State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Diaz v. Jaime Pineda a/k/a Jamie Pineda d/b/a J.P. Landscaping Company

CASE NO. 5244 CRB-7-07-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 8, 2008

OSVALDO DIAZ

CLAIMANT-APPELLANT

v.

JAIME PINEDA a/k/a JAMIE PINEDA d/b/a J.P. LANDSCAPING COMPANY

EMPLOYER

NO RECORD OF INSURANCE

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Kevin Blake, Esq., and Rebekah Sprano, Esq., Shepro & Blake, 2091 Main Street, Stratford, CT 06615.

The respondent Second Injury Fund was represented by Lawrence G. Widem, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

The respondent-employer did not appear.

This Petition for Review from the July 5, 2007 Finding of the Commissioner acting for the Seventh District was heard January 25, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter appeals the finding of the trial commissioner acting for the Seventh District, who denied the claimant’s petition for temporary total disability benefits and to have additional medical treatment paid for by the respondent. The claimant has also filed a motion with this board to admit additional evidence, which he believes would justify an award of temporary total disability benefits. We believe the trial commissioner acted within his discretion in denying the claimant’s request for temporary total disability benefits and his request to find additional medical treatment compensable at this time. We further determine that the claimant has not presented a persuasive argument to justify the remedy of admitting additional evidence before this board. For those reasons we affirm the trial commissioner and dismiss this appeal.

A number of issues were previously resolved in this matter in a prior Finding issued October 6, 2006. That Finding determined the claimant had incurred a work related injury which conferred jurisdiction on the Commission. Three issues were presented for the commissioner’s consideration at the hearing of January 30, 2007: a) whether the claimant was in need of further medical treatment? b) whether the medical bills incurred by the claimant were the responsibility of the respondent? and c) whether the claimant was entitled to temporary total disability payments? The trial commissioner issued his Finding on July 5, 2007. While the commissioner concluded the claimant’s medical bills were fair and reasonable and directed them to be paid by the respondent; he reached adverse findings to the claimant on the other two issues. The commissioner concluded that the claimant failed to produce medical evidence to support the need for additional treatment. He found the treating physician, Dr. Reuben M. Malkiel, failed to suggest a treatment plan or to place limitations on the claimant’s activities. While the claimant testified that his level of pain rendered him totally disabled and in need of additional medical treatment, the commissioner determined that there was no other corroborating evidence to establish these claims. The commissioner denied the claims for temporary total disability and ongoing medical treatment; noting that the claim for medical treatment could be resubmitted with proper and convincing medical evidence.

The claimant filed a Motion to Correct seeking to add factual averments concerning his medical treatment and to add conclusions in support of an award of § 31-307 C.G.S. benefits and additional medical treatment. The trial commissioner denied these corrections in their entirety and this appeal ensued.

We first address the claimant’s Motion to Submit Additional Evidence dated November 8, 2007. The claimant seeks pursuant to Admin. Reg. § 31-301-9 to add a medical report from Dr. Henry M. Rubinstein dated October 29, 2007. He argues the report is material as it contravenes the commissioner’s finding that the claimant lacked medical documentation for his temporary total disability claim. He further argues that good reason exists to submit this report after the close of the formal hearing, asserting he could not afford to be examined at that time. While the report is certainly material to the issues herein, we are not persuaded that we should exercise the discretionary remedy of admitting this report to the record.

We have a number of concerns with the claimant’s strategy in bringing favorable evidence directly to the board’s attention in this manner. A party who wishes to submit additional evidence to this board must prove that they had good reasons not to present such evidence at the formal hearing Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). The respondent Second Injury Fund (The “Fund”) points out that in Smith v. UTC/Pratt & Whitney, 3134 CRB 3-95-6 (June 4, 1996) we held the moving party in such a motion must establish the evidence could not have been obtained at the time of the original hearing. The Fund points to the absence of any referral from the treating physician to Dr. Rubinstein and the record does not reflect the claimant made an effort to obtain this testimony prior to the hearing by utilizing this avenue. The claimant also did not make any request to the trial commissioner seeking to change the claimant’s treating physician. We believe this would have been a better direction for the claimant to have pursued. See Anderson v. R & K Spero Company, 4965 CRB-3-05-6 (February 21, 2007) aff’d, 107 Conn. App. 608 (2008) (trial commissioner has discretion to approve change in treating physicians).

The Fund cites two recent decisions from this board where we have denied motions to add evidence pursuant to Admin. Reg. § 31-301-9 i.e. Fratino v. Harry Grodsky & Co., Inc., 5087 CRB-7-06-5 (May 8, 2007) and Christy v. Ken’s Beverage, Incorporated, 5157 CRB-8-06-11 (December 7, 2007). We are not persuaded this case warrants a different result, as we find granting this motion would be inconsistent with our reasoning in Green v. General Motors Corporation New Departure, 5111 CRB-6-06-7 (August 21, 2007) where we held “[w]e agree with the respondents that the claimant’s motion to submit additional evidence is an effort to try the case in an inappropriate piecemeal fashion. Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).” Id.1 Therefore, we deny the Motion to Submit Additional Evidence.

