State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Dzienkiewicz v. State of Connecticut Department of Correction

CASE NO. 5211 CRB-8-07-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 18, 2008

CARL DZIENKIEWICZ

CLAIMANT-APPELLANT

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

GAB ROBINS NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

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

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

This Petition for Review from the March 6, 2007 Finding and Dismissal of the Commissioner acting for the Eighth District was heard September 28, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This case involves the claimant’s appeal from the denial of his claim for either § 5-145a C.G.S. or Chapter 568 benefits. A single issue is on appeal in this case: did the trial commissioner err when he decided to grant the respondent’s objection to the admission of a report from the State Employee Retirement Medical Examining Board? (hereafter the “Medical Examining Board”) The claimant argues since the Medical Examining Board granted the claimant a work related disability pension, that this report was relevant to the issue of causation of the claimant’s cardiac condition. The claimant also argues that the report constitutes an admission from the respondent-employer, and therefore, should have been admitted. The respondent Department of Correction disputes these claims and argues this report was not dispositive as to the issues before this Commission. We conclude that it was a matter within the trial commissioner’s discretion whether or not to admit this evidence. As we cannot reverse the decision of a trial commissioner in resolving such a discretionary matter, we affirm his decision and dismiss the claimant’s appeal.

The trial commissioner found the following facts which are relevant to this appeal. The claimant was employed as a correction officer on March 27, 2004 at the Webster Correctional Center when he claimed to have sustained a stroke. He has filed a claim for § 5-145a C.G.S. benefits and/or Chapter 568 benefits asserting that repetitive work stress caused the stroke. He had been employed by the Department of Correction since 1983 and had been employed at Webster for the eight years prior to his illness. The claimant testified that due to his size (6'5" and over 300 pounds) that he was often called on as the “first responder” to deal with inmate altercations. The claimant said that he first felt the initial stage of his infirmity—numbness on his left side—while working the third shift on the evening of March 27, 2004. He finished his shift and drove home and attempted to go to bed, but ended up sleeping in a chair. On the evening of March 29, 2004 the claimant felt so ill that his wife drove him to Griffin Hospital, where he was diagnosed with a stroke. The claimant is presently totally disabled from his Department of Correction post and has been awarded state disability retirement benefits.

The claimant advanced the following evidence in favor of his claim for benefits: He often worked double shifts at Webster and was frequently called by the prison to cover shifts he was not scheduled to work. He testified to the job being stressful, including stress concerning promotional and disciplinary practices within the Department of Correction. The neurologist who treated the claimant at Griffin Hospital, Dr. K.N. Sena, opined that based on media reports he believed the claimant’s work to be stressful and testified that the claimant had a history of hypertension along with diabetes mellitus which had required medication since the mid 1990s. Medical records indicated the claimant’s father had an intercerebral hemorrhage.

Two doctors examined the claimant on behalf of the respondent. A cardiologist, Dr. Steven Wolfson, testified as to the claimant’s hypertension, elevated cholesterol and diabetes mellitus, but did not know the duration of those conditions.

The trial commissioner found “Dr. Wolfson opined after his examination that if the cerebral vascular accident claimant sustained was related to an arterial sclerotic event then claimant’s job probably did contribute to the development of his diagnosed stroke.” Findings, ¶ 26. The commissioner also found Dr. Wolfson stated, “if the cerebral vascular accident represents an embolic event . . .; regarding the causation of claimant’s stroke then he would further recommend aggressive treatment of claimant’s diabetes, hyperlipidemia and hypertension.” Findings, ¶ 27.

A neurologist, Dr. Edward Fredericks, did a review of the claimant’s medical records. Those records indicated the claimant was aware of his hypertension since the early to mid 1990’s and had been on various medications since that time. The claimant’s medications had been changed over the years and had changed shortly before March 27, 2004. The claimant’s testimony as to the onset of his physical symptoms was also inconsistent, with the Griffin Hospital records attributing the first symptoms to when the claimant was sleeping at home on March 28, 2004.

