CASE NO. 4594 CRB-2-02-12
CLAIM NO. 200111516, 100138470, 100139493, and 200138757 1
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 9, 2004
KIMBERLY PAIGE f/k/a SMITH
THE HARTFORD INSURANCE GROUP
MASHANTUCKET PEQUOT GAMING
THE TRAVELERS INSURANCE CO.
LAW OFFICES OF WARREN MILLER
NATIONAL GRANGE MUTUAL INSURANCE CO.
KEMPER INSURANCE GROUP
The claimant, Kimberly Paige, appeared pro se.
The respondent, The Hartford Insurance Group, was represented by David Kelly, Esq., Montstream & May, 655 Winding Brook Drive, Glastonbury, CT 06033.
The respondents, Mashantucket Pequot Gaming and Travelers Insurance, were represented by Donald F. Babiyan, Esq., Sizemore Law offices, Crossroads Corporate Park, 6 Devine Street, 1st Floor, North Haven, CT 06473.
The respondent, Kemper Insurance, was represented by Robert Bystrowski, Esq., Morrison, Mahoney & Miller, One Constitution Plaza, 10th Floor, Hartford, CT 06103.
The respondents, Law Offices of Warren Miller and National Grange Insurance Company, were represented by Melanie A. Dillon, Esq., Howd & Ludorf, 65 Wethersfield Avenue, Hartford, CT 06114.
This Petition for Review from the November 19, 2002 Finding and Award in Part/Finding and Dismissal in Part of the Commissioner acting for the Second District was heard June 20, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant, Kimberly Paige f/k/a Kimberly Paige Smith, appeals from the November 19, 2002 Finding and Award in Part/Finding and Dismissal in Part of the Commissioner acting for the Second District.2 We affirm the decision of the trial commissioner.
The pertinent facts are as follows. The claimant testified she worked for several employers from July of 1993 to August of 2001. Between July 1993 through July 1997 the claimant worked for the Mashantucket Pequot Gaming (herein after “Foxwoods”). Initially she worked as a waitress and a hostess and later did some computer work. Between September 1997 and March 2000, the claimant worked for the Law Offices of Attorney Warren Miller as a legal assistant. Following her employment with Attorney Miller, the claimant worked at Kemper Insurance as a claims adjuster until February 2001, and then at The Hartford Insurance Company (hereinafter “The Hartford”) until August 2001. While working at Foxwoods, the claimant alleges she sustained a repetitive trauma injury to her bilateral arms, bilateral elbows, bilateral wrists, bilateral hands, her neck, back and bilateral shoulders on January 5, 1997. Ms. Paige said Dr. Linburg diagnosed her with tenosynovitis bilaterally. She testified she experienced symptoms of tenosynovitis while working at the Law Offices of Warren Miller, at Kemper Insurance, and at The Hartford. She also claimed she sustained a neck and back injury at The Hartford on August 8, 2001, while she was lifting a filing cabinet underneath which a coworker had been pinned. April 8, 2002 Transcript, pp. 37-39. Additionally, Ms. Paige testified about her guitar playing. The claimant said she saw many doctors in regards to her claims, including but not limited to Dr. Linburg, Dr. Becker, Dr. Gusberg and Dr. Lowe.
Procedurally, the issues before the trial commissioner were as follows: “Compensability of a claimed August 8, 2001 incident; compensability of a January 5, 1997 incident; compensability of a repetitive trauma pursuant to a August 29, 2001 claimed incident; compensability of any and all repetitive trauma claims filed by the claimant; compensability of thoracic outlet syndrome and/or pain syndrome; medical treatment in regards to all the above stated claims; any and all 31-312 claims in regards to the above stated claims; temporary partial claims in regards to the above captioned claims; 31-308(a) claims in regards to the above captioned claims; any and all Form 36’s and/or Form 43’s filed in the above captioned claims; any permanent partial disability in regards to the above captioned claims; and 31-299b apportionment to the above stated claims.” Findings, ¶ 3.
The claimant/appellant presents eleven reasons for appeal and thirteen claimed errors in her appellate brief.3 These can be categorized into three types of possible errors. Firstly, the claimant alleges the commissioner made several errors in his factual findings. Additionally, she contends the commissioner committed errors of law. Furthermore, she argues the commissioner made errors in determining admissibility of evidence and witness testimony.
A party may appeal the decision of a trial commissioner to the Compensation Review Board pursuant to § 31-301(a) C.G.S. Our role on review is not to retry the case, but to determine whether the trier has made legal errors. Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (March 7, 2003). We will affirm the commissioner’s decision if there is any evidence in the record to support his findings and will not disturb the findings unless material, undisputed facts have been left out. Id.; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002).
