CASE NO. 5592 CRB-3-10-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 17, 2011
BENCHMARK ASSISTED LIVING
TRAVELERS PROPERTY & CASUALTY
The claimant was represented by Cynthia W. Sheppard, Esq., Riccio & Beletsky, LLC, 310 Main Street, Suite 2B, East Haven, CT 06512.
The respondents were represented by Tracey Green Cleary, Esq., Law Offices of Cynthia M. Garraty, Crossroads Corporate Park, 6 Devine Street, First Floor, North Haven, CT 06473.
This Petition for Review from the August 26, 2010 Finding and Decision of the Commissioner acting for the Third District was heard April 1, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Christine L. Engel.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from a Finding and Decision of his claim for benefits. He argues that the trial commissioner should not have considered issues of credibility in deciding his case. We disagree. We also find the claimant’s appeal was commenced beyond the statutory deadline to file an appeal. Therefore, we affirm the Finding and Decision and dismiss this appeal.
The trial commissioner found the following facts at the conclusion of the formal hearing. As no Motion to Correct was filed we may give these facts conclusive effect on appeal Stevens v. Raymark Industries, Inc., et al., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). The claimant testified that on June 20, 2006 he injured his right knee while working for the respondent. He testified that the injury occurred when he was driving to gas up a vehicle when a sudden situation on the road caused him to stop short, causing his leg to get caught under the vehicle’s dashboard. He said he felt a “big pinch in my toe” and “then when I pulled back I felt a snap on my knee.” The claimant testified that he sought medical treatment after this incident. The notes of Internal Medicine of East Haven, P.C., indicate the claimant presented for treatment on June 20, 2006, but reflect the claimant informed the treater the alleged incident occurred on June 19. The claimant also presented on July 20, 2006 to Dr. Philip Minotti, an orthopedic doctor. Subsequent notes of Internal Medicine of East Haven, P.C., indicate on July 12, 2006 the claimant had been on a cruise the week before and fell on stairs injuring his right knee.
The trial commissioner also found that another physician in Dr. Minotti’s practice, Dr. David Cohen, had examined the claimant on February 2, 2009 and in the course of the examination reviewed a 2006 MRI of the claimant’s knee, which indicated a normal knee with no evidence of patellar tendenitis. On March 6, 2009, Dr. Minotti noted that multiple x-ray and MRI studies failed to reveal any anatomic problems with the claimant’s knee whatsoever.
The claimant testified that he had reported problems with the company van prior to the alleged incident, but they were not written reports. He also said he reported the work related injury to his supervisor, Thomas Ruggiero, on June 20, 2006. Mr. Ruggiero testified he was handed a form that day as he was leaving the premises which described the incident, but that the claimant did not say anything to him about being hurt or relate any problems he was having with the company vehicle.
Based on this record the trial commissioner concluded the claimant did not sustain a work related injury on or about June 20, 2006. The trial commissioner did not find the claimant’s testimony fully credible and persuasive, but found Mr. Ruggiero fully persuasive and credible. He also found the medical evidence submitted did not support the claimant’s position he injured his knee on or about June 20, 2006. As a result, he dismissed the claim.
The trial commissioner issued his Finding and Decision on August 26, 2010. The claimant as noted did not file a Motion to Correct, but sent a Petition for Review to the commission via facsimile on September 15, 2010. The fax cover sheet indicates the document was sent to the commission offices at “17:29” which corresponds to 5:29 p.m., after the close of business at state offices. The document was delivered in person to the Third District office during business hours on September 16, 2010.
The respondents have filed a Motion to Dismiss this appeal pursuant to Practice Book § 85-1 and § 31-301 C.G.S. They assert that as the initial appeal documents were not filed in a timely fashion the Compensation Review Board lacks jurisdiction to act on the appeal. The claimant cites Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006) as authority for the position that the deficiencies herein do not warrant dismissal as they did not prejudice the respondent. We find precedent subsequent to Roussel limits our discretion when the initial appeal documents are not filed in a timely manner.
In Sztaba v. Aetna, Inc., 5549 CRB-8-10-4 (March 1, 2011) we reviewed a similar situation where the initial appeal documents were filed 21 days after the trial commissioner’s decision was rendered. We determined that Stec v. Raymark Industries, Inc., 299 Conn. 346 (2010) mandated that we dismiss the claim as the untimely filing of the initial appeal documents pursuant to § 31-301(a) C.G.S. deprived the Compensation Review Board of subject matter jurisdiction. See, Stec, supra, at 371. We reached a similar result in Vargas v. Sedillo, 5526 CRB-4-10-2 (October 28, 2010) and Byczajka v. Stamford, 5023 CRB-7-05-11 (March 26, 2008). While the Roussel precedent may permit this tribunal to waive technical deficiencies once an appeal is properly filed, we cannot take any action in the absence of subject matter jurisdiction. The Motion to Dismiss is granted.
