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DiLeone v. State of Connecticut Department of Mental Retardation Southbury Training School

CASE NO. 5147 CRB-5-06-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 5, 2007

ANN MARIE DiLEONE

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT DEPARTMENT OF MENTAL RETARDATION SOUTHBURY TRAINING SCHOOL

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS OF NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Ross T. Lessack, Esq., Dodd, Lessack, Dalton & Dodd, LLC, Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 2, 2006 Finding and Dismissal of the Commissioner acting for the Fifth District was heard May 18, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and George Waldron.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the October 2, 2006 Finding and Dismissal of the Commissioner acting for the Fifth District. In the Finding and Dismissal, the trial commissioner concluded the claimant was not entitled to temporary total disability benefits for the period between March 28, 1995 and September 19, 2005.

The pertinent facts in this case are as follows. The claimant was employed by the respondent as a Mental Retardation worker at the Southbury Training School. On October 14, 1990 the claimant injured her neck while assisting a facility resident into bed. A Voluntary Agreement was issued by the respondent and approved June 1, 1992. In that Voluntary Agreement the respondent accepted liability for a cervical strain/sprain and myofacial (sic) pain syndrome.

The claimant has not worked since the October 14, 1990 injury. The claimant complained of pain between her shoulder and spine as well as pain between her neck and head. The claimant has complained of these symptoms since the day of her injury and to the present. Claimant’s symptoms have been treated with regimens of physical therapy, ice, heat, injections and pain medications. However, those treatments met with little success. Additionally, the claimant testified to suffering from a number of other physical conditions. The claimant relates a history of small strokes, ischemia, a hypothyroid condition, osteoporosis, ischemic colitis, low back pain, vertigo, migraine headaches, hypertension, pain in the right side of her torso and memory problems. The claimant also suffers from antiphospholipid syndrome (an auto immune disease which interferes with blood clotting) and is treated with the use of steroids. The claimant contends that but for the October 14, 1990 injury she would have a work capacity and that she is totally disabled.

Over the years the claimant has been examined by a number of physicians for her various complaints. Since November 1993 the claimant has treated with Dr. Thomas Greco a board certified rheumatologist. It is and has consistently been the opinion of Dr. Greco that the claimant is temporary totally disabled due to the cervical injury she sustained in October 1990.

In the proceedings below, the trial commissioner took administrative notice of “all legal documents filed in the present litigation.” Finding, paragraph 2. Included in the documents for which administrative notice was given, were two Forms 36. The first Form 36 approved in relation to this claim was submitted on August 3, 1994 and approved by the Workers’ Compensation Commission on March 28, 1995. The Form 36 indicated that the claimant had a light duty capacity as of August 1, 1994 and was based on a Functional Capacity Evaluation conducted May 31 and June 1, 1994.

The second Form 36 of which the trial commissioner took administrative notice was dated September 19, 2000 and approved February 2, 2001. In this Form 36 the claimant’s temporary partial benefits were ended and the claimant was determined to be at maximum medical improvement. The documentary support for the claimant’s change in work status was the September 1, 2000 examination of the claimant by Dr. Edward J. Fredericks, a board certified neurologist. In his report Dr. Fredericks noted that the claimant underwent a number of diagnostic tests, none of which were remarkable.1 Dr. Fredericks further opined that the claimant suffered a cervical strain at the time of her injury and that injury should have resolved within a few weeks of the injury.

The first issue presented for review is whether the trial commissioner erred in relying on Dr. Fredericks’ report of September 1, 2000 appended to the Form 36 approved February 2, 2001. The claimant contends that the trial commissioner’s reliance on Dr. Fredericks’ report was inappropriate as the claimant did not have the opportunity to cross examine Dr. Fredericks and thus her due process rights were violated. We disagree.

The transcript record in this case clearly reflects that the trial commissioner gave the parties notice that she was taking administrative notice of all the documents in the file. See September 19, 2005 Transcript, p. 13 and note 2 infra. At the outset of the proceedings the trial commissioner stated that the issue before her was the claimant’s entitlement to temporary total disability for the period after March 28, 1995.2 Insofar as either of the Forms 36 and information appended thereto spoke to the issue of claimant’s total incapacity, the claimant was on notice that the trial commissioner would reference these documents. Once the trier declared she was taking administrative notice of the Forms 36 filed and approved in this claim, the parties were on notice that they needed to procedurally pursue the cross-examination of Dr. Fredericks. Otherwise they effectively waived their right to cross examination. Brown v. State/DMR, 4748 CRB-6-03-11 (October 18, 2004). As this board noted in Giovino v. West Hartford, 14 Conn. Workers’ Comp. Rev. Op. 74, 76, 1912 CRB-1-93-12 (May 12, 1995):

[T]he party objecting to the medical report is not denied the opportunity to cross-examine a medical witness merely because the party offering the report fails to subpoena the medical witness or conduct a deposition. Rather, the objecting party must act with due diligence by obtaining a deposition or by subpoenaing the medical witness to appear at the formal hearing. If the objecting party chooses not to call the medical witness to testify or to be deposed, he assumes a calculated risk in presenting his evidence, and cannot wait until a decision is reached by the commissioner to complain on appeal that he was not afforded the opportunity to cross-examine the medical witness. See also Maylott v. Williams Engineering, 11 Conn. Workers’ Comp. Rev. Op. 320, 1353 CRD-6-91-12 (December 23, 1993).

