CASE NO. 4329 CRB-7-00-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 2, 2002
AMERICAN NATIONAL CAN
GALLAGHER & BASSETT
The claimant appeared pro se.
The respondents were represented by Richard W. Lynch, Esq., Lynch, Traub, Keefe & Errante, 52 Trumbull Street, P. O. Box 612, New Haven, CT 06506.
This Petition for Review from the November 29, 2000 Finding and Approval of the Commissioner acting for the Seventh District was heard August 24, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 29, 2000 Finding and Approval of the Commissioner acting for the Seventh District. In that decision the trial commissioner found that the claimant had reached maximum medical improvement and was capable of non-strenuous work, and thus granted a Form 36 which was filed on July 21, 1999. In support of his appeal, the claimant contends that the trial commissioner erred in finding that he reached maximum medical improvement based upon the opinion of Dr. Passarelli, an independent medical examiner. Additionally, the claimant contends that the trial commissioner erred in denying his request for a continuance in order to give him time to obtain further medical opinions. The claimant has also filed a Motion to Submit Additional Evidence.
The trial commissioner found the following relevant facts. At the formal hearing, the respondents presented the deposition of Dr. Passarelli, a general surgeon, along with his June 30, 1999 report. Dr. Passarelli opined that the claimant reached maximum medical improvement as of July 15, 1999 and is capable of non-strenuous employment, and assessed the claimant with a 6% whole body rating. The trial commissioner accepted Dr. Passarelli’s opinion that he had reached maximum medical improvement and was capable of non-strenuous work, and thus approved the Form 36 effective July 21, 1999.
We will first address the claimant’s contention that the trial commissioner improperly denied his request to continue the formal hearing of December 29, 1999 so that he could obtain medical opinions from other physicians. “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.’” Liano v. Bridgeport, 3199 CRB-4-95-10 (March 25, 1997), quoting Mercado v. Personal Moving Services, 14 Conn. Workers’ Comp. Rev. Op. 364, 365, 2023 CRB-4-94-5 (Sept. 26, 1995); see also Rindos v. J.F. Barrett & Sons, 3188 CRB-3-95-8 (February 27, 1997).
In the instant case, the claimant objected to the respondents’ submission of the deposition and report of Dr. Passarelli, alleging that the doctor “was paid to lie and not to diagnose my disability problem . . . .” Dec. 29, 1999 Transcript, p. 6; see also Claimant’s Brief, p. 6. The claimant also made this unfounded allegation in a Motion to Disqualify filed with the District office on December 8, 1999, in which he sought to “disqualify” the deposition and medical report of Dr. Passarelli. This “motion” was effectively denied orally by the trial commissioner during the December 29, 1999 formal hearing when he admonished the claimant for making unfounded accusations regarding a “conspiracy” and allowed said evidence into the record. See Transcript, supra, p. 13-14.
The trial commissioner then explained to the claimant that he needed to present medical evidence to refute the medical evidence presented by the respondents, specifically Dr. Passarelli’s report and deposition. The trial commissioner would not allow the claimant to present old medical records, as they did not address the limited issue at hand, namely the Form 36 filed on July 21, 1999. Id., p. 10, and 13-15. We find no error, as “(d)ecisions regarding the relevance and remoteness of evidence in workers’ compensation proceedings fall solely within the discretion of the trier of fact.” Vetre v. State/Dept. of Children and Families, 3443 CRB-6-98-12 (Nov. 28, 2000); see also § 31-298.
When the trial commissioner asked the claimant if he had a medical report indicating that he had not yet reached maximum medical improvement, and the claimant said that he did not, the trial commissioner explained that notice of the formal hearing was sent out on October 14, 1999, which provided the claimant with over two months to prepare. The trial commissioner stated: “You had every opportunity to go visit your doctor or whatever doctor you wanted to see to establish what your medical condition was on your behalf. Now, you have not done that and I am not delaying this hearing.” Dec. 29, 1999 Transcript, p. 7. We find no error, as it was within the trial commissioner’s discretion to deny the claimant’s request for a continuance. See Martinez v. Gordon Rubber & Packaging Co., 3828 CRB-5-98-6 (July 22, 1999).
In his Motion to Submit Additional Evidence, the claimant seeks to present medical records obtained after the close of the formal hearing, specifically an unsigned medical report dated November 8, 2000, a medical report by Dr. Andersen dated January 21, 2000, and a medical report by Dr. Patil dated March 16, 2000. The claimant seeks to present this evidence to support his contention that he has not reached maximum medical improvement. The admissibility of additional evidence is controlled by Administrative Regulations § 31-301-9 which states that additional evidence will be admitted if such evidence is material and if there were good reasons for failure to present it at the time of the proceedings before the trial commissioner. The evidence must not only be unavailable at the time of the proceedings, but must also be undiscoverable with due diligence. Crouse v. A.A.I.S., Inc., 3797 CRB-3-98-4 (June 16, 1999) (citing Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 550 CRD-7-87 (Dec. 1, 1988)).
In the instant case, the claimant could have gone to these doctors prior to the formal hearing, and indeed, the trial commissioner explained this to the claimant as set forth above. Thus, the additional evidence having been discoverable at the time of trial and no good reason for the failure to present this evidence at the time of trial having been given, the claimant’s Motion to Submit Additional Evidence is denied.
Finally, we will address the claimant’s argument that the trial commissioner erred by relying upon the opinion of Dr. Passarelli. We find no error. We have repeatedly explained that the “quintessence of a trier’s factfinding prerogative is the power to determine the weight of the evidence presented and the credibility of the testimony offered by both lay and expert witnesses.” Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March 16, 2001), quoting Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000). The establishment of maximum medical improvement is a factual issue to be decided by the trier based upon such medical evidence. Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001); Caprio v. Stop & Shop, 4028 CRB-3-99-4 (July 26, 2000); Kluttz v. Howard, 3738 CRB-4-97-12 (Feb. 18, 1999).
“In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it . . . .” Id., 349 (citations omitted).
In the instant case, both the deposition testimony and the written report of Dr. Passarelli amply support the trial commissioner’s conclusion that the claimant reached maximum medical improvement and is capable of non-strenuous work. Accordingly, the trial commissioner’s decision must be affirmed. Ferrara, supra. We do not agree with the claimant’s repeated contention that Dr. Passarelli’s report is flawed because he has not (the claimant alleges) diagnosed his condition. Rather, the deposition testimony clearly indicates that the doctor fully considered the claimant’s medical history, including his hernia repair surgeries. The doctor repeatedly explained that the claimant’s complaints of pain were subjective, and that he gave the claimant a 6% disability rating based solely upon the claimant’s subjective complaints. However, the doctor explained that a hernia in itself is not a permanent disability, and the fact that the claimant had a hernia and then a recurrence does not mean that the claimant cannot live his life in a “normal fashion.” Oct. 29, 1999 Deposition (Respondents’ Exh. 2) p. 21.1
The trial commissioner’s decision is affirmed.
Commissioners George A. Waldron and Ernie R. Walker concur.
1 The doctor further explained: “That’s what I tell my patients who have experienced hernias. I fix them, they go back to the gym, they lift weights, they run, they compete, they play golf, they live their life. A hernia is not a permanent disability.” Id. BACK TO TEXT