State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Kummer v. BIC Corporation

CASE NO. 5406 CRB-4-08-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 15, 2009

NANCY KUMMER

CLAIMANT-APPELLANT

v.

BIC CORPORATION

EMPLOYER

and

LIBERTY MUTUAL INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se.

The respondents were represented by Joseph J. Passaretti, Jr., Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the November 25, 2008 Finding and Dismissal of the Commissioner acting for the Fourth District was heard on May 29, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 25, 2008 Finding and Dismissal of the Commissioner acting for the Fourth District. We find no error, and accordingly affirm the decision of the trial commissioner.

The following factual background is pertinent to our review. The claimant alleges she sustained a compensable back injury on June 27, 1997 while in the employ of the respondent employer as a mold helper, which position entailed providing materials to the machine operators. The claimant testified that on the date of injury, she was pulling a wagon filled with cartridges that weighed more than 600 pounds when the wagon got caught on a “paddy-pal.” The claimant tried to pull the wagon free, and felt her back “go out.” Findings, ¶ 3.

The claimant testified that she informed the union steward of the incident but was unable to inform the company nurse because she had already left for the day. The claimant stated that because her coworkers’ vacation schedules overlapped with her own, she was unable to inform the company nurse about the injury until sometime in September 1997. A daily medical log maintained by the respondent employer indicated the claimant first reported low back pain on August 29, 1997 but did not attribute it to a specific injury or incident. A second medical log entry dated September 22, 1997 indicated the claimant reported both low back and left hand pain at that time but only provided a history of how the pain in the hand occurred. At trial, the claimant confirmed the medical log entries were accurate. A First Report of Injury was filed on February 2, 1998 and the claimant filed an Accident/Incident Investigation report on February 13, 1998.

The claimant submitted into evidence a report dated September 23, 1998 from S.J. Hochman, D.C., a chiropractor, who indicated he had been treating the claimant for lumbar complaints during the time period between August 18, 1997 and September 23, 1998. Claimant’s Exhibit A. In this report, Dr. Hochman opined, “there is a direct causal relationship between the work related accident of June 27, 1997 and Ms. Kummer’s subsequent injuries and impairment.” Id. Dr. Hochman assigned the claimant a seven-percent disability rating to her lumbar spine. The claimant also treated with Cynthia Relihan, M.D., for complaints associated with the left upper extremity. In her report of September 25, 1997, Dr. Relihan stated the claimant’s past medical history was “unremarkable.” Respondents’ Exhibit 4. On December 9, 1997, the claimant saw B.L. Sprague, M.D., for treatment of her right hand. In this report, in the section entitled “medical problems,” Dr. Sprague reported “none.” Respondents’ Exhibit 3. At the request of the respondents, on July 20, 1998, the claimant underwent a Respondents’ Medical Examination with James V. Lettera, M.D., for an evaluation of her left hand. In his report of that date, Dr. Lettera indicated the claimant’s “previous history is unremarkable other than for smoking.” Respondents’ Exhibit 2.

On December 16, 2003, the claimant consulted Scott Waller, M.D., for a lumbar complaint. At that time, Dr. Waller opined the claimant’s symptoms could be attributed to “a combination of left side sacroiliitis as well as being due to lumbosacral degenerative arthritis with an associated grade I spondylolisthesis of L4 on L5 and with possible left sided nerve root encroachment.” Respondents’ Exhibit 1. On March 23, 2004, Dr. Waller reported “[t]he patient’s lower back and left lower extremity symptoms have almost completely resolved with conservative management.” Id. Dr. Waller discharged the claimant from his care and did not assign an impairment rating.

On the basis of the foregoing, the trial commissioner dismissed the claimant’s lumbar spine claim, concluding that the claimant, whom he did not find credible or persuasive, had failed to sustain her burden of proof. The trial commissioner also indicated he found the medical opinions of Drs. Waller, Lettera, Relihan and Sprague credible and persuasive.

