Tanzi v. City of New Britain

The claimant was represented by Harold J. Geragosian, Esq., 380 West Main St., New Britain, CT 06052.

The respondent was represented by Seth Feigenbaum, Esq., Office of Corporation Counsel, City of New Britain, 27 West Main St., New Britain, CT 06051.

This Petition for Review from the August 30, 1996 Finding and Award of the Commissioner acting for the Sixth District was heard September 5, 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 respondent has petitioned for review from the August 30, 1996 Finding and Award of the Commissioner acting for the Sixth District. It argues on appeal that the trier erred by failing to admit into evidence the deposition of an independent medical examination and by finding that the claimant contracted Hepatitis C from a needle stick he suffered during the course of his duties as a police officer. We affirm the trial commissioner’s decision.

The claimant suffered an injury to his left thumb on March 21, 1986, when he was stuck by a needle syringe while executing a search warrant. The respondent accepted that injury. It did not accept the claimant’s contention, however, that the needle stick caused the claimant to contract the Hepatitis C virus. The respondent raised questions regarding the level of proof in the record regarding causation. Based on the testimony and medical reports of Dr. Kemler, a New Britain gastroenterologist, the trial commissioner concluded that the claimant’s hepatitis was caused by the needle stick. The respondent appealed.

We begin by addressing the respondent’s argument that the commissioner erred by excluding from evidence the deposition of Dr. Nestler, another gastroenterologist. We note that Dr. Nestler’s deposition was not marked as an exhibit for identification, which leaves us at a disadvantage on review. We are unable to judge the potential relevance of the evidence ourselves. However, a significant portion of the transcript of the May 23, 1996 formal hearing is dedicated to the discussion of this issue.

The trial commissioner listened to the arguments surrounding the claimant’s objection against Dr. Nestler’s deposition. A report by Dr. Nestler was introduced into evidence at a prior hearing that was subsequently nullified by the recusal of the previous commissioner. Notice was issued of the next formal hearing on March 19, 1996, with a May 23, 1996 hearing date. The respondent’s intent to depose Dr. Nestler was not formally communicated to the claimant until May 20, 1996, putting the claimant’s attorney at a “distinct disadvantage” in preparing for the deposition the next day. Transcript, p. 36. Further, the claimant did not see the transcript until he had already rested his case. The commissioner thought this unfair. The city had Dr. Nestler’s report in May 1994, but waited until the last minute to attempt to depose him, leaving the claimant with no time to prepare. The trier ruled that, under these circumstances, the deposition was inadmissible. Transcript, p. 37.

The respondent cites the fact that the claimant’s attorney was present at the deposition and had an opportunity to cross-examine Dr. Nestler. It also cites § 52-149a(a) C.G.S., which states that “[t]he deposition of any physician . . . may be taken on behalf of either party to any . . . workers’ compensation matter . . . . The deposition may be received in evidence at the trial or hearing of the . . . workers’ compensation proceeding . . . in lieu of the appearance of the witness.” According to the respondent, the claimant knew it had been difficult to arrange for Dr. Nestler’s deposition, and had not alleged prejudice because of the short notice. The respondent states that § 52-149a clearly supports its due process right to have the deposition introduced.

Section 52-149a(a) indeed supports the right of a party to use a physician’s deposition in lieu of his live testimony. However, it does not require the trier to allow every deposition into evidence. A commissioner is not bound by the ordinary common law or statutory rules of evidence at a hearing under § 31-298. Rather, he is instructed to “make inquiry . . . in a manner that is best calculated to ascertain the substantial rights of the parties . . . .” He has broad discretion to determine the admissibility of evidence under that statute. Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997); York v. General Dynamics/Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 166, 170-71, 1770 CRB-2-93-6 (March 9, 1995). We cannot reverse a commissioner’s evidentiary ruling absent an abuse of that discretion. Id., 171.

Here, the commissioner had reasonable grounds to exclude Dr. Nestler’s deposition. The mere fact that the claimant had the chance to be present during the deposition does not mean that he had an effective opportunity to prepare questions for Dr. Nestler. A day’s notice of a deposition that is being held two days before the formal hearing would leave many attorneys unable to review their records properly, much less obtain new information that might be useful at the deposition. Besides, as mentioned above, the respondent did not mark the deposition as an exhibit, so we have no way of confirming the nature of the testimony offered. See Hirth v. United Parcel Service, 12 Conn. Workers’ Comp. Rev. Op. 353, 356, 1497 CRB-1-92-8 (Aug. 2, 1994). We have no cause here to reverse the trial commissioner’s decision on this issue.

The respondent’s also argue that the evidence in the record does not support the trier’s decision. They argue that Dr. Kemler was unable to state with any probability that the needle in question was infected with Hepatitis C, and thus could not diagnose causation with sufficient certainty. We remind the respondent that the commissioner is the trier of fact, and is entitled to weigh the medical opinions in evidence and come to his own conclusion regarding their credibility. See Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). This board may not disturb his findings regarding causation if they are based upon an opinion that is expressed in terms of a reasonable probability. Struckman v. Burns, 205 Conn. 542, 554-55 (1987).

A review of Dr. Kemler’s testimony shows that the doctor did not have an opportunity to examine the needle that stuck the claimant, and thus could not surely state that the needle was infected with Hepatitis C. See Joint Exhibit 4, p. 14. However, Dr. Kemler did not believe that the claimant had hepatitis before the incident based on blood work that was done in 1985. Id., p. 17. He explained that a test showing that the risk of contracting hepatitis C from a single needle stick was “rare” really meant that 10 percent of people who were stuck with such needles contracted the disease. Id., p. 22-23. Although he could not say that the needle stick, taken alone, was certainly the cause of the claimant’s hepatitis, Dr. Kemler deduced that it was probably responsible for the development of this disease after he eliminated the other significant risk factors during the relevant time period based on the claimant’s medical history. Id., p. 32-34

This medical opinion is not legally insufficient to establish causation within a reasonable degree of medical probability. Taken as a whole, Dr. Kemler’s testimony establishes that, in his opinion, the claimant’s HCV-positive status is probably due to his 1986 compensable needle stick injury. See Struckman, supra, 555. The fact that one element of the claimant’s history, the condition of the needle, was somewhat uncertain did not prevent the doctor from deducing that it was most