CASE NO. 5360 CRB-7-08-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 2, 2009
STOP & SHOP COMPANIES, INC.
MAC RISK MANAGEMENT
The claimant appeared pro se.
At the trial level, the claimant was represented by Steven H. Cousins, Esq., 324 Elm Street, Suite 2018, Monroe, CT 06468.
The respondents were represented by Clayton J. Quinn, Esq., The Quinn Law Firm, LLC, 204 South Broad Street, Milford, CT 06460.
This Petition for Review from the June 12, 2008 Finding and Dismissal of the Commissioner acting for the Seventh District was heard on January 23, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 12, 2008 Finding and Dismissal of the Commissioner acting for the Seventh District. We find no error, and affirm the decision of the trial commissioner.
The following factual findings are pertinent to our review. The claimant, who began working for the respondent employer in May of 2000, was employed as a food service manager in the seafood/meat department on March 17, 2006. The claimant testified that while at work on that date, as she was picking up a box of bacon which weighed approximately thirty (30) pounds, she “felt something happen to her back, with a bit of pain down her left leg.” Findings, ¶ 5. On March 18, 2006, the claimant reported feeling “excruciating” pain and went to the emergency room at Bridgeport Hospital. Findings, ¶ 7. The claimant testified that she gave a medical history at Bridgeport Hospital regarding her back injury. The Bridgeport Hospital medical records state, inter alia, that the claimant had experienced “five days of increasing pain, strong left buttock/low back pain radiating down left leg to knee and into groin” and that her “[p]ain started after work, after a day of heavy lifting.” Claimant’s Exhibit A.
The claimant subsequently consulted Scott Waller, M.D., an orthopedic surgeon, for follow-up treatment. In his report of March 20, 2006, Dr. Waller indicated the claimant had reported “the onset of back pain symptoms three days prior to her ER visit” and “[t]here is no known history or change in activity pattern.” Claimant’s Exhibit E. Dr. Waller referred the claimant to Patrick P. Mastroianni, M.D., a neurosurgeon, who performed an L4-5 laminectomy on the claimant. In his report dated April 11, 2007, Dr. Mastroianni opined that the injury of March 17, 2006 “was indeed a substantial factor in producing the disc pathology at the L4-5 level which ultimately required surgical correction.” Claimant’s Exhibit B. The doctor also stated that although the claimant had “minor lumbar symptomology preceding the injury, she had no specific prior injury and the level of severity was nothing like what she experienced after the March 17, 2006 injury.” Id.
Following a formal hearing held in this matter on November 6, 2007 at which both parties were represented by counsel, the trial commissioner determined the claimant did not sustain a back injury in the lifting incident of March 17, 2006. The trial commissioner, having found neither the claimant’s testimony nor Dr. Mastroianni’s opinion credible or persuasive, dismissed the claim.
The claimant filed a timely Petition for Review on July 2, 2008 and subsequently filed a document entitled “Appeal from Findings and Dismissal dated July 12, 2008.” On December 2, 2008, the respondents filed a “Motion to Preclude”1 objecting to the materials submitted by the claimant on July 12, 2008 on the basis that the document was an “attempt to submit additional evidence, facts and/or testimony that was not properly submitted at trial.” Respondents’ Motion to Preclude, p. 1. The respondents also filed a Motion to Dismiss based upon the claimant’s failure to either file a brief in compliance with this board’s briefing schedule or a request for an extension of time in which to do so.2 On December 16, 2008, the claimant filed a second document entitled, “Response to & Object to Motion to Preclude, Motion to Dismiss, & Respondents Brief, Dated 12/2/2008, Motion to Dismiss, Dated 12/2/2008, and Respondents Brief Dated 12/8/2008.” The claimant appeared pro se at oral argument.