Even were we to have considered the claimant’s appeal on the merits, we would have affirmed the trial commissioner. As the claimant did not file a Motion to Correct, on appeal, we must accept the validity of the facts found by the trial commissioner in this matter. See Stevens, supra, Claros v. Keystone Pipeline Services, 5399 CRB-1-08-11 (October 28, 2009) and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993). The claimant believes that since the respondent failed to conduct their own medical examination that he should have prevailed at the hearing. It is the claimant’s burden of persuasion to establish he has suffered a compensable injury. See Lentini v. Connecticut College, 4933 CRB-2-05-4 (May 15, 2006) and Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972). Under these circumstances the credibility of the claimant is always a relevant factor for the trial commissioner’s consideration. Toroveci v. Globe Tool & Metal Stamping Co., Inc., 5253 CRB-6-07-7 (July 22, 2008). The trier of fact is the sole authority over the credibility of witnesses Burton v. Mottolese, 267 Conn. 1, 40 (2003). The trial commissioner did not find the claimant credible and that is his prerogative.
The claimant argues that the trial commissioner should not have decided this matter by weighing the credibility of the opposing witnesses in this matter, asserting the medical evidence in favor of the claim was uncontroverted. He also argues that this approach constitutes a “due process” issue. We have continuously rejected similar arguments on appeal over recent years. Earlier this year we decided Roberto v. Partyka Chevrolet, Inc., 5542 CRB-3-10-3 (February 8, 2011). We quote at length from that decision.
We find this panel has already ruled on a very similar issue in a manner adverse to the claimant. In Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007) the claimant charged that it was legal error for the trial commissioner to rely on witness statements taken by an investigator for the respondents. We did not agree with this reasoning and affirmed the dismissal of the claim. The claimant in Reeve failed to object to the admission of the investigative report. Counsel for the claimant in Reeve also cross-examined the investigator at length. “As a result, our decision in Paige v. Hartford Insurance Co., 4594 CRB-2-02-12 (January 9, 2004) suggests there has been no error, as we upheld the trial commissioner when ‘in this case the claimant never raised an objection regarding the hearsay nature of the evidence.’. We also believe the ability of counsel to question Mr. Martus comports with the procedural due process concerns addressed in Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974).” Reeve, supra.
In the present case the claimant raised no objection to the introduction of Mr. Hickey’s deposition transcript as an exhibit. June 25, 2009 Transcript, p. 5. Claimant’s counsel also had the chance at the deposition to extensively cross-examine Mr. Hickey. Respondent’s Exhibit, ¶ 2, pp. 15-23. Claimant’s counsel also did not seek a continuance of the formal hearing to obtain Mr. Hickey’s live testimony when it was apparent Mr. Hickey was not in attendance. August 17, 2009 Transcript, p. 108.
In light of this record we believe that the introduction of Mr. Hickey’s testimony, and its probative value to the trial commissioner, falls squarely within the precedent in Reeve, supra. We also believe our precedent in Stiber v. Marks Total Security, 5479 CRB-4-09-7 (July 8, 2010) governs this issue, where this panel cited the statute establishing how workers’ compensation hearings are to be conducted.
Further supporting our belief we should not overturn this decision is the plain language of § 31-298 C.G.S., which permits a somewhat more relaxed approach to evidentiary consideration before this tribunal. “In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, 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.” Stiber, supra.
In the present case there is no argument presented that the claimant was not able to cross-examine adverse witnesses or had new issues presented at the hearing which would constitute “trial by ambush.” The claimant’s reliance on Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974) is thus unpersuasive. While the claimant’s counsel persistently objected to the introduction of evidence questioning the claimant’s credibility, see e.g. May 26, 2009 Transcript, pp. 50-79; the trial commissioner is the sole party responsible for determining the admissibility and relevance of evidence. Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009). See also LaMontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008) “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.” We find the admission of Mr. Ruggiero’s testimony and the trial commissioner’s reliance thereof was not an abuse of discretion.1
Finally, we have frequently upheld the dismissal of claims for unwitnessed accidents when the trial commissioner did not find the claimant credible. See Smith v. Salamander Designs, Ltd., 5205 CRB-1-07-3 (March 13, 2008) and Ialacci v. Hartford Medical Group, 5306 CRB-1-07-12 (December 2, 2008). We find our reasoning in Ialacci dispositive of the issues in this case. Noting the claimant in Ialacci also argued uncontroverted medical evidence should be credited, we determined “[w]e do not find this argument persuasive as the claimant made precisely the same argument in Do v. Danaher Tool Group, 5029 CRB-6-05-12 (November 28, 2006), and we found the trial commissioner could properly disregard uncontroverted expert testimony when he found the claimant lacked credibility. See also 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) (trial commissioner may decide not to credit an expert opinion which relies on a patient narrative the commissioner deems unreliable).” Ialacci, supra.
The claimant in Seiler v. Ranco Collision, LLC, 5377 CRB-1-08-9 (August 27, 2009) made somewhat similar claims in his appeal we found unpersuasive; arguing the trial commissioner was obligated to admit and rely upon evidence supportive of finding his narrative credible. We upheld the dismissal of that claim and pointed out “[u]nless the claimant is a credible witness they cannot prevail before this Commission.” Id. We find these cases indistinguishable and reach the same conclusion. The Finding and Decision is upheld and the appeal is dismissed.
Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.
1 We find the claimant’s reliance on Testone v. C.R. Gibson Co. Inc., 114 Conn. App. 210 (2009) as authority supporting a reversal of the trial commissioner’s decision unpersuasive. The alleged errors in Testone were deemed “harmless error” by the Appellate Court, id., 215-221, and the trial commissioner’s ultimate decision upheld on appeal. BACK TO TEXT