State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Flood v. Travelers Property & Casualty

CASE NO. 5267 CRB-1-07-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 8, 2008

LISA M. FLOOD

CLAIMANT-APPELLANT

v.

TRAVELERS PROPERTY & CASUALTY

EMPLOYER

and

ST. PAUL TRAVELERS

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the August 1, 2007 Finding and Dismissal of the Commissioner acting for the Eighth District was heard on June 27, 2008 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Charles F. Senich and Scott A. Barton.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the August 1, 2007 Finding and Dismissal of the Commissioner acting for the Eighth District. We find no error, and affirm the decision of the trial commissioner.1

The trial commissioner found the following facts which are pertinent to our review. The claimant, who was employed as a paralegal2 for the respondent insurance company, sustained injuries on March 31, 2000, when she fell on a temporary walkway which had been erected at the worksite. She initially sought treatment on April 11, 2000 with Murray I. Wellner, M.D., who testified at his deposition that his office note from this visit indicated the claimant had “hurt her left side of her body, neck, shoulder, left elbow, left lower extremity.” Findings, ¶ H.

The claimant saw Dr. Wellner again on May 2, 2000 at which time Dr. Wellner noted the claimant was experiencing a cervical sprain and tenderness in her left shoulder and wrist. On February 2, 2001, the claimant sought treatment with John J. O’Brien, M.D., who diagnosed the claimant with bursitis/tendonitis in her left shoulder and reported an examination of the claimant’s lower back revealed “a level of pelvis with tenderness over the posterior superior iliac spines on both sides.” Findings, ¶ L. The claimant and Dr. O’Brien terminated their doctor/patient relationship on August 7, 2001.

On August 21, 2001, the claimant saw Anthony J. Spinella, M.D. His report of that date chronicles the claimant’s fall on March 31, 2000 and the injuries she sustained to her left shoulder and lateral neck. Dr. Spinella also referenced a history of arthritis in the claimant’s left hip along with degenerative lumbar spondylolysis. Dr. Spinella referred the claimant for a consultation with J. William Healy, M.D., a neurologist, who examined the claimant on November 7, 2001 and sent her for diagnostic tests.

On May 25, 2002, the claimant presented for treatment at Westside Chiropractic, LLC, where she saw Darlene Smith, D.C. Dr. Smith’s records include a history of the claimant’s complaints of pain in her left shoulder and left back/hip. Dr. Smith’s intake notes also indicate the claimant was involved in a motor vehicle accident in 1991 and that in 1996 she experienced similar symptoms and underwent chiropractic treatment with Richard Duenas, D.C.3

On August 6, 2002, the claimant saw Vincent M. Santoro, M.D., who diagnosed a soft tissue injury to the claimant’s left shoulder. Dr. Santoro prescribed additional chiropractic treatment and articulated several restrictions on the claimant’s activities. In addition, because diagnostic tests of the claimant’s lumbar spine had revealed an abnormality, Dr. Santoro referred the claimant to Gerald J. Becker, M.D., whom the claimant saw on August 14, 2002. In his report of that date, Dr. Becker opined that the claimant’s leg and back pain “were the result of an aggravation of degenerative disc disease attributable to the March 31, 2000 fall.” Findings, ¶ V.

The claimant subsequently began a course of chiropractic treatment with Richard Duenas, D.C. On May 5, 2003, Dr. Duenas issued a report in which he assigned the claimant permanent partial disability ratings of four (4%) percent of the cervical spine, two (2%) percent of the lumbar spine, and five (5%) percent of the left shoulder. On June 13, 2004, Dr. Duenas provided a follow-up report in which he assigned a corrected rating of seven (7%) percent to the lumbar spine as a result of the claimant’s fall on March 31, 2000. In this report, Dr. Duenas also remarked that the “MRI findings taken 2 years and 3 months ago after your injury reveal degenerative disc changes with L4-5 left foraminal stenosis.” Findings, ¶ W.

