State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Kuba v. Michael’s Landscaping & Lawn Service

CASE NO. 4266 CRB-4-00-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 29, 2001

MICHAEL KUBA JR.

CLAIMANT-APPELLANT

v.

MICHAEL’S LANDSCAPING & LAWN SERVICE

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by James Baldwin, Esq., Coles, Baldwin & Craft, L.L.C., 1261 Post Road, P.O. Box 577, Fairfield, CT 06430.

The respondents were represented by Richard L. Aiken, Jr., Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the July 5, 2000 Finding of Dismissal by the Commissioner acting for the Fourth District was heard March 30, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 5, 2000 Finding of Dismissal by the Commissioner acting for the Fourth District. He contends on appeal that the trier erred by dismissing his claim that he contracted Lyme Disease during the course of his employment as a landscaper. We find no reversible error, and affirm the trial commissioner’s decision.

The claimant was employed by the respondent Michael’s Landscaping and Lawn Service from 1990 through 1994. During most of that period, he was still in high school, and worked part-time for the landscaping service. Upon his graduation in 1994, he began working there full-time. His job duties required him to work outside in wooded areas, clearing, excavating and grading lots and installing new lawns, which allegedly exposed him to ticks. The claimant alleges that he removed two ticks from his groin and leg following a day of work on some unspecified date in 1994. He was examined by his pediatrician, Dr. Hernandez, on May 18, 1994. The claimant told his doctor that a tick bit him on the previous day. He didn’t know whether he’d ever been bitten by a tick before, but provided a history of joint pain for the past six or seven months. Dr. Hernandez then referred him to Dr. Belkin, an orthopedic surgeon.

Dr. Belkin examined the claimant on June 27, 1994, and diagnosed pain and swelling in the right shoulder, right middle finger, left hand, left ankle, and both knees. He indicated that the claimant’s pediatrician had performed Lyme disease testing and a rheumatologic screen, both of which appeared normal. He sent the claimant to Dr. Raxlen, whose specialties are listed as biological psychiatry, nutritional medicine, and environmental allergies. Dr. Raxlen observed a host of symptoms in the claimant during his examination of July 13, 1994, including widespread joint and muscle pain, headaches, blurred vision, tinnitus, mood swings, memory loss, disorientation, dizziness, weakness, paresthesia, shortness of breath, and loss of libido. He opined that the claimant had tested positive for Lyme Disease, and recommended IV Recephin therapy. He later indicated that landscaping was one of the highest-risk occupations for Lyme Disease, and stated in June 1997 that the claimant had multiple exposures to tick bites as a landscaper, having exhibited bull’s-eye shaped rashes on at least two occasions. Dr. Raxlen causally related the claimant’s illness to his work as a landscaper. He treated the claimant with oral and intravenous antibiotics, and his patient’s condition improved. The doctor noted a relapse on November 4, 1997, which he again treated with antibiotics.

The first formal hearing in this matter was held on September 1, 1998. A mistrial was subsequently declared due to the commissioner’s failure to issue a decision within 120 days, and new proceedings were commenced before a different trial commissioner on June 1, 1999. The respondents, meanwhile, asked Dr. Gittzus, the Chief of Infectious Diseases at Windham Hospital, to perform a medical records review. On May 25, 1999, Dr. Gittzus testified via deposition. Based upon his review, he stated that the claimant’s ELISA antibody tests should be construed as negative, as should a Western Blot test administered by Dr. Raxlen’s lab. He thought the claimant’s joint pain symptoms nonspecific, and characterized his symptoms of chest pain, spasms and twitching as atypical of Lyme Disease. He described the classic Lyme Disease symptoms as a rash called ECM that spontaneously disappears, followed a few months later by joint arthritis in the knee. Dr. Gittzus did not believe that the claimant had displayed either of those symptoms, and did not think that the claimant had Lyme Disease. However, he did think that Lyme Disease was peculiar to the landscaping occupation in Fairfield County. Dr. Raxlen responded to this opinion on September 13, 1999, and commented that Dr. Gittzus had ignored many relevant symptoms while establishing his diagnosis.

