State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Gibson v. State of Connecticut Department of Developmental Services - North Region

CASE NO. 5422 CRB-2-09-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 13, 2010

SUSAN GIBSON

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF DEVELOPMENTAL SERVICES-NORTH REGION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB ROBINS NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Anthony Feit, Esq., Attorney at Law, 4-B New London Turnpike, Suite 6, Glastonbury, CT 06033.

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

This Petition for Review from the January 28, 2009 Finding and Dismissal of the Commissioner acting for the Second District was heard July 24, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Randy L. Cohen and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This appeal is based on a single issue: did the trial commissioner err in dismissing the respondent’s claim that they were entitled to reimbursement from the claimant for an overpayment? Upon reviewing the evidence presented at the hearing we conclude the trial commissioner had a sufficient basis to find the respondent’s arguments and evidence unpersuasive. We therefore affirm the decision of the trial commissioner and dismiss this appeal.

A rather convoluted series of events predated the commissioner’s ruling in this matter. The claimant was injured in the 1980’s while in the employ of the respondent. On August 28, 1989 a voluntary agreement was approved between the claimant and the respondent for those injuries. The agreement called for the payment of permanent partial disability benefits of 5% for the cervical spine; 7.5% for the lumbar spine and 5% for the left hand attributed to those injuries. Those injuries were stated as having occurred on February 24, 1987. The voluntary agreement stated a maximum medical improvement date of March 8, 1988. In the Finding and Dismissal at issue, the trial commissioner noted that the voluntary agreement had “a distinct tear at the upper left corner of the document consistent with stapled attachments, but the attachments are no longer present.” Findings, ¶ 1.

The claimant moved on June 12, 2008 to reopen the voluntary agreement, arguing the voluntary agreement is defective as to the maximum medical improvement date reflected. She argued that as she was not represented by counsel at the time the voluntary agreement was approved in 1989, it should be reopened. The respondent filed a timely objection to this motion.

A formal hearing was held on August 4, 2008 wherein the claimant testified that she was assisted by a union representative at the time she signed the voluntary agreement. She said she had been told by the commissioner hearing her case that day that she should sign the agreement. She also testified that she had been represented by counsel for one purpose; the attorney obtained a full and final stipulation with the respondent for a foot injury. The trial commissioner took administrative notice of a stipulation in the amount of Five Thousand Dollars ($5,000) dated April 16, 1993 and approved by the workers’ compensation commission on June 18, 1993. The stipulation resolved a foot injury which occurred February 24, 1987.

The claimant testified that she did not recall receiving the permanent partial disability benefits to which she was entitled pursuant to the voluntary agreement. While she testified she had talked with people about the issue of not receiving permanency benefits on various occasions, she did not retain an attorney to pursue the issue until 2006. She testified the only payments she received after executing the voluntary agreement were a scar award and a payment for her foot.

The claimant was presented with copies of checks presented by the respondent. The claimant testified that the checks appeared to contain what looked like her signature on the endorsements, but did not relate said checks to the permanency award. Ms. Martha Gallagher testified on behalf of the respondent as keeper of the records. She testified that she had personally researched the payment records and obtained copies of the checks. She further testified that she believed the claimant had been overpaid by $13,078.40.

Based on this foregoing record, the trial commissioner determined that the claimant could not reopen the voluntary agreement. He concluded that there was insufficient evidence of a mutual mistake; the missing attachment made it impossible to determine what information was presented to the commissioner when the agreement was approved; and the long delay caused the request to be barred by the doctrine of laches. The claimant sought additional permanency benefits and this request was denied by the trial commissioner. The commissioner found there was insufficient evidence to support the claimant’s contention the benefits were not paid; and this request was also barred by the doctrine of laches.

The claimant originally appealed this decision to this panel. She has since withdrawn her appeal and therefore, this decision by the trial commissioner as to her claim will stand.

The trial commissioner also resolved the issues presented by the respondent, who sought to be reimbursed for an alleged overpayment to the claimant. The trial commissioner determined that the claim depended on the coding of the checks presented, and concluded:

The Respondents’ overpayment claim presupposes that all of the coding (i.e., TT, TP, PPD) was accurate at the time of entry and remained accurate in the face of changed circumstances in the claim some twenty (20) years ago. As such, there is insufficient credible and persuasive evidence that an overpayment was made.