The claimant returned to Dr. Becker for additional treatment on April 12, 2004. Dr. Becker subsequently assigned the claimant permanent partial disability ratings in the amounts of seven (7%) percent of the cervical spine and fifteen (15%) percent of the lumbar spine. Dr. Becker attributed these ratings to the claimant’s fall of March 31, 2000. However, during his deposition on August 16, 2006, Dr. Becker testified that after having reviewed Dr. O’Brien’s records, he realized that the claimant had provided a different history to Dr. O’Brien, thereby causing Dr. Becker to question what role the claimant’s fall in March of 2000 had actually played relative to the claimant’s degenerative back condition. As a result of this records review, Dr. Becker opined that “the March 2000 fall was probably a minor aggravation of her degenerative disc disease and not really a new injury.” Findings, ¶ AA.

Dr. Becker then testified that if the trial commissioner were to conclude the claimant had sustained an injury to her back in the fall of March 2000, he would assign a two (2%) percent permanent partial disability rating to the claimant’s back, which rating was “distinct and separate” from the claimant’s degenerative disc disease. Dr. Becker also stated that claimant’s fall in March of 2000 was not a significant factor in causing the degenerative changes in her back. Finally, Dr. Becker indicated that his opinions regarding the accuracy of the claimant’s permanent partial disability ratings were based upon “which history was actually true,” and the claimant’s “March 2000 fall was a small but not insignificant [factor] in the claimant’s ongoing symptoms.” Findings, ¶ DD.

At the request of the respondents, Steven E. Selden, M.D., saw the claimant for an orthopedic evaluation on June 17, 2004. In his deposition of August 28, 2006, Dr. Selden testified “I felt [the claimant] had a strain of her lower back superimposed on a pre-existing arthritis which I referred to as degenerative changes.” Respondents’ Exhibit 14, p. 8. However, Dr. Selden further testified that “upon reviewing the entire record, the March 2000 incident was not a significant factor in the claimant’s ongoing back problems.” Findings, ¶ GG. Dr. Selden also retracted his prior assignment of a two (2%) percent permanent partial disability rating of the claimant’s lumbar spine, remarking that “a finding of hip tenderness is not per se documentation of back injury.” Findings, ¶ II.

Based upon the foregoing evidentiary submissions, the trial commissioner concluded that Dr. Selden’s opinions relative to the issue of the causation and compensability of the claimant’s back, hip and neck problems were “more credible and persuasive than those expressed by other physicians involved in this matter.” Findings, ¶ NN. The trial commissioner found that the medical evidence in the record documenting the claimant’s prior medical treatment for these problems combined with additional evidence which was “inconsistent with contemporaneous medical reports lead to this inescapable conclusion that [the claimant’s] back, hip and neck are not related to her fall of March 31, 2000. At best, those were minor insignificant injuries and selflimiting.” Id. The trial commissioner ordered the respondents to accept as compensable the claimant’s injury to her left shoulder and dismissed the claims as to the back, neck and hip.

The claimant filed a Motion to Correct and Amended Motion to Correct which were denied in their entirety, and this appeal followed. On appeal, the claimant disputes the accuracy of a number of the medical reports in the record and disagrees with many of the statements of both the witnesses who testified at trial and the medical providers as contained in their depositions. In essence, the claimant asserts, inter alia, that the trial commissioner made numerous errors in formulating his findings by relying on evidence which was inaccurate and/or unproven. She also alleges that the trial commissioner showed bias in favor of the respondents and that counsel for the respondents violated several Rules of Professional Conduct in his handling of the claim. Insofar as our review of the record indicates the claimant’s allegations as to bias and misconduct are groundless, we will confine our review of this appeal to an analysis of the alleged factual errors committed by the trial commissioner.

We begin our analysis by reciting the standard of deference we apply to a trial commissioner’s findings and legal conclusions. As this board articulated in Heilweil v. Montville-Board of Education, 5161 CRB-8-06-11 (October 24, 2007), quoting McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007),

… 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).

Having reviewed the evidentiary record in the instant matter, we find, contrary to the claimant’s contentions, that the medical reports contained therein along with the deposition testimony of several of the claimant’s treating physicians provide a reasonable and permissible basis for the trial commissioner’s inferences regarding the noncompensability of the claimant’s neck and back problems. For instance, as the trial commissioner correctly discerned, Dr. Wellner’s records from the claimant’s initial office visits of April 11, 2000 and May 2, 2000 contain absolutely no reference to a possible back injury. Although Dr. Wellner subsequently indicated in his report dated September 29, 2004 that the claimant had “injured the left side of the back as well as her left shoulder, neck and left elbow” when she fell on March 31, 2000, Dr. Wellner stated during his deposition that when the claimant initially saw him at the office visit of April 11, 2000, she reported only that she had injured the left side of her body, neck, shoulder, left elbow, and left lower extremity. Respondents’ Exhibit 6, p. 23.

