CASE NO. 5461 CRB-1-09-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 12, 2010
CORDELL N. GOULBOURNE
STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION
GAB ROBINS OF NORTH AMERICA
The claimant was represented by James M. Quinn, Esq., Quinn & Quinn, LLC, Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.
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 April 17, 2009 Finding and Award of the Commissioner acting for the First District was heard November 20, 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 respondent in this matter has appealed a Finding and Award issued to the claimant, Cordell N. Goulbourne. The matter was the subject of a prior opinion by this board; Goulbourne v. State/Department of Correction, 5192 CRB-1-07-1 (January 17, 2008) and a February 26, 2008 Ruling on Respondentís Motion for Reconsideration. In our earlier Goulbourne opinion we determined that the prior trial commissioner erred in dismissing the claim as he had not considered the claimant’s theory of recovery that he had sustained a repetitive trauma. We remanded this matter for a consideration of whether the claimant’s evidence supported such relief. The trial commissioner concluded the claimant had established his last date of exposure was within one year of filing his claim. She also concluded the claimant’s medical evidence was sufficient to support compensability. The respondent has appealed, citing several alleged errors.
After consideration of the respondent’s appeal, we are left unpersuaded. The respondent’s due process arguments generally appear to be an effort to belatedly contest issues that for whatever reason, the respondent failed to raise in a seasonable manner. The respondent offers no legal authority that these issues go to subject matter jurisdiction which would allow them to be raised at any point in the proceedings. We believe the trial commissioner properly decided that factual evidence as to the claimant’s medical condition should have been presented by the respondent in the prior proceeding, and their earlier decision to rely solely on a jurisdictional defense cannot be undone at this late date without prejudice to the claimant. We are, however, cognizant that a full and complete record must be preserved for appellate review. We are persuaded that the trial commissioner should not have declined to admit certain exhibits offered as evidence by the respondent, which were a medical report of Dr. Kevin Tally and a transcript of his deposition (Proposed Exhibit 1) as exhibits for identification. Therefore, we remand this matter for the limited and sole purpose of adding the Respondent’s exhibits to the record.
The pertinent facts relevant to this appeal are as follows. The trial commissioner considered two issues on remand from our panel: “a) What date the Claimant continued to be exposed to workplace stress thus establishing jurisdiction; and, b) Whether the Claimant’s hypertension constituted a compensable repetitive trauma injury.” The commissioner found the claimant began work for the respondent Department of Correction on August 16, 1996. His last day of work for the DOC was February 20, 2001. His pre-employment physical revealed no evidence of heart disease. The trial commissioner cited evidence presented at the first formal hearing as to the claimant experiencing stress in the workplace during his DOC employment. Finding, ¶¶ 4-5. The trial commissioner noted that the claimant had undergone numerous hospitalizations for coronary issues. Finding, ¶ 7. The trial commissioner further found the claimant had been treated by a cardiologist, Kathleen Kennedy, M.D. Dr. Kennedy had opined that she linked the claimant’s “premature atherosclerosis” to the claimant’s “stressful lifestyle working in the Corrections Department;” noting the absence of alternative risk factors “such as hypertension, obesity, sedentary lifestyle.” Finding, ¶ 10.
The commissioner concluded the CRB’s use of the term “hypertension” in the prior opinion was in error and the evidence presented in this matter related to a different form of coronary artery injury. Finding, ¶ 14. She admitted the claimant’s medical exhibits from the prior formal hearing without objection from the respondent. Finding, ¶ 19. She also admitted two medical reports from the respondent, both of which had been generated by physicians prior to the original formal hearing in this matter. Finding, ¶¶ 20-22. She considered testimony from the claimant on the impact the workplace had on his health. Finding, ¶¶ 16-18. She declined to admit testimony from Denise Powers, APRN, as an expert witness for the respondent. Finding, ¶¶ 24-25. She noted that the CRB on its remand order had determined the claimant had pursued relief on the basis of having sustained a repetitive trauma injury.
Based on these subordinate facts the trial commissioner concluded the claimant offered credible testimony and that his last day of exposure to workplace stress was February 20, 2001. She concluded the claimant’s Form 30C was filed within one year of that date and was timely. She found the claimant’s pre-employment physical examination did not reveal any heart disease. Therefore, according to the provisions of C.G.S. § 5-145a, she found the claimant suffered heart disease in the performance of his duty. She found the claimant’s treating physician, Kathleen Kennedy, M.D., to be credible and persuasive. She further found the evidence submitted by the respondent’s witnesses did not refute the claimant’s evidence. Therefore, she found the claimant’s claim for benefits to be compensable.
