Levy v. Philip Technologies

The claimant was represented by I. Edmund Hare, Esq., 185 Silas Deane Highway, Wethersfield, CT 06109-1219.

The respondent was represented by Theodore Pappas, Esq., Law Offices of Scott B. Clendaniel, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145-2138.

This Petition for Review from the March 3, 1999 Finding and Dismissal of the Commissioner acting for the Eighth District was heard September 10, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Stephen B. Delaney and Ernie R. Walker.

OPINION

JESSE M. FRANKL, COMMISSIONER. The claimant has petitioned for review from the March 3, 1999 Finding and Dismissal of the Commissioner acting for the Eighth District. She argues on appeal that the trier erred by dismissing her claim that workplace chemical exposure caused her to develop leukemia. The trier had twice continued formal hearings in order to give the claimant an opportunity to present medical evidence in support of her claim. When she failed to do so, and failed to appear at the February 5, 1999 formal hearing, the trier granted the respondents’ motion to dismiss the case with prejudice. We affirm the trial commissioner’s decision.

First, we observe that the claimant has not filed a brief in support of her appellate argument. Pursuant to Practice Book § 85-1, this board may dismiss an appeal if a party fails to prosecute with proper diligence. “It is the appellant who has the burden of establishing the grounds for his appeal and providing this board with an adequate record for review. Sargent v. Rybczyk Plumbing & Heating, 13 Conn. Workers’ Comp. Rev. Op. 128, 130, 1660 CRB-6-93-3 (Jan. 31, 1995). Included in this burden is the responsibility for filing a brief. This board has the discretion to dismiss an appeal where the appellant fails to heed that responsibility in a timely fashion, and we have exercised that power in the past.” Norton v. James Fleming Trucking, Inc., 15 Conn. Workers’ Comp. Rev. Op. 472, 474, 2119 CRB-1-94-8 (Sept. 16, 1996). The respondents have requested that we exercise that discretion here as well.

The claimant’s counsel opined at oral argument that he did not believe a brief was necessary due to the circumstances of this case. The Reasons of Appeal explain that the claimant testified regarding her work duties and chemical exposure on October 19, 1998, at which point the hearing was adjourned until a letter from a doctor could be supplied. The (one-paragraph) document then reads: “The case was dismissed without a hearing as to the reasons for the delay [in supplying medical evidence], which includes withholding information by the respondent, the highly specialized nature of the injury, which could be proven with adequate money, or by a catch as catch can attempt to get free medical service. In addition, the claimant’s case could have been proved without a doctor’s opinion based on a recognized formula of statistics in which the claimant and her deceased partner were both diagnosed with CML [chronic myelocytic leukemia].” This “deceased partner” apparently refers to a woman who worked at the same table as the claimant, whom the claimant contends also developed—and died of—leukemia.

There is little other information available for this board to consider on review. The claimant’s notice of claim lists a date of injury of May 1994, and the nature of her accident as “exposure to chemicals.” There is one exhibit in the record: Respondent’s Exhibit 1, a report from Dr. Russi that reflects his inability to identify any cancer-causing substances that the claimant might have encountered in her workplace. The trial commissioner was left in a similar position as this board: he stated at the February 5, 1999 formal hearing that the case had been pending for a long time, and though he could “appreciate the claimant’s financial position where some of these doctors do cost money to get expert opinions out of,” a decision could not be postponed indefinitely. Id., 2. As a practical matter, causation within a reasonable degree of medical probability cannot be proven in a complex case such as this without the expert opinion of a medical doctor. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151-52 (1972). Without any such evidence in support of the claimant’s claim, the commissioner could not justify continuing the case ad infinitum. Thus, he was forced to dismiss the action.

We likewise have little option but to affirm the trier’s decision. The lack of an appellate brief and the sparseness of the record leave this board with little to review. We have not been apprised of the underlying facts of this case or the details and nuances of the claimant’s legal arguments, and there has been no evidence submitted on the claimant’s behalf, either via a straightforward offer of proof, a Motion to Correct, or a Motion to Submit Additional Evidence. We are sympathetic to the plight of claimants who find it cost-prohibitive to attempt to establish complicated theories of causation in cases such as this one, but the humanitarian spirit of the act does not entitle us to suspend their burdens of proof, nor to change the rules of our legal system so that the onus of disproving causation is thrust upon the respondents. If, as in this case, there is no evidence to support a claimant’s case, the matter must be dismissed. The trier did so below, and we affirm his decision on appeal.