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Mahoney v. Bill Mann Tree Service

CASE NO. 4095 CRB-04-99-08

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 10, 2000

JOHN MAHONEY

CLAIMANT-APPELLANT

v.

BILL MANN TREE SERVICE

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Laurence V. Parnoff, Esq., 1566 Park Avenue, Bridgeport, CT 06604.

The respondent employer was represented by Harry Hirsch, Esq., 6 Wood Lane, Fairfield, CT 06430.

The Second Injury Fund was not represented at oral argument. Notice sent to William McCullough, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the July 29, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District was heard March 10, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 29, 1999 Finding and Dismissal of the Commissioner acting for the Fourth District. He argues on appeal that the trier erred by dismissing his claim for permanent partial disability to the spine, and by failing to address certain issues that were pending before this Commission. We affirm the trial commissioner’s decision.

The background of this case is as follows. The claimant sustained multiple injuries on April 19, 1993 arising out of and in the course of his employment with the uninsured respondent. He was cleared to return to work on June 21, 1993, with no residual disabilities. Two days later, the claimant unilaterally consulted a chiropractor, Dr. Forte, who proceeded to treat him for seven months. A trial commissioner found that the claimant had not proven that Dr. Forte’s treatment was for conditions causally related to his compensable injury. That commissioner also found that the claimant had a five percent permanent partial impairment of the cervical spine based on the medical report of the respondent’s examiner, Dr. Homza. Finally, a claim for § 31-308a benefits was denied. On appeal, this board noted that Dr. Homza’s report had not been introduced into evidence, and remanded the case for further findings on the claimant’s permanent partial disability. Mahoney v. Bill Mann Tree Service, 16 Conn. Workers’ Comp. Rev. Op. 17, 3025 CRB-4-95-3 (Oct. 4, 1996) (“ Mahoney I.”). We explained that the trier was not required to rely on the opinion of Dr. Forte, and affirmed the denial of his status as an authorized treating physician. We also declined to rule on the trier’s denial of § 31-308a benefits, stating that on remand the trier “may find it necessary to make additional findings on that issue as well.” Id., 19.

The commissioner who presided over the case on remand framed the issue as being “whether Dr. Homza, who served as an Independent Medical Examiner, establishes in his deposition sufficient corroboration of his medical report with respect to permanent partial disability of the Claimant’s cervical spine.” After reviewing that deposition, he answered his own question in the negative, stating that “the general import of Dr. Homza’s deposition is that Claimant did not suffer any permanent disability to his cervical spine.” Findings, ¶ 4. The commissioner also noted that the doctor’s medical report was never introduced into evidence despite the remand. He accordingly ruled that the claimant had failed to establish a claim of permanent partial disability to his cervical spine, which decision the claimant has appealed.

In a workers’ compensation case, it is the party seeking relief—the claimant—who carries the burden of proving that he is entitled to benefits for a work-related injury. See, e.g., Spatafore v. Yale University, 239 Conn. 408, 417 (1996); Cooper v. Sisters of Mercy, 3218 CRB-6-95-11 (Dec. 10, 1996). Hence, in order for a claimant to establish entitlement to permanency benefits under § 31-308(b), he must demonstrate to the satisfaction of the trial commissioner that he has suffered the loss of, or loss of use of, an identifiable percentage of a scheduled organ or body part. That commissioner, being the finder of fact, is entitled to weigh the credibility of all of the medical evidence in gauging the extent of a claimant’s disability. He is not required to rely upon any document or attestation that a party offers in support of its position, even if apparently uncontradicted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Ruiz-Dugue v. Greenwich Hospital, 16 Conn. Workers’ Comp. Rev. Op. 208, 3267 CRB-7-96-2 (May 22, 1997). On appeal, this board may not reassess the factfinder’s decisions regarding evidentiary credibility, thereby substituting its own findings for those of the trier. Spatafore, supra, 418-19; Pallotto, supra; Mahoney I., supra.