First we will the address the alleged errors of factual findings. We will not overturn the findings and conclusions of a trial commissioner unless they are without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). “The trial commissioner acts as the finder of fact and the arbiter of the credibility of all witnesses, both lay and expert, whether or not their testimony is expressly contradicted.” Greene v. UTC/Pratt & Whitney, 4312 CRB-8-00-11 (November 7, 2001). “The trial commissioner is the arbiter of the credibility battle among medical expert witnesses.” Doyle v. New Haven, 3038 CRB-3-95-4 (January 3, 1997). The commissioner is free to believe all, some or none of the presented evidence. Busak v. Stamford, 12 Conn. Workers’ Comp. Rev. Op. 291, 1562 CRB-7-92-11 (June 8, 1994), aff’d, 39 Conn. App. 919 (1995) (per curiam).
The claimant alleges the commissioner erred in finding she did not present any proper Forms 30C to the respondents in this matter. The claimant alleges she filed three Forms 30C. In her testimony, the claimant admitted she never filed a Form 30C for her back injuries at Foxwoods because she believed these to be degenerative. July 16, 2002 Transcript, p. 41. The commissioner in fact found: “The claimant presented no documentation a 30C was properly presented to any of the Respondents in this matter.” Findings, ¶ 13. He found she did not present evidence the Forms 30C were properly presented to the respondents, not that no Forms 30C existed. The claimant alleges the commissioner should have taken administrative notice of the three Forms 30C that were filed. However, he could not administratively notice the fact respondents received such forms; such a matter would require evidentiary proof. Furthermore, in this case the claimant makes no assertion any harm came to her from this alleged error, such as a finding that any of her claims were untimely. Therefore, this finding will not be overturned.
The claimant alleges the commissioner erred in finding there were no physicians’ opinions and/or reports that stated she was in need of additional treatment and/or diagnosis. The commissioner in fact found: “I do not find any doctors’ positions, and/or reports that the claimant may be in need of any additional treatment, in regards to her neck and back, to be credible or persuasive in this particular matter.” Findings, ¶ J. He did not find the opinions or reports did not exist; rather, he found the reports or opinions were not credible or persuasive. Therefore, this finding will not be disturbed.
The claimant argues the commissioner made several additional errors in his factual findings. She alleges he erred in finding she did not sustain a compensable injury while working for Foxwoods. The claimant contends the commissioner erred in finding the repetitive trauma claim of August 29, 2001 was not compensable. She also argues the commissioner erred in finding her work searches did not substantiate her claim for temporary partial disability benefits. She further alleges the trial commissioner’s interpretation of the medical records is plainly incorrect. Additionally, the claimant alleges the commissioner erred in finding her limited prior history of guitar playing was the sole cause of her medical condition. The trier’s findings in this matter are a result of the credibility and weight he assigned to the evidence of the case. Our review of the findings shows they were supported by the evidence in the record and were not contrary to law or based on any unreasonable inferences. Therefore, these factual findings will not be disturbed.
Next, we will address the claimant’s alleged errors of law. In her Reasons for Appeal the claimant makes an improper venue argument. She claims the evidence The Hartford presented to prove she was guilty of threatening Karen Landsberg was evidence of a violation of a criminal law that should appropriately have been brought in a criminal court. However, in this context the allegation of threatening could be used to bolster The Hartford’s position the claimant was released for cause. There is no evidence The Hartford was attempting to try a criminal case in the workers’ compensation forum. Furthermore, the trier ultimately did not find Ms. Landsberg’s testimony to be credible. Findings, ¶ M. For these reasons, there is no error.
The claimant alleges the commissioner erred in finding the respondent Foxwoods was not precluded from contesting liability. The claimant alleges Foxwoods did not contest liability within the one year that § 31-294c requires, therefore they are precluded from later contesting liability. If the claimant wished to challenge respondents’ right to contest liability she should have filed a Motion to Preclude under C.G.S. 31-294c (b). As she did not raise this issue at the formal hearing, it will not be addressed now. Walter v. State, 63 Conn. App. 1, 16 (2001). However, we believe the claimant misunderstands the trier’s ruling.
