State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Strona v. Textron Lycoming Division

CASE NO. 4700 CRB-3-03-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 6, 2004

ROBERT STRONA

CLAIMANT-APPELLEE

v.

TEXTRON LYCOMING DIVISION

EMPLOYER

and

CAMBRIDGE INTEGRATED SERVICES GROUP, INC.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Francis P. Cipriano, Esq., 1220 Whitney Avenue, P.O. Box 6503, Hamden, CT 06517.

The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the July 10, 2003 Finding and Award of the Commissioner acting for the Third District was heard February 27, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents appeal from the July 10, 2003 Finding and Award of the Commissioner acting for the Third District. In that Finding and Award, the commissioner concluded the claimant’s bilateral carpal tunnel syndrome and the exacerbation of the claimant’s heart condition were part of the medical sequelae flowing from the claimant’s compensable injuries.

The respondents took this appeal and present the following issues: (1) whether the respondents should be permitted a trial de novo or the opportunity to proffer additional evidence which would reflect ex parte communications between claimant’s counsel and the commissioner and claimant’s counsel and a member of the commission staff which served to prejudice the respondents’ right to a fair and impartial administrative hearing; (2) whether the trial commissioner’s Finding and Award should be reversed or remanded for a trial de novo as the Finding and Award does not conform to the requirements of § 31-301-3 and is merely a verbatim recitation of the proposed findings suggested by the claimant’s counsel, (3) whether the trial commissioner erred in failing to grant the Motion To Correct, (4) whether the trial commissioner erred in concluding that claimant’s bilateral carpal tunnel problems were part of the medical sequelae resulting from claimant’s compensable injury, (5) whether the trial commissioner erred in concluding that claimant’s current heart problems were related to the medical sequelae resulting from claimant’s compensable injury.

The pertinent facts are as follows. On April 29, 1990 the claimant sustained compensable injuries to his neck and back. As regards his neck the claimant suffered herniations at the C3-4, C4-5, and C5-6 levels and a lower back disc herniation at the L4-5 levels. These injuries resulted in the claimant suffering a compensable psychiatric condition. On February 20, 1994 the claimant also suffered a compensable meniscal tear in his right knee.

While the respondents have raised a number of issues we first consider the more general issue of whether the trial commissioner’s Finding and Award is legally supported by the evidence in the record. Specifically, the respondents contend, inter alia, paragraphs 61-65 of the Finding and Award are without evidentiary support, and these findings are material to the trier’s conclusion that the exacerbation of the claimant’s heart condition is a part of the medical sequelae resulting from his compensable neck and back injuries. We agree that the commissioner’s factual findings are, at least in part, inconsistent with the evidentiary record.

In the respondents’ motion to correct they specifically challenge the trial commissioner’s finding in ¶ 62 that “Dr. Fazzone testified that the last triglyceride test done on the claimant was in April of 1997 and that it was lower than the testing in 2000.” Respondents point out that the evidence in fact supports the opposite conclusion. In 2000 the claimant’s triglyceride level was 328 while in 1997 it was 341.

It seems the causation theory claimant advances is that his compensable neck and back injuries resulted in depression and psychological problems. As a result of his psychological problems he was prescribed an anti-depressant. Ultimately, the claimant started taking Remeron, which the claimant claims elevated his triglyceride levels. Furthermore, the claimant’s stress resulting from his compensable neck and back injuries, proximately contributed to his ischemic heart disease.

As with all claims litigated in this forum, the validity of the claim is dependent upon the claimant’s ability to prove the facts supporting his claim. Here there is no evidence in the record supporting the claim that his triglyceride levels were higher in 2000 than in 1997. Thus, the trier’s conclusion on the issue of the exacerbation of claimant’s heart disease due to his compensable back and neck injuries cannot stand, given that a material fact upon which the conclusion was based was not proved. See Claimant’s Exhibit M and Exhibit N.

We therefore order a trial de novo. Where the facts found by the trier are not supported by the evidence the conclusion derived cannot stand. Furthermore, as our Supreme Court stated in Cormican v. McMahon, 102 Conn. 234, 238, (1925),

“Cases under the Workmen’s Compensation Act are upon a different basis from actions between ordinary litigants. No case under this act should be finally determined when the trial court, or this court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment.”

Finally, we note that the conclusion we reach today in which we order a trial de novo obviates our need to review the other issues presented by the appellants. Although we need not reach the issue relating to ex parte communications, we do feel that some comment is necessary. The Code of Ethics for Workers’ Compensation Commissioners provides, “A Workers’ Compensation Commissioner should not permit improper ex parte communications. However, ex parte communications may be appropriate in relation to purely procedural matters or in relation to settlement negotiations. . . .” The allegations of communications between claimant’s counsel and the Commissioner and Commission staff all appear to relate to purely procedural matters. While ex parte communications are not to be encouraged the alleged communications and the context in which they occurred strikes us as procedural in nature.

We therefore remand this matter for a trial de novo.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

Workers’ Compensation Commission

Page last revised: August 12, 2004

Page URL: http://wcc.state.ct.us/crb/2004/4700crb.htm

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