Findings, ¶ G.

The trial commissioner also concluded the respondent’s claim was also time-barred by the doctrine of laches. Therefore he dismissed the respondent’s claim for overpayment. The respondent filed a Motion to Correct. This motion was denied. They also filed a Motion for Memorandum of Decision, a Motion for Reconsideration and a Motion to Submit Additional Evidence. The trial commissioner did not rule on these motions, which we may legally deem denied for the purposes of this appeal. Spatafore v. Yale University, 14 Conn. Workers’ Comp. Rev. Op. 310, 2011 CRB-3-94-4 (September 14, 1995).

The respondent has filed their Motion to Submit Additional Evidence before this panel. They seek to add the deposition of Ms. Gallagher to the record so as to address the coding issue for the various checks. They argue that they did not anticipate this issue being raised by the trial commissioner. Upon review we deny this motion and our reasoning thereof is dispositive of the entire appeal.

In Grant v. Siemens Westinghouse Power Co., 5292 CRB-4-07-11 (October 28, 2008) the panel rejected the appellant’s bid to add evidence to the record. We find their reasoning in that case equally applicable to the present case.

The Appellate Court outlined the standard for review under Admin. Reg. § 31-301-9 when a party seeks to present previously unconsidered evidence directly to this panel. In Mankus v. Mankus, 107 Conn. App. 585 (2008) the court set out the following requirement.
Thus, in order to request the board to review additional evidence, the movant must include in the motion 1) the nature of the evidence, (2) the basis of the claim that the evidence is material and (3) the reason why it was not presented to the commissioner. Id., at 596.
In Mankus, the Appellate Court concluded that claimant failed to provide a sufficient explanation as to why the evidence should be admitted post-hearing. We followed a similar line of reasoning in Diaz v. Jaime Pineda a/k/a d/b/a J.P. Landscaping Company, 5244 CRB-7-07-7 (July 8, 2008). In Diaz we outlined the following requirement to consider evidence not presented at the formal hearing,
A party who wishes to submit additional evidence to this board must prove that they had good reasons not to present such evidence at the formal hearing Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). The respondent Second Injury Fund (The “Fund”) points out that in Smith v. UTC/Pratt & Whitney, 3134 CRB 3-95-6 (June 4, 1996) we held the moving party in such a motion must establish the evidence could not have been obtained at the time of the original hearing.

Essentially what the respondent would like to do is to rehabilitate the testimony of their witness after the conclusion of the formal hearing. We are not persuaded that the issues raised by the trial commissioner could not have been foreseen by counsel for the respondent in preparing his case. Therefore we find the alleged “due process” arguments (Respondent’s Brief, pp. 8-10) completely unmeritorious. The respondent was the one who chose to present this evidence and must anticipate the possibility the trier of fact may find it is deficient. The respondent’s argument essentially is a bid for piecemeal litigation, which our precedent clearly states is inappropriate. See Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001) and Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005). The respondent’s witness should have been able to properly address this issue at the time of the formal hearing, and not get a second chance after an unfavorable result was achieved.1

The respondent then argues on the merits that the trial commissioner’s conclusions were erroneous. They argue that Findings, ¶ G was unsupported by the evidence and that Findings, ¶ H inconsistent with precedent governing the State of Connecticut. Since we find the trial commissioner’s decision on Findings, ¶ G consistent with the evidence on the record, we need not consider the legal arguments concerning laches to uphold the trial commissioner’s dismissal.

The respondent argues that the trial commissioner was not in a position to disregard what they characterize as “uncontroverted” evidence. We note that the appellants raised the same argument in Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008) and Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006). As we pointed out in those cases, a trial commissioner may properly disregard evidence which he or she does not find persuasive. To the extent Findings, ¶¶ 12-13 (which summarized Ms. Gallagher’s testimony) and Findings, ¶ G (finding it unpersuasive) are “inconsistent,” such inconsistency was resolved by the trial commissioner’s denial of a Motion to Correct on this issue seeking to resolve the issue in the respondent’s favor. Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003). As we held in Beedle “[t]he trier’s denial of those corrections implies that he was not swayed by this testimony, and we cannot invade his sphere of authority by reappraising the evidence and drawing a contrary inference on appeal. Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (Jan. 20, 2000).”