The Finding and Award in this matter was issued on April 17, 2009. The respondent filed their Petition for Review on May 14, 2009. The claimant has moved to dismiss this appeal asserting it was filed late. Subsequent to this filing the respondent filed a Motion for Articulation, a Motion to Set Aside Finding & Award, and a Motion to Correct. All these motions were denied by the trial commissioner. The respondent has pursued this appeal and has filed a Motion to Submit Additional Evidence with this panel.
We note that the respondent also filed their brief out of order in this appeal. The claimant/appellee filed their brief first, although the briefing schedule required the appellant to file their brief first. The claimant filed a second Motion to Dismiss based on the respondent’s untimely filing of a brief.
We must first address the two Motions to Dismiss. As for the initial delayed filing, the respondent argues that pursuant to Dowling v. Slotnik, 244 Conn. 781, 787-789 (1998) such a defect does not mandate dismissal of the appeal. We are persuaded that the claimant was not substantially prejudiced by the delay and therefore, deny the claimant’s motion. The respondent argues the second Motion to Dismiss due to the untimely brief was itself untimely, and that the claimant has waived the defect, citing Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987). We are also of the opinion the claimant was not materially prejudiced by the second delay by the respondent, and therefore, deny that Motion to Dismiss as well.
We turn to the merits of the appeal. The most salient issue is whether the trial commissioner erred in declining to permit a respondent’s medical examination to be entered as evidence. Essentially the appellant argues that precedent in Bailey v. State, 65 Conn. App. 592 (2001) guarantees that the respondent has an entitlement to have the claimant undergo a medical examination at any time in the proceedings upon their request. We do not agree as this interpretation is inconsistent with the “plain meaning” of the relevant statute, § 31-294f(a) C.G.S., and the various precedent barring the use of piecemeal litigation.
When considering the Connecticut General Statutes we are limited by § 1-2z C.G.S. to consideration of the “plain meaning” of the statute. First Union National Bank v. Hi Ho Shopping Ventures, Inc., 273 Conn. 287, 291 (2005). Prior to considering the Bailey precedent we must look at the text of the relevant statute. Section 31-294f(a) C.G.S. states as follows:
An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. The examination shall be performed to determine the nature of the injury and the incapacity resulting from the injury. The physician or surgeon shall be selected by the employer from an approved list of physicians and surgeons prepared by the chairman of the Workers’ Compensation Commission and shall be paid by the employer. At any examination requested by the employer or directed by the commissioner under this section, the injured employee shall be allowed to have in attendance any reputable practicing physician or surgeon that the employee obtains and pays for himself. The employee shall submit to all other physical examinations as required by this chapter. The refusal of an injured employee to submit himself to a reasonable examination under this section shall suspend his right to compensation during such refusal. (Emphasis added)
The respondent argues in their brief that the Bailey precedent creates a virtually unlimited entitlement to demand that the claimant submit to a medical examination at any time of the respondent’s choosing. Appellant’s Brief, p. 9. The Appellate Court in that decision determined the legislature meant to use the word “shall” to constitute a mandatory obligation on the claimant. The Bailey decision, which predated the enactment of § 1-2 z C.G.S., however, failed to consider the import of the presence of the word “reasonable” in the statute.
This panel has steadfastly maintained that in the course of a proceeding before this Commission, it is the trial commissioner who is the arbiter of what is reasonable or not. Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008), appeal pending, A.C. 18357. As we pointed out in Potvin, “[i]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous. Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 660 (2007).” The respondent’s construction of § 31-294f(a) C.G.S. essentially removes the word “reasonable” from the statute, which is inconsistent with the statute governing statutory interpretation in Connecticut. Therefore, we must ascertain if the trial commissioner acted unreasonably in denying the respondent their own medical examination at this point in the proceedings.
We look to the procedural history of this matter in resolving this question. The matter was originally the subject of a formal hearing before former Commissioner Frankl in 2006. The hearing was duly noticed for consideration as to whether the claimant’s injury was compensable. On March 15, 2006 counsel for the respondent stated that while he “was not trying to minimize” the claimant’s medical condition “I do think there are serious jurisdictional problems and we will see what the medicals say and what his testimony says.” March 15, 2006 Transcript, p. 11. On May 8, 2006 the claimant testified before the trial commissioner and was cross-examined by counsel for the respondent. At the conclusion of that hearing the trial commissioner inquired if the respondent wanted to present any additional evidence. Counsel for the respondent stated that they wanted to have an RME performed “as to the permanent partial disability rating” for the claimant. May 8, 2006 Transcript, p. 91. The commissioner agreed to hold the record open for this RME to be admitted “and it’s limited to a permanent partial disability of the heart.” May 8, 2006 Transcript, p. 92. Respondent’s counsel stated that any other evidence he intended to present was limited to “legal issues relating to time, date of notice, date of injury, et cetera.” May 8, 2006 Transcript, p. 93. The trial commissioner then held another session of the formal hearing on July 22, 2006. The respondent did not seek to have an RME report admitted to the record at that time. Subsequent to that session, the commissioner issued a Finding and Dismissal on January 12, 2007 which dismissed the claim strictly on jurisdictional grounds, determining that the Form 30C was untimely under a “single date of injury” theory of recovery. This board reversed the decision and remanded the matter. Goulbourne, supra.
