CASE NO. 5377 CRB-1-08-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 27, 2009
RANCO COLLISION, LLC
HARLEYSVILLE INSURANCE CO.
The claimant was represented by Enrico Vaccaro, Esq., Law Offices of Enrico Vaccaro, 1057 Broad Street, Bridgeport, CT 06604.
The respondents were represented by Andrew J. Hern, Esq., Law Offices of Andrew J. Hern, 221 Main Street, 5th Floor, Hartford, CT 06106.
This Petition for Review from the August 26, 2008 Finding Dismissal of the Commissioner acting for the First District was heard March 27, 2009 before a Compensation Review Board panel consisting of Commissioners Peter C. Mlynarczyk, Randy L. Cohen and Stephen B. Delaney.
PETER C. MLYNARCZYK, COMMISSIONER. The claimant in this matter appeals the denial of his claim that his left ankle injury arose out of his employment with the respondent. We find this dispute is one that is based on issues of fact and not law. As we must respect the fact-finding prerogative of the trial commissioner, we affirm the Finding & Dismissal and dismiss this appeal.
The trial commissioner reached the following factual conclusions. She found that on June 9, 2004 the claimant was employed by the respondent Ranco Collision, LLC and had worked there for a year and a half. The claimant had been an automobile body technician for 25 years as of the hearing. The claimant testified on the date in question that he stepped down 40 to 45 inches off a frame machine onto a metal fitting on an air hose, and subsequently twisted his ankle and fell to the floor. He said he suffered immediate pain and swelling, reported this injury to his supervisor, and sought treatment at Grove Hill Medical Center.
The physician who examined the claimant at Grove Hill, Dr. Belniak, and the physician’s assistant, Jason Andrus, made the following observations after examining the claimant. They noted the claimant had a long history of “chronic ankle sprains with ligament damage;” that the claimant denied additional injury as a result of the recent fall, and he had arrived at the office using a cane. Since x-rays did not disclose any new fracture of the foot, the claimant was released, prescribed medication and a cam walker boot; and directed to return for follow-up. The claimant was examined again at Grove Hill on June 22, 2004 at such time the claimant received a Depro-Medrol injection and was prescribed additional medication for pain and inflammation. The June 9, 2004 and June 22, 2004 Grove Hill reports do not reference a work-related injury.
The claimant then began treating with Dr. William Lewis from Total Orthopaedic Care, LLC in Bridgeport, Connecticut. Dr. Lewis’s June 25, 2004 report noted a June 9, 2004 work accident and suggested surgery was necessary. Dr. Lewis stated that the claimant had no history of past injuries to his left ankle. The claimant had surgery, including insertion of hardware, performed on June 30, 2004 at St. Vincent’s Medical Center in Bridgeport. The hardware was removed on August 25, 2004. The claimant continued treating with Dr. Lewis, who stated he was totally disabled from work until January 11, 2005.
The respondents had the claimant examined by Dr. Ross Benthien on July 19, 2005. Dr. Benthien originally determined that although the claimant suffered no permanent disability from the injury and could perform his prior job, that the mechanics of the injury were not inconsistent with the patient’s narrative. At a September 11, 2007 deposition Dr. Benthien stated the claimant had not previously told him about prior issues with the left ankle. The witness also testified various medical records that were provided to him demonstrated a prior history of left ankle problems and this called into question the history provided by the claimant.
The respondents provided medical records from Dr. George Swartz, an orthopaedic surgeon at Grove Hill Medical Center. Dr. Swartz documented that the claimant had suffered noncompensable left ankle injuries on or about September 28, 1998; October 20, 1998; January 18, 1999 and June 5, 2000. The injuries involved were thought to include a chip fracture of the lateral malleolus; a partial tear of the anterior talofibular ligament; and a sprain which led to inflammation of the posterior tibial tendon.
Based on these subordinate facts the trial commissioner concluded that the claimant was employed with the respondent on June 9, 2004 when he treated at Grove Hill Medical Center. She found the medical records of Dr. Belniak and his assistant, Mr. Andrus of Grove Hill credible in that they documented the claimant suffered from a long history of chronic ankle sprains with ligament damage. The commissioner noted that the Grove Hill records did not document a new fracture or other significant abnormality and that the records did not document a work-related accident.