Based on those subordinate facts the trial commissioner concluded the claimant had not proven his work as a correction officer was a substantial contributing factor to his stroke. Therefore, the claimant could not prevail on a claim for benefits under Chapter 568. The trial commissioner dismissed the claimant’s claim for § 5-145a C.G.S. benefits as being untimely. The trial commissioner cited the claimant’s long history of medical treatment for hypertension and diabetes mellitus and cited Dr. Wolfson’s findings that the claimant’s hypertension was not controlled. A number of stressful non-work related events in the claimant’s personal history were noted by the trial commissioner as well. The trial commissioner found Dr. Sena and Dr. Wolfson’s opinions as to the cause of the claimant’s stroke not persuasive, while finding Dr. Frederick’s opinion, which attributed its causation to chronic hypertension and diabetes, persuasive.1

The claimant filed a timely Motion to Correct the findings, which would have substituted Dr. Sena and Dr. Wolfson’s opinion as to causation for the claimant’s stroke for that of Dr. Fredericks. The Motion was denied. The claimant has pursued this appeal, asserting the trial commissioner erred by not admitting the report of the Medical Examining Board. He seeks to have this matter remanded for a de novo formal hearing.

The claimant on appeal argues that the Medical Examining Board report constitutes an admission from his employer that his stroke was a work related illness. He argues that an admission from a party opponent is admissible evidence, and should have been admitted in this case. While the respondent did interpose a timely objection, May 3, 2006 Transcript, pp. 4-5, the claimant believes the trial commissioner was required to overrule the objection.

We view the circumstances slightly different, however. The question before the board is not whether this report could have been admitted as evidence; it is whether the trial commissioner was obligated to admit this report as evidence over the respondent’s objection. Framed properly, we answer this question in the negative.

Recently in LaMontagne v. F & F Concrete, 5198 CRB-4-07-2 (February 25, 2008) we had occasion to consider the discretion a trial commissioner has in determining whether or not to admit evidence presented at a formal hearing. We held “a trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aide absent a clear abuse of that discretion,” citing Merchant v. J.S. Nasin Company, 9 Conn. Workers’ Comp. Rev. Op. 122 952 CRD-2-89-11 (May 1, 1991). Id. Therefore, we must determine whether the determination not to consider this evidence was a clear abuse of discretion.

The statute establishing the Medical Examining Board (§ 5- 169(c) C.G.S.) differs substantially from Chapter 568. There are no time limits which restrict filing a claim for state retirement benefits; unlike the time limits promulgated under § 31-294c C.G.S. for filing a claim for benefits under our Act. There is no right to appeal decisions from the Medical Examining Board. Bailey v. State Examining Board 75 Conn. App. 215 (2003). The respondent Department of Correction challenges the claimant’s argument that “the State is the State” and denies that they are bound by the determinations of the Medical Examining Board. We find this argument persuasive for two reasons. First, we take administrative notice that different state agencies may take different positions on the same issue, and indeed, find themselves in court or before administrative tribunals such as ours to resolve such a dispute, such as Muniz v. Allied Community Resources, Inc., 5025 CRB-5-05-11, (November 1, 2006), appeal pending, A.C. 28252 (Department of Social Services’ interpretation of law different than that of Second Injury Fund). Second, neither the statute governing the Medical Examining Board or Chapter 568 contain any statutory provisions granting the Medical Examining Board any authority over claims for benefits under Chapter 568.2

The claimant cites Willow Funding Company v. Grencom Associates, 246 Conn. 615 (1998) as standing for the proposition the trial commissioner was obligated to admit the Medical Examining Board report as evidence. We disagree that Willow Funding stands for this proposition as it holds, “Ordinarily the trial court has discretion to reject even uncontested evidence. This appeal presents an exception to that general rule, in part because the evidence was uncontroverted and overwhelming, and also because the evidence was entirely documentary rather than testimonial. Under these circumstances, the trial court was not free to disregard undisputed, probative evidence.” Id. 623. (Emphasis added) If the Medical Examining Board had statutory authority to bind the respondent, this report would have been a judicial admission. Since we conclude this statutory authority was absent, the Medical Examining Board report was only an evidential admission, and thus could be disregarded by the trial commissioner. See Nationwide Mutual Ins. Co. v. Allen, 83 Conn. App. 526, 542 (2004). We believe that the general rule preserving the discretion of a trier of fact to reject evidence should be followed in this case.