We begin with a discussion of the procedural irregularities attendant upon this claim. As previously noted herein, the claimant neglected to file Reasons of Appeal or a brief or request an extension of time for filing a brief. We have previously observed that “[i]t is especially important that the appealing party provide a brief, so that this board and the other parties understand the grounds for the appeal.” Walter v. Bridgeport, 5092 CRB-4-06-5 (May 16, 2007). Absent a brief, “this board has discretion to dismiss an appeal for failure to prosecute with due diligence.” Id., citing Reaves v. Brownstone Construction, 3930 CRB-4-98-11 (November 30, 1999). However, it is also well-settled that “it is the policy of Connecticut courts and this board to accommodate pro se claimants as much as possible by liberally construing procedural rules where doing so does not interfere with the rights of other parties.” Walter, supra, citing Ferrin v. Glen Orne Leasing/Webster Trucking, 4802 CRB-8-04-4 (March 28, 2005). See also Vanguard Engineering, Inc. v. Anderson, 83 Conn. App. 62, 65 (2004).
In the instant matter, while the claimant did not provide a brief, she did provide two documents which upon review seem to at least tangentially address her reasons for filing this appeal. As such, this appeal can be distinguished from Rurak v. Sweet Life Inc., 4630 CRB-1-03-2 (February 6, 2004), which was ultimately dismissed for failure to prosecute with proper diligence in light of the fact that the Rurak appellant filed virtually no documents which could serve to put the appellees on notice as to the grounds for the appeal. Therefore, we will assess the documents filed by the instant claimant to determine the degree to which they may serve as substitutions for a brief, “and will make whatever allowances we can in terms of errors that [the claimant] may have committed. However, our powers are limited in this regard, and the claimant’s failure to take certain steps at trial and on this appeal cannot simply be remedied through a policy of leniency toward pro se claimants.” Drew v. Sears, Roebuck & Co., 4400 CRB-7-01-5 (May 2, 2002), appeal dismissed, A.C. 23094 (August 21, 2002).
The first appeal document submitted by the claimant, entitled “Appeal from Findings and Dismissal dated July 12, 2008,” appears to provide a chronological narrative of events and sets out the factual findings over which there is no dispute between the parties. The claimant has also inserted a number of apparently extraneous facts and/or facts which were not introduced at trial and therefore must be disregarded by this board. “A party is not entitled to present his case in a piecemeal fashion, nor may he indulge in a second opportunity to prove his case if he initially fails to meet his burden of proof.” Krajewski v. Atlantic Machine Tool Works, 4500 CRB-6-02-3 (March 7, 2003), citing Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001).
However, we note that within her narrative the claimant also appears to be questioning the basis for the trial commissioner’s findings regarding the claimant’s credibility in light of the lack of evidence of any prior incidents which may have accounted for the claimant’s injuries. From this, it is possible to infer that a cognizable gravamen of the claimant’s appeal would be that the trial commissioner’s factual findings are not supported by the evidentiary record. “A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Moutinho v. Planning & Zoning Commission, 278 Conn. 660, 666 (2006), citing LePage Homes, Inc. v. Planning & Zoning Commission, 74 Conn. App. 340, 344-45 (2002).
The claimant also attached a number of documents to her narrative consisting of a Physician Quality Report relative to Dr. Mastroianni which was prepared on July 10, 2008 and apparently procured over the Internet; two medical reports from Kenneth I. Lipow, M.D., the first dated June 23, 2008 and generated following an office visit with the claimant, and the second dated June 30, 2008, apparently generated in response to correspondence sent by the claimant; and a copy of the Respondents’ Medical Examination report performed by Ronald A. Ripps, M.D., on January 15, 2008. Our ability to accept these documents into the evidentiary record are constrained by the wellestablished requirements governing the submission of additional evidence, after formal proceedings at the trial level have concluded, to an appellate body such as this board. “This board may not consider materials that were not part of the record at the formal hearing, unless they are submitted pursuant to a Motion to Submit Additional Evidence that meets the standards of Admin. Reg. § 31-301-9.3 Krajewski, supra. “Such a motion cannot be granted unless the new evidence is material to the case, and the party submitting it has good reasons for not having made it available at trial.” Id., citing Drew, supra.
