CASE NO. 4870 CRB-1-04-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 29, 2005
CITY OF HARTFORD
TRAVELERS PROPERTY & CASUALTY
The claimant was represented by Mark E. Blakeman, Esq., Michelson, Kane, Royster & Barger, P.C., 93 Oak Street, Hartford, CT 06106.
The respondents were represented by Michael J. McAuliffe, Esq. and Lucas D. Strunk, Esq. , Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the September 24, 2004 Finding and Award/Finding and Dismissal of the Commissioner acting for the First District was heard May 13, 2005 before a Compensation Review Board panel consisting of Commissioners Stephen B. Delaney, Michelle D. Truglia and Donald H. Doyle.
STEPHEN B. DELANEY, COMMISSIONER. The claimant, Lydia Mele, has appealed from the September 24, 2004 Finding and Award/Finding and Dismissal of the Commissioner acting for the First District. We remand the case to the trial commissioner for further proceedings consistent with this opinion.
The following pertinent facts were found by the trial commissioner. On December 11, 2001 the claimant, an employee of the City of Hartford, was injured when she was struck on the right hip while two students were playing handball. The claimant also suffered a prior compensable incident on or about October 26, 1996 which arose out of and in the course of her employment. The claimant claims that her current right hip condition and need for right hip surgery are causally related to a work injury.
The respondents contested the compensability of the right hip injury and the compensability of the claimant’s proposed hip surgery. There was no testimony at the formal hearings below. The trial commissioner made it clear that the medical evidence in the case would be the primary tool he used to make his determinations. For this reason, the record is primarily comprised of evidence submitted by the parties. The trial commissioner reviewed and evaluated all the exhibits and concluded that the claimant suffered compensable injuries on or around October 26, 1996 and December 11, 2001, however, he found no causal connection between those injuries and the claimant’s hip condition and need for hip surgery. Therefore, the trial commissioner dismissed all of the claimant’s claims for her right hip injury and surgery.
The claimant has appealed these findings.1 The issues presented for review are (1) whether the trial commissioner erred in his determination that claimant’s claims for her right hip injury and need for surgery were not related to her work injuries of December 11, 2001 and October 26, 1996. (2) whether the trial commissioner erred in failing to grant the claimant’s Motion To Correct.
The first issue presented for review requires us to consider whether the trier erred in making any determination as to the October 26, 1996 injury and its causal relationship to the claimant’s claim for benefits. The claimant argues that the hearing notice issued below listed the date of injury as December 11, 2001. She contends the listing of December 11, 2001 as the date of injury forestalled her presentation of evidence as to the causal nexus between her claim and the October 26, 1996 injury and thereby infringed on her due process rights to adequate notice.
As we have previously held, notice of the issues under consideration in a hearing is not strictly determined by the issues stated on a hearing notice.
“Notice is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.” Hartford Electric Light Co. v. Water Resources Comm., 162 Conn. 89, 110 (1971) (citations omitted). However, as this commission is not bound by strict pleading rules, we recognize that a party may be apprised of a pending issue by other means than this agency’s hearing notices, such as statements made at trial, the evidence in the record, or papers that have been filed. Siebold v. Helicopter Support, Inc., 4392 CRB-3-01-5 (September 6, 2002). (citations omitted)
However, the instant appeal arises from somewhat unusual procedural circumstances. Generally, the prosecution of a claim includes some element of live testimony before the trial commissioner. During the course of such testimony the parties and the commissioner may have an opportunity to reveal or clarify the issues under consideration. At the May 3, 2004 formal hearing the trial commissioner stated, “Attorney Blakeman and Pomeranz, you both have heard my position, that this is a medical issue, that the doctors’ reports will be the swaying of position – or the swaying issue that leads me to my final decision. If you wish to have some brief testimony, I will allow you so, but, clearly, it’s a medical issue, counsel.” May 3, 2004 Transcript, pp. 8, 9.
Thereafter, the claimant decided not to testify and the respondent waived cross-examination. Id., p. 10. Thus, it is not clear to this panel at what juncture in the proceedings below the claimant should have been apprised that the causal relationship of a prior injury, i.e, the October 26, 1996 injury, would be an issue determined by the trier.