Citing the fact that the claimant had not observed any ticks on his person prior to May 17, 1994, yet claimed that his Lyme Disease symptoms had begun before that date, the trial commissioner found that one could not determine whether the claimant had been bitten by a tick at some point earlier in time. Moreover, the opinion of Dr. Gittzus, who is an expert in infectious diseases, persuaded the trier that the claimant had not met his burden of proving that he suffered from Lyme Disease at all. The trier thus dismissed the claimant’s case, explaining that he “has not submitted sufficient evidence to indicate when, how, or if a deer tick may have infected him, or whether he even has Lyme disease.” The claimant now appeals that decision to this board.

First, we address the parties’ arguments surrounding a Motion to Preclude that the claimant filed on June 1, 1999. As noted above, Dr. Gittzus’ deposition was taken on May 25, 1999. Until that point, the respondents had never directly challenged the assertion that the claimant suffered from Lyme Disease. Their January 23, 1995 Form 43 purports to contest his compensation claim on the grounds that (1) his Lyme Disease did not arise out of and in the course of his employment, and (2) that no medical substantiation exists to prove a work-related injury. Following the deposition of Dr. Gittzus, the claimant filed a motion seeking to preclude the respondents from raising the defense that the claimant never suffered from Lyme Disease. They asserted that the late disclosure of this defense would cause undue hardship and prejudice to the claimant, as the respondents had until recently conceded that the condition existed.

The trial commissioner denied this motion in his Rulings on Motion and Evidence on September 21, 1999, where he stated, “A trial de novo is being held on all issues including compensability and there should be no restraints or preclusions allowed from a prior formal hearing.” Findings, ¶ 7. He accordingly admitted both Dr. Gittzus’ deposition and Dr. Raxlen’s responsive report into evidence. The claimant did not take an immediate appeal from that ruling. Following the trier’s July 5, 2000 Finding and Dismissal and the claimant’s subsequent petition for review, the respondents moved to dismiss the claimant’s appeal as untimely insofar as it attempts to challenge these evidentiary rulings. The claimant, meanwhile, alleges in his brief that the trier legally erred by failing to bar both Dr. Gittzus’ deposition and the defense contained within it.

We disagree with the respondents’ assertion that the claimant should be precluded from raising these evidentiary issues on appeal. Though § 31-301(a) allows either party to appeal within ten days “after entry of an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b” (emphasis added), it would be imprudent for a party to delay the progress of an action for many months at a time in order to immediately appeal every one of a commissioner’s interlocutory rulings to the Compensation Review Board before moving forward. In a complicated action that involved numerous contested evidentiary rulings, it could conceivably take the better part of a decade to resolve the claim. Unless the immediate actualization of an interlocutory ruling may result in some form of irreparable harm, such as the disclosure of sensitive and confidential information to opposing counsel; see Vetre v. State/Dept. of Children & Families, 3948 CRB-6-98-12 (Feb. 14, 2000); this board discourages parties from filing appeals before the commissioner has had a chance to rule on the merits of a case. Bailey v. State/Greater Hartford Community College, 3694 CRB-1-97-9 (Jan. 12, 1999); Dixon v. United Illuminating Co., 14 Conn. Workers’ Comp. Rev. Op. 215, 1996 CRB-4-94-3 (Aug. 4, 1995) (Brouillet, C., dissenting). Otherwise, the speedy and efficient resolution of workers’ compensation claims will frequently be impeded, contrary to the design of the Act. Menzies v. Fisher, 165 Conn. 338, 346 (1973).

The trier’s decision to allow Dr. Gittzus’ deposition into evidence generally falls within the penumbra of § 31-298, which explains that a commissioner “shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” This gives the trier considerable leeway to make decisions regarding the admissibility of evidence. Of more specific applicability to this issue is § 52-149a(a), which provides, “The deposition of any physician . . . may be taken on behalf of either party to any . . . workers’ compensation matter . . . in which the physician . . . may be called as an expert witness, on notice by certified mail to each adverse party . . . in lieu of the appearance of the witness . . . at the hearing.” This law supports a party’s right to introduce a doctor’s deposition instead of his live testimony, though it does not require a commissioner to allow every deposition into evidence. Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998). The trier still retains broad discretion regarding evidentiary rulings, and we may not reverse such a decision absent an abuse of discretion. Id.

