State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bernardo v. Capri Bakery

CASE NO. 4570 CRB-3-02-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 10, 2004

VINCENZO BERNARDO

CLAIMANT-APPELLEE

v.

CAPRI BAKERY

EMPLOYER

and

LUMBER INSURANCE COMPANIES

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by George H. Romania, Esq., 2862 Whitney Avenue, Hamden, CT 06518.

The respondents were represented by David Davis, Esq., McGann, Bartlett and Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the September 10, 2002 Finding and Award of the Commissioner acting for the Third District was heard August 29, 2003 and reheard on a point of clarification October 31, 20031 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents appeal from the September 10, 2002 Finding and Award of the Commissioner acting for the Third District. In that Finding and Award the commissioner authorized the claimant’s treatment for pain management and depression as the trier found this condition related to the claimant’s compensable injury. The respondents petitioned for review and present the following issues: (1) whether the Finding and Award should be vacated on the basis that it was not issued within the 120 day time frame set out in § 31-300; (2) whether the trial commissioner erred in authorizing pain management treatment with Dr. Lloyd Saberski, M.D., and Dr. Arnold D. Holzman, Ph.D. and (3) whether the trial commissioner failed to independently review the evidence and make factual findings.

The pertinent facts are as follows: On or about January 10, 1995 the claimant sustained a compensable injury to his lower back resulting in a herniated disc. The claimant underwent surgery performed by Dr. Philip Dickey. Dr. Dickey performed a laminotomy with excision of the herniated L3-4 disc. Claimant then underwent a course of physical therapy and was referred to Yale Center for Pain Management. However, the claimant experienced recurrent disc herniation at L3-4 left. On September 21, 1998 the claimant underwent an L3-4 posterior lumbar interbody fusion. That surgery was performed by Dr. Edward Akeyson.

The claimant underwent physical therapy. However, the claimant’s treating physician Dr. Dickey was of the opinion that claimant’s depression impaired his recovery. On or about December 3, 1998, Dr. Dickey referred the “claimant to a psychiatrist to treat his work-related depression.” See Finding ¶ 6. Claimant’s Exhibit C.

On December 20, 1999 the claimant was seen by Dr. Lloyd Saberski who recommended a plan encompassing physical and psychological care. Dr. Saberski referred the claimant to a psychologist, Dr. Arnold D. Holzman, Ph.D. of Behavioral Health Consultants. Dr. Holzman opined, inter alia, that claimant’s work related injuries were a substantial factor in his depression and that successful treatment was dependent upon providing the claimant with psychological support. Additionally, claimant consulted with Dr. John G. Strugar. Dr. Strugar recommended additional surgery. Dr. Saberski recommended the claimant address his depression before contemplating additional surgery. Since March 16, 2001 the respondents have refused to authorize pain treatment or psychological care.

The trial commissioner held proceedings and concluded, inter alia, the claimant should be permitted pain management treatment and psychological care with Drs. Saberski and Dr. Holzman. The respondents filed this appeal. The threshold issue before us is whether the trial commissioner’s decision should be vacated as it was rendered after the 120 day time period permitted by § 31-300. In support of its argument the appellants cite Schreck v. Stamford, 72 Conn. App. 497 (2002).2

Sec. 31-3003 provides that a commissioner shall render his opinion within 120 days of the close of the hearings. The record in this matter was closed April 25, 2002 and the trier did not issue his decision until September 10, 2002. Thus, on its face the trier’s decision was issued after the 120 day time limitation set out in § 31-300. As the Schreck opinion notes a decision issued after the time permitted by § 31-300 is voidable. The voidability of the trier’s Finding and Award turns on whether the complaining party engaged in conduct, either express or implied which would serve to waive the lateness of the Finding and Award.

Most recently we considered the application of the time requirement provisions of § 31-300 in Simotas v. Norwalk Hospital, 4530 CRB-7-02-5 (May 20, 2003). In Simotas we reviewed the Appellate Court’s legal reasoning in Schreck v. Stamford, 72 Conn. App. 497 (2002). As in Simotas, we again refer to Schreck.

[W]hen “late judgment has been rendered and the parties fail to object seasonably, consent may be implied.” Waterman v. United Caribbean, Inc., 215 Conn. 688, 692 (1990). “Waiver is the intentional relinquishment of a known right. . . . A waiver occurs, therefore, only if there is both knowledge of the existence of the right and intent to relinquish it. . . . [Waiver] involves the idea of assent, and assent is an act of understanding. . . . Intention to relinquish [must] appear, but acts and conduct inconsistent with intention [to assert a right] are sufficient.” (Citations omitted; internal quotation marks omitted.) Dichello v. Holgrath Corp., supra, 49 Conn. App. 349-50. “[Waiver] does not have to be express, but may consist of acts or conduct from which waiver may be implied. . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Stewart v. Tunxis Service Center, supra, 237 Conn. 80-81.