In the present matter, it is undisputed that the claimant suffered a compensable injury on April 19, 1993, which resulted in lost time from work. As per the original trier’s Finding and Award of March 23, 1995 and our opinion in Mahoney I, we also consider it settled that the trial commissioner permissibly declined to authorize Dr. Forte’s chiropractic treatment, and that said trier was entitled to disregard the opinion of the chiropractor regarding the claimant’s permanent impairment rating. See Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293-94 (1999) (discussing “law of the case” doctrine). The only issues that remained open on the remand were those that were implicated by the trier’s reliance on a report of Dr. Homza that prescribed a 5% permanent partial impairment rating. Because that report had never been introduced into evidence, this case was remanded for further findings regarding permanency. As § 31-308a discretionary benefits may only be awarded as a supplement to permanent partial impairment benefits, we also left that issue open for potential reconsideration on remand.

The claimant contends that the opinions of two doctors confirm that he suffers from a permanent partial impairment of the cervical spine, and alleges error in the trier’s failure to find accordingly. He suggests that the trier improperly limited the scope of the issues before him in dismissing the instant claim. We disagree. When this board issued its remand order, it was our expectation that the trial commissioner would review the record as it existed at the time of the original Finding and Award. We presumed that he would consider (a) whether the circumstances warranted the admission of Dr. Homza’s report into evidence, and then (b) whether he found any of the evidence persuasive enough to establish the existence of a permanent partial impairment to the cervical spine. If so, he was then empowered to readdress the issue of § 31-308a benefits, if he saw fit.

However, upon the issuance of our remand order, the claimant proceeded to obtain new evidence in the form of a deposition of Dr. Homza. At the formal hearing, the trier admitted this deposition as an exhibit, which he was entitled to do under § 31-298. It appears that the claimant thought that the report of Dr. Homza had been ruled inadmissible because he was an independent medical examiner rather than a treating physician. September 4, 1998 Transcript, p. 8. It also seems as if the attorneys for the respondent and the Second Injury Fund concurred that the deposition was needed to support that report before it could come into evidence. Id., 9, 35-36. Whether or not their characterization of the law was correct; see Giovino v. West Hartford, 14 Conn. Workers’ Comp. Rev. Op. 74, 1912 CRB-1-93-12 (May 12, 1995) (independent medical examination report admissible as long as objecting party had opportunity to cross-examine physician); none of the parties took the initiative to offer Dr. Homza’s report into evidence at the formal hearing. Thus, it continued to remain outside the record.1

The claimant instead submitted Dr. Homza’s deposition, which, as the trier noted, contains no specific assignment of a permanent partial impairment percentage. See Findings, ¶ 6; Claimant’s Exhibit A. The claimant would have us hold that the trier was thus bound to refer to the only other evidence available—Dr. Forte’s report of April 17, 1993 (Claimant’s Exhibit L), which prescribed a 7 % permanent partial impairment of the cervicothoracic spine. From the transcript of the formal hearing, we are able to infer that all relevant parties, including the trial commissioner, agreed that the rating in Dr. Forte’s report could be considered as part of the trier’s determination of the claimant’s cervical spine permanency. Transcript, supra, pp. 42-46. Still, the finder of fact was not required to place any weight upon that report in his ultimate decision, whether or not its contents were expressly contradicted by other evidence. Pallotto, supra.

The trier’s failure to mention Dr. Forte’s report in his decision is not erroneous, as he has no obligation to discuss every potentially relevant piece of evidence. Admin. Reg. § 31-301-3. The manner in which he framed the issue suggests that he chose to remain consistent with the opinion of the previous trial commissioner, who had not found Dr. Forte’s opinions persuasive. The trier thus defined the question for resolution as whether Dr. Homza’s deposition sufficiently corroborated the existence of a permanent partial disability of the claimant’s cervical spine. As that deposition contained no permanency rating, the trier reached the logical conclusion that the claimant had not satisfied his burden of proof. We discern no error in this ruling, a necessary corollary of which is that the claimant is not entitled to § 31-308a benefits either. Thus, that claim did not need to be separately addressed by the trier. Any other issues raised by the claimant had either been previously determined, or fell outside the scope of the remand.

We hereby affirm the trial commissioner’s decision.

Commissioners Robin L. Wilson and Stephen B. Delaney concur.

1 For this reason, we deny the claimant’s attempt to introduce Dr. Homza’s report into the record via a Motion to Submit Additional Evidence in conjunction with this appeal. There have been a multitude of opportunities to introduce this document as an exhibit, and we can fathom no good reason why this gesture has not been made until now. See Admin. Reg. § 31-301-9. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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