The commissioner also concluded the medical records of Dr. Swartz were credible that the claimant had two separate left ankle injuries prior to his June 9, 2004 left ankle injury. The commissioner found the claimant did treat with Dr. Lewis and received surgery, but that the history the claimant gave to Dr. Lewis that he had no prior injury to his left ankle was not persuasive. Because Dr. Lewis’s opinion concerning what caused the claimant’s need for surgery was reliant on this narrative, the commissioner concluded Dr. Lewis was not credible on that issue. The commissioner also found the statements the claimant made to Dr. Benthien as to his prior medical history were not credible, but found Dr. Benthien’s September 11, 2007 deposition testimony persuasive. Therefore, the commissioner did not find the claimant’s testimony (or medical opinions derived from this testimony) as to the cause of his ankle injury credible, and therefore, did not find the June 9, 2004 injury arose out of and in the course of his employment with the respondent.
The claimant filed a Motion to Correct seeking nearly two dozen corrections to the Finding & Dismissal. The trial commissioner accepted one correction which did not impact the substantive result. The claimant then pursued this appeal.
The claimant raises a number of issues on appeal. He states that the respondents’ statements on various documents constitute an “equitable estoppel” against contesting the claimant’s claim. He argues that the trial commissioner impurely failed to apply the Secondino rule as to the lack of supporting witnesses for the respondents’ defense. He argues that the trial commissioner erred in refusing to admit a sworn statement from the claimant’s brother, who was an eyewitness to the accident. Finally, he argues that the trial commissioner failed to properly credit substantial and uncontroverted evidence the claimant suffered an acute ankle injury on June 9, 2004. We have reviewed these issues and find none persuasive enough to disturb the trial commissioner’s findings.
We have pointed out on numerous occasions that a trial commissioner is generally afforded a great deal of deference as to his or her factual findings. As we pointed out in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007)
The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. . . 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.) citing Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 665-666 (2006).
We may act to intervene when a trial commissioner has reached an erroneous conclusion of law, see Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007) and Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007). However, consistent with appellate precedent such as Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988) an appellate panel such as ours must extend “every reasonable presumption” in favor of the fact-finder’s decision Daniels v. Alander, 268 Conn. 320, 330 (2004).
The first issue presented on appeal is the issue of whether the various statements made by the respondents’ principal, Andrew Hewitt, serve to estop the respondent from contesting the claim. The claimant asserts that case law such as Union Carbide Corp. v. Danbury, 257 Conn. 865 (2001) and Jacobson v. General Dynamics Corp./Electric Boat Division, 4642 CRB-2-03-3 (March 12, 2004) should cause this panel to conclude that the respondent essentially conceded liability when he informed various police departments and the Department of Labor that subsequent to June 9, 2004 the claimant was out on workers’ compensation.
We are not persuaded by the legal authority presented in support of this theory. In Union Carbide, the Supreme Court outlined the essential elements to prove estoppel, which are simply not present in this matter.
We [have] recognized that estoppel always requires proof of two essential elements: that the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief and the other party must change its position in reliance on those facts, thereby incurring some injury.
Id., at 873.
In the present case, the respondent’s principal advised the South Windsor police on November 1, 2004 that the claimant “is out on worker’s [sic] compensation.” Claimant’s Exhibit E. In an incident report dated December 22, 2004 Mr. Hewitt is quoted by the Berlin police that the claimant “had gone out on workmen’s compensation sometime in June of this year.” Claimant’s Exhibit F. Mr. Hewitt is also quoted by the State Department of Labor stating that the claimant “was out on workman’s [sic] compensation as a result of an injury on the job to his foot.” Claimant’s Exhibit H.
We will examine the impact of these statements more fully, but the claimant fails to identify an essential element of estoppel herein: there is no evidence presented that the claimant or anyone else changed their position in reliance on the respondent’s statements. Even, assuming arguendo, a third party had relied on these statements, we have previously pointed out a party before this Commission cannot vicariously assert rights vested in a third party. Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) citing Strobel v. Strobel, 64 Conn. App. 614, 620 (2001).
The statements herein are viewed by the claimant as “admissions against interest,” wherein another reasonable interpretation is that these statements were merely recitations of the factual status of the claimant as not working and seeking workers’ compensation as of the dates in question. The claimant believes they constitute a binding admission not as to the claimant’s status, but to the issue of causation. We may infer this approach was not accepted by the trial commissioner. The statements in question were not made in pleadings before this Commission; therefore we cannot consider them “judicial admissions.” Therefore, we find the precedent in Nationwide Mutual Insurance Co. v. Allen, 83 Conn. App. 526 (2004) controlling over this matter.
In Nationwide a dispute occurred in an insurance coverage case whether an individual was an employee; which he had stated in his workers’ compensation claim. The Appellate Court concluded this constituted an evidential admission, not a judicial admission.
In contrast with a judicial admission, which prohibits any further dispute of a party’s factual allegations contained in its pleadings on which the case is tried “[a]n evidential admission is subject to explanation by the party making it so the trier may properly evaluate it.”
Id., at 542.