Dr. Wellner also testified that his examination of the claimant on that date revealed “[c]ervical sprain, tenderness, stiff plus two, decreased range of motion, seventy percent capacity. Left shoulder tender and stiff. Range of motion, fair. Left wrist tender and stiff, left hip area, tender. Left knee, okay. Left foot ache, tender.” Id., pp. 23-24. There is no mention of a back injury. Similarly, in the note from the claimant’s office visit of May 2, 2000, Dr. Wellner states, “[i]mproving. Still complaining of left shoulder pain. Left armpit area pain. Left shoulder, left armpit intermittent. Neck, left hip, left foot, okay. Left wrist still sore. Examination, left shoulder, better range of motion, left hand stiffness. Left shoulder/neck better range of motion. Left stiffness.” Id., p. 24. Again, there is no mention of a back injury. In addition, Dr. Wellner testified that he did not think a referral to an orthopedic physician was necessary at either of these two visits. Id., p. 42.

In fact, the first reference to the claimant’s back problems in Dr. Wellner’s chart does not occur until the claimant’s office visit of August 14, 2002, more than two years after the date of injury, at which time Dr. Wellner noted the claimant was “[c]omplaining of swelling, left side of body. Lower back still a problem. At work full time. Examination, back area, slightly tender and stiff. Assessment, back sprain, low extremity edema.” Id., p. 27. In response to an inquiry from respondents’ counsel, Dr. Wellner indicated his chart did not contain any history as to what might have brought about the claimant’s back complaints on that date; however, Dr. Wellner was able to testify that the claimant’s complaint of lowback pain was recorded in the nonoccupational section of the claimant’s chart. Id., p. 30.

The conclusions of the trial commissioner are further buttressed by the fact that although the evidentiary record appears to lack a medical record documenting a contemporaneous account of a back injury, it does contain records from Dr. Wellner referring to the claimant’s treatment for back complaints prior to the injury of March 31, 2000. Dr. Wellner testified that in his report from the claimant’s physical in March of 1991, he had noted “a concern about backaches.” Id., p. 8. Dr. Wellner also saw the claimant on June 24, 1991, following a motor vehicle accident which occurred on June 22, 1991, and wrote that the claimant “at that time complained of injury to her neck, left shoulder and mid back area.” Id., pp. 9-10. Although the claimant subsequently indicated at the office visit of October 14, 1991 that her “[n]eck, back area, all better, no more symptoms,” Id., p. 10. Dr. Wellner testified that his intake note of February 21, 1994 reveals that the claimant reported experiencing back strain in December of 1992. Id., pp. 5-6.

On February 2, 2001, the claimant commenced treatment with Dr. O’Brien. As mentioned previously herein, in his office note arising from this visit, Dr. O’Brien indicated the claimant had sustained a fall at work in which she had injured her left shoulder, and he also went on to report that, “[I]n addition to which, in November of 2000 she moved and thinks she may have done something to her left leg as she is now having pain in her lower back and into the left leg….” Respondent’s Exhibit 1. Dr. O’Brien diagnosed “rotator cuff bursitis/tendonitis of her left shoulder as well as a lumbosacral strain with some referred left leg pain.” Id. Neither in this report nor in the subsequent three additional reports from Dr. O’Brien contained in the evidentiary record is there any attempt to link the claimant’s reported back problems to the workplace injury of March 31, 2000. Moreover, in his note of February 12, 2001, Dr. O’Brien wrote that based on x-rays taken of the claimant’s lumbar spine, he had diagnosed “significant facet joint arthritis at L4-5 with sacrolization of L5, greater on the left than on the right with disc spaces in good condition ….” Id.

