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Willett-Pine and Connecticut Diagnostics & Rehabilitation v. Community Residences

CASE NO. 3534 CRB-8-97-02

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 20, 1998

KATHERINE A. WILLETT-PINE

CLAIMANT

and

CONNECTICUT DIAGNOSTICS & REHABILITATION

MEDICAL PROVIDER-APPELLANT

v.

COMMUNITY RESIDENCES

EMPLOYER

and

CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Sebastian Ciarcia, Esq., 272 West Main St., Meriden, CT 06450.

The medical provider was represented by Paul D. Powers, D.C., 2257 Silas Deane Highway, Rocky Hill, CT 06067.

The respondents were represented by Suzanne Rathbun Fetter, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Woodbridge, CT 06525.

This Petition for Review from the February 4, 1997 Finding and Award of Compensation by the Commissioner acting for the Eighth District was heard October 17, 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. A medical provider in this case, Connecticut Diagnostics & Rehabilitation, has petitioned for review from the February 4, 1997 Finding and Award of Compensation by the Commissioner acting for the Eighth District. It argues on appeal that the commissioner erred by finding that the respondents were not liable for most of the treatment it provided to the claimant. We affirm the trial commissioner’s decision.1

The trial commissioner found that the claimant had sustained compensable cervical and lower back injuries on July 30, 1994. She treated regularly with Dr. Costanzo from August 1994 until February 1995, and thereafter on a need-only basis. Dr. Costanzo reported on March 21, 1995, that the claimant had reached maximum medical improvement. Dr. Powers, the administrator of the appellant Connecticut Diagnostics & Rehabilitation, began treating the claimant in late March 1995. The respondents objected to any further treatment of the claimant by either Dr. Costanzo or Connecticut Diagnostics on the ground that it would be palliative. The claimant continued treatment with Connecticut Diagnostics in the form of a muscular conditioning program, and was discharged on July 14, 1995 with instructions to commence a home exercise regimen. She returned one month later complaining of pain that she rated as “1” on a scale of one to ten. She continued to treat with the appellant through December 1995. At the time of the formal hearing, the claimant no longer had active symptoms.

The parties agreed by stipulation that the claimant will not be responsible for any outstanding medical bills claimed by Connecticut Diagnostics, which totaled $3,911 at the time of the formal hearing. The issue was simply whether CHAWCT would be responsible for paying those medical bills. Connecticut Diagnostics was not represented at the formal hearing, although it received proper notice of the proceedings. Dr. Powers, the administrator for Connecticut Diagnostics, explains in his brief that he thought that the claimant’s counsel had agreed to represent the medical provider at the formal hearing, and did not believe it was necessary to attend personally. The trial commissioner found that Dr. Costanzo referred the claimant to Connecticut Diagnostics after she reached maximum improvement, and ruled that the respondents were only responsible for bills incurred through April 6, 1995. All treatment by Connecticut Diagnostics beyond that date was ruled palliative. The medical provider appealed that decision.

Connecticut Diagnostics argues on appeal that the trial commissioner’s conclusions were incorrect and not supported by the record. It also argues that the trial commissioner should have accepted its request to submit additional evidence. Pursuant to Admin. Reg. § 31-301-9, motions for additional evidence may be entertained if the proffered evidence is material and if there were good reasons why it was not introduced at the formal hearing. The key item among the additional evidence offered here is a September 21, 1995 report by Dr. Costanzo. The only reason that the appellant gives for failing to introduce this report at the formal hearing is its failure to appreciate the necessity of its appearance at the formal hearing. This does not constitute a “good reason” for failing to admit relevant evidence under § 31-301-9. We will not order that this case be retried because the appellant mistakenly relied on the claimant’s attorney to present its case, even though said attorney had not appeared on the provider’s behalf.

The medical provider essentially bases the merits of its appeal on the argument that the evidence did not support the trial commissioner’s decision. The conclusions of the trial commissioner can only be changed if they result from an incorrect application of the law to the subordinate facts, or from an inference illegally or unreasonably drawn from them. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). The factual findings themselves must stand unless there is no evidence to support them, or if they fail to include undisputed material facts. Hanson v. Transportation General, Inc., 45 Conn. App. 441, 447 (1997). “It is the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted.” Id. (citations omitted); see also Webb, supra, 70. This applies to medical reports as well, even if they are seemingly unopposed. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997).

The appellant does not contend that there is no evidence to support the findings of the trial commissioner. Instead, it argues that there is contrary evidence that the trial commissioner should have found more believable. It is patently the function of the trial commissioner to decide which evidence to credit. This board cannot usurp that function on review. The commissioner relied on a report of Dr. Costanzo dated March 21, 1995, along with other testimony2 and evidence submitted by the respondents. See Finding and Award of Compensation, ¶ C; Respondent’s Exhibits 1, 3; Respondents’ May 9, 1995 Form 43. We cannot look at that evidence now and say that the commissioner was wrong to rely on it, or that he drew the wrong inferences from it. There is enough there to support the trial commissioner’s decision. We therefore have no choice but to affirm.

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

1 The respondents have moved to dismiss this appeal on the ground that the appellant has not filed a brief. The appellant explained in response that it filed a document entitled “Motion for Reversal of CRB” that sets out its argument. Although this document is not as effective or thorough as most appellate briefs, we accept this response, and deny the respondents’ motion to dismiss. BACK TO TEXT

2 We note also that the appellant did not request that a transcript be prepared for this appeal. Thus, we have no means of reviewing the testimony of the claimant ourselves. It is the appellant’s job to ensure that an adequate appellate record exists. See, e.g., Spano v. Frank Teti Siding, 3181 CRB-6-95-10 (March 19, 1997). BACK TO TEXT

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