Schreck, supra, 500.

We believe the factual circumstances in this instant matter reflect that the appellants engaged in conduct which impliedly served to waive their rights under § 31-300. The appellants’ first assertion of their right to a decision within 120 days is given in their Amended Reasons of Appeal filed January 10, 2003. In the instant case the record closed April 25, 2002 and the trial commissioner’s decision was issued September 10, 2002, 138 days after the close of the record. The appellants filed this appeal on September 18, 2002 and at that time filed a Motion for Extension of Time to File Reasons of Appeal. The Appellants were granted until December 9, 2002 to file their Reasons of Appeal. However, the appellants did not require all the time that was granted and filed their Reasons of Appeal, November 18, 2002. On January 10, 2003 along with their appellate brief, the appellants filed Amended Reasons of Appeal. It was in the Amended Reasons of Appeal that for the first time the appellants raised the issue of the untimeliness of the trier’s decision. This was 119 days after the issuance of the commissioner’s decision.

How we are to interpret a party’s conduct and whether such conduct constitutes waiver is a matter shaped by the Appellate Court’s opinion in Schreck. The Schreck court reversed this tribunal’s opinion. In our opinion we held that a party who first asserts of its right to a timely decision pursuant to § 31-300 after it receives the tardy decision has not seasonably objected. The Appellate Court reversed and noted:

[T]he commissioner issued his decision 148 days after the close of the record. The plaintiff objected to the decision on the day that it was received. In its decision, the board held that the plaintiff’s objection was untimely because it was filed after the decision was issued. em class="ul">There is, however, no requirement that a party object to a decision, or a judgment for that matter, prior to its issuance. Because the plaintiff objected the very day he received the decision, the objection was seasonable. See Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 669 A.2d 620 (objection filed five days after judgment seasonable), cert. denied, 236 Conn. 920, 674 A.2d 1326 (1996); compare Dichello v. Holgrath Corp., supra, 49 Conn. App. 352 (objection filed 280 days after judgment not seasonable). (emphasis ours)(footnote omitted).

Schreck v. Stamford, 72 Conn. App. 497, 501 (2002).

In Simotas we applied the Appellate Court’s holding in Schreck and held the appellants’ objection to the untimely decision was seasonable where the trial commissioner’s decision was issued 392 days after the close of the record and the appellants’ assertion of its § 31-300 right was made within 18 days of the trial commissioner’s decision. We therefore remanded the Simotas matter for a hearing de novo. However, the facts in Simotas are readily distinguishable from the instant matter. The appellants did not assert their claim as to the untimeliness of the trier’s decision until some 119 days after the decision was issued despite the ability to do so as part of the initial appeal filed 8 days after the decision was issued or as part of the initial Reasons for Appeal filed 69 days after the decision was issued. We therefore conclude the appellants waived their rights under § 31-300 and their objection was not seasonable.

The appellants next contend that the trial commissioner failed to conduct an independent review of the evidence and make factual determinations. The appellants argue that the trial commissioner’s factual findings are “virtually identical” to the proposed findings provided to the trial commissioner by the claimant.4 Therefore, appellants contend, the trial commissioner did not engage in an independent review and deprived the respondents of due process. In previous opinions by this tribunal we have referred to the general practice of many trial commissioners in which the parties are afforded the opportunity to present their proposed findings to the trial commissioner. We have noted the filing of “such proposed findings . . . may provide important details and lend focus and clarity to a party’s legal argument . . . .”5 Milliot v. Yale Univ., 4527 CRB-3-02-5 (May 14, 2003) citing Fenn v. Hospital of St. Raphael, 3444 CRB-3-96-10 (Feb. 25, 1998). Our Appellate Court has held “[t]he ultimate test as to the adequacy of findings is whether they are sufficiently comprehensive and pertinent to the issues to provide a basis for the decision and whether they are supported by evidence.” Grayson v. Grayson, 4 Conn. App. 275, 285, (1985). We conclude there was evidence before the trial commissioner supporting his findings and the findings sufficiently articulate the basis for his conclusion.

We also note the appellants contend the trier erred in failing to grant their Motion To Correct. Essentially, the appellants ask us to adopt the factual findings they prefer to those that were adopted by the trial commissioner. We do not engage in de novo review. The trial commissioner’s factual findings and conclusions were based on the weight and credibility he assigned to the evidence presented. That is a matter solely within the trier’s purview and will not be disturbed on review unless without evidence, contrary to law, or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319 (2003).

