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Rhodes v. Bourdon Forge Company, Inc.

CASE NO. 3720 CRB-2-97-11

CASE NO. 3650 CRB-2-97-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 13, 1998

HENRY RHODES

CLAIMANT-APPELLANT

v.

BOURDON FORGE COMPANY, INC.

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

and

AON RISK SERVICES OF CONN.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Jeremy Booty, Esq., Murphy & Beane, Two Union Plaza, P.O. Box 1109, New London, CT 06320-1109.

The claimant was also represented at the trial level by John F. Harvey, Jr., Esq., Poulos, Barry, Harvey & Later, P.C., 1177 Silas Deane Highway, Wethersfield, CT 06109-4396, who did not appear at oral argument.

The employer and Travelers were represented by Joseph Passaretti, Esq., of Sizemore Law Offices formerly known as Law Offices of Christine Harrigan, Crossroads Corporate Park, 6 Devine Street, North Haven, CT 06473.

The employer and AON Risk Services were represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the October 29, 1997 Finding and Award of the Commissioner acting for the Second District, and the claimant’s Motion to Submit Additional Evidence which was filed in conjunction with the claimant’s Petition for Review from the July 14, 1997 Ruling on Claimant’s Motion and the July 24, 1997 Denial of Claimant’s Motion for Reconsideration of the Commissioner acting for the Second District, were together heard March 27, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Amado J. Vargas.

OPINION

I. PETITION FOR REVIEW FROM THE OCTOBER 29, 1997 FINDING AND AWARD.

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 29, 1997 Finding and Award of the Commissioner acting for the Second District. In that decision the trial commissioner found that the claimant sustained compensable injuries on November 8, 1995 and on January 17, 1996 which caused periods of temporary total disability and temporary partial disability. In support of his appeal, the claimant contends that the trial commissioner erred in not awarding temporary total disability benefits beyond August 18, 1996, and in not awarding partial disability benefits beyond October 1, 1996. In addition, the claimant contends that the trial commissioner erred in denying his Motion to Correct.

We will first address the claimant’s contention that the trial commissioner erred in not awarding temporary total disability benefits beyond August 18, 1996, and in not awarding partial disability benefits beyond October 1, 1996. Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). Similarly, whether a claimant has satisfied the statutory criteria for § 31-308(a) wage differential benefits is a factual determination for the trial commissioner. Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995).

The power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). 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). We have specifically held that it is within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of the physician who conducted an independent medical examination than to the opinion of the claimant’s treater. Sherman v. Construction & General Laborers Union Local 390, 3056 CRB-5-95-5 (decided Jan. 8, 1997), (citing Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995)).

In the instant case, the record fully supports the trial commissioner’s conclusion that the claimant’s period of temporary total disability ceased on August 18, 1996, the date that Dr. Dudek released the claimant to light duty work. (Finding No. 119). Moreover, at the time of his July 30, 1996 examination of the claimant, Dr. Dugdale opined that the claimant could return to light duty work within two weeks. (Finding No. 102). In addition, the trial commissioner’s award of temporary partial benefits from August 19, 1996 through October 1, 1996 is supported by the record. (Findings No. 101-103). We note that the claimant argues that the trial commissioner improperly failed to credit the opinion of Dr. Redden on the basis that Dr. Redden did not have a diagnosis of the claimant’s condition. We find no error, as it was within the discretion of the trial commissioner as the finder of fact to determine the weight and credibility of the testimony of witnesses, including Dr. Redden.1Webb, supra. Accordingly, we may not disturb the trial commissioner’s decision. See Fair, supra; see also Sherman, supra.

We will next address the claimant’s contention that the trial commissioner erred in denying his Motion to Correct. The claimant contends that the “uncontradicted” medical evidence indicates that the claimant sustained a psoas strain, and that it is “uncontradicted” that the claimant suffered from symptoms of the psoas strain through the time of the formal hearings in this matter.2 (Claimant’s Brief at p. 4-5). As stated above, the fact-finding authority of the trial commissioner “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb, supra. Moreover, a trial commissioner has the “right to reject testimony even if seemingly uncontradicted.” Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 235, 1000 CRD-5-90-4 (Oct. 30, 1991); see also Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 44 (1996).

A Motion to Correct may be denied where the legal conclusion of the commissioner would not be altered by the substituted findings. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). We find no error in the commissioner’s denial of the claimant’s Motion to Correct.

The trial commissioner’s decision is affirmed.

II. MOTION TO SUBMIT ADDITIONAL EVIDENCE FILED IN CONJUNCTION WITH THE CLAIMANT’S PETITION FOR REVIEW FROM THE JULY 14, 1997 RULING ON CLAIMANT’S MOTION AND THE JULY 24, 1997 DENIAL OF CLAIMANT’S MOTION FOR RECONSIDERATION.