The terms of the remand in Goulbourne were to add factual findings to the record absent from the January 12, 2007 Finding and Dismissal. The trial commissioner was to determine as to what date the claimant continued to be exposed to workplace stress and whether the claimant’s cardiac injury constituted a compensable injury. The trial commissioner in the prior Finding and Dismissal had not reached these issues concluding in error that the claimant’s notice was insufficient to confer jurisdiction on the Commission.
When a matter is remanded by the Compensation Review Board, the scope of the further proceedings is limited to the specific issues delineated in the remand order. Fantasia v. Milford Fastening Systems, 86 Conn. App. 270 (2004). In Fantasia the Appellate Court reversed a decision of a trial commissioner it believed exceeded the terms of the remand. The respondent herein appears to believe we were directing that a completely de novo hearing be held on the claim. We note that were the respondent uncertain as to the scope of our remand they could have filed a Motion for Articulation. They did file a Motion for Reconsideration, but that effort was an effort to reinstate the prior dismissal. We dismissed that Motion. Goulbourne v. State/Department of Correction, 5192 CRB-1-07-1 (February 26, 2008).
Consistent with the precedent in Fantasia, the trial commissioner in this matter sought to rule essentially upon the record that was presented at the earlier formal hearing. We do not believe the terms of our remand order required the Commissioner to conduct the hearing in the manner the respondent desired. In the absence of clear direction from this panel to proceed in this fashion, we believe such an effort would be inconsistent with the Fantasia decision.
The record in this matter clearly indicates the respondent was given every opportunity in the 2006 proceedings to present medical evidence contesting the claimant’s medical evidence supporting compensability. Their attorney, however, represented that he would only offer such evidence to contest the disability rating due the claimant were this claim found to be jurisdictionally proper. The trial commissioner specifically approved such evidence, but as we noted, approved it solely for that purpose. The respondent then did not object to such limitations on the use of such evidence, and indeed, did not provide it to the tribunal. This fact pattern creates what amounts to the “law of the case” that the respondent has declined to present such evidence on the record in a seasonable manner. We recently discussed the concept of “law of the case” in Gilbert v. Ansonia, 5342 CRB-4-08-5 (May 14, 2009).
The “law of the case” doctrine stands for the proposition that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” Breen v. Phelps, 186 Conn. 86, 99 (1982). “In essence [the doctrine] expresses the practice of judges generally to refuse to reopen what (already) has been decided. . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored. . . .”
The respondent in this matter decided in the original proceeding to mount an exclusively jurisdictional defense to the claim. The transcript demonstrates the original trial commissioner was fully apprised as to this strategy and consented to this approach. On remand, they complain they were denied the ability to mount the type of defense they desired contesting the claimant’s medical evidence. This is simply a textbook example of “piecemeal litigation.” We believe it is instructive to review the extensive precedent against this practice.
“A party to a compensation case is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing.” Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 273-274 (1948), citing Kearns v. Torrington, 119 Conn. 522 (1935). Chief Justice Maltbie explained in Kearns the rationale behind this rule “[h]e must be assumed to be reasonably familiar with his rights and with the requisites of proof necessary to establish his claim; and to permit him intentionally to withhold proof, or to shut his eyes to the reasonably obvious sources of proof open to him; would be fair neither to the commissioner and the court nor to the defendant.” Id., at 529. We see no reason not to apply the standard for claimants enunciated by Chief Justice Maltbie against respondents before this tribunal. Indeed, we have frequently reiterated our stance against piecemeal litigation. See Gibson v. State/Department of Developmental Services - North Region, 5422 CRB-2-09-2 (January 13, 2010); 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).