Finally, the appellants argue the trial commissioner’s authorization of treatment with Drs. Saberski and Holzman was without evidentiary support. The appellants contend that Dr. Saberski’s last medical report dated March 16, 2001 reflects that Dr. Saberski was discharging the claimant from treatment and believed the claimant should be sent to an out of state facility in Cambridge, Mass. In their brief, the appellants state “It is well-settled that it is error for the Trial Commissioner to base his or her decision on anything but the most recent medical opinion from the physician upon which they rely. Holmes v. G.A. Masonry, Corp., 12 Conn. Workers’ Comp. Rev. Op. 369, 1588 CRB-5-92-12 (August 11, 1994). See also Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733 (2001).” Appellants’ Brief p. 6.

We do not read Holmes and Bryan as compelling a trial commissioner to rely on the most recent medical opinion of a witness. We think Bryan, supra, stands for the proposition that a commissioner who admits new evidence into the record must permit the opposing party an opportunity to rebut the new evidence. Otherwise the opposing party’s due process rights are offended. Similarly, we think Holmes is limited to its facts. In Holmes, a medical expert altered his opinion on the question of apportionment of liability within minutes of testifying as to a different opinion. Thus, this tribunal held the conclusion predicated on the first opinion “lacked substantial roots in the evidence.” As we noted above, the trial commissioner’s determination in the instant matter is predicated upon the weight and credibility he ascribed to the evidence and has substantial roots in the evidence. Therefore, Holmes, supra, is not on point with the factual scenario under review.

In fact if we were to carry the appellants’ argument to its logical conclusion then we might infer that had the trial commissioner ordered the claimant to an out of state facility, the respondents would not object. We think the trier’s findings and conclusion stand more for the proposition that the claimant’s medical care is reasonably served by treatment with Drs. Saberski and Holzman. See Cummings v. Twin Tool Mfg., 29 Conn. App. 249 (1992); Kraemer v. Northeast Utilities, 4562 CRB-7-02-8 (July 29, 2003).

We therefore conclude that (1) the appellants objection to the trial commissioner’s September 10, 2002 Finding and Award of the Commissioner acting for the Third District on the basis of its untimeliness pursuant to § 31-300 was not raised seasonably, and (2) the trial commissioner’s findings and conclusion are without legal error. The September 10, 2002 Finding and Award of the Commissioner acting for the Third District is affirmed.

Commissioners James J. Metro and Howard H. Belkin concur.

1 The October 31, 2003 rehearing was at the request of the panel in order to clarify when the appellants first noted the untimeliness of the trial commissioner’s September 10, 2002 Finding and Award and raised their objection. We also note that extensions of time were requested by the appellants and granted in the course of the prosecution of this appeal. span class="back">BACK TO TEXT

2 We note that the trial commissioner’s Finding and Award was issued prior to the Appellate Court’s ruling in Schreck v. Stamford, 72 Conn. App. 497 (2002). The Appellate Court’s opinion in Schreck was officially released September 24, 2002 and the trier’s Finding and Award was issued September 10, 2002. span class="back">BACK TO TEXT

3 Sec. 31-300 provides in pertinent part, “As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award.” BACK TO TEXT

4 We note Appellants have filed a Motion To Submit Additional Evidence in which they seek to proffer the Claimant’s Proposed Findings of Fact. However, Practice Book Section 61-10 and 68-3 permit us to refer to this and other pertinent documents that were part of the record in the proceedings before the trial commissioner. span class="back">BACK TO TEXT

5 We do not encourage the wholesale verbatim adoption of a party’s proposed factual findings. Rather, we adopt the reasoning of our Appellate Court which has noted that the practice does not inspire confidence in the judicial system. In Doe v. Bridgeport Hospital, 40 Conn. App. 429, 432-433 (1996) the Appellate Court referenced its earlier holding in Grayson v. Grayson, 4 Conn. App. 275 (1985), appeal dismissed, 202 Conn. 221 (1987)(certification improvidently granted) and noted:

We have in the past emphasized the inadequacy of a trial court’s adoption of a party’s factual or legal conclusions as the basis for the court’s decision. In Grayson v. Grayson, 4 Conn. App. 275, 494 A.2d 576 (1985), appeal dismissed, 202 Conn. 221, 520 A.2d 225 (1987) (certification improvidently granted), the trial court filed a memorandum of decision that adopted, essentially verbatim, the plaintiff’s requested findings of fact. Although we affirmed the trial court’s decision because those findings were supported by the evidence, we emphasized that “the practice of adopting parties’ proposed findings of fact invites error or sloppy analysis on the judge’s part. More importantly, the appearance of justice is just as important as the reality, and a verbatim adoption of the facts proffered by one of the advocates invites a public suspicion of the trial court’s decision. The perceptions by the public and by the losing litigant of our system of justice are surely not enhanced by such a practice.” Id., 284. span class="back">BACK TO TEXT

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