Additionally, respondent’s counsel stated on the record that the reports of Drs. Kaplan, Conway and Greco were being proffered. Those reports were admitted into evidence at the February 27, 2006 formal hearing. The claimant did not object. See February 27, 2006 Transcript, pp. 13-17. Among the reports was Dr. Conway’s February 2, 2001 report in which he stated, inter alia:

Her [the claimant’s] examination is inconsistent and suggests malingering at least with respect to the function of her right side. Moreover, her behavior is childlike and overly dramatic which makes it difficult to determine if there is any underlying residual or permanent injury--which seems doubtful.

Respondent’s Exhibit 1.

Even if we were to agree with the claimant’s claim and disallow reliance on Dr. Fredericks’ report, the report of Dr. Conway, to which the claimant did not object when placed into evidence, also supports the finding and conclusion of the trial commissioner. We conclude, therefore, that the trial commissioner did not err in dismissing the claim. However having concluded as we have, we think some further discussion as to the taking of administrative notice is warranted. As we stated above, we are untroubled by the trial commissioner’s reference to Dr. Fredericks’ report as the colloquy between the trial commissioner and the attorneys appearing before her reflect that both attorneys asked that administrative notice be taken of certain documents. See footnote 2. However, in Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003), appeal dismissed for lack of final judgment, A.C. 24991 (May 5, 2004), we discussed the practice of taking administrative notice of documents in a file and cautioned as to the unintended consequence which could result.

In Fiorillo, the trial commissioner took administrative notice of a stipulation of facts in a prior Finding and Award. The stipulated facts of the prior Finding and Award had been vacated by an order of the Supreme Court. Thus, when the trial commissioner took administrative notice in a subsequent Finding and Award of the stipulated facts in the prior Finding and Award his conclusion was based on legally erroneous facts. Had the trial commissioner given the parties notice of his intent to rely on the prior stipulation of facts the unfortunate error contained in those findings would not have been perpetuated.

Section 2-2(b) of the Connecticut Code of Evidence provides “The court may take judicial notice without a request of a party to do so. Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned.” However, our court has also noted that while the tribunal may possess the power of judicial notice the preferred practice is to allow a full opportunity to be heard. See Fiorillo, supra, quoting Karp v. Urban Redevelopment Co., 162 Conn. 525, 527-28 (1972). Further, as our Supreme Court noted in Drabik v. East Lyme, 234 Conn. 390, 399 (1995):

With regard to a trial court’s control over the quantity of or manner in which it will consider material from a previous case, we have noted: “A trial court may, in the proper exercise of its discretion, admit a voluminous mass of documentary material where it would be extremely difficult to separate the relevant from the irrelevant, or in like circumstances . . . but it should do so only in cases where peculiar facts justify its action. The introduction of an indiscriminate mass of material leaves opposing counsel in a position where they cannot know what particular evidence is claimed to be relevant, and so deprives them of a fair opportunity to make objection; and it may not be possible to determine what evidence the court considered in reaching its decision. In such a situation as the one before us, a trial court should require the plaintiffs to offer such excerpts from the testimony in the earlier trial as they claim to be relevant and material.” (Citation omitted.) Fox v. Schaeffer, 131 Conn. 439, 448-49, 41 A.2d 46 (1944).

As the record here indicates that the parties were given an opportunity to be heard on the issue of the trier’s reliance on the Forms 36 and the reports attached no harm occurred.

Additionally, in her appeal the claimant asks us to consider whether it was error for the trial commissioner to find in Finding paragraph J “Dr. Kaplan’s 14% permanent partial disability rating to the claimant’s cervical spine is high and is inconsistent with his finding of a cervical strain.” We agree. The only issue before the trial commissioner was the claimant’s entitlement to temporary total disability benefits. Finding paragraph J speaks to the issue of claimant’s entitlement to permanent partial disability benefits. As that issue was not before the trial commissioner any findings and comments relating thereto are gratuitous and of no legal significance.

The claimant also points to an inconsistency in the trier’s findings as she stated the following in various portions of her decision:

A. Pursuant to a March 28, 1995 approved Form 36, the Workers’ Compensation Commission moved the claimant’s benefit status from temporary total disability to pre-specific, temporary partial disability based upon the results of Functional Capacity Evaluation conducted on May 31 and June 1, 1994. Absent other instruction by the approving Commissioner, the March 28, 1995 Form 36 approval is retroactive to its August 3, 1994 date of filing.
B. The undersigned Commissioner declines to reopen and reverse the ruling on a Form 36 that is over eleven years old and which appears to be reasonably based in medical/legal evidence.
(1) The rulings on the Form 36s of March 28, 1995 and February 2, 2001 are upheld and the rulings therein dictate the benefits to which the claimant is entitled between from March 28, 1995 to February 3, 2001.