Having reviewed the claimant’s submissions vis-à-vis the admissibility standards set forth by Administrative Regulation § 31-301-9, we find we are not persuaded the additional documents submitted by the claimant warrant admission into the record. The web-based Physician Quality Report on Dr. Mastroianni clearly does not satisfy the authentication or materiality standards commonly observed in formal legal proceedings, and we consider it quite unlikely that the trial commissioner’s conclusion relative to the lack of credibility of Dr. Mastroianni’s opinion in this particular matter was rooted in concern as to the doctor’s educational background or competence. In addition, we note that the Respondents’ Medical Examination was performed on January 15, 2008 and assume the report was therefore available after the formal hearing but prior to the close of the record on February 20, 2008. Given that neither party petitioned the trial commissioner to admit the report when it became available, we are not inclined to allow it in at this point in the proceedings. Finally, the two medical reports provided by Dr. Lipow were solicited by the claimant and appear on cursory review to be “duplicative of the evidence already in the record.” Krajewski, supra. As such, these medical reports also do not meet the appropriate admissibility standards. “Where an issue has been fairly litigated, with proof offered by both parties, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result.” (Internal quotation marks omitted.) Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 456 (2001), citing Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 542 (1992).
The claimant also submitted a second document entitled “Response to & Object to Motion to Preclude, Dated 12/2/2008, Motion to Dismiss, Dated 12/2/2008, and Respondents Brief Dated 12/8/2008.” This document appears to consist of another narrative in which the claimant addresses such diverse issues as the difficulties she has encountered over the payment of her medical bills and her inability to produce at trial either the sole eyewitness to the workplace incident or the store videotape. The claimant also reiterates her claim that the respondents failed to introduce evidence which would serve to disprove the claimant’s assertions that her injury was caused by the workplace lifting incident, and alleges the trier abused his discretion in failing to find credible either the claimant or Dr. Mastroianni. Again, this board will admit this document insofar as it supports the claimant’s rationale for filing her appeal: to wit, her contention that the trial commissioner drew improper inferences from the facts presented. Extraneous information included in the claimant’s narrative which was not presented at the formal proceedings below will be disregarded.
We turn now to an analysis of the merits of the claimant’s appeal, beginning with a recitation of the well-settled standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions.
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).
McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
We note that the claimant did not file a Motion to Correct the trial commissioner’s findings.4 Absent such a motion, we “must accept the validity of the facts found by the trial commissioner and this board is limited to reviewing how the commissioner applied the law.” Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006).
We begin our analysis with an examination of the claimant’s apparent misconception regarding the role of the employer and its insurer in defending a workers’ compensation claim. Our review of the appeal documents provided by the claimant seems to suggest that the claimant believed she was automatically entitled to prevail if the respondents were unable to provide evidence which would disprove her claim.5 In fact, the respondents bore no such burden.
It is axiomatic that in order for a claimant to collect workers’ compensation benefits, the claimant must prove that he sustained a legally cognizable compensable injury, defined by statute as an injury ‘arising out of and in the course of his employment.’6 The statutory basis for a workers’ compensation claim has historically been dependent upon establishing a causal connection between the claimant’s employment and the claimed personal injury. (Emphasis added.)
Thompson v. Town of New Canaan, 5228 CRB-7-07-5 (August 21, 2008).
Moreover, “[t]he establishment of a prima facie case does not mandate a finding in a claimant’s favor. In order to receive compensation benefits, a claimant’s burden of proof is not to merely establish she has met the prima facie elements of a claim, but to present evidence a commissioner will find credible enough to support a finding in her favor.” (Internal citations omitted) Paige v. Hartford Insurance Group Employer, 4594 CRB-2-02-12 (January 9, 2004). Additionally, a trier of fact is not automatically compelled to find credible or persuasive evidence which is submitted by one party and not rebutted by the other.
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.
Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006), quoting Gagliardi v. Eagle Group, Inc., 4496 CRB 2-02-2 (February 27, 2003), aff’d, 82 Conn. App. 905 (2004)(per curiam).