On December 15, 2008, the claimant filed a Motion to Correct the Finding and Dismissal indicating it was her understanding that the issue for discussion at the formal hearing was supposed to have been her low back claim and because the respondents had filed exhibits pertaining to her claim for an injury to her left hand, she was seeking corrections to Findings ¶¶10, 11 and 12. Along with this Motion to Correct, the claimant also filed a timely Petition for Review and additional correspondence indicating she was appealing the trial decision “on the fact that we were on the wrong body part and Claim #112 [sic] is the low Back Claim only.” On December 23, 2008, the trial commissioner issued a ruling on the claimant’s Motion to Correct in which he denied the proposed corrections but revised paragraph one of the Order in the Finding and Dismissal to state the following: “The Claimant’s back injury claim is hereby dismissed.”

The claimant filed a packet of documents with this board on February 25, 2009 containing what appeared to be a narrative of events beginning with a recitation of the circumstances under which she allegedly sustained her injury.1 In addition, the claimant requested we examine the package for “discrepancies and exactly what is being dismissed” as well as review the medical reports, dates of injuries, and “Deleted signatures” and “Deleted headings.”2 The claimant also averred that the respondents and the union had violated the provisions of “290a,b,c 1+2.”3 The claimant attached a number of documents to this narrative statement consisting of several hearing request forms, some commissioner’s notes, a set of handwritten notes of unknown origin, and a copy of claimant’s correspondence to respondents’ counsel dated February 23, 2009 indicating the claimant believed she had been deprived of due process because the dates of her injuries were “revised and switched.”

Counsel for the respondents filed correspondence with this board on March 10, 2009 objecting to the contents of the claimant’s February 25, 2009 submission on the grounds that the narrative contained therein primarily relied on hearsay evidence, some of which had been specifically excluded from the evidentiary record, and a number of the documents attached to the narrative had not been properly admitted into the evidentiary record. On March 16, 2009, the claimant filed additional correspondence with this board requesting “a motion to submit the evidence already sent in” and indicating the claimant was continuing to unearth new evidence as “we go through the paper work recieved [sic] from W/C. for W/D. in Waterbury. this is part of that claim.” The respondents again objected to both of the claimant’s submissions, contending the materials were “analogous to a Motion to Submit Additional Evidence,” Appellees’ Brief, p. 5, but did not satisfy the statutory provisions for the submission of such evidence. The respondents assert that the claimant’s motion must therefore be denied or they will be unfairly prejudiced.

We begin with a discussion of the procedural irregularities attendant upon this claim. We concede there is some question as to whether the document submitted by the claimant on February 25, 2009 may properly be construed as an appellate brief. Such a consideration is critical, because “[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).

Thus, while there may be some question as to whether the instant claimant has provided an appellate brief, she does appear to have furnished the board with two documents which upon review seem to 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.” Cuadrado v. Stop and Shop Companies, Inc., 5360 CRB-7-08-7 (July 2, 2009). Therefore, we will assess the documents filed by the 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).

As mentioned previously herein, the claimant filed a Motion to Correct on December 15, 2008 and an untitled submission on February 25, 2009. Our analysis of these documents would seem to suggest the claimant is questioning whether the trial commissioner’s decision to dismiss her back injury claim was tainted by his reliance on either erroneous dates of injury or irrelevant medical reports. Thus a “cognizable gravamen,” Cuadrado, supra, for the appeal may be that the trier’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, 344345 (2002).

Having discerned a reasonable rationale for the claimant’s appeal, however, we are significantly constrained relative to admission into the record of the extraneous facts and/or facts which were not properly introduced at trial. “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, Inc., 4500 CRB-6-02-3 (March 7, 2003), citing Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001). We are under similar restraints relative to the various documents appended to the claimant’s February 25, 2009 submission. “This board may not consider materials that were not part of the record at the formal hearing, unless they are admitted pursuant to a Motion to Submit Additional Evidence that meets the standards of Admin. Reg. § 31-301-9. 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.”4 Krajewski, supra, citing Drew, supra.

Having reviewed the claimant’s submissions vis-à-vis the admissibility standards set forth by Administrative Regulation § 31-301-9, we are not persuaded these additional documents warrant admission into the record. The hearing request forms and commissioners’ notes would have been administratively noticed by the trial commissioner. The handwritten notes are, as previously mentioned herein, of uncertain origin and were not authenticated. The February 23, 2009 correspondence to respondents’ counsel simply seems to reiterate the claimant’s concern that she has been deprived of her due process rights because of confusion surrounding her dates of injury. Thus, insofar as the claimant’s correspondence of either February 25, 2009 or March 16, 2009 may be construed as a Motion to Submit Additional Evidence, the motion is denied.