Given that the only issue, as stated by the trial commissioner, was the claimant’s entitlement to temporary total disability from March 28, 1995 the trier’s order declaring the Form 36 of March 28, 1995 to be approved retroactively to August 3, 1994 was legally inappropriate. As it is inconsistent with her findings in paragraph B and paragraph (1) and the issue presented, it is reversed and paragraph A is set aside.

We therefore affirm in part, and reverse and set aside those parts noted above, of the October 2, 2006 Finding and Dismissal of the Commissioner acting for the Fifth District.

Commissioners Scott A. Barton and George Waldron concur.

1 Tests performed included: an EEG of 7/24/91; MR scans of the brain of 2/21/90 and 11/22/93; an MR scan of the cervical spine on 11/15/90; an EMG/nerve conduction studies of the right upper extremity on 1/8/91 were normal and a cerebral angiogram of 3/24/95. See Finding, paragraph 22. BACK TO TEXT

2 Transcript pages 10-13

MR. LESSACK: Yes, Commissioner. On March 28th of 1995 Commissioner White approved a Form 36 stopping the claimant’s total disability, benefits at the 100 percent rate. At that point they were changed to temporary partial benefits and it’s our claim that she should, claimant should continue, should have continued on total disability benefits up till today and continuing.

COMMISSIONER TRUGLIA: So the issue is whether or not claimant is entitled to temporary total benefits from March 28, 1995 to the present?

MR. LESSACK: Correct.

COMMISSIONER TRUGLIA: All right. Attorney Belzer, do you wish to add or subtract from that statement of the issue?

MR. BELZER: Yes, your Honor. I’ve reviewed my notes and looked at my file memos and it remains as I was saying off the record and I’ll say it on the record, I believe that this hearing is pursuant to disputes with the time period starting in the year 2000. At that time a Form 36 was filed. There was a report from Dr. Conway and I just believe that the time period is not about going back to 1995, but to 2000 and I would ask that your Honor make the commissioner’s file part of the records so that in case this goes on appeal and you can base this on the Form 36s that were filed and the, what the understandings were of the commissioners as this matter progressed.

COMMISSIONER TRUGLIA: All right. So you haven’t, essentially you haven’t changed the issue then. The issue is still whether or not the claimant is entitled to TT from March 28, 1995 to the present. Attorney Lessack says yes and you contend no, she is not, that the payments should pick up at a later date; correct?

MR. BELZER: If at all.

COMMISSIONER TRUGLIA: If at all. All right. So the, I’m just trying to get the issue pared down. Everybody wants to come in and give a protracted statement of what they think I should consider.

All I really wanted is in sort of appellate terms, you know. When you frame an issue in appellate terms, you don’t go on for three paragraphs.

The issue for consideration today is whether or not the claimant is entitled to TT from March 28, 1995 to the present. I understood before we went on the record that there might be a second issue involved in terms of whether or not there’s an overpayment. Am I incorrect?

MR. BELZER: Your Honor, I don’t believe that that is actually a disputed record in terms of what the State has paid the claimant. I don’t think there is any dispute on that. I have a record of the State’s payments which I would offer and certainly we’ve provided this to the Claimant’s side in the past so that they, so that there’s no question in their mind if they disputed what was paid. What’s really at question as far as they’re concerned is whether because of what they claim she is entitled to, whether that, to what extent that would wipe that out or otherwise obviate it. I think I should also note to your Honor that this is a 5-142 case.

COMMISSIONER TRUGLIA: Thank you. So there is no issue then in terms of overpayment. All right. Anything else? Okay. With that, Attorney Lessack, will you please call your first witness.

MR. LESSACK: Yes, Commissioner. I’d like you to take notice of the voluntary agreement with was approved on June 1st of 1992.

COMMISSIONER TRUGLIA: June 1st of ‘92.

MR. LESSACK: Yes.

COMMISSIONER TRUGLIA: Let me see if I can find that. Yes, I have that. It’s a jurisdictional VA approved by Commissioner Spain on June 1, 1992. Okay. Judicial notice or administrative notice so taken. I should also say on the record I take administrative notice of all records in our file, whether or not they’ve been specifically enumerated or not. But I will take administrative notice of this document in particular.

MR. BELZER: Your Honor, may I see a copy, may I see your original?

COMMISSIONER TRUGLIA: (Handing.) All right.

MR. LESSACK: Calling the claimant, Commissioner.

COMMISSIONER TRUGLIA: All right. (emphasis ours) BACK TO TEXT

Workers’ Compensation Commission

Page last revised: October 9, 2007

Page URL: http://wcc.state.ct.us/crb/2007/5147crb.htm

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