State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Lessard v. Dattco, Inc.

CASE NO. 5685 CRB-6-11-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 17, 2012

RICHARD LESSARD

CLAIMANT-APPELLANT

v.

DATTCO, INC.

EMPLOYER

and

NATIONAL INTERSTATE INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared without legal representation at oral argument. In the proceedings before the trial commissioner the claimant was represented by Kevin C. Ferry, Esq., Law Office of Kevin C. Ferry, LLC, 77 Lexington Street, New Britain, CT 06052.

The respondents were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Suite 216, Glastonbury, CT 06033-4453.

This Petition for Review from the September 8, 2011 Findings and Orders of the Commissioner acting for the Sixth District was heard March 23, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jody Murray Gregg and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the September 8, 2011 Findings and Orders of the commissioner acting for the Sixth District.1 In that Findings and Orders the trial commissioner granted the respondents Forms 36 received on September 15, 2010 and November 19, 2010. The trial commissioner determined both Forms 36 were effective on the date of receipt by the commission. Additionally, the trial commissioner ordered a credit for all indemnity benefits paid to the claimant since September 15, 2010.

In the proceedings before the trial commissioner, administrative notice was taken of the Forms 36 filed by the respondents with the commission. Additionally, the trial commissioner took notice of a voluntary agreement approved by the commission on February 5, 2010. That voluntary agreement reflected that on January 11, 2010, while employed by the respondent Dattco, the claimant fell as he descended from a bus. The voluntary agreement described the claimant as having “sustained a lumbar strain and contusion, left hip contusion, and sciatica. . . .” See Findings, ¶¶ 1 and 2.

In support of his appeal the claimant filed; a timely Petition for Review, a document titled “New Evidence to Be Entered”, and a Brief. The claimant’s “New Evidence to Be Entered” has been construed as a Motion to Submit Additional Evidence and as the claimant’s Reasons of Appeal. The respondents filed a Motion to Dismiss and an Objection to Motion to Submit Additional Evidence.

At the outset we note that litigants who are unrepresented in their appellate prosecutions are accorded some leeway as to conformance with appellate procedural technicalities. As the respondents remind us that leeway does not excuse the pro se claimant appellant from providing a basis for the appeal as well as conforming to other tenets of the appeals process. See e.g., Marino v. Cenveo/Craftman Litho, Inc., 5448 CRB-5-09-3 (March 16, 2010). However, the claimant has filed a timely appeal petition and other documents in support of his appeal. See § 31-301(a).

The basis of the respondents’ Motion to Dismiss is that the claimant failed to file Reasons of Appeal by November 3, 2011, as per the extension of time granted to the claimant by the board,2 nor did the claimant file a motion to correct. On November 4, 2011, the claimant filed the above referenced document entitled, “New Evidence to Be Entered.” Additionally, we note that the brief of the claimant was filed timely and the brief includes a statement of the issues. We therefore deny the respondents’ Motion to Dismiss. See Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987).

The issues before the trial commissioner were as follows:

I. “Should a Form 36 received by the Commission on September 15, 2010 alleging that: ‘The Claimant is not in need of medical treatment and capable of gainful employment . . . . ’ be granted?”
II. “Should a Form 36 received by the Commission on November 19, 2010 be granted? Said Form 36 alleges that the Respondent DATTCO, Inc., had work available ‘within the restrictions given by his treating doctor,’ such work was offered, and the Claimant failed to show for such light duty work.”

The trial commissioner found in the respondents favor as to both issues and accordingly granted both Forms 36. In his statement of the issues included in the Appellant’s Brief the claimant presents eight issues for review. However, the essence of the claimant’s appeal is that the trial commissioner erred in granting the respondents Forms 36 and more specifically, erred in his conclusion that the claimant had a work capacity. A trier’s conclusion as to the appropriateness of granting a Form 36 on the basis that the claimant’s work capacity has changed generally turns on the weight and credibility assigned to the evidence presented. See e.g. McInnis v. Shelter Workz, 5299 CRB-3-07-11 (June 11, 2009). Ordinarily, we will not disturb the conclusions of the trial commissioner based on the weight and credibility of the evidence presented. However, the claimant argues that the trier’s finding in Conclusion, ¶ L as further commented on in footnote 4 constitutes legal error. We agree.

