Prescott v. Echlin, Inc./Automotive Controls Corp.

The claimant was represented by Robert P. Kowalczyk, Esq., Law Offices of Ronald M. Scherban, P. C., 395 Orange St., New Haven, CT 06511.

The respondents were represented by Steven Ekern, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the April 15, 1994 Finding and Denial of Motion to Preclude of the Commissioner acting for the Third District was heard December 16, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the April 15, 1994 denial of her Motion to Preclude by the Commissioner for the Third District. She argues on appeal that the commissioner improperly considered certain evidence in determining that the claimant did not file a claim within one year of the date of her injury. She also seeks to submit as additional evidence a medical report that was not admitted at the formal hearing. We affirm the trial commissioner’s decision.

The claimant filed a Form 30C notice of claim for compensation with the Third District office on July 21, 1992. The notice alleged that the claimant sustained a repetitive trauma injury to her right shoulder on December 2, 1991, arising out of and in the course of her employment with Echlin Manufacturing Co. December 2, 1991 was the last day the claimant worked for Echlin. The respondents did not file a Form 43 notice of intention to contest liability, and the claimant filed a June 7, 1993 Motion to Preclude them from contesting the compensability of her injury pursuant to § 31-297(b) C.G.S. (now § 31-294c(b) C.G.S.).

A December 2, 1991 note from Dr. Shine, the claimant’s treating physician, indicated that the claimant had a shoulder sprain and restricted her from lifting more than five pounds. The commissioner found that the claimant injured her back and right shoulder on June 14, 1991 while lifting a box at work. Although the claimant contended that she continued to do repetitive work with that shoulder until December 2, 1991, thus making that the date of injury, the respondents alleged that the claimant sustained a single traumatic injury on June 14, 1991. The commissioner found that, based on Dr. Shine’s reports of June 21, 1991 and November 8, 1993, the claimant’s injury occurred on June 14, 1991. As the Form 30C was not filed until July 21, 1992, it did not satisfy the one-year time limit in § 31-294c C.G.S. Therefore, the commissioner concluded that he lacked jurisdiction to adjudicate the claim, necessarily dismissing the Motion to Preclude in the process.

On appeal, the claimant essentially challenges the factual basis of the commissioner’s decision. We will first address her request to submit as additional evidence Dr. Shine’s report clarifying his opinion as to the cause of the claimant’s injury. Administrative Regulation § 31-301-9 allows this Board to consider motions to submit additional evidence or testimony that a party alleges to be material if there was a good reason for failing to present it in earlier proceedings. The claimant states that Dr. Shine’s report is material in that it will clarify the conflicting statements in his earlier reports. She explains that it was not placed in evidence at the hearing because the commissioner refused to allow it into evidence in light of the fact that it was forwarded to the claimant the day before the hearing. The report itself was not included with the claimant’s motion.

Although the report conceivably could affect the outcome of this case, we do not think that the claimant has established a good reason for failing to submit it at the hearing. The information allegedly contained in this report was available to the claimant well before the formal hearing. The fact that Dr. Shine did not get around to sending the report until the day before the hearing does not excuse the claimant from responsibility for making sure that the report was available in time for the commissioner and the respondents to properly consider its admissibility. As the claimant herself acknowledges, a trial commissioner’s evidentiary decisions are largely discretionary. Therefore, we must deny the claimant’s Motion to Submit Additional Evidence.

The claimant’s principal argument is that the commissioner improperly evaluated Dr. Shine’s June 21, 1991 and November 8, 1993 medical reports, and failed to give enough weight to the January 24, 1992 report. She argues that it would be speculative at best to conclude from those reports that she suffered a definite injury on June 14, 1991. She also contends that the January 24, 1992 report diagnoses separate causes for the back and shoulder injuries, and supports a finding that the claimant suffered a repetitive trauma injury to her right shoulder instead. Although there is some evidence to support the occurrence of a repetitive trauma injury, we cannot say that the commissioner erroneously interpreted the medical reports as a matter of law by finding a June 14, 1991 injury date.

It is well settled that this Board does not retry the facts of a workers’ compensation matter. Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 1699 CRB-8-93-4 (Nov. 7, 1994). “The conclusions drawn by the commissioner from the facts found must stand unless they result from a misapplication of the law to the facts or from an illegal or unreasonable inference drawn from the subordinate facts.” Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The commissioner is entitled to make his or her own determination of credibility in the face of conflicting medical reports and witnesses, and we are bound by those conclusions on review. Ettienne-Modeste v. Bloomfield, 1789 CRB-1-93-9 (decided April 26, 1995).

Dr. Shine stated in his June 21, 1991 report that the claimant suffered lower back pain while lifting a box at work, followed by shoulder pain several days later. He indicated that she had suffered a lumbosacral sprain and “probably had tendinitis in the shoulder due to heavier than normal use of her right arm” because of a recent laceration to two fingers on her left hand. In his November 8, 1993 report, he stated that the claimant’s shoulder and cervical spine symptoms “are all related to her previously described injury when she lifted a box.” The fact that the term “reasonable degree of medical probability” was not used did not render Dr. Shine’s opinion mere speculation or conjecture. Plitnick, supra; see also Struckman v. Burns, 205 Conn. 542, 554-55 (1987). The commissioner also was not required to give significant weight to the somewhat contradictory January 24, 1992 report cited by the claimant. Although the evidence is hardly overwhelming either way, the commissioner was entitled to rely on the 1991 and 1993 reports in concluding that the claimant’s injury occurred on June 14, 1991.

Because the commissioner did not err in finding a June 14, 1991 date of injury, it follows that he was correct in describing the July 21, 1992 Form 30C as late pursuant to § 31-294c(a). Therefore, the commissioner lacked jurisdiction to consider the claim, and properly dismissed the case. Prisco v. North & Judd, 10 Conn. Workers’ Comp. Rev. Op. 154, 156, 1190 CRD-8-91-3 (June 30, 1992).