CASE NO. 4748 CRB-6-03-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 18, 2004
STATE OF CONNECTICUT/DEPT. OF MENTAL RETARDATION
The claimant was represented by Paul Ranando, Esq., Dodd, Lessack, Ranando & Dalton, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.
The respondent Berkley Administrators was represented by Diane Duhamel, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
The employer, State of Connecticut, was represented by Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the October 22, 2003 Finding and Dismissal of the Commissioner acting for the Sixth District was heard June 18, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro, Commissioners A. Thomas White, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the October 22, 2003 Finding and Dismissal of the Commissioner acting for the Sixth District. In that Finding and Dismissal the trial commissioner concluded the claimant was not entitled to additional § 31-308a benefits for the period beginning April 2003.
The pertinent facts in this matter are as follows. The claimant was employed by the State of Connecticut, Department of Mental Retardation. During the course of her employment the claimant sustained a number of injuries, however, the two instances giving rise to the instant claim were injuries primarily to the left knee occurring November 27, 1987 and left hand occurring December 15, 1991. Liability for the November 27, 1987 injury to the left knee lies with the State of Connecticut, while liability for the December 15, 1991 injury is the financial responsibility of Berkley Administrators.
As a result of the November 27, 1987 injury the claimant injured her left upper extremity as well as her left knee. At the time of the August 12, 2003 formal hearing, the claimant was 66 years old and her medical history reflected the claimant underwent ulnar nerve surgery on her left arm on March 5, 1988. On April 20, 1989 the claimant fractured “the distal radius and ulnar secondary to work related injury with the State of Connecticut and went on to develop a malunion of the left wrist.” Findings ¶ 4.
On December 15, 1991 the claimant was again injured at work and sustained further injury to her left arm and wrist. In March 1992 Dr. Donald Kelly an orthopedic surgeon performed a “distal radial osteotomy and bone graft.” Findings ¶ 5. This surgery was followed by a “matched ulnar resection of the left distal ulnar and left carpal tunnel release.” Findings ¶ 6. These surgeries were performed by Dr. Kelly in May 1993 and December 1994 respectively. On December 11, 1996, Dr. Kelly rated the claimant as having a 33% permanent partial disability to her left wrist. The trier found that this permanency to her left wrist was paid by the respondent. Findings ¶ 7. The claimant did not treat with Dr. Kelly after December 1996, nor did the claimant receive any medical treatment related to her left wrist since reaching maximum medical improvement on December 11, 1996.
After reaching maximum medical improvement in December 1996, the claimant returned to work in her usual employment position with the State of Connecticut and continued to work for approximately one year. The claimant left her position with the State for reasons that were unstated. After six months, she attempted to return to her previous duty assignment and found that her prior position was no longer available. The claimant was assigned to another location and ultimately she left her employment with the State.
Following the November 1987 injury to her left knee the claimant treated with Dr. Balazs B. Somogyi. On October 30, 1998 a commissioner’s examination was conducted by Dr. Michael Kaplan. Dr. Kaplan opined that the claimant suffered from progressive post-traumatic arthritis related to the November 1987 injury and required a total knee arthroplasty.
The trial commissioner found, inter alia, the claimant was paid permanency benefits for the loss of use of 21.75% of her left knee although the respondents did not issue a Voluntary Agreement reflecting these payments. Additionally, the respondents paid 26 weeks of § 31-308a benefits related to the left knee. The trial commissioner also found the claimant suffered a 33% permanent partial disability to her left wrist and was paid 116.4 weeks of § 31-308a benefits related to the left wrist injury.
The trial commissioner concluded that the claimant was not entitled to any further benefits pursuant to § 31-308a benefits. The commissioner noted that the claimant based her claim to § 31-308a benefits on her left wrist disability. He noted the claimant returned to work after her December 1996 evaluation by Dr. Kelly and had not undergone any additional treatment to her wrist since that time. The trier also referenced the fact that the claimant returned to work after having attained maximum medical improvement for her wrist injury and did not provide any testimony indicating that she left her job due to her wrist injury.