We begin our analysis with the following. In Findings, ¶ 11 the trial commissioner stated the following:

11. The Claimant was present and testified on June 22, 2011. While present within the Workers’ Compensation office, Mr. Lessard appeared to be in great pain and distress. He moved about the premises very slowly, with the assistance of a cane, and grimaced and grunted with virtually every step. As the record notes, an apparent pain event occurred while he was testifying. Mr. Lessard’s every movement appeared to be quite labored and he also shifted in his seat quite often in the hearing room.

In Conclusion, ¶ L and footnote 4 the trial commissioner stated the following:

L. The claimant willfully and purposely misrepresented his true physical condition in both his testimony and his mannerisms at the formal hearing.
Footnote 4. The claimant was observed leaving the building after the Formal Hearing adjourned on June 22, 2011. Although he appeared in great distress while on the 4th floor, which is where the hearing was held, he apparently had a miraculous recovery on the way down the elevator, as he left the building at a brisk walk without assistance of the cane that he so dramatically relied upon while on the 4th floor.

Even if we assume, arguendo, that there was other evidence which would support the trial commissioner’s ultimate conclusions, we still cannot dismiss the above as harmless error.3

As an appellate body we do not engage in de novo review. Our appellate review is limited to whether the findings and conclusions of the trial commissioner are without basis in evidence, contrary to law or based on unreasonable and impermissible factual inferences. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Further subsumed within such review is that due process guarantees have been observed in the process of hearing and deciding the claim presented.

Clearly, one of the tasks assigned to a trial commissioner is to determine the credibility of the witnesses. One of the permitted bases for such a determination is the demeanor of a witness and as this board has noted on a number of occasions:

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 there from. . . . 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 v. Mottolese, 267 Conn. 1, 40 (2003). See e.g., Zbras v. Colonial Toyota, 5631 CRB-1-11-02 (February 14, 2012); Anderson v. Target Capital Partners, 5615 CRB-6-10-12 (January 3, 2012); and Chimblo v. Connecticut Light & Power, 5574 CRB-7-10-7 (July 21, 2011).

Where the trial commissioner’s conclusion is based in part on facts with which he is personally familiar we believe a closer assessment is necessary. It is difficult to fathom that the trial commissioner’s personal observations of the claimant outside of the formal hearing did not impact the weight and credibility the trier accorded the evidence presented on the record. It may well be that the trier’s personal observations of the claimant’s exit from the building where the hearing was held constitutes nothing more than evidence which is cumulative of that which already existed in the record.

The fundamental concern, however, we have with the trier’s conclusion below is that it does not appear that the claimant was made aware of the trier’s personal observations until after the September 8, 2011 Findings and Orders was issued. Such observations and impressions in effect stood as evidence supporting the respondents’ position in the issue at hand. As the trier’s observations were not disclosed until the trial commissioner issued his finding the claimant was not given an opportunity to challenge or refute the trier’s eyewitness account. The claimant was in effect denied a meaningful opportunity to be heard and to cross examine.

As the Appellate Court stated in Gil v. Gil, 94 Conn. App. 306, 316 (2006), a party has the right to “subject the factual determinations underlying the trial court’s decision to the crucible of meaningful adversarial testing, [or else] an order cannot be sustained. (Citation omitted; internal quotation marks omitted.) Szot v. Szot, supra, 41 Conn. App. 241-42.”

Furthermore, in Bailey v. State, 65 Conn. App. 592, 604 (2001) the court stated:

Protecting such “substantial rights” is part and parcel of ensuring that each party in a compensation proceeding receives a fair hearing. Workers’ compensation hearings “must be conducted in a fundamentally fair manner so as not to violate the rules of due process. . . . A fundamental principle of due process is that each party has the right to receive notice of a hearing, and the opportunity to be heard at a meaningful time and in a meaningful manner.” (Citation omitted.) Bryan v. Sheraton-Hartford Hotel, supra, 62 Conn. App. 740. Each party has the right to produce relevant evidence and to offer rebuttal evidence. Id. (Emphasis ours.)