The commissioner found Foxwoods provided the claimant with treatment and/or benefits without prejudice, and therefore was not precluded from contesting the claim. Findings, ¶ G. Even if we assume Foxwoods did not file a timely Form 43, they are not precluded from contesting their liability in terms of the extent of the claimant’s disability as it may be related to causes other than the claimed 1997 injury.4 Failure to file a timely Form 43 precludes an employer from contesting compensability of the incident, but not from contesting the extent of the disability. Jones v. New Haven Child Development, 4316 CRB-3-00-11 (October 29, 2001). An “employer who is precluded from contesting an injury’s compensability” may “contest the extent of a claimant’s disability, insofar as that disability may be attributable to causes other than the accepted injury.” Tucker v. Connecticut Winpump, 4492 CRB-5-02-2 (February 21, 2003). We read Finding ¶ G to mean Foxwoods is not precluded from contesting the extent of the claimant’s disability claim. This finding will not be disturbed.
The claimant alleges the trial commissioner erred in finding the claimant did not present/substantiate a prima facie case and/or apportionment claim. The claimant’s brief does not point us to a paragraph on which she bases this error. Therefore, we will address the general premise with which she is troubled. The establishment of a prima facie case does not mandate a finding in a claimant’s favor. Green v. State/University of Connecticut, 15 Conn. Workers’ Comp. Rev. Op. 412, 2283 CRB-2-95-1 (August 28, 1996). In order to receive compensation benefits, a claimant’s burden of proof is not to merely establish she has met the prima facie elements of a claim, but to present evidence a commissioner will find credible enough to support a finding in her favor. Fair, supra, 539, Green, supra. As in a typical workers’ compensation case, the trial commissioner here reviewed the evidence presented by the claimant in order to determine whether or not it legally supported her claim. Thus, there is no error.
The claimant additionally contends the commissioner erred in the admission of certain evidence and witness testimony. Strict adherence to the rules of evidence or procedure is not mandatory in workers’ compensation proceedings. LaPia v. Stratford, 47 Conn. App. 391, 400 (1997); Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 740 (2001). However, a case should proceed in a manner consistent with upholding the parties’ basic due process rights. Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 542 (1987). The workers’ compensation commissioner has broad discretion to determine admissibility of evidence and his judgment will not be set aside without evidence of abuse of his discretion. Cruz v. State/Dept. of Correction, 4168 CRB-1-00-1 (February 9, 2001); Nelson v. Deb’s Inc., 15 Conn. Workers’ Comp. Rev. Op. 274, 2228 CRB-3-94-12 (June 20, 1996), aff’d, 45 Conn. App. 909 (1997) (per curiam), appeal dismissed, 244 Conn. 349 (1998). Unlike the case of a jury trial, the workers’ compensation commissioner acts as the fact-finder and has the legal background to filter out any irrelevant evidence when making his decision. Gibbs v. New England Home Care, 3291 CRB-3-96-2 (February 2, 1998); Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995).
The claimant alleges the commissioner erred in the admission of hearsay evidence. The claimant objected to the admission of respondents’ Exhibit 18 into the record (a packet of reply documents to her C.H.R.O. complaint). May 15, 2002 Transcript, p. 78. The commissioner specifically acknowledged the documents the claimant objected to contained some hearsay evidence; however, he let them into the record regardless of such. May 15, 2002 Transcript, p. 79. The claimant objected to the admission of the evidence in the following manner: “It just seems like he’s trying to try the CHRO claim in a venue other than - -.” She further stated; “If I can enter my response, then I have no problem with that [the admission of Exhibit 18 into the record] because I wish to enter my refutation of those allegations.” She also stated, “it’s bogus but, yes, I object.” May 15, 2002 Transcript, p. 79. The trial commissioner himself raised the issue that the exhibit might contain hearsay evidence. At a later hearing the claimant was able to submit her written response to the CHRO material that Exhibit 18 contained, over the objection of respondents’ counsel. July 16, 2002 Transcript, p. 72.
“Procedural due process is a requirement of adjudicative administrative hearings, including those held before workmen’s compensation commissioners, and the admission of hearsay material such as letters without an opportunity to cross-examine is ordinarily a deprivation of procedural due process.” Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). If a commissioner’s award is unsupported by substantial evidence apart from the hearsay evidence, and a party objects to its hearsay character and the inability to cross-examine the author, the admission of the evidence is likely reversible error. Id., Peters, supra. However, in this case the claimant never raised an objection regarding the hearsay nature of the evidence. In fact, she actually stated she would not object to its admission if her similar evidence was admitted, which it eventually was. Furthermore, the claimant never argued that she was not afforded the opportunity to cross-examine the authors of the submitted evidence. Additionally, the commissioner’s findings do not mention the evidence, and are supported by substantial evidence apart from it. We thus find the admission of this evidence is at worst, a harmless error.