In reaching the conclusion that he did, it appears the trial commissioner’s reasoning was as follows: The claimant returned to work after she reached maximum medical improvement in December 1996, left her employment for reasons unrelated to her left wrist injury, and did not undergo any additional medical treatment for the left wrist nor did she sustain any additional disability to her wrist. Furthermore, she was previously awarded § 31-308a benefits. Whether an award of additional § 31-308a was warranted was a matter within the trier’s discretion. Here the commissioner chose not to award the additional benefits.
The claimant took this appeal and subsequently filed a Motion to Correct. The trial commissioner denied the appellant’s Motion to Correct. The claimant’s appeal ultimately presents the following issue for review; whether the trial commissioner erred in making certain factual findings which were without evidentiary support and thus the factual findings of the commissioner are not legally sufficient to support the dismissal of the claimant’s claim for § 31-308a benefits. The remedy claimant seeks is either a remand to the trial commissioner for an articulation of the basis for his decision or a new hearing. Appellant’s Brief, p. 7.
The appellant argues on appeal that there was either no evidence or legally insufficient evidence to support the following findings: p>
1. The claimant was voluntarily paid § 31-308a benefits at 116.4 weeks at the rate of $275.00 per week (paragraph 12 and A of Finding & Dismissal).
2. The claimant has received payment of permanent partial disability benefits of 21.75% of the left knee (paragraph 18 of the Finding & Dismissal).
3. The claimant considers her left wrist to be more problematic than her left knee injury (paragraph 20 of the Finding & Dismissal).
4. The claimant is not entitled to § 31-308a benefits because her basic claim is that she is entitled to them because of her left wrist disability and she has already received 116.4 weeks of benefits for said disability (paragraph A of the Finding & Dismissal).
5. There was no testimony at the formal hearing to indicate that she left the job as result of her left wrist injury (paragraph B of the Finding & Dismissal).
Appellant’s Brief, pp. 4-5.
The Appellant argues that it was error for the commissioner not to grant the Motion to Correct and as the Finding and Dismissal is not based on legally sufficient evidence the matter must be remanded for either an articulation or a new hearing.
We begin our review by determining whether the trier erred in not granting the appellant’s Motion to Correct. The findings of the trial commissioner will not be corrected unless the facts found are without evidence or omit material facts that are admitted or undisputed. Grady v. St. Mary’s Hospital, 179 Conn. 662 (1980). The first factual finding challenged by the appellant is the trier’s finding “the claimant was voluntarily paid § 31-308a benefits for 116.4 weeks at the rate of $275.00 (paragraph 12 and A of Finding & Dismissal).” The appellant contends that the evidence upon which the trier relied, Respondent’s Exhibit 4, was admitted into the record over his objection. Appellant’s brief provides a number of bases for his objection to the trier’s admission of the document. The appellant contends that the document was hearsay and was not admitted under the business record exception to the hearsay rule. Further, the appellant was not given an opportunity to cross-examine the evidence nor did the commissioner give appellant’s counsel an opportunity to “finish his objection.” Appellant’s Brief, p. 6. August 12, 2003 Transcript, pp. 73-75.1
While appellant’s counsel, Atty. Ranando, may have been “moved along” by the trial commissioner in terms of counsel’s phrasing of his objection to Respondent’s Exhibit 4, the objection was noted and over-ruled. The gravaman of appellant’s argument here is that the claimant’s due process rights were violated when the trial commissioner did not permit claimant’s counsel an opportunity to verify the record or conduct cross-examination. Sec. 31-298 provides, in pertinent part:
In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He 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.
In Paige v. Hartford Ins. Group, 4594 CRB-2-02-12 (January 9, 2004) this tribunal noted: p>
“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 v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995).
