Gibbs v. New England Home Care

The claimant was represented by Joseph L. Gillis, Esq., Gillis & Gillis, Two Whitney Ave., New Haven, CT 06510.

The respondents were represented by Kristen Sotnik Falls, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Woodbridge, CT 06525.

This Petition for Review from the February 20, 1996 Finding and Dismissal of the Commissioner acting for the Third District was heard March 14, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the February 20, 1996 Finding and Dismissal of the Commissioner acting for the Third District. The claimant argues that the commissioner committed several evidentiary errors and improperly denied her Motion to Correct.1 We affirm the trial commissioner’s decision.

The claimant was employed as a nurse’s aide by the respondent on August 18, 1993, when she was involved in a motor vehicle accident in Hamden. The accident occurred at about 1:00 p.m. The claimant had worked between 8:00 a.m. and noon that day, and was off until 3:00 p.m. The trial commissioner found that any time period between patient visits that was longer than an hour was considered “down time.” Although the claimant alleged that she was doing some shopping for Mrs. Williams, the patient she had seen that morning, the trier found that she was not being paid for that time and had not requested permission to work beyond her normal shift. The employer’s home health care aide guide sheet also did not list shopping and performing errands as part of the work duties that the claimant was supposed to perform for Mrs. Williams. The trier concluded that the claimant’s shopping activities on August 18, 1993 were not within her authorized work hours and had to be considered personal activity. Therefore, he dismissed her claim for benefits. The claimant has appealed that ruling.

The first issue raised by the claimant concerns references that the respondents’ attorney made to her arrest record. During her cross-examination of the claimant at the June 22, 1995 formal hearing, Attorney Sotnik asked the claimant if she had ever been arrested. Transcript, p. 48. When the claimant acknowledged that she had, Sotnik produced a New Haven Police Department document listing various charges that had been filed against the claimant and their dispositions. This item was marked for identification, and was used by counsel to refresh the claimant’s recollection regarding certain arrests. Id., pp. 49-50. Sotnik maintained that the claimant’s credibility was a key issue, and that three of the charges addressed her aptitude for veracity. Id., p. 50.

The claimant’s counsel objected that the document had not been authenticated and that it did not refer to convictions, and requested that it be stricken from the record. Sotnik replied that the document was indeed authentic, as it was certified by the New Haven Department of Police Services, and that it was contained in the claimant’s personnel file at the respondent employer New England Home Care. She also stated that dispositions had been marked on the document, although she acknowledged that she did not have any conviction records from the police department. The commissioner decided to allow the line of questioning, but stated that he would decide whether it had any weight or relevance later. Id., p. 51.

In their briefs, the claimant and respondents both engage in a certain amount of argument regarding the admissibility of arrests as an impeachment tool in Superior Court, and cite a number of cases supporting their respective positions. See, e.g., State v. Denby, 198 Conn. 23, 29-30 (1985) (prior convictions may be proved by certified copy of judgment of conviction or by questioning witness, but facts underlying conviction are generally inadmissible); State v. Reed, 174 Conn. 287, 303 (1978) (prior arrest inadmissible; case was nolled because defendant had acted in self-defense). As the standard of evidentiary admissibility under §§ 31-298 C.G.S. is broader than that prescribed by the ordinary rules of evidence, the severity of the rules prescribed by Connecticut case law would likely be somewhat muted on this issue.

However, we need not decide whether the arrest record was actually admissible or not. The trial commissioner did not refer to it in his decision, and appears to have ascribed little or no weight to the results of Sotnik’s line of questioning on the claimant’s police record. Assuming that this evidence was irrelevant and should not have been admitted, we do not believe that any error was harmful in this case. Unlike a trial to a jury, a trial to a court or a commissioner is unlikely to be tainted by the introduction of irrelevant evidence, because the trier has the legal background to filter out such evidence in making his decision based on the very fact that it is not relevant. Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 92-93, 1679 CRB-5-93-3 (May 19, 1995). This case is a prime example of that notion, as the commissioner recognized during the testimony itself that it might not be relevant to this matter. Transcript, p. 51. We therefore dismiss this claim of error.

The claimant’s next argument is that the commissioner erred by allowing the respondents to introduce the claimant’s no-fault auto insurance claim at the October 26, 1995 supplemental formal hearing. She states that such evidence could have been introduced at the prior formal hearing, and the supplemental hearing was only supposed to be held to facilitate the introduction of two specific depositions. In the records of the insurance claim, the claimant indicated that she was not in the course of her employment at the time of her accident. (Respondent’s Exhibit 6).

Initially, we note that Respondent’s Exhibit 2, which was introduced at the first formal hearing, consists of a statement by a Peerless Insurance claims representative that the claimant’s no-fault form indicates that this accident did not occur in the course of her employment. Thus, the impact of Exhibit 6, which is not discussed in the trier’s written decision, was probably minimal.

More importantly, however, the trier has the right to accept evidence until the record is formally closed. To say otherwise would restrict his ability to properly try a case. Our concern about parties attempting to try cases “piecemeal,” see Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 84, 2150 CRB-3-94-9 (Dec. 7, 1995), does not extend to a requirement that all evidence be presented by both parties at the first formal hearing. A commissioner may allow evidence to be introduced at a subsequent hearing if the case is still open. It is also noteworthy that the trier here allowed the claimant’s witness to testify in response to the respondents’ introduction of those forms, thus providing an opportunity for rebuttal. Transcript, October 26, 1995 formal hearing, pp. 5-13. We do not find error here.

Finally, the claimant argues that the commissioner erred by allowing into evidence a deposition that was conducted over the telephone at the respondents’ behest. The witness deposed was Nancy Pereira, the former director of risk management at New England Home Care who had since moved to Utah. Three of the commissioner’s findings concerned the substance of her testimony. They referred to the employer’s requirement that specific authorization was needed before shopping for a patient could be considered a work activity, and the presence of the claimant’s nephew in her car at the time of the accident. The claimant’s attorney contends that his inability to cross-examine the witness face-to-face and to personally be present when she was testifying denied his client procedural due process.

As a general rule, this board frowns on the use of telephonic depositions in workers’ compensation proceedings for the very reason stated by the claimant. Despite the fact that other courts have allowed them into evidence, we are still concerned about the lessened effectiveness of cross-examination when the witness is not visible to the parties or their attorneys. However, such depositions can be admitted into evidence if the parties agree to allow them in, or if the trial commissioner approves the use of a telephonic deposition ahead of time.

Here, the commissioner pre-marked the deposition of Mrs. Pereira as Respondents’ Exhibit 5 at the June 22, 1995 formal hearing. The parties agreed to submit that deposition and the claimant’s deposition of another out-of-state witness without a hearing. Transcript, p. 95. Although claimant’s counsel objected to the manner of Mrs. Pereira’s deposition at the deposition itself, and even stated that he was going to request that it be disallowed, see Respondent’s Exhibit 5, p. 3, no objection to the introduction of the deposition was actually raised to the trial commissioner when it was entered into evidence. Therefore, we cannot now rule that its introduction was erroneous. It is beyond dispute that an evidentiary ruling must be preserved by objection before an appellate body may consider it on review.

The trial commissioner’s decision is affirmed.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The denial of the Motion to Correct was not raised as an issue in the claimant’s brief, and will thus not be discussed here. See Maio v. L.G. DeFelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 198 n.1, 1734 CRB-5-93-5 (March 22, 1995). BACK TO TEXT