Nonetheless, we do believe we should examine the record herein since, while “we are deferential to the finding of facts reached at the trial level, our appellate review must consider whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007). We believe the testimony of Ms. Gallagher could reasonably have been discounted by the trial commissioner.

Ms. Gallagher testified that she had not worked for the respondent during the time period in dispute, and did not commence working for the respondent until 1998. August 4, 2008 Transcript, p. 57. She testified the evidence presented were copies of checks, and printouts detailing such checks. She testified that the original checks were at the Iron Mountain storage firm. Id., p. 61. Counsel for the claimant restated his position that his discovery request was for the actual checks, wherein the witness said that due to fear of loss they were not removed from storage. Id., p. 64. The witness then discussed various exhibits pertaining to payments made to the claimant as well as credits, which she stated constituted an overpayment which totaled $13,078.40. Id., p. 68-69. The witness however, stated she had not worked for the respondent at the time the records presented were generated. Id., p. 70. The witness stated that the coding on the check was drawn from a “historical document” the respondent’s former claims manager (J. Neale MacDonald) had prepared when the claim was active. Id., p. 71. She did not know if the coding of the checks was done at the time the checks were issued. Id., p. 71.

Counsel for the claimant then asked her to testify. At this time he presented her with a copy of a printout (Respondent’s Exhibit 1) which the respondent introduced as evidence of overpayment to the claimant. The claimant noted that one of the dates when she was alleged to have been paid was listed as “6/8/2008” and denied having received any checks from the state in 2008. Id., p. 73. We note that the alleged overpayment to the claimant was thought to have occurred in the late 1980’s. In considering this testimony on appeal, we look to the deference we extend the trier of fact.

On appeal we have a limited scope of review, as our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.”

Daniels v. Alander, 268 Conn. 320, 330 (2004).

Applying this standard to the testimony of Ms. Gallagher and the claimant, we believe the trial commissioner could have “reasonably concluded” the respondent’s evidence was unpersuasive on the issue of overpayment to the claimant. As we held in Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006), “[o]ne can only expect the trier of fact to render a decision based on what evidence actually says, not what it should have said.”2

We find no error, and herein affirm the Finding and Dismissal. The appeal is dismissed.

Commissioners Randy L. Cohen and Stephen B. Delaney concur in this opinion.

1 Indeed a review of the record suggests that the evidence in question was obtained very late in the proceeding and to the extent a due process issue exists; the claimant may have been in a better position than the respondent to assert such a claim. The hearing transcript indicates that counsel for the claimant did not receive copies of the checks until the Friday before the formal hearing. August 4, 2008 Transcript, p. 16. The hearing notices also did not state that the respondents were asserting a claim for reimbursement, nor did counsel for the respondent state in his opening statement at the formal hearing that reimbursement to the respondent was an issue under consideration. Id p. 10-13. Under similar circumstances we have upheld a trial commissioner who deemed such 11th hour evidence inadmissible. LaMontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008). In the present matter, it appears the respondents’ themselves were harmed by their own late arriving evidence, as their witness proved unpersuasive. We are not in a position to relieve what constitutes a “self-created hardship.” McInnis v. Shelter Workz, 5299 CRB-3-07-11 (June 11, 2009). BACK TO TEXT

2 The respondent’s argue that the trial commissioner’s decision was based on “speculation” concerning the billing codes. Respondent’s Brief, pp. 6-8. We reject this argument. The respondent was the moving party on the issue of overpayment and had the burden of persuasion on this issue. They failed to persuade the trier of fact and as we discussed, we believe the trial commissioner could have reasonably found the respondent’s witness unpersuasive on this issue. In order to prevail, the respondent had the obligation to convince the trial commissioner of the veracity of their evidence. If the trial commissioner was left unconvinced, that is not reversible error. BACK TO TEXT

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Page last revised: February 11, 2010

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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