Consistent with Dr. O’Brien’s diagnosis, the evidentiary record is replete with medical reports from the claimant’s other treating physicians either diagnosing or reporting a history of degenerative disc disease. For example, Dr. Spinella, in his report of August 21, 2001, made this finding on the basis of x-rays showing “degenerative changes in the lower lumbar spine level and a possible spondylolysis or atypical posterior element of L5, which could be arthritic or a spondylolysis.” Respondent’s Exhibit 5. Dr. Healy references a past history of left hip arthritis in his report of November 7, 2001. Respondents’ Exhibit 2. Dr. Silverman’s intake notes of June 11, 2001 document left hip arthritis. Respondents’ Exhibit 8.

In addition, at his deposition, Dr. Becker testified that the claimant had “arthritis involving her facet joints between L-4 and L-5” which “results in some narrowing of what’s called the foramen and that’s what’s referred to on the MRI scan from 8-15-02.” Respondents’ Exhibit 13, p. 5. Dr. Becker opined that the claimant was suffering from degenerative disc disease at multiple levels, which the doctor attributed in part to a congenital condition. Id., p. 6. Dr. Becker also stated that the degenerative changes “definitely” occurred prior to the injury of March 31, 2000. Id. Finally, Dr. Becker testified that the array of symptoms which had prompted the claimant to present to Dr. Wellner in November of 1992 and Dr. Duenas in 1995 were consistent with a diagnosis of degenerative disc disease. Id., pp. 11-12.

Dr. Duenas also referenced the claimant’s degenerative disc disease in his letter of May 14, 2003 to claimant’s then-counsel. In this letter, Dr. Duenas diagnosed a “lumbar sprain/strain complicated by lumbar disc disease” and assessed the claimant’s lumbar spine as “[u]noperated on, stable, with medically documented injury, pain, and rigidity associated with moderate to severe degenerative changes on structural tests….” Claimant’s Exhibit B. Dr. Duenas’ chart is also significant for the intake notes taken by Darlene Smith, D.C., on May 25, 2002, wherein Dr. Smith documented that the claimant had received the treatment from Dr. Duenas in 1996 for the same symptoms.4 Id. See also Respondents’ Exhibit 7. In fact, in his report of March 13, 1995, Dr. Duenas diagnosed a “chronic, moderate spinal dysfunction of the cervicothoracic and lumbosacral regions of the spine with subsequent myofascial pain syndrome and probable deconditioning.” Claimant’s Exhibit D (emphasis added).

Finally, in his deposition of August 8, 2006, Dr. Duenas testified that the claimant completed a history form at her office visit of March 4, 1995 in which she indicated her back problems had begun in “December 1993 or thereabouts” with a “slight pinching sensation.” Respondents’ Exhibit 12, p. 12. Dr. Duenas also testified that “[t]he motor vehicle accident could have caused the degeneration or set into motion the degenerative disc disease. It could have been there before and it could have aggravated her condition.” Id., p. 33.

On June 17, 2004, the claimant underwent an orthopedic evaluation with Dr. Selden. At his deposition of August 28, 2006, Dr. Selden testified that an x-ray taken in February of 2001 had revealed a unilateral spondylolysis and that an MRI taken in August of 2002 displayed evidence of degenerative disc disease at multiple levels. Respondents’ Exhibit 14, p. 7. Dr. Selden further testified that based on his review of the MRI, the degenerative changes rated “would take many years to develop.” Id., p. 8. Dr. Selden also indicated that at the time of writing his evaluative report of June 17, 2004, he had not had the benefit of reviewing Dr. O’Brien’s records and he had found Dr. Wellner’s notes to be illegible. Id., p. 9. In light of his subsequent review of Dr. Wellner’s deposition testimony and a complete set of Dr. O’Brien’s reports, Dr. Selden indicated that his findings had changed since the time of writing his June 17, 2004 note. Respondents’ Exhibit 14, pp. 1415. He testified that when the claimant had described the workplace incident to him, she had told him that “she had tripped and fallen on a walkway and had injured her neck, back and left shoulder.” Id., p. 5. Unfortunately, that history was not consistent with the information contained in Dr. Wellner’s intake notes of April 11, 2000 and May 2, 2000. Relative to the discrepancy, Dr. Selden commented, “[t]here were no initial complaints of back pain that I could see. I know there were complaints of discomfort in the patient’s hip area. But I did not see documentation of back problems per se.” Id., p. 11.