Public policy and our own prior rulings discourage the litigation of claims in a piecemeal fashion See e.g., Kearns v. Torrington, 119 Conn. 522 (1935); See also, Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (March 7, 2003); Donlin v. Cytec Industries, Inc., 4415 CRB-7-00-7 (June 5, 2002), aff’d, 77 Conn. App. 903 (2003)(per curiam). However, “[w]hen in doubt, we think it best to rule in a manner that will ensure that due process has been provided to all parties.” Siebold, supra.
We believe a remand to the trial commissioner is appropriate so as to give the claimant an opportunity to be heard on the causal relationship of her claim and the October 26, 1996 injury.
The second issue presented for review is whether the trial commissioner erred in his conclusion there was no causal connection between the claimant’s December 11, 2001 injury, her hip condition and need for hip surgery. As the trier’s conclusion on this issue represents a question of both law and fact, we must determine the legal appropriateness of the trier’s ruling on the claimant’s Motion to Correct.
A request for a correction of findings should be granted where there was an omission of a material fact which is admitted or undisputed. Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 164 CRD-6-82 (August 16, 1985) citing True v. Longchamps, Inc., 171 Conn. 476, 478 (1976). Materiality is determined by analyzing whether the fact sought to be included was “essential to the case in hand.” Id., citing § 31-301-3 Administrative Regulations.
Here, the trial commissioner granted a part of the claimant’s Motion to Correct. It appears the remainder of corrections sought was either an expanded description of the exhibits submitted, or corrections suggesting a different credibility assessment than that assigned by the trial commissioner.2 Thus, the trier’s denial of the remainder of the claimant’s Motion to Correct does not constitute error.
The claimant suggests particular aggrievement as the trial commissioner did not adopt the findings suggested by the reports of the Commissioner’s Examiner, Dr. Myron Shafer. See Claimant’s Exhibit AA, reports dated February 24, 2003 and an addendum dated May 1, 2003. In the May 1, 2003 addendum Dr. Shafer stated, “the right hip and left shoulder symptoms are work related.” Dr. Shafer’s reports were prepared in response to a Commissioner ordered examination pursuant to § 31-294f C.G.S. We have previously explained that the usual purpose of a § 31-294f examination is to provide strong guidance to a commissioner. Gagliardi v. Eagle Group, Inc., 4496 CRB-2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam). This board favors an articulation when a trial commissioner does not follow that opinion. Id. However, the trier is not compelled to accept that opinion if there is good reason to disregard it. Carter v. Aramark Corp., 4785 CRB-2-04-2 (April 28, 2005); Gagliardi, supra, citing Gillis v. White Oak Corporation, 49 Conn. App. 630, 636-38 (1998). Further, the trier is not required to give an explanation when that opinion is not adopted as the Appellate court stated in Gillis, supra:
“The conclusions drawn by the commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Id., 319. We are also persuaded by the board’s previous determination that although ‘a commissioner should articulate the reasons behind his decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always with the commissioner . . . .’ Nieves v. SCM Co., 3317 CRB-6-96-4 (July 9, 1997).”
The weight and credibility assigned to the evidence is a matter within the province of the trial commissioner. With that authority is the trier’s right to accept or reject all or a portion of an expert opinion. Gagliardi, supra. It appears that in the instant matter the trial commissioner exercised his discretionary power and rejected Dr. Shaffer’s opinion as to causality. We cannot say that the trier abused his discretion in reaching this conclusion.
We therefore affirm in part and remand in part for further proceedings consistent with this opinion.
Commissioners Michelle D. Truglia and Donald H. Doyle, Jr. concur.
1 Additionally, the claimant has filed a Motion to Submit Additional Evidence to this board pursuant to Administrative Regulation § 31-301-9. There is no need to rule on this Motion because we are remanding the case back to the trial commissioner. The commissioner may determine whether to allow the parties to submit additional evidence as necessary for the adjudication of the matter on remand. BACK TO TEXT
2 Some errors identified by the appellant include Paragraph 37, which appears to contain an error regarding the physician’s name and dates of reports. See, Claimant’s Exhibit BB. We further note that Finding, ¶ A appears to incorrectly list a date of injury of December 21, 2001, instead of the actual date of injury of December 11, 2001. See, Findings, ¶ 10. We believe that these are nothing more than scrivener’s errors. BACK TO TEXT