In the instant matter, the trial commissioner, in his Finding and Dismissal, concluded that the claimant was neither credible nor persuasive. He did not specifically state the reasons for his conclusions; nor was he required to do so.7 However, in ¶ 9, we note that he does reference the report generated by the claimant’s visit to the Bridgeport Hospital emergency room which occurred on March 18, 2006, the day after the alleged workplace lifting incident. The trial commissioner found that the medical record from that visit indicated the claimant experienced “[f]ive days of increasing pain to the left buttock/low back pain radiating down the left leg to the knees and into the groin.” Findings, ¶ 9; see also Claimant’s Exhibit A. At trial, when queried about the language of this report, the claimant confirmed that the report stated the onset of pain had occurred four days before the date of the alleged injury, or on or about Monday, March 13, 2006.8 The claimant also confirmed that it was she who had given the hospital personnel her medical history.9
Respondents provided a copy of the claimant’s time card for the week of March 12, 2006 which indicated that although the claimant did report to work on Friday, March 17, 2006, the claimant was excused on Monday, March 13, 2006; Wednesday, March 15, 2006; and Thursday, March 16, 2006. Respondents’ Exhibit 1; see also November 6, 2007 Transcript, p. 16. However, the claimant denied that she had been absent on Monday, March 13, 2006 and testified that she had worked on that date. “I was excused but it might have been a lunch or something, but I worked, those were my shifts.” Id. The claimant insisted she had sustained her injury on Friday, March 17, 2006.10
In his Finding and Dismissal, ¶ 11, the trial commissioner also referenced the Initial Office Visit report generated by Scott Waller, M.D. on March 20, 2006 wherein the doctor stated that the claimant “reports the onset of back pain symptoms three days prior to her ER visit. There is no known history or change in activity pattern.” Claimant’s Exhibit E; Respondents’ Exhibit 3. Significantly, the report contains no reference to the claimant having sustained a workplace injury.11
Thus, although the trial commissioner did not specifically state in his Finding and Dismissal the reasons why he did not find the claimant credible, it is possible to infer, based on Findings, ¶ 9 and ¶ 11 of the Finding and Dismissal and the foregoing excerpts from the claimant’s testimony, that the trial commissioner simply questioned the accuracy of the claimant’s narrative relative to the circumstances surrounding the onset of her injury. Such factual determinations are not subject to second-guessing by an appellate board, given that “the trial commissioner is the sole person empowered to evaluate a witness’s credibility.” Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006).
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.
Burton v. Mottolese, 267 Conn. 1, 40 (2003).
In addition, although the claimant did supply a report issued by Dr. Mastroianni on April 11, 2007 in which the doctor opined that the lifting incident at Stop and Shop was a substantial contributing factor to the claimant’s disc pathology, Claimant’s Exhibit B, the trial commissioner was entitled, in an exercise of his discretion, to disregard such an opinion insofar as it appeared to be “derivative of the claimant’s narrative.” Do, supra. “Ultimately, physicians commonly rely on a patient’s oral history to diagnose the cause of an injury. However, where a trier rejects a claimant’s recounting of the circumstances surrounding an injury it may be reasonable for him to reject the related medical opinions of compensability.” Piscitelli v. Textron Lycoming Division, 4793 CRB-4-04-3 (July 7, 2005).
In conclusion, procedural irregularities aside, we simply do not find the additional information presented by the claimant sufficiently compelling to warrant overturning the trier’s determinations in this claim. “Essentially, the appellant seeks to have this board independently assess the evidence presented and substitute our presumably more favorable conclusions for those reached by the trial commissioner. This we will not do. This board does not engage in de novo proceedings and will not substitute our factual findings for those of the trial commissioner.” Vonella v. Rainforest Café, 4788 CRB-6-04-2 (March 16, 2005). See also Fair v. People’s Savings Bank, 207 Conn. 535 (1988); Papapietro v. Bristol, 4674 CRB-6-03-6 (May 3, 2004).