Finally we note that we have taken into consideration our recent opinion in Martinez-McCord v. State/Judicial Branch, 5647 CRB-7-11-4 (August 1, 2012), where we were asked to vacate and remand the matter for a trial de novo before a different commissioner. We denied the claimant-appellant’s request. In that appeal the claimant argued that the trial commissioner should have recused herself on the basis that she heard the previous claim of the claimant and ruled against her. In our opinion we noted the following exchange between claimant’s counsel and the trial commissioner,

At the April 23, 2008 formal hearing, counsel for the claimant was asked by the trial commissioner if his position was “every Commissioner who finds the testimony of a Claimant lacking credibility to be recused from any further proceedings forever and a day in that particular matter?” April 23, 2008 Transcript, p. 7.
Counsel responded that was not his argument but “I found this case to be an exceptional one,” id., alleging the commissioner had gone beyond her function as the assessor of evidence. Id., p. 8. The trial commissioner responded to this averment.
As I recall, Attorney Jacobs, my findings were based upon the weight of the medical evidence, much of which was critical of your client’s presentation in the office, in the doctor’s office. And I simply used those characterizations by the doctors themselves as the basis for concluding that her credibility was in jeopardy. They weren’t my assessments. I certainly never examined this lady in any office. I only met her the one time we had this particular hearing. And I had to rely upon the opinions and the assessments of the treating physicians who evaluated her. So they’re not my opinions. But my opinion necessarily had to be based upon a compilation of the objective, in some cases subjective, opinions of the people who treated her. They don’t necessarily make it - - it doesn’t necessarily make it my personal opinion. Id., pp. 8-9.

And when the issue was raised at the July 28, 2010 formal hearing the trial commissioner provided the following rationale for hearing the case.

Yes, the basis of your [the claimant’s] Motion to Recuse was that my prior decision in McCord II was such that you felt I had indicated the claimant was deceitful. In oral argument I asked you to point to one word in my decision in McCord II that used the word deceitful or in any way intimated that she was deceitful. And you admitted on the record that there was no such language in the decision that she was deceitful.
The only thing I quoted in that decision was the testimony of Mark Rubinstein, who was a psychiatrist, who indicated that he felt she had a condition, a psychological condition, with a functional overlay whereby she could legitimately convince herself that she had a malady that didn’t exist and that that was a legitimate psychiatric condition, not in the least bit considered malingering where someone can psychiatrically convince themselves of the condition.
That’s all I quoted. That didn’t equal deceit. You couldn’t actually argue once you got to the formal hearing on the Motion to Recuse that I had in any way indicated she was deceitful. And I still don’t feel that way. July 28, 2010 Transcript, p. 16.

On the basis of the above we think our opinion in Martinez-McCord, supra, is readily distinguishable from the matter at hand.

We therefore vacate the September 8, 2011 Findings and Orders of the commissioner acting for the Sixth District and order the matter be heard de novo before another commissioner.

Commissioners Daniel E. Dilzer and Jodi M. Gregg concur.

1 We note that an extension of time was granted during the pendency of this appeal. We also note the claimant was represented by Attorney Kevin C. Ferry in the proceedings before the trial commissioner. The claimant, however, filed this appeal with the Compensation Review Board himself. He, therefore, appears before this board as an unrepresented litigant (i.e. pro se). BACK TO TEXT

2 The compensation review board granted the claimant an extension of time until November 3, 2011, to file his reasons of appeal. See October 5, 2011 Ruling on Motion for Extension of Time to File Reasons for Appeal. BACK TO TEXT

3 In the above where we state assume arguendo we mean exactly that, i.e., assume for purposes of argument that there was evidence provided from which the trial commissioner might reasonably infer and conclude that the Forms 36 should be granted. We make no determination as to the weight and credibility to be accorded any of the evidence proffered by the parties nor the veracity of the parties’ claims and assertions. In light of the conclusion that we ultimately reach herein those determinations will be made by another trial commissioner. BACK TO TEXT

Workers’ Compensation Commission

Page last revised: September 20, 2012

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