In the present case the respondents never withdrew or amended their Form 43. Counsel for the respondents fully challenged the claimant’s version of events by way of cross-examination asserting the claimant’s injury was not work-related. The respondents also presented medical evidence challenging the claimant. We do not find the commissioner’s implied conclusion herein that the respondents did not waive their defenses inconsistent with the facts on the record.1 Moreover, on their face, the documents do not represent that they were offered or prepared in an effort to address the issues at hand. They were prepared by third parties to address police concerns and unemployment insurance concerns.
We also find the case of Dzienkiewicz v. State/Department of Correction, 5211 CRB-8-07-3 (March 18, 2008), aff’d, 291 Conn. 214 (2009) applicable where this board and the Supreme Court found that trial commissioners were not required even to admit evidentiary admissions into the record. The Supreme Court’s reasoning that a trier of fact may exercise discretion to exclude conclusory evidence is instructive. Id., at 222-224. In the present case the exhibits were admitted as evidence, but the trial commissioner decided not to give them weight and decided to deny a Motion to Correct to rely on the alleged admissions.2 3 We must conclude that by denying the corrections the trial commissioner was simply not persuaded the evidence presented was probative. See Jacobson v. General Dynamics Corp./Electric Boat Division, 4642 CRB-2-03-3 (March 12, 2004) and Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008), appeal pending, A.C. 30306.4 This decision is within her prerogative.
The claimant then argues that the trial commissioner was required to draw an adverse inference from the respondents’ alleged failure to present fact witnesses to challenge the claimant’s testimony. The claimant argues that this board must apply the adverse inference rule enunciated in Secondino v. New Haven Gas Company, 147 Conn. 672 (1960). This board rejected this argument in Evans v. Shelton, 3108 CRB-4-95-6 (May 2, 1997), dismissed for lack of final judgment, A.C. 17196 (1998) and we find our rationale in Evans applicable herein.
The Secondino rule allows a fact-finder to draw an adverse inference from a party’s failure to call a witness if the party seeking the adverse inference shows (1) that the witness is available and (2) that the other party would naturally produce that witness based on his or her superior or peculiar information material to the case. Id., 675; Barksdale v. Harris, 30 Conn. App. 754, 762-63 (1993). This issue generally arises in cases where jury instructions are at issue, however. When a trial commissioner is acting as the fact-finder, the situation is different because no jury instructions are available for an appellate body to review. Nowhere in our law does it say an adverse inference is ever required in a given situation; thus, if the trier declines to draw an adverse inference from the absence of a particular witness, it would likely not be discussed in the written decision.
We also note that since the burden of persuasion before our panel is upon the claimant, there is no legal obligation on the part of the respondent to present witnesses at the formal hearing. A respondent may decide simply to challenge the claimant’s evidence and argue his or her case is not persuasive.
The claimant also argues that the trial commissioner was obligated to admit the statement of the claimant’s brother, Robert Seiler, which he states corroborates his narrative as to suffering an acute ankle injury in the workplace. We disagree. We believe the precedent in Dzienkiewicz, supra, stands for the commissioner’s discretion to determine what evidence should be admissible in a formal hearing. We also note that in LaMontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008) we restated long-standing precedent that on the issue of whether to admit evidence, “a trial commissioner has broad discretion to determine the admissibility of evidence, and an evidentiary ruling will not be set aside absent a clear abuse of that discretion.” Merchant v. J.S. Nasin Company, 9 Conn. Workers’ Comp. Rev. Op. 122, 952 CRD-2-89-11 (May 1, 1991). We also reject the claimant’s assertion that had this evidence been admitted “it would have changed the outcome of the case” Claimant’s Brief, p. 9. When a claimant was found not to be credible in her narrative of injury in Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006), corroborating witnesses were not sufficient to change the trial commissioner’s mind.
The respondents note that the claimant had the opportunity to present live testimony at the formal hearing from Robert Seiler, but did not call him to testify; instead choosing to seek the admission of a sworn statement. We believe our opinion in LaMontagne, supra, explains why this poses a due process concern, and why the trial commissioner was within her discretion not to admit such evidence.
The claimant finally argues that the amount of evidence supporting his claim was so overwhelming that it was reversible error for the trial commissioner to deny the claim. He argues that the trial commissioner’s conclusion that Dr. Lewis’s opinion of causation should be discounted lacks a foundation in the evidence. He also argues the Grove Hill records clearly prove he suffered an acute compensable injury.
It is black letter law that “[i]t is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). Since we must extend “every reasonable presumption” in favor of a commissioner’s conclusion we will review the Finding & Dismissal to ascertain the foundation for the trial commissioner’s conclusions.