Respondents’ counsel then drew Dr. Selden’s attention to Dr. O’Brien’s report of February 2, 2001 wherein Dr. O’Brien had detailed the claimant’s history of the workplace incident and then written, “[i]n addition to which, in November of 2000 she moved and thinks she may have done something to her left leg as she is now having pain in her lower back and into the left leg….” See Respondents’ Exhibit 1. Dr. Selden confirmed that he had not received that information at the time of his initial evaluation of the claimant, and conceded when queried by respondent’s counsel that it was “fair to say Dr. O’Brien had apparently some reluctance in establishing a causal relationship between the low back complaints in [sic] the March 2000 incident.” Respondents’ Exhibit 14, p. 13.

In light of his review of Dr. Wellner’s deposition and Dr. O’Brien’s records, Dr. Selden testified,

. . . based on the additional information which has been supplied to me since I evaluated Ms. Flood on June 17, 2004, there appears to have been more problems with the lower back prior to the March 2000 incident than which I had been aware. And based on the information I received, my opinion at this time is that I’m not able to state that the incident in March 2000 was a significant factor. It appears to have been longstanding problems with the patient’s back besides this incident and I do not — with the additional information, my opinion would have to be changed to where I do not feel that the incident was a significant factor in her ongoing back problems.

Id., p. 14.

Dr. Selden also retracted his permanent partial disability rating of two (2%) percent of the lumbar spine, remarking that the “additional information I received would make me at this time feel that her permanency was all preexisting and that the incident in March of 2000 would have caused at most a temporary aggravation of her condition.” Id., p. 15.

Ultimately, the trial commissioner found Dr. Selden’s medical opinion to be the most persuasive and credible in this matter, and it was his prerogative to do so. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (Internal citations omitted, emphasis added.) Tartaglino, supra, at 195. “It is . . . immaterial that the facts permit the drawing of diverse inferences. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).

Further, in light of the inconsistent history given by the claimant to several of her treating physicians, it was permissible for the trial commissioner to infer that the resulting medical assessments were suspect because they were “derivative of the claimant’s narrative.” Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). In Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006) aff’d, 106 Conn. App. 436 (2008), cert. denied, 287 Conn. 910 (2008), this board affirmed the decision of a trial commissioner to dismiss a claim after having “deemed [a doctor’s] report flawed based on an inaccurate patient history.” Such determinations cannot be reversed on appeal, as they fall squarely within the trial commissioner’s purview. It is well settled that,

Credibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . . As a practical matter, it is inappropriate to assess credibility without having watched a witness testify, because demeanor, conduct and other factors are not fully reflected in the cold, printed record.

Abbotts v. Pace Motor Lines, Inc., 4974 CRB-4-05-7 (July 28, 2006), quoting Burton v. Mottolese, 267 Conn. 1, 40 (2003).

“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.” Daniels v. Alander, 268 Conn. 320, 330 (2004) citing Burton, supra, at 54. In the instant matter, we conclude that the inferences drawn by the trial commissioner are well-grounded in the evidentiary record; consequently, “[o]ur holding in Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB19911 (December 19, 2000) [appeal dismissed, A.C. 21533, June 14, 2001] is dispositive of this appeal. ‘If the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.’ ” Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007).

The claimant has also filed a Motion to Correct and an Amended Motion to Correct, both of which were denied in their entirety by the trial commissioner. Before examining the claimant’s proposed corrections, it would perhaps be helpful to review the standard of review governing such motions. As this board has previously observed, we “may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts.” Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998), quoting Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (February 6, 1995). “A material fact is one that will affect the outcome of the case.” Tovish v. Gerber Electronics, 32 Conn. App. 595 (1993), appeal dismissed, 229 Conn. 587 (1994). Thus, “[a] Motion to Correct also may be denied properly where the corrections are immaterial because the outcome of the case would not be altered by the substituted findings.” Pallotto, supra, quoting Knoblaugh, supra. See also Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (November 7, 1994).