In Yelunin v. Royal Ride Transportation, 5274 CRB-1-07-9 (September 5, 2008), aff’d, A.C. 30367 (May 11, 2010) we cited McGuire v. McGuire, 102 Conn. App. 79 (2007) for the proposition parties should not proceed under the belief this appellate body will remedy an unfavorable result resulting from an advocate’s ineffective factual presentation. As the Appellate Court held in McGuire “[w]e have made it clear that we will not permit parties to anticipate a favorable decision, reserving a right to impeach it or set it aside if it happens to be against them, for a cause which was well known to them before or during the trial.” Id., at 83. The respondent clearly decided to rely solely on their jurisdictional defense at the initial formal hearing. We do not find the Commissioner’s decision not to allow new medical evidence in the form of an RME to be admitted at this juncture was an unreasonable decision. In reaching this conclusion, we note that our reasoning herein is consistent with our reasoning in Gilbert, supra, where we also upheld the commissioner’s decision not to admit an RME. See also Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009).
This Commission’s case law has been unequivocal. “Our case law clearly states, ‘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.’ Lamontagne” [v. F & F Concrete Corp., 5198 CRB-4-07-2 (February 25, 2008)]. Keeney v. Laidlaw Transportation, 5199 CRB-2-07-2 (May 21, 2008). See also Mosman, supra, and Vetre v. State/Dept. of Children and Youth Services, 3443 CRB-6-96-10 (January 16, 1998) which states that “[d]ecisions regarding the relevance and remoteness of evidence in workers’ compensation proceedings fall solely within the discretion of the trier of fact.”
In order to reverse an evidentiary ruling we must find it was unreasonable. We do not find the decision not to permit the respondent to offer an RME as evidence at this stage of the case was unreasonable and we must defer to the decision of the trial commissioner on this matter. While the respondent has the right to have the claimant examined, that right is subject to the trial commissioner finding the request reasonable. Having failed to exercise its rights at the prior hearing, a trial commissioner could reasonably limit the respondent to the defenses it had decided to previously advance.
The respondent advances a number of other arguments claiming a deprivation of due process. We find none meritorious. The respondent argues that it should have been able to present a Registered Nurse, Denise Powers, APRN, as an expert witness. The trial commissioner conducted an extensive examination of the witness’s qualifications and decided not to admit her as an expert witness. July 22, 2008 Transcript, pp. 59-74. The trial commissioner is the judge of whether or not a witness should be permitted to testify and if the commissioner concluded her testimony would not be reliable she was not obligated to have her testimony placed on the record. See Lamontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008) (commissioner declined to admit evidence she deemed unreliable). The case of Anderson v. Whitten, 100 Conn. App. 730 (2007), relied on by the respondent, gives the trier of fact discretion as to who may testify as an expert witness and does not direct us to reverse the trial commissioner’s exercise of her discretion in this matter.1
The respondent also challenges the trial commissioner’s decision to take administrative notice of various exhibits presented in the prior formal hearing. The respondent however, offers no authority that the commissioner’s decision herein was in violation of her statutory powers under § 31-298 C.G.S. to admit evidence for a hearing “in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” We find no error herein.
The respondent also argues that a Porter evaluation was necessary of the report presented by the claimant’s treating physician, Dr. Kennedy. Appellant’s Brief, p. 13. We find this goes to determining the weight and credibility of the evidence, and this decision is left to the discretion of the trial commissioner. Lamontagne, supra. We also reject the respondent’s argument that the “last date of exposure” standard does not govern a repetitive trauma claim. The respondent’s effort to rely on Discuillo v. Stone & Webster, 242 Conn. 570 (1997), which was a single date of injury case, is simply irrelevant to the issues herein. The claimant has not claimed to have sustained a myocardial infarction, for which a specific date of injury can be readily determined. Moreover, as we have already ruled on these issues in Goulbourne I we are frankly puzzled why this issue was raised yet again.
While we have found the respondent’s legal argument unpersuasive we still must ascertain if the trial commissioner’s decision on compensability was supported by a sufficient quantum of probative evidence. White v. Wal-Mart Stores, Inc., 5363 CRB-2-08-7 (June 30, 2009). The trial commissioner relied on the written reports of Dr. Kennedy as credible and persuasive. She also found the testimony of the claimant credible and persuasive.
The claimant testified that he suffered physical symptoms of stress which he attributed to his work as a correction officer. July 22, 2008 Transcript, p. 20. He testified Dr. Kennedy had specifically stated the stress of his job was the cause of his heart disease. Id., at 22. He further testified that he continued to feel stress until the final day in which he was on duty for the Correction Department, which was February 20, 2001. Id., at 29-30.