When we have reviewed similar situations we have held that it is up to the party objecting to the hearsay evidence to subpoena a witness for the purpose of cross-examination. In instances where the party fails to subpoena a witness they are deemed to have waived their right to cross-examination. At first blush it appears that claimant’s counsel was denied the opportunity to challenge the exhibit. However, the appellant’s claim must be read in the context of the entire proceeding before the trier. In the course of claimant’s counsel’s opening remarks this colloquy took place.
By Com. Frankl: Has any 31-308a been paid to date on either of these injuries?
By Atty. Ranando: Yes Commissioner.
By Com. Frankl: How many weeks have been paid?
By Atty. Ranando: Well that’s also a question, the last order was dated January 30, 2003 for 11.76 weeks from July 26, 2002. Before that payments were made sporadically.
By Com. Frankl: What is the total number of weeks that have been paid?
By Atty. Ranando: I think they have been paid mostly on the elbow claim and I think Attorney Duhamel has that indication.
By Atty. Duhamel: Commissioner according to our records we paid 116.4 weeks of 308a benefits.
By Com. Frankl: One hundred and sixteen point four weeks?
By Atty. Duhamel: Of 308a benefits.
By Com. Frankl: For the left arm?
By Atty. Duhamel: Actually I’d like to clarify that, the Voluntary Agreement was for the left hand and wrist. The claimant had surgeries on her left elbow however there’s a report from her treating physician which indicates those surgeries and that treatment are not related to her work injury in 1991. Dr. Kelly’s report is dated December 11, 1996 and he specifically states that the neurolosis and anterior tranquisition of the left ulnar nerve are not related to the fracture of the wrist or the left trigger thumb.
By Com. Frankl: So your 116.4 weeks is for the left hand and wrist?
By Atty. Duhamel: Correct and that’s the accepted body part. I don’t have us accepting the elbow.
By Atty. Ranando: Commissioner is there a VA in the file?
By Com. Frankl: I don’t know we’ll get to that when we present evidence okay?
By Atty. Ranando: Sure.
By Com. Frankl: Are you finished with your opening argument?
By Atty. Ranando: I am Commissioner.
August 12, 2003 Transcript, pp. 8-9.
The above colloquy indicates that the parties were aware that the issue of how many weeks of § 31-308a payments were made relating to the December 1991 left wrist injury would be at issue. Both parties were given an opportunity to gather evidence as to the § 31-308a benefits ordered and paid to the claimant for the December 1991 injury. The claimant herself testified on this issue and provided little or no useful information as to what payments were made although she acknowledged receiving some. August 12, 2003 Transcript, p. 52-53.2 Additionally, claimant’s counsel indicated he intended to rely on the representation of the respondent. We fail to see how the due process rights of the claimant were violated given the opportunity to present evidence afforded counsel for the claimant. What weight and credibility should be assigned to the payment records presented by counsel for the respondent Berkley is a matter that is within the purview of the trial commissioner. See Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670 (2003).
Additionally, the appellant argues that there was no evidence to support the trier’s finding the claimant received payment of permanent partial disability benefits of 21.75% of the left knee, and that she considered her left wrist to be more problematic than her left knee injury. See paragraphs 18 and 20 of the Finding and Dismissal. As to the appellant’s claim that there is no evidence to support the trier’s finding that the claimant was paid 21.75% for the permanent partial disability to her knee resulting from the 1987 injury, we note respondent’s counsel for the State concedes in her brief that there is an unpaid balance of 8.68 weeks due on the permanency for the knee. See Brief of the Appellee State of Connecticut, p. 3. However, as this correction even if granted would not compel a different outcome it is, at most, harmless error. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003).
The last factual finding for which the appellant contends there was either no evidence or legally insufficient evidence is the trier’s finding in paragraph 20 of the Finding and Dismissal stating that the claimant considered her left wrist more problematic than her knee. The evidentiary support for this finding is found in the claimant’s own testimony. August 12, 2003 Transcript, p. 56.
