established a work capacity. The claimant has appealed that decision.

The first issue we must address is a Motion to Submit Additional Evidence that the claimant filed in conjunction with this appeal. This evidence consists of a letter from Dr. Bloomgarden dated January 20, 1997, a 1995 report from Dr. Bloomgarden, and numerous letters from the claimant’s attorney.1 Pursuant to Admin. Reg. § 31-301-9, this board may admit additional evidence when a party alleges that it is “material and that there were good reasons for failure to present it in the proceedings before the commissioner.” Evidence is “material” when it is likely to have an effect on the outcome of a case. Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994).

The doctor’s report dated January 20, 1997 is merely a clarification of Dr. Bloomgarden’s August 14, 1995 letter. As such, that information could have been obtained prior to the closing of the record in December 1996. The claimant does not explain in his motion why this was not done, however. “[I]t is the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing . . . . A motion to submit additional evidence may not properly be used to alter a party’s evidentiary decisions regarding the presentation of evidence at a formal hearing.” Abdule v. Walnut Hill Convalescent Home, 3383 CRB-6-96-7 (decided March 25, 1997). Without a showing that this report was previously unavailable, we cannot admit it into evidence now. Also, none of the other evidence offered by the claimant would appear to be material to the outcome of this case. The 1995 and 1996 letters from his attorney are not relevant to the issue of whether the claimant was totally disabled during the period in question.2 Thus, we deny the Motion to Submit Additional Evidence in its entirety.

As a pro se appellant, the claimant did an admirable job of presenting the merits of his case at oral argument, with substantial assistance from Susan DeMartino, his wife. We can appreciate their feelings regarding the claimant’s difficulty in obtaining surgery and the nature of the medical evidence concerning total disability. However, we are not the triers of fact. That role belongs to the trial commissioner. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Here, she made factual findings regarding medical reports by both Drs. Druckemiller and Bloomgarden that assigned the claimant some light duty work capability. Her factual findings regarding the credibility of the physicians’ reports cannot be changed unless they are unsupported by the evidence in the record. Hanson v. Transportation General, Inc., 45 Conn. App. 441, 447 (1997); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997).

Looking at the report of Dr. Druckemiller, we cannot say that the trial commissioner committed legal error by relying on it to support the existence of a work capacity. Dr. Druckemiller only stated that the claimant should not be returned to heavy labor; he did not forbid the claimant from working altogether. Instead, he discussed a surgical and a non-surgical option for the claimant, both of which contemplated some light duty capacity. (Joint Exhibit 1.) The April 28, 1995 report of Dr. Bloomgarden is also part of the record, and it unequivocally stated that the claimant had a work capacity. (Claimant’s Exhibit A.) The trial commissioner was within her rights to give credence to that report based on the evidence in front of her at the time of the formal hearing. As such, we must affirm the trial commissioner’s decision dismissing the claimant’s temporary total disability claim.

The issue of the claimant’s entitlement to § 31-308a benefits was also raised at the formal hearing. Transcript, p. 15-16. At the time of the claimant’s injury in 1985, § 31-308a did not require a claimant to be available for work in the state of Connecticut in order to qualify for benefits. Thus, the claimant, a Florida resident, could conceivably be entitled to compensation under that statute. No evidence was submitted on that issue, however, and the trial commissioner thus did not include any findings on that issue in her decision. The parties will have to decide whether a claim should be pursued regarding § 31-308a benefits.

The trial commissioner’s dismissal of the claim for temporary total disability benefits is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The claimant also submitted as additional evidence a March 23, 1994 award authorizing surgery for the claimant and the payment of temporary total disability benefits. The hearing on that matter was held on March 2, 1994. As noted above, the claimant underwent a lumbar discectomy on March 22, 1994, and was subsequently temporarily totally disabled by Dr. Bloomgarden. As the issue in this case concerns the claimant’s total disability from July 1995 to July 1996, this award will not be germane to our decision here. However, we do note that prior decisions by trial commissioners in a case are normally considered part of the record, and need not be admitted as evidence. BACK TO TEXT

2 The trial commissioner found that the Form 36 approved on July 3, 1995 was not appealed. The claimant attempts to disprove that assertion here. The initial granting of a Form 36 at an emergency informal hearing pursuant to Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 35, 1765 CRB-2-93-6 (May 4, 1995), is not an appealable decision, as it does not create a record that can be reviewed. Anguish v. TLM, Inc., 14 Conn. Workers’ Comp. Rev. Op. 195, 196-97, 2286 CRB-7-95-1 (July 13, 1995). Instead, the initial ruling on a Form 36 may be challenged at a subsequent formal hearing, at which the previous ruling has no precedential weight. The issue is tried de novo. That is what happened at the formal hearing below. Thus, there is no point in attempting to prove that the Form 36 was contested. BACK TO TEXT

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