Claimant’s Exhibit B consists of the various medical reports of Dr. Kennedy commencing on August 9, 1998 and continuing up to March 1, 2005. These reports make numerous references to the claimant’s stressful employment and the development of coronary disease. Dr. Kennedy’s reports on October 20, 2001 and September 6, 2001 offer an opinion as to the etiology of the claimant’s coronary disease. On September 6, 2001 Dr. Kennedy stated “I strongly believe that his stressful job as a prison guard contributed to his premature atherosclerosis. There is no other logical explanation for this 43 year old man to have such significant arthrosclerosis at such a young age.” Dr. Kennedy’s October 30, 2001 report was cited by the trial commissioner as Finding, ¶ 10 and stated of the claimant “[h]e has no significant risk factors to explain his coronary artery disease. . . . I strongly suspect that his stressful lifestyle working in the corrections department was one of the primary triggers for his premature atherosclerosis.” We also note that on numerous occasions Dr. Kennedy counseled the claimant that for medical reasons he should find alternative employment away from the Corrections Department.
In Mehan v. Stamford, 5389 CRB-7-08-10 (October 14, 2009), appeal pending, A.C. 31648, we restated the requisite standard of medical evidence required to establish causation of a compensable injury. Citing Struckman v. Burns, 205 Conn. 542 (1987), we pointed out the standard of “substantial medical certainty” “is determined by looking at the entire substance of testimony.” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999). On appeal, this panel must provide “every reasonable presumption” supportive of the Finding and Award. Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009). We are satisfied that Dr. Kennedy’s opinions as to causation were sufficient to uphold the Finding and Award, especially after considering the Supreme Court’s recent decision in Marandino v. Prometheus Pharmacy, 294 Conn. 564, 587-597 (2010). We do not find Dr. Kennedy’s opinion was based on speculation when she specifically ruled out any other possible risk factor for the claimant’s illness other than the claimant’s employment. She also made clear that she believed the claimant’s employment was a “primary trigger” behind his coronary disease. We believe this meets the standard of Dixon v. United Illuminating Co., 57 Conn. App. 51 (2000) that the claimant’s employment was a “substantial contributing factor” to the medical condition. See Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (2008).
We must finally deal with various administrative matters which have been appealed. The respondent has filed a Motion to Submit Additional Evidence to this board. The additional evidence was in the form of Dr. Tally’s medical report and deposition transcript; as well as evidence concerning the receipt of the initial Finding and Award. We have denied the Motion to Dismiss this appeal as untimely; hence any evidence related to that issue is irrelevant. We also believe that the better means to address the respondent’s concern as to the appellate record is to remand this evidentiary matter to the trial commissioner. We do not intend to usurp the role of the trial commissioner and conduct an independent review of the merits of Dr. Tally’s opinion. The trial commissioner concluded the admission of this evidence was unwarranted. Nonetheless, we are persuaded it was error not to permit these exhibits to be marked for identification and included in the record. See State v. Onofrio, 179 Conn. 23, 33-36 (1979). As this is “manifest error” we cannot ascertain a manner in which we can affirm this Finding and Award in the absence of a full and complete appellate record.2
In reaching this decision we conclude, based on the record below, that the respondent was offering this evidence to contest causation, not the timeliness of the claimant’s claim for benefits. Given the scope of our remand the trial commissioner could properly decide that she would not rely on this evidence, as it would not be probative on this issue. Nonetheless, the documents should have been added to the record.
We also reject the respondent’s claim that the trial commissioner committed legal error in denying their Motion to Correct, Motion to Set Aside, and Motion for Articulation. The trial commissioner is not obligated to adopt the legal opinions and factual conclusions of a litigant. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App. 718 (2002). As previously noted, the sole meritorious issue advanced on appeal by the respondent was the administrative matter of not marking an exhibit for identification. This case is remanded to the trial commissioner for the sole purpose of completing the record herein. In all other respects we herein affirm the Finding and Award.
Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.
1 Anderson v. Whitten, 100 Conn. App. 730 (2007) was a case concerning defective construction work and did not involve medical witnesses. We are puzzled as to why this precedent would compel the admissibility of medical testimony. BACK TO TEXT
2 While there are cases where appellate courts have found it was not “manifest error” to decline to mark proposed exhibits for identification, these cases involved evidence which was clearly cumulative in nature or demonstrably irrelevant or inadmissible. See Wolosoff v. Wolosoff, 91 Conn. App. 374 (2005); Weinberg v. Weinberg, 89 Conn. App. 649 (2005) and Canton Motorcar Works, Inc. v. DiMartino, 6 Conn. App. 447 (1986). We cannot conclude the medical report and testimony of Dr. Tally was this type of evidence. While the trial commissioner could choose not to find the evidence probative, we believe it was error to keep it out of the record altogether. BACK TO TEXT