We now turn 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).

As discussed previously herein, the claimant has alleged that the trier’s decision to dismiss her lumbar spine claim may have occurred because of confusion regarding the date of the injury and/or the nature of the body part in the proceedings before him on September 4, 2008. Having reviewed the evidentiary record in this matter, we note at the outset that at trial, respondents’ counsel specifically stated the noticed issue was the compensability of the June 27, 1997 lumbar spine injury only, which the claimant affirmed. (Emphasis added.) Transcript, pp. 2-3. As previously mentioned herein, we also note that the trial commissioner revised his Finding and Dismissal following the claimant’s Motion to Correct to clarify that he was dismissing the claimant’s lumbar spine injury. While there can be no dispute that the respondents did submit medical records pertaining to other injuries sustained by the claimant, it can be reasonably inferred that the purpose of those submissions was to buttress the respondents’ argument that the claimant had not reported any symptoms associated with a lumbar spine injury to her other treaters. We thus find to be without merit the claimant’s allegations that the trial commissioner’s decision to dismiss her claim was the result of any confusion regarding the appropriate issue for discussion at the formal hearing.

With regard to the more substantive issue of whether the trier’s decision had a foundation in the record, our review of the evidentiary submissions suggests, contrary to the claimant’s contentions, that the trial commissioner had ample support for his decision to dismiss the claim. For instance, a Blue Cross & Blue Shield of Connecticut, Inc. Utilization Review form submitted by the claimant indicates, in the section entitled “How and When Injury/Illness Acquired,” that the claimant reported the “gradual onset” of increasing lower back pain over the course of one month. Claimant’s Exhibit G. Similarly, in a form entitled “Current Medical Problems” also submitted by the claimant, the claimant reported the pain began “gradually.” Claimant’s Exhibit H. As previously discussed herein, the Medical Daily Log entry for the claimant dated August 29, 1997 indicates the claimant was experiencing low back pain but did not attribute it to a specific injury or incident and a parenthetical entry states, “[n]ot sure what it’s from.” Claimant’s Exhibit M. Similarly, the Medical Daily Log Entry for September 22, 1997 indicates the claimant was out of work for two days because of low back pain but also states, “[n]o specific injury.”5 Id.

In addition, the submitted medical reports of Drs. Lettera, Sprague and Relihan (Respondents’ Exhibits 2, 3, and 4, respectively) do not reference a lumbar spine injury. Dr. Waller treated the client for a lumbar spine injury but in his report of December 16, 2003, he attributed the claimant’s lumbar symptoms to degenerative changes.6 Respondents’ Exhibit 1. Although Dr. Waller stated, “[t]he patient believes her lower back symptoms to perhaps be associates [sic] with her having sustained some sort of lower back injury in 1997 when she developed lower back pain while pulling a heavily loaded wagon at work,” id., and Dr. Hochman in his report of September 23, 1998 attributed the claimant’s symptoms to the workplace incident, the trial commissioner was not obligated to accept their opinions with regard to causation. “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 v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).

In addition, the trial commissioner could have reasonably inferred the assessments of Drs. Waller and Hochman were largely “derivative of the claimant’s narrative.” Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). Having drawn such an inference, the trial commissioner was well within his discretion to disregard the opinions; 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.” Id. Such determinations cannot be reversed on appeal, as they fall squarely within the trial commissioner’s purview. “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.” (Internal quotation marks omitted.) Daniels v. Alander, 268 Conn. 320, 330 (2004) citing Burton v. Mottolese, 267 Conn. 1, 54 (2003).