The claimant contends the trial commissioner erred in allowing an undisclosed witness to testify at the formal hearing. The claimant alleges Karen Landsberg was not disclosed as a witness at the Pre-Formal Hearing nor was she listed on the Pre-Formal Hearing Memo. It was noted on the record that Ms. Landsberg was a witness who attended the May 15, 2002 hearing, Transcript p. 4, but did not testify until the July 16, 2002 hearing. At the July hearing the claimant objected to Ms. Landsberg’s testimony because she was an undisclosed witness. The only reason the claimant gave for objecting to the testimony was that she believed Ms. Landsberg was going to “reiterate the lies in the reply” [presumably the C.H.R.O. reply document]. July 16, 2002 Transcript, p. 145. Ms. Landsberg primarily testified about the events that led up to the claimant’s dismissal from The Hartford.
We have upheld a commissioner’s admission of an undisclosed witness’ testimony when the respondents, who objected to the witness, never requested the proceeding be continued to afford them the opportunity to depose the witness or obtain further records regarding the testimony. Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001). In this case the claimant never alleged she was unprepared to cross-examine the witness. In fact, since the witness was testifying to events the claimant was present at, the claimant was inherently familiar with those events. Furthermore, the claimant had actual notice the witness was going to testify as she was present and noted as The Hartford’s witness at a hearing several months prior. The trial commissioner ultimately found Ms. Landsberg’s testimony not to be credible or persuasive as to the claimant’s release or discharge from The Hartford. Findings, ¶ M. Therefore, the admission of her testimony did not harm the claimant and we do not find the trial commissioner’s admission of her testimony to be an error.
The last alleged error we will address is the claimant’s contention the trial commissioner employed a “double standard in re admissibility of medical testimony/evidence.” Claimant’s Appellant Brief, p. 22. The claimant alleges her testimony regarding medical evidence was restricted. She contends respondents were allowed to read portions of the medical records, often taken out of context, into the formal record. However, she was not allowed to refer to other relevant portions of the medical records to “lend a contextual framework to better understand their overall medical condition.” Id. The claimant points to two specific incidents to illustrate this point. In the first instance, the trial commissioner told the claimant she was precluded from giving medical opinion testimony and the medicals [reports/opinions] spoke for themselves. April 8, 2002 Transcript, pp. 23-24. The claimant states she later objected to a respondent’s attorney reading part of a medical report into the record. May 15, 2002 Transcript, p. 51. In this instance, the commissioner overruled her objection and explained the reason respondents’ attorney was allowed to read the report was because he was using that report to inquire as to her recollection of that medical history. A commissioner has broad discretion to admit whatever evidence he deems relevant. LaPia, supra. In this instance the commissioner allowed this reading of medical evidence in order to refresh the claimant’s recollection of a report in evidence. We find no error.
Therefore, we affirm the Finding and Award in Part/Finding and Dismissal in Part of the Commissioner acting for the Second District.
Commissioners James J. Metro and Howard H. Belkin concur.
1 The commissioner’s findings in this case do not reflect claim number 200138757. However, a review of the commission’s files reveals that this claim is against Mashantucket Pequot Gaming and has a date of injury of January 9, 1997, a date of injury that was covered in the testimony. July 16, 2002 Transcript, p. 39. The content of the file is merely one Form 43 dated March 12, 2002, so this claim number is part of the above claims. BACK TO TEXT
2 The claimant filed two motions to extend time in this appeal. She filed a Motion for Extension for Time to File Reasons for Appeal that was received on 12/3/02, and a Motion for Extension of Time to file her Brief that was received on April, 21 2003. Both motions for extension of time were granted. BACK TO TEXT
3 In claimant’s Reasons for Appeal she lists eleven reasons for appeal. In her appellate brief she alleges thirteen errors in the findings. In deference to claimant’s pro se status, all of her reasons for appeal and alleged errors will be addressed in this decision, despite the fact that they did not all appear in both documents. This board has previously given leeway to pro se parties regarding procedural technicalities in order for the initial stages of an appeal to go forward. McCarthy v. AT&T Communications, Inc., 3689 CRB-6-97-9 (August 7, 1998). BACK TO TEXT
4 The commissioner did not make a specific finding that Foxwoods did not file a timely Form 43. However, no Form 43 in reply to the claimant’s Form 30C dated January 23, 1997 (for the claimant’s wrist and related injuries) appears in the record or our files. BACK TO TEXT