In light of this rather stringent standard, our review of the record suggests that the trial commissioner was under no compunction to grant any of the claimant’s proposed corrections. We have already pointed out that the claimant requested that the trial commissioner draw a distinction between the job title of paralegal and legal secretary. (See footnote 2, supra.) While the claimant’s precise job classification is obviously of great significance within the parameters of her employment, such a correction is simply not germane to the inquiry at hand. The claimant also sought amendments to several of the factual findings to reflect more fully the diagnoses of her various treating physicians; again, while a thorough comprehension of the full ramifications of her ailments is obviously of great concern to the claimant in her attempts to get well, the extent to which she desires the trial commissioner to detail her physical infirmities goes well beyond the scope required in order to ascertain the compensability of her neck and back injuries.

We do concede that the claimant is correct in pointing out that her car accident occurred in 1991, not 1999. (See Amended Motion to Correct, ¶ 5.a) Similarly, neither Dr. Wellner nor Dr. Duenas appear to have entered reports into the record documenting back treatment in 1989. See Amended Motion to Correct, ¶ 7. However, as the trial commissioner’s factual findings do not suggest that he relied on either the medical reports associated with the auto accident or the alleged reports of treatment in 1989 in reaching his conclusions, the corrections sought would not affect the outcome of the case and as such the trial commissioner was under no obligation to grant them.

The claimant has also propounded several items which she describes as “new facts” in her Motion to Correct; we would respectfully point out to the claimant that a Motion to Correct is simply not the appropriate forum to introduce information which was not previously brought to the attention of the trial commissioner or opposing party. Section 31-301-4 C.G.S.5 clearly limits the scope of an appellant’s request for corrections to the findings articulated in the trial commissioner’s written decision. In addition, many of the corrections sought by the claimant represent a thinly veiled attempt “to have the commissioner conform his findings to the [claimant’s] view of the facts.” D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). Clearly, “[t]he [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id.

The claimant also protests the respondent’s counsel’s use of hypothetical questions while conducting the depositions of Dr. Becker and Dr. Selden, contending that Dr. Becker “was given proposed evidence that was not accepted nor proved,” Amended Motion to Correct, ¶ 13, and asserting with regard to the evidence proposed to Dr. Selden that, “[t]he information and facts were false for the most part.” Id., ¶ 14. Again, we would respectfully point out to the claimant that the law with regard to the use of hypothetical questions is well established. “It is within the discretion of the trial court to determine whether the hypothetical question was so lacking in the essential facts as to be without value in the decision of the case.” Gulia v. Ortowski, 156 Conn. 40, 48 (1968); Floyd v. Fruit Industries, Inc., 144 Conn. 659, 666 (1957). In addition, this board has previously remarked that, in keeping with the trial commissioner’s authority and obligation to weigh all of the evidence presented, “[t]he trier of fact has all the evidence before her, and possesses the expertise to appreciate when the relevance of a medical opinion may have been tainted by the introduction of spurious or misleading information.” Capra v. Dept. of Correction, 3791 CRB4984 (April 27, 1999). In summary, our review of the appellant’s Motion to Correct and Amended Motion to Correct indicates that “[e]ven if the commissioner had made the proposed changes or additions to his findings, they would not have changed his final conclusion….” D’Amico, supra, at 729. In light of this determination, we find no error in the trial commissioner’s denial of the claimant’s Motions to Correct.6

Finally, we note that the claimant has expressed dissatisfaction with the failure of the trial commissioner to render her competent guidance during her prosecution of this claim, complaining that, “Commissioner Delaney has provided poor advice to the claimant on more than one occasion during these proceedings.” Appellant’s Brief, p. 7. Unfortunately, the claimant’s remarks in this regard merely serve to betray her profound misunderstanding of the trial commissioner’s role and underscore quite clearly the perils of selfrepresentation. The trial commissioner is not charged with the responsibility of “advising” the parties who appear before him during the course of the trial. The trial commissioner is expected to review the evidence submitted by the parties and to issue a decision on the merits. The trial commissioner may also insure that no unfair advantage is taken of the pro se claimant but may not litigate her case for her. Our review of the record in the instant matter indicates that the trial commissioner afforded the claimant considerable latitude on a number of occasions in light of her pro se status, and opposing counsel likewise frequently demonstrated lenience bordering on indulgence. Thus, while we are sympathetic to the claimant’s legal difficulties, we do not find that the trial commissioner in any manner or fashion breached his duties of impartiality and objectivity or his responsibility to be certain that the claimant received an opportunity to be fully heard.