Finally, the appellant challenges the trial commissioner’s finding in paragraph B that there was no testimony at the formal hearing that she left the job as a result of her left wrist injury. Here we note that the Motion To Correct filed by the appellant does not provide a reference to where in the evidence the trial commissioner could have found such testimony. While the appellant’s brief before this body does include references to the record, the appellant did not provide the trial commissioner with this information in the Motion To Correct and thus, the trier’s denial was proper. See Administrative Regulation § 31-301-4. Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 164 CRD-6-82 (August 16, 1985).
We therefore affirm the October 22, 2003 Finding and Dismissal of the Commissioner acting for the Sixth District.
Commissioners A. Thomas White, Jr. and Amado J. Vargas concur.
1 In the proceedings before the trial commissioner the following colloquy took place:
By Atty. Duhamel: I would like to get a stipulation from Attorney Ranando regarding the payment history I provided him for the 1991 claim that we have paid 116 weeks.
By Com. Frankl: 116.4 weeks.
By Atty. Duhamel: Of 308a.
By Atty. Ranando: I can’t do that, I haven’t had a chance to study that, some of the payments are listed as 308a, some are listed as PPD.
By Com. Frankl: You want to put something in evidence?
By Atty. Duhamel: I would like to put in the payment history regarding the 1991 claim which would include all her temporary total and temporary partial.
By Com. Frankl: Am I going to be able to decipher that?
By Atty. Duhamel: It’s very clear.
By Com. Frankl: Have you seen it?
By Atty. Ranando: I saw it briefly.
By Atty. Duhamel: I gave you a copy.
By Atty. Ranando: You gave me a copy right before we started.
By Com. Frankl: And?
By Atty. Ranando: The problem I had with it is it lists some payments as TTD, some payments as permanency and some as 308a so I’m not sure.
By Com. Frankl: Isn’t that how it’s normally done?
By Atty. Ranando: Well she’s claiming TTD, whether it’s partial or 308a makes a difference, if it’s 308a with parenthesis.
By Com. Frankl: If it’s after a certain date I would presume it’s 31-308a not in parenthesis, would I be correct?
By Atty. Duhamel: Yes Commissioner and in fact Attorney Ranando has indicated that the claimant was paid at a rate of $275.00 per week and these two week pay periods after her permanent disability expired in May of 1998 represent $550.00 every two weeks.
By Com. Frankl: Does that help you?
By Atty. Ranando: No.
By Com. Frankl: It doesn’t help you?
By Atty. Ranando: No because it’s not a correct statement to say that payments after---
By Com. Frankl: Put it in, it will go to the weight, respondent’s 4 on the 1991 case as an accounting. You can have an objection and it’s overruled. Do you have anything else Attorney Duhamel?
By Atty. Duhamel: That’s it Commissioner I rest. span class="back">BACK TO TEXT
2 Atty. Duhamel: Once those [permanent disability benefits for the left wrist] ended you came in and asked for wage loss benefits because of your left wrist injury, correct?
Claimant: I would have to ask my attorney because he did that?
Atty. Duhamel: When was the last time you recall receiving benefits for your left wrist if you remember?
Claimant: I believe it was last year ’02, yeah beginning of this year for last years check.
Atty. Duhamel: Do you know who that check came from?
Claimant: To tell you the truth I don’t.
Atty. Duhamel: So you don’t know whether that was for your knee or your wrist?
Claimant: This is partial total disability, it didn’t say.
Atty. Duhamel: You got those benefits but you’re not sure what they’re for?
Claimant: I believe they would be from your company for my wrist but I’m not sure, I can’t be positive.
Atty. Duhamel: If I told you we last paid you in 2000 would you accept that regarding your left wrist?
Atty. Duhamel: What is your testimony then, I’m confused?
Claimant: I’m confused too because the last check, I don’t know it if was the last check or what, but the benefits I didn’t know who was handling them, I don’t know where they came from. I know they came for my injuries.
Atty. Duhamel: But you don’t know what they were for specifically?
Claimant: If I really looked at the check and check my paperwork I probably would know. span class="back">BACK TO TEXT