Having found no error, the June 12, 2008 Finding and Dismissal of the Commissioner acting for the Seventh District is hereby affirmed.
Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.
1 The respondents’ Motion to Preclude in this matter should not be confused with a Motion to Preclude generally filed by the claimant pursuant to § 31-294c(b) C.G.S. BACK TO TEXT
2 Connecticut Practice Book § 85-1 provides, in part, that “[i] f a party shall fail to prosecute an appeal with proper diligence, the court may dismiss the appeal with costs.” BACK TO TEXT
3 Administrative Regulation § 31-301-9 (Rev. to 2005) states, “[i]f any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal. BACK TO TEXT
4 Administrative Regulation § 31-301-4 (Rev. to 2005) states, “[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, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the correction sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties. BACK TO TEXT
5 In her first appeal document, the claimant states, “[t]here is nothing in evidence that the claimant ever (had a car accident or a skiing accident or any other trauma to her lower back anywhere except at the Respondent’s store) especially on or about March 17, 2006.” Appeal from Findings and Dismissal dated July 12, 2008, p. 1. In her second appeal document, the claimant asserts, “[a]t no time did the Respondents introduce any evidence to the contrary that I had not been hurt at STOP & SHOP. At no time did the Respondents introduce any witness/experts that contradicted anything that I said.” Response to & Object to Motion to Preclude, Dated 12/2/2008, Motion to Dismiss, Dated 12/2/2008, & Respondents Brief Dated 12/8/2008, p. 3. BACK TO TEXT
6 See § 31-275(1) C.G.S. (Rev. to 2005) which states, in pertinent part, that “(1) ‘Arising out of and in the course of his employment’ means an accidental injury happening to an employee or an occupational disease of an employee originating while the employee has been engaged in the line of the employee’s duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer…. BACK TO TEXT
7 Administrative Regulation § 31-301-3 (Rev. to 2005) states, in pertinent part, that “[t]he finding of the commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the reasons for his conclusions…. BACK TO TEXT
8 Under cross-examination, the claimant testified as follows:
Q: So if we refer back to the first page of Claimant’s Exhibit A, it indicates for purposes of clarification, five days of increasing strong left buttock low back pain radiating down left leg to knee; correct?
Q: So that’s just an effort to clarify the eighth page of the same exhibit?
Q: And you were seen again on March 18, 2006; correct?
Q: Okay. So help me out with this. Five days back from that would be the 17th, 16th, the 15th, the 14th and the 13th; correct?
November 6, 2007 Transcript, p. 15. BACK TO TEXT
9 The claimant testified as follows:
Q: Well, did anyone else at Bridgeport Hospital, when you were seen at Bridgeport Hospital, did anyone else give any history to the doctors other than you?
Q: Okay. So whatever history the Bridgeport Hospital received it would have been from you; correct?
Id., at 16-17. BACK TO TEXT
10 Under direct examination, the claimant testified as follows:
Q: Okay. Now it’s your testimony you got hurt on March 17?
Q: Why do you recall March 17?
A: Oh, first it’s St. Patrick’s day, so you know, it was painful. I remember going to the hospital the next day, and I had corned beef.
Q: On St. Patrick’s day?
A: Yeah, corned beef, they always give that out in the deli. That was the meal of the day.
November 7, 2007 Transcript, p. 9. BACK TO TEXT
11 Under cross-examination, the claimant testified as follows:
Q: I’m going to show you this report which has now been marked Respondents’ Exhibit 3. Can you indicate to me where in this report it indicates a history by you that you were injured at Stop and Shop?
A: (Viewing.) Yeah, it doesn’t say it.
Q: Okay. In fact, what this exhibit says, this is the March 20, 2006 report, Respondents’ Exhibit 3, it indicates on the fourth line quote “There is [no] known history or change in activity pattern”; correct?
Q: Fourth line. (Indicating.)
A: (Viewing.) Correct, that’s what it says there.
November 7, 2007 Transcript, pp. 18-19. BACK TO TEXT