Liano v. City of Bridgeport

The claimant was represented by George C. Springer, Jr., Esq., 99 West Main Street, New Britain, CT 06051.

The respondent was represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the October 18, 1995 Finding Re: Form 36 of the Commissioner acting for the Fourth District was heard September 20, 1996 before a Compensation Review Board panel consisting of Commissioners George Waldron, Robin L. Wilson, and Angelo L. dos Santos.

OPINION

GEORGE WALDRON, COMMISSIONER. The claimant has petitioned for review from the October 18, 1995 “Finding Re: Form 36” of the trial commissioner acting for the Fourth District. In that decision, the trial commissioner found that the claimant was no longer temporarily totally disabled and thus approved the respondent’s Form 36 effective September 21, 1994. In support of his appeal, the claimant contends that the trial commissioner erred in finding that the claimant did not continue to be totally disabled; that the trial commissioner erred in failing to grant a continuance of the formal hearing; and that the trial commissioner erred in excluding testimony from the claimant regarding his symptoms prior to September 21, 1994. We find no error.

We note that in a related matter, the claimant has filed a petition for review from the February 7, 1996 Finding and Dismissal of the trial commissioner acting for the Fourth District. We will address that appeal in a separate decision: Liano v. City of Bridgeport, Case No. 3299 CRB-4-96-2 (March 25, 1997).

The trial commissioner found the following relevant facts. The claimant was employed as a police officer with the Bridgeport Police Department for approximately fifteen years until he retired in November of 1983 at the age of thirty-eight. At the time of his retirement, the claimant was in charge of licensing for vendors. Judicial notice was taken of a prior decision which held that the claimant sustained a heart and hypertension claim pursuant to § 7-433c with a date of injury of September 18, 1979. The claimant received benefits for temporary total disability commencing in 1983. The claimant was treated by Dr. Rama, who is board certified in internal medicine. The claimant relies on the testimony and reports of Dr. Rama to support his contention that he is totally disabled, including Dr. Rama’s diagnosis in 1983 of coronary artery disease, hypertension, and rest angina. (See Findings No. 16 and 17). An independent medical exam was performed by Dr. Langou, who is a board certified internist and fellow of the American College of Cardiology. Dr. Langou issued a report dated September 16, 1994 which indicated that the claimant is capable of sedentary work and has a fair work load capacity, and that the claimant could perform sedentary work with minimal or no symptoms.

We will first address the claimant’s motion to submit additional evidence which was filed on December 15, 1995 in which the claimant seeks to submit three medical reports. Specifically, the claimant seeks to submit medical reports which were issued in November of 1995 by Dr. Rama, Dr. Adefuin, and Dr. Luciano. We have reviewed these three reports, and conclude that these reports could have been obtained by the claimant prior to the close of the formal hearing. We have repeatedly held that it is the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant to the claimant at the time of the hearing. Holle v. The William Backus Hospital, 14 Conn. Workers’ Comp. Rev. Op. 169, 2039 CRB-2-94-4 (May 10, 1995); Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-9, 1289 CRD-6-91-9 (Dec. 2, 1992).

We conclude that the claimant has failed to show good reason for presenting a medical opinion after the formal hearing had been closed. See Lesczynski, supra, see also Lange v. J & B Excavating & Paving, 11 Conn. Workers’ Comp. Rev. Op. 42, 1249 CRD-3-91-6 (March 18, 1993). Moreover, the claimant offers no indication that the proffered evidence was really new or that it was undiscoverable with due diligence at the time of the original hearings. Id., see also Murdock v. Squires, 6 Conn. Workers’ Comp. Rev. Op. 64, 66, 550 CRD-7-87 (Dec. 1, 1988). We thus conclude that the claimant has failed to satisfy the requirements of Regs., Conn. State Agencies § 31-301-9.

We will now turn to the merits of the claimant’s appeal. In support of his appeal, the claimant contends that the trial commissioner erred in finding that the claimant did not continue to be totally disabled. Specifically, the claimant contends that the trial commissioner erred in relying upon the opinion of Dr. Langou regarding his interpretation of a thallium scan. In addition, the claimant contends that the trial commissioner erroneously based the determination of whether the claimant was totally disabled upon the finding that the claimant had not suffered a myocardial infarction and the finding that the claimant did not suffer from eschemia. We disagree.

Whether a claimant is totally disabled from working is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). We will not disturb a trial commissioner’s factual determination unless the conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, we may not disturb the trial commissioner’s conclusions which are dependent on the weight and credibility accorded the evidence. Miller v. TVCCA, 12 Conn. Workers’ Comp. Rev. Op. 348, 1675 CRB-2-93-3 (July 29, 1994), aff’d., 39 Conn. App. 935 (1995).

In the instant case, the trial commissioner’s conclusion that the claimant was no longer totally disabled is fully supported by the record, including Dr. Langou’s September 16, 1994 report in which he opined that the claimant is capable of sedentary work with minimal or no symptoms. In addition, in his deposition of March 15, 1995, Dr. Langou explained that his opinion was based upon his physical examination of the claimant, the electrocardiogram from 1991, and the thallium scan from 1993. (Deposition at p. 18-19). In addition, Dr. Langou explained that during a stress test the claimant was “able to exercise to a very good level of exercise without symptoms.” (Deposition at p. 19). Moreover, the trial commissioner found that the claimant has a high school education and is able to drive a motor vehicle. We conclude that it was within the discretion of the commissioner to determine that the claimant was no longer totally disabled pursuant to § 31-307.

In further support of his appeal, the claimant contends that the trial commissioner erred in excluding testimony from the claimant regarding his symptoms prior to September 21, 1994. We find no error. During the formal hearing, the trial commissioner instructed claimant’s counsel to limit his questioning of the claimant regarding his symptoms to the period commencing in 1994. The trial commissioner explained that testimony from the claimant regarding his symptoms prior to September 21, 1994 was not necessary because the respondent did not contest that the claimant was totally disabled prior to September 21, 1994 and because the trial commissioner would review the medical reports for the prior period which were in the record. (5/8/95 TR. at p. 70-71). We find no error in the trial commissioner’s instruction.

Finally, we will address the claimant’s contention that the trial commissioner erred in failing to grant a continuance of the formal hearing. Notice of the May 8, 1995 formal hearing was received by the claimant on April 14, 1995. (Claimant’s Brief at p. 16). The claimant received the March 15, 1995 deposition of Dr. Langou on May 2, 1995. (Claimant’s Brief at p. 16; 5/8/95 TR. at p. 7). In fact, the claimant’s attorney was present and questioned Dr. Langou during the March 15, 1995 deposition. We have consistently held that it “is within the broad discretion of the commissioner to grant or deny a continuance, and such a decision is virtually unreviewable.” Mercado v. Personal Moving Services, 14 Conn. Workers’ Comp. Rev. Op. 364, 365, 2023 CRB-4-94-5 (Sept. 26, 1995). We find no abuse of discretion on the part of the trial commissioner in denying the claimant’s request for a continuance, nor do we find that the claimant was denied due process.