The claimant has petitioned for review from the July 14, 1997 Ruling on Claimant’s Motion and the July 24, 1997 Denial of Claimant’s Motion for Reconsideration of the Commissioner acting for the Second District. In the July 14, 1997 ruling the trial commissioner denied the claimant’s July 14, 1997 request to hold the record open in order to allow the claimant to submit additional evidence from Dr. Redden. Subsequently, on July 24, 1997 the trial commissioner denied the claimant’s Motion for Reconsideration. In support of his appeal, the claimant contends that the trial commissioner erred in refusing to hold the record open for further evidence from Dr. Redden. In addition, on March 23, 1998 the claimant filed a Motion to Submit Additional Evidence with this Board in which he requested to submit a report dated February 11, 1998 from Dr. Kime.

In the instant case, the formal hearing was commenced on September 9, 1996 and continued on December 23, 1996, March 17, 1997, and May 12, 1997 at which time the formal hearing was closed. At the request of the claimant, the time for submitting proposed briefs and findings was extended until August 15, 1997, at which time the record was closed. On July 14, 1997, the claimant filed a Motion for Extension of Time in which he requested to hold the record open, stating that “there appears to be additional material evidence to [be] received from Dr. Robert S. Redden regarding Mr. Rhodes.” The trial commissioner denied the claimant’s request on July 14, 1997. Subsequently, on July 23, 1997 the claimant filed a Motion for Reconsideration in which he attached a report from Dr. Redden dated July 11, 1997. The trial commissioner denied that motion on July 24, 1997.

The admission of additional evidence to the Compensation Review Board is controlled by Administrative Regulation § 31-301-9.3 In the instant case, the claimant offers no indication that the report by Dr. Redden was undiscoverable with due diligence at the time of the original hearings. Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 205, 208-09, 1289 CRD-6-91-9 (Dec. 2, 1992); see also Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 66, 550 CRD-7-87 (Dec. 1, 1988). We thus conclude that the claimant has failed to satisfy the requirements of Conn. Agencies Reg. § 31-301-9. Accordingly, we find no error in the trial commissioner’s denial of the claimant’s request to submit the report by Dr. Redden after the close of the formal hearing. See Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (March 18, 1993); Lesczynski, supra; Murach v. New Britain, 10 Conn. Workers’ Comp. Rev. Op. 89, 91-92, 1172 CRD-6-91-2 (April 20, 1992).

Moreover, we have consistently held that it “is within the broad discretion of the commissioner to grant or deny a continuance, and such a decision is virtually unreviewable.” Mercado v. Personal Moving Services, 14 Conn. Workers’ Comp. Rev. Op. 364, 365, 2023 CRB-4-94-5 (Sept. 26, 1995). We find no abuse of discretion on the part of the trial commissioner in denying the claimant’s July 14, 1997 Motion for Extension of Time.

Finally, we will address the claimant’s Motion to Submit Additional Evidence, specifically the February 11, 1998 report by Dr. Charles Kime. In his motion, the claimant contends that due “to continuing and consistent problems” he “submitted himself for an examination by Dr. Charles Kime on February 11, 1998.” The claimant has not explained why this examination was not completed prior to the close of the formal hearing on May 12, 1997, nor has the claimant explained why he did not request a continuance prior to May 12, 1997 in order to obtain this examination. 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. Lange, supra; see also Lesczynski, supra. Moreover, it is the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant to the claimant at the time of the hearing. Lesczynski, supra.

We conclude that the claimant has failed to show good reason for presenting a medical report after the formal hearing had been closed and after the trial commissioner’s decision has been issued. See Lesczynski, supra. Moreover, the claimant offers no indication that the examination and report by Dr. Kime could not have been obtained with due diligence prior to the close of the formal hearing. Id., see also Murdock, supra. We thus conclude that the claimant has failed to satisfy the requirements of Conn. Agencies Reg. § 31-301-9, and deny the claimant’s motion to submit the report by Dr. Kime.

The trial commissioner’s rulings are affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

1 The following testimony is excerpted from the March 11, 1997 deposition of Dr. Redden (Claimant’s Exh. J at p. 32):

Q. Are there any objective tests which would be consistent with Mr. Rhodes’ continuing levels of complaint?

A. Of the tests we have done?

Q. Yes.

A. No.

Q. As I understand it, you have been unable to come up with any clear reason why Mr. Rhodes would be continuing to be symptomatic. Is that correct?

A. Yes. BACK TO TEXT

2 We note that the trial commissioner specifically found that the claimant “presented no evidence of medical care after January 1997 and no evidence concerning continuing disability after that time.” (Finding No. 112). BACK TO TEXT

3 “If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner...” BACK TO TEXT

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