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Harris v. UTC/Pratt & Whitney

CASE NO. 3762 CRB-01-98-01

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 23, 1999

RONEY HARRIS

CLAIMANT-APPELLANT

v.

UTC/PRATT & WHITNEY

EMPLOYER

and

CIGNA

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se on appeal.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the January 12, 1998 Memorandum Re: Request for Formal Hearing of the Commissioner acting for the First District was heard June 12, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 12, 1998 Memorandum Re: Request for Formal Hearing of the Commissioner acting for the First District, in which the trier denied the claimant either a formal hearing or a ruling on his Motion to Reopen until a previous appeal was adjudicated. The claimant argues on appeal that he was denied due process in the dismissal of his claim1, and has also filed a Motion to Submit Additional Evidence. We deny that motion, and affirm the trial commissioner’s decision.

The claimant initially filed a claim for work-related emotional stress stemming from his employer’s allegedly discriminatory treatment of him during the 1980’s and early 1990’s. He saw a psychologist, Dr. Kuperminc, and a psychiatrist, Dr. Berkley, in 1991-92. Their reports were excluded from evidence by the trial commissioner after the respondents objected to their admission. This board ruled in Harris v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op. 357, 3143 CRB-5-95-8 (June 26, 1996), that the trier’s exclusion of Dr. Berkley’s report was within his discretion, but that he erred by reasoning that Dr. Kuperminc’s reports should be excluded because psychologists’ reports are categorically inadmissible in workers’ compensation proceedings. We held that a psychologist’s report can be introduced into evidence, with questions of competence to determine causation directed at the weight of the evidence rather than its admissibility. We stated that “[w]hatever the strength of the claimant’s case, it is clear that Dr. Kuperminc’s reports are an instrumental part of it. Thus, we must reverse the commissioner’s dismissal of the instant claim, and remand it to the Fifth District for a trial de novo.” Id., 361.

On February 12, 1997, the respondents filed a Motion to Dismiss the claimant’s claim. Apparently, the claimant failed to attend an independent medical examination with Dr. Selig that had been ordered by the commissioner to whom the case had been assigned on remand. The claimant contended that no arrangements for transportation had been made for him, and that he could not attend; in fact, at oral argument, he asserted that it would have cost him $70 to hire a taxicab to drive him to Dr. Selig’s office, and that a bus ride would have taken six hours. The claimant lived in Hartford at the time, while Dr. Selig’s office is in Glastonbury. The trial commissioner granted the respondents’ motion, dismissing the claim with prejudice on February 14, 1997. The claimant filed a Notice of Intent to Appeal2 on February 20, 1997. He then moved to reopen his claim on the ground that additional relevant evidence was not considered by the commissioner, and that he was denied due process in the decision to dismiss his claim. A different trial commissioner ruled that the claimant’s appeal from the February 14, 1997 dismissal precluded any action on the Motion to Reopen. The claimant has appealed from that ruling as well.

Our analysis of this appeal can be most simply set forth by recapitulating our analysis in the first Harris decision. When this board remanded the claimant’s case for a new trial, we did not state that the reports of Dr. Kuperminc had to be admitted into evidence. We merely explained that a psychologist’s reports are not automatically inadmissible, as a psychologist may render an expert opinion regarding causation or disability under Connecticut law. Harris, supra, 360-61. Whether or not these particular reports were admissible, however, would still be up to the trial commissioner, as would any questions regarding their credibility. See Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

It seems3 that, before admitting Dr. Kuperminc’s reports into evidence upon remand, the trier sought to obtain another doctor’s opinion by ordering the claimant to attend an independent medical examination with Dr. Selig. This is accepted practice under § 31-294f C.G.S., and does not implicate the issue of evidentiary competence discussed in Zawisza v. Quality Name Plate, Inc., 149 Conn. 115 (1961). When the claimant failed to attend that examination, the trier dismissed his claim. Again, such action is expressly contemplated by § 31-294f(a), which states that “[t]he refusal of an injured employee to submit himself to a reasonable examination under this section shall suspend his right to compensation during such refusal.” Accordingly, there is no error apparent in the trier’s February 14, 1997 dismissal of the instant claim.

The claimant has filed a Motion to Submit Additional Evidence with this board. He seeks to submit two items: Dr. Kuperminc’s reports, and a letter from Chairman Frankl to the claimant dated December 10, 1996. As discussed above, the admissibility of Dr. Kuperminc’s reports was an issue for the trial commissioner, not this board. They are not material to the issues before us on review, and were quite available at the formal hearing. Thus, they do not meet the criteria set forth in Admin. Reg. § 31-301-9. As for the Chairman’s letter, it is simply an explanation of the effect of our previous Harris decision that was made in response to an inquiry by the claimant. Both parties received copies of that letter, and it is part of the record that this panel has considered on review. It need not be submitted into evidence.

As for the decision of the subsequent trial commissioner declining to reopen the instant case pending the outcome of this appeal, we find no error there as well. It would certainly be incongruous for a trier to attempt to vacate or modify a decision that has been appealed to the CRB, as jurisdiction over the issues appealed becomes lodged in this board until our decision is rendered. See Spatafore v. Yale University, 14 Conn. Workers’ Comp. Rev. Op. 310, 312, 2011 CRB-3-94-4 (Sept. 14, 1995), affirmed, 239 Conn. 408 (1996);§ 31-301 C.G.S. Now that our decision affirming the February 14, 1997 dismissal of the instant claim has been rendered, the claimant will be able to decide in which venue, if any, his next step should be taken. In the meantime, both of the decisions underlying the claimant’s appeals in this case are affirmed.

Commissioners George A. Waldron and Stephen B. Delaney concur.

1 The claimant did not file his appellant’s brief until the date of oral argument, June 12, 1998. Even taking into account the claimant’s pro se status, this board declines to consider that brief, as it was not filed in time to give the respondents any opportunity to respond. We also note that the claimant failed to file Reasons for Appeal, which prompted a Motion to Dismiss by the respondents. Although we indeed have discretion to dismiss the claimant’s appeal; see Ayres v. United Methodist Homes of Connecticut, 16 Conn. Workers’ Comp. Rev. Op. 193, 3207 CRB-4-95-10 (May 20, 1997); as he is proceeding pro se, and we are able to cull the basis for his appeal from his statements at oral argument, we will address the merits of his appellate arguments. See McCarthy v. AT&T Communications, Inc., 3689 CRB-6-97-9 (August 7, 1998). BACK TO TEXT

2 A notice of intent to appeal technically serves no function in workers’ compensation proceedings under Chapter 568. However, as the claimant is proceeding pro se, we will construe that notice as a petition for review, thus preserving his right to appeal from the granting of the Motion to Dismiss. BACK TO TEXT

3 The claimant did not obtain a transcript of the December 2, 1996 formal hearing referred to in the respondents’ February 12, 1997 Motion to Dismiss. This was part of his burden of presenting a case on appeal. Thus, this board can only speculate as to the commissioner’s probable reasoning in this regard. BACK TO TEXT

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