Additionally, as previously noted herein, although the incident allegedly occurred on July 27, 1997, the claimant confirmed at trial that she did not report the incident to the company nurse until September 1997.7 September 4, 2008 Transcript, pp. 29, 33. The claimant attempted to attribute this delay to overlapping vacation schedules but her testimony in this regard was inconsistent and confusing. For instance, the claimant initially testified the injury occurred at the end of the day on July 27, 2007, which was the last day before a long holiday weekend, and that because it was too late to report it to the company nurse, she reported it to the union steward.8 Id., at 27-28. The claimant then testified that when she returned to work following the long weekend, she couldn’t remember whether she went on vacation or whether her coworkers were on vacation. Transcript, p. 28. Later she testified that “when all the people came back,” id., at 29, she took her vacation but did not return until September. Id. Under crossexamination, the claimant was similarly confused, testifying “I can’t remember whether, in July, there was two weeks where everybody went on vacation. And then when they came back, I went on vacation, or vice versa. I don’t, I’m not sure which is which.” Id., at 32. The claimant repeated, “[s]o I’m saying maybe they went on vacation, and then I went back on vacation the last two, two weeks of July. When I came back in September –” Id., at 33.

The claimant produced no witnesses or affidavits supporting her account.9 The trial commissioner, having heard her testimony, found the claimant neither credible nor persuasive, and this board is not empowered to reverse this determination on appeal.

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, supra, at 40.

Having found no error, the Finding and Dismissal dated November 25, 2008 of the Commissioner acting for the Fourth District is accordingly affirmed.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 On February 6, 2009, the claimant delivered to this board a set of file folders containing copies of assorted documents such as medical and insurance company reports, workers’ compensation file materials, medical journal articles, and documents associated with the arbitration procedure stemming from her union’s grievance against the employer on her behalf. The claimant did not provide this board with a directive regarding these documents; however, it can be safely inferred that her intentions were that this board would review these documents in association with her appeal. This we will not do. It is well-settled that this board does not engage in de novo review. Anderton v. Waste Away Serv., 91 Conn. App. 345 (2005). The claimant provided no legal justification, either at the time of delivery of the file folders or at oral argument, for the inclusion of these documents in the record pursuant to a Motion to Submit Additional Evidence. See footnote 4, infra. Thus, the scope of our review is limited solely to any documents contained in said folders which were properly part of the record before us. BACK TO TEXT

2 In her submission dated February 25, 2009, the claimant also stated, “[t]here was a great loss of money in this scam.” BACK TO TEXT

3 Section 31-290a C.G.S. (Rev. to 1997) states, in pertinent part, “(a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.

(b) Any employee who is so discharged or discriminated against may either: (1) Bring a civil action in the superior court for the judicial district where the employer has its principal office for the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled if he had not been discriminated against or discharged and any other damages caused by such discrimination or discharge. The court may also award punitive damages. Any employee who prevails in such a civil action shall be awarded reasonable attorney’s fees and costs to be taxed by the court; or (2) file a complaint with the chairman of the Workers’ Compensation Commission alleging violation of the provisions of subsection (a) of this section. Upon receipt of any such complaint, the chairman shall select a commissioner to hear the complaint, provided any commissioner who has previously rendered any decision concerning the claim shall be excluded…. The commissioner may award the employee the reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he otherwise would have been eligible if he had not been discriminated against or discharged. Any employee who prevails in such a complaint shall be awarded reasonable attorney’s fees. Any party aggrieved by the decision of the commissioner may appeal the decision to the Appellate Court.” It is not entirely clear to which provisions of the statute the claimant is referring. BACK TO TEXT

4 Administrative Regulation § 31-301-9 (Rev. to 1997) 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

5 At trial, the claimant testified she didn’t see the company nurse write anything down when she saw her but confirmed that the Daily Medical Log records in evidence were taken by the company nurse. Transcript, p. 35. BACK TO TEXT

6 Similarly, an Advanced Radiology report dated August 16, 2007 identified, “[d]egenerative spondylolisthesis at L4-5 and L5-S1. At the L4-5 level, there is associated moderate to severe central canal stenosis. There is also lateral recess stenosis right greater than left. There is lateral recess stenosis at L5 S1, right greater than left, as well.” Claimant’s Exhibit L. BACK TO TEXT

7 We have previously noted herein that a First Report of Injury for this claim was not filed until February 2, 1998. Claimant’s Exhibit J. BACK TO TEXT

8 The union steward was never produced as a witness. BACK TO TEXT

9 We also note the claimant did not provide the names of any witnesses on the respondent employer’s Accident/Incident Investigation form dated February 13, 1998. Similarly, the First Report of Injury or Illness dated February 2, 1998 does not list any witness; nor does it list the time of occurrence. BACK TO TEXT

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