Having found no error, the August 1, 2007 Finding and Dismissal of the Commissioner acting for the Eighth District is hereby affirmed.

Commissioners Charles F. Senich and Scott A. Barton concur in this opinion.

1 We note that two Motions for Extension of Time and a request for postponement of oral argument were granted during the pendency of this appeal. BACK TO TEXT

2 The claimant has pointed out that she was actually employed as a legal secretary. See Amended Motion to Correct, ¶ 2. A review of the appellant’s Motions to Correct is set out at another point in the body of this Opinion. BACK TO TEXT

3 The claimant has pointed out that the prior chiropractic treatment occurred in 1995. See Amended Motion to Correct, ¶ 5.a. As mentioned previously herein, a review of the appellant’s Motions to Correct is set out at another point in the body of this Opinion. BACK TO TEXT

4 The claimant testified at trial that Dr. Smith’s intake notes were in fact inaccurate because the prior treatment occurred in 1995. See October 25, 2006 Transcript, p. 37. The claimant also testified that the symptoms she experienced at that time were not the same. “I said that the person who I saw initially was Karen Smith and that she had wrote down some simple comments that you mentioned stated [sic], ‘Same treatment as 1995.’ And I disagree with that. And I also stated that these doctors can say whatever they want and in the first place the 1995 records from Dr. Duenas were very technical, very in depth. So I disagree with the history from Karen Smith because she has reduced it to something simple and she is not my treating physician. She was there as an emergency. I went to her on Saturday.” November 17, 2006 Transcript, p. 4.

The claimant also discounted the opinion of several other treating physicians. For instance, in response to respondent’s counsel’s inquiry as to why Dr. O’Brien inserted language regarding a discussion between him and the claimant regarding the causation of her injury into his report dated August 7, 2001 (See Respondents’ Exhibit 1), the claimant replied, “[b]ecause I think he has a bad temper, that’s why. And I think he’s padding his case to come up with an excuse for holding me up for an hour and a half in medical appointments 3-4 times a year.” November 17, 2006 Transcript, p. 5. When respondents’ counsel questioned the claimant regarding whether she had told Dr. O’Brien she thought she might have injured her back during a move in November of 2000, the claimant disputed Dr. O’Brien’s “interpretation”, replying, “No, I didn’t. I gave him the history that I did something to my leg and I was referring to a bruise. I didn’t refer to all the rest that he made up.” October 25, 2006 Transcript, p. 41. When respondents’ counsel queried the claimant as to why there is no mention of a back injury in Dr. Silverman’s note of August 13, 2001, the claimant explained that the lack of a reference to a back complaint “[d]oesn’t matter because she’s not an orthopedic physician and we did not even have the full diagnosis.” Id., p. 32. The claimant also challenged Dr. Duenas’ linkage between her earlier back problems and the motor vehicle accident of 1991, stating, “[h]owever, it brings into question whether or not this should have been claimed through Geico and that was Dr. Duenas’ doing. The fact that he said it was related to the rear-ender, I don’t believe it was.” Id., p. 15. The claimant also asserted she would have received the same treatment from Dr. Duenas regardless of whether she had reported a low back injury because “[a] chiropractor gives the same treatment to everyone.” November 17, 2001 Transcript, p. 15. Finally, with regard to respondents’ counsel’s inquiry as to why Dr. Healy’s report of November 7, 2001 did not contain any reference to the claimant’s low back complaints, the claimant commented, “[t]hat doesn’t mean a thing because Dr. Healy couldn’t even see if he had a helium balloon floating above him in the sky, he wouldn’t notice it; okay?” Id., p. 8. BACK TO TEXT

5 Sec. 31-301-4 C.G.S. (Rev. to 1999) states, in pertinent part, that “[i]f the appellant desires to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for . . . . (emphasis added) BACK TO TEXT

6 At the CRB hearing held in this matter on June 27, 2008, the claimant indicated she wished to submit additional evidence into the record. As the claimant had failed to file a Motion to Submit Additional Evidence, and the ensuing discussion revealed that most, if not all, of the materials were duplicates of documents already admitted into evidence, we decline to address the submission of these materials on appeal. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: December 15, 2008

Page URL: http://wcc.state.ct.us/crb/2008/5267crb.htm

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