Here, both parties were present at the deposition, and there is no contention that the claimant was improperly notified that a deposition was being held. He has not shown that he was unduly prejudiced by its introduction into evidence—indeed, he was able to obtain a report from Dr. Raxlen refuting Dr. Gittzus’ opinion—and the language of § 31-298 and § 52-149a(a) both countenance the trier’s decision. Thus, this board is not in a position to state that the trier erred by allowing the deposition into evidence as an exhibit. The essence of the claimant’s objection, however, is directed at one feature of the deposition: Dr. Gittzus’ suggestion that the claimant did not have Lyme Disease, which defense had not been posed previously. See, e.g., June 1, 1999 Transcript, pp. 4-8. We are asked to decide whether the respondents were entitled to first challenge the claimant’s diagnosis of Lyme Disease four years after the instant claim was filed.

Section 31-294c(b) unequivocally requires a respondent who wishes to contest liability for an alleged compensable injury to file a form that details, among other things, “the specific grounds on which the right to compensation is contested.” The duty to comply with this statute rests upon the employer, and a general disclaimer such as “we deny a compensable accident or injury” is presumed to operate prejudicially against the claimant, as it provides the claimant with no assistance in ascertaining the nature of the employer’s contest. Menzies, supra, 346-47. “The purpose of the requirement of stating the ‘specific grounds’ is to furnish the claimant with such warning as would prompt him to make the inquiries he might deem necessary or prudent for the preservation of his interests and in obtaining such information as he might deem helpful for his protection.” Id., 348. Still, this does not eliminate the claimant’s residual burden of proof with respect to the essential elements of his case. As long as a claim is validly contested, and the respondent is not precluded from challenging the compensability of the injury or illness itself, the claimant will be required to introduce sufficient evidence to persuade the trier of fact that he has sustained an injury or illness that is causally related to his employment within a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001).

Here, the respondents listed two reasons for denying the instant claim in their January 20, 1995 Form 43: “the Claimant’s Lyme Disease did not occur in and out of the course of employment,” and “no medical substantiation to prove work related injury.” Neither expressly disputes the existence of Lyme Disease, and in the eyes of the claimant, the former acknowledges that such an illness exists. See claimant’s Brief, p. 9. We perceive that the respondents placed the claimant in an unfortunate position by waiting until 1999 to seek an evaluation with an independent medical examiner. Ideally, these issues would have been addressed a lot sooner by an independent medical expert, in order to allow better preparation and research by both parties. A four-year delay in actively contesting a claim is troubling, given the remedial purpose of the Workers’ Compensation Act.

However, we do not believe that the respondents’ reasons for contest should be construed as tantamount to a stipulation that the claimant indeed suffered from Lyme Disease, which the respondents then attempted to revoke after four years. Such a reading of the Form 43 would be presumptuous. Both of the respondents’ reasons for contest logically placed the claimant on notice that he would need medical evidence proving that (a) he had Lyme Disease which (b) was causally connected to tick bites suffered during his employment. One cannot demonstrate the latter without demonstrating the former. Further, the claimant was inherently obligated to satisfy the trial commissioner within a reasonable degree of medical probability that he had Lyme Disease before he could hope to collect compensation for it. See Murchison, supra. As such, it would be inaccurate to say that the claimant should not have anticipated that, at some point during this action, he would need to prove that he had contracted Lyme Disease. We disagree that considerations of fairness and presumed prejudice should now relieve him of that burden pursuant to Menzies, supra, and its progeny. Thus, we affirm the trier’s denial of the claimant’s Motion to Preclude.

Having reached that conclusion, the legitimacy of the trier’s decision becomes apparent. It was within the trier’s discretion to credit the opinion of Dr. Gittzus over that of Dr. Raxlen, and to find that the claimant had not succeeded in demonstrating that he suffered from Lyme Disease. Warren, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). A trial commissioner is never required to believe a particular doctor, even if he offers his opinion within a reasonable degree of medical certainty. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195-96 (1999); Pallotto, supra. On review, this board cannot declare a commissioner’s assessment of credibility to be invalid. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Though another trier of fact might have reasonably found differently, it is not our prerogative to substitute our own conclusions for those of the trial commissioner. Thus, we must affirm. Additionally, without a finding that the claimant actually had Lyme Disease, we need not reach the question of whether such condition was an occupational disease within the meaning of § 31-275(15), or the issues regarding interest and attorney’s fees for unreasonable contest.

The trial commissioner’s decision is hereby affirmed.

Commissioners James J. Metro and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

Page URL: http://wcc.state.ct.us/crb/2001/4266crb.htm

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