We turn to the merits of the trial commissioner’s decision. The claimant asserts he submitted sufficient medical evidence to the commissioner to warrant a finding of total disability and to warrant a finding that further medical treatment was necessary. He believes the trial commissioner misapplied the law and did not properly evaluate the evidence provided. He particularly takes issue with Findings, ¶ 4. “Claimant has not produced medical evidence to support the need for further treatment.” Upon review we restate that these are issues where we are compelled to provide a great deal of deference to the trial commissioner. As we held in McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007);

We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

The claimant points to the January 25, 2007 letter from Dr. Felix Almentero and Dr. Reuben Malkiel (Claimant’s Exhibit B) which stated the claimant was unable to return to work, was in need of having MRI’s performed and then would likely require an orthopedic consultation. He states that since this document was admitted as evidence at the hearing, the trial commissioner’s findings are factually in error. Upon review, we conclude that the trial commissioner did not find this evidence persuasive.2 “Inconsistencies in the evidence must be resolved by the trier, and she may give credit to all, part or none of the testimony given by a lay or expert witness, while also retaining the authority to reject evidence that superficially may appear to be uncontradicted.” Gagliardi v. Eagle Group, Inc., 4496 CRB 2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam).

There is a substantial body of law concerning Workers’ Compensation in Connecticut supporting the authority of a trial commissioner to disregard evidence which he does not believe or does not find probative. In Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999) the Appellate Court held, “[t]he trier may accept or reject, in whole or in part, the testimony of an expert.”
Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006).

While the trial commissioner’s findings may not have been a model of clarity in this instance, we can ascertain what his intent was. As an appellate body we must defer to his evaluation of the probative value of Claimant’s Exhibit B.3

The claimant further argues that even if the trial commissioner did not find his medical evidence compelling on the issue of temporary total disability, that the trial commissioner should have found his demeanor testimony as sufficient grounds to award § 31-307 C.G.S. benefits. He cites Sousa v. Intercity Development, LLC, 4878 CRB-8-04-10 (October 17, 2005) as standing for that proposition. Sousa, however, stands only for the proposition a trial commissioner retains the discretion to reach this determination in certain cases. “There are some cases that are straightforward enough to allow the cause of an injury to be determined by an average layperson without supporting medical evidence.” Id. The trial commissioner in the present case determined the claimant did not have such a straightforward case and we must respect his conclusions. See Leandres v. Mark IV Construction, Inc., 5159 CRB-4-06-11 (October 22, 2007). “We believe inferences based on the trial commissioner’s personal observation are within her exclusive dominion. An appellate panel cannot substitute its judgment for that of the trier of fact on such matters.” Id.

In considering the issue of further medical treatment for the compensable injury, we note that the trial commissioner’s findings are subject to being revisited should the claimant’s medical situation change. The claimant in Serluca v. Stone & Webster Engineering, 5118 CRB-8-06-8 (July 13, 2007) had his bid for medical treatment denied and we pointed out that a present trial commissioner cannot bind a future trial commissioner on this issue.

This determination of the claimant’s current medical treatment is not probative of what determination the Commission may reach regarding the claimant’s future medical treatment. At such time as the claimant seeks to establish that future treatment constitutes reasonable and necessary treatment for the compensable injury he will be able to pursue this request de novo. As respondents point out in their brief, § 31-315 C.G.S. provides a statutory avenue to argue conditions have changed since the prior hearing, and at the new hearing the claimant will be left to his proof. Id.4

“We have consistently held it is the claimant’s burden to establish total disability and entitlement to benefits under our statute.” Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). The trial commissioner concluded the claimant failed to meet this burden of persuasion. This decision rested within his discretion and will not be disturbed on appeal. The Finding is affirmed and the appeal is dismissed.

Commissioners Ernie R. Walker and Charles F. Senich concur in this opinion.

1 The claimant will have the opportunity to present Dr. Rubinstein’s opinions should they seek future hearings before this Commission. The present Finding invites the claimant to resubmit a request for additional medical treatment based on additional evidence. Even had this provision been omitted from the Finding, the claimant may seek new hearings asserting a change in circumstance from the prior formal hearing. BACK TO TEXT

2 We note the claimant sought a correction of this Finding which the trial commissioner denied. When a trial commissioner denies such a correction, we must presume he found that the evidence presented was unpersuasive. See Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003). We also uphold the trial commissioner on this issue as the proposed corrections essentially sought to interpose the claimant’s conclusions as to the facts presented. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

3 In reviewing this instant decision, our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniel v. Alander, 268 Conn. 320, 330 (2004).” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). BACK TO TEXT

4 In addition, the Commission may consider a future request to determine whether the claimant qualifies for § 31-307 C.G.S. benefits notwithstanding the commissioner’s denial of such benefits in the July 5, 2007 Finding. See Howard v. CVS Pharmacy, Inc., 5063 CRB-2-06-3 (April 4, 2007). BACK TO TEXT

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Page last revised: July 17, 2008

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