The trial commissioner noted that on June 9, 2004 the claimant arrived at Grove Hill Medical Center using a cane. The claimant was using the anti-inflammatory drug Celebrex. The medical evidence did not document a locus of injury as the claimant stated he “stepped on something while walking.” These contemporaneous medical records would support the commissioner’s finding that the claimant was not credible in his narrative to Dr. Benthien representing that his prior injuries had healed successfully. The claimant testified at the formal hearing that on the date of the accident he happened to have a cane hanging from his tool box which he used to prop things up at work. February 6, 2008 Transcript, pp. 59-61. We may infer that the trial commissioner did not accept this statement at face value.
The claimant argues the Grove Hill medical reports are “uncontroverted” on the issue of whether the claimant suffered a compensable injury. Claimant’s Brief, p. 12. They are not, due to the omission of a locus of injury within the documents themselves. A trial commissioner may apply their experience and common sense, and take notice of the absence of documentation in the record one would expect to find after a workplace accident. The medical records do not corroborate the claimant’s story, since they do not mention a workplace incident. The claimant has the burden of persuasion before this Commission that his injury occurred in the scope of employment. Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006); Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). The documentation provided by the claimant as to his medical treatment immediately following the alleged incident did not prove persuasive.
We also note the trial commissioner discounted the testimony of Dr. Lewis, who treated the claimant during the summer of 2006. The trial commissioner found Dr. Lewis’s opinions as to causation not credible, due to the inaccurate medical history provided to him by the claimant. The claimant argues that there is no evidence that the witness would have reached a different conclusion on causation had he been presented with an accurate history. Our case law is clear that a trial commissioner has the right to discount in toto the opinions of any expert witness who relied in any measure on what the trial commissioner deemed to be an unreliable narrative. 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).
Had the claimant sought to rehabilitate the opinion of Dr. Lewis, he could have deposed the witness, placed an accurate medical record before him, and elicited a new opinion as to causation. Berube, supra. The claimant now must accept the doctor’s opinion “as is.” Id. We cannot find fault with a trial commissioner who found medical evidence based on an inaccurate foundation of facts unreliable.
As noted, the trial commissioner on numerous occasions determined that the claimant made incomplete or inaccurate statements to his physicians. This goes to the claimant’s overall credibility, which we cannot consider as an appellate panel. Burton v. Mottolese, 267 Conn. 1, 40 (2003). In Finding, ¶ K the trial commissioner concluded the claimant’s testimony about his ankle injury was not credible. Whether the claimant was injured in the manner he described is the central issue in this case. The trial commissioner found the claimant unworthy of belief on this point. Unless the claimant is a credible witness they cannot prevail before this Commission. See Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008) and Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008).6 7
We dismiss this appeal and affirm the Finding and Dismissal of the trial commissioner.
Commissioners Randy L. Cohen and Stephen B. Delaney concur in this opinion.
1 We note that the trial commissioner reached a different factual determination in Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006) where he gave weight to a letter the school sent parents which was consistent with the claimant’s narrative of injury. We also note that this goes to a commissioner’s discretion to give weight to the evidence. In Duffy the commissioner concluded the claimant was credible and respondents failed either to offer a cogent alternative explanation for the claimant’s condition or present medical evidence inconsistent with the claimant’s physician. BACK TO TEXT
2 The claimant specifically sought to add reliance of these statements in the Motion to Correct, paragraphs one and two. The trial commissioner denied these requested corrections. BACK TO TEXT
3 The Compensation Review Board’s Dzienkiewicz v. State/Department of Correction, 5211 CRB-8-07-3 (March 18, 2008) decision clearly outlines that this panel can only extend the force of “collateral estoppel” to matters which were “fully and fairly litigated” before other tribunals. This concept clearly does not encompass conclusory statements of fact. BACK TO TEXT
4 Since the trial commissioner in Jacobson v. General Dynamics Corp./Electric Boat Division, 4642 CRB-2-03-3 (March 12, 2004) denied the Motion to correct sought by the appellant, and this panel upheld the denial, we are puzzled as to how Jacobson compels this panel to reverse the trial commissioner in the present case. While the appellant herein asserts Jacobson as authority for a reversal, Claimant’s Brief, pp. 7-8, we cannot find support for this result from the text of the opinion. BACK TO TEXT
5 See also Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). (trial commissioner not obligated to approve award even if respondent fails to present evidence). BACK TO TEXT
6 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. To the extent “undisputed” facts were not added to the record, they would not have compelled a different result; Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003) particularly as the claimant failed to convince the trial commissioner he was a credible witness worthy of belief. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008). BACK TO TEXT
7 Since the claim was dismissed there was no error in denying the claimant’s Motion for Sanctions against the respondents. BACK TO TEXT