The respondent also points out that the courts have rejected an effort to apply the decisions and agreements reached by this Commission to estop the determination of the Medical Examining Board. They cite Hill v. State Employees Retirement Commission, 83 Conn. App. 599 (2004) on this issue. In Hill the plaintiff had obtained a Voluntary Agreement with the State of Connecticut determining he had sustained a compensable injury. He then argued that such an agreement before our Commission was binding on the Medical Examining Board. The Appellate Court decided to the contrary. Since the issue of compensability had not been actually litigated, the concept of collateral estoppel could not be applied. Id., 613. Moreover, the Appellate Court held “[A]s a matter of fact, pursuant to § 5-192p(f), the medical board had exclusive authority to decide whether his injury was service connected.” Id., 614 (Emphasis added).

The respondent argues that were the trial commissioner required to credit the Medical Examining Board report it “would improperly cede the Worker’s Compensation Commissioner’s authority to the Medical Examining Board.” Respondent’s Brief, p. 7. We concur as we believe that a reciprocal application of the legal standard in Hill, supra, should govern this Commission when faced with a similar circumstance; i.e. that pursuant to § 31-284(a) C.G.S. this Commission has exclusive jurisdiction over the adjudication of claims for compensable injuries; see, for example, Mello v. Big Y Foods, Inc., 265 Conn. 21 (2003).

The respondent also suggests that what the claimant seeks is collateral estoppel. There have been some limited circumstances where we have permitted parties to assert collateral estoppel from a decision made by another tribunal. This has occurred when an issue was fully litigated before a prior tribunal which used a similar standard of proof as our Commission uses to reach its determination. One such example was Lafayette v. General Dynamics Corp./Electric Boat Div., 255 Conn. 762 (2001); where the Supreme Court determined a prior determination of causation in a Longshore Act proceeding could be binding on a trial commissioner considering a Chapter 568 claim for the same injury.

The present case does not present such a situation. Instead, the record here leads us to conclude the Medical Examining Board is similar to tribunals which we have not extended collateral estoppel. At the formal hearing counsel for the claimant seemed to equate the proceedings before the Medical Examining Board to a hearing seeking social security disability benefits. At the formal hearing on May 3, 2006 he made this argument seeking to admit the report of the Medical Examining Board.

MR. DODD: We have three medical experts here, Commissioner, who unanimously have decided that it is. I’m not saying that it’s binding upon you, Commissioner. It’s like a social-- I think it’s even stronger than a social security issue.
May 3, 2006 Transcript, p. 5.

This board has stated on a number of occasions that the standards applied to determine whether to grant a social security disability award are considerably different than the standards we apply to award benefits under the Connecticut Workers’ Compensation Act. See Hernandez, supra; Bidoae v. Hartford Golf Club, 4693 CRB-6-03-7 (June 23, 2004), aff’d, 91 Conn. App 470, 480-481 (2005), cert denied, 276 Conn. 921 (2005); Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004); Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (March 7, 2003). “The standards of the Social Security Administration in adjudicating total disability are not the same standards used by our workers’ compensation commission and, thus, a commissioner may decline to admit them into evidence.” Bidoae, supra, 480-481. The record herein indicates the Medical Examining Board applies an analogous standard to their decisions as applied by the Social Security Administration. Therefore, we conclude there was no error when the trial commissioner determined that the Medical Examining Board’s decision was not probative evidence on the issue of whether the claimant was entitled to an award under workers’ compensation.

In conclusion, we do not believe the claimant established that the trial commissioner abused his discretion in this case. “An abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001); Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006).

The Finding and Dismissal is affirmed, and the appeal is dismissed.

Commissioners Amado J. Vargas and Scott A. Barton concur in this opinion.

1 The Finding and Dismissal in paragraphs k and l refers to the physician as “Dr.Frederickson.” We believe this is a harmless scrivener’s error. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT

2 The enactment of § 1-2z C.G.S. requires this board to apply statutes solely on the basis of their “plain meaning.” Hummel v. Marten Transport, LTD, 282 Conn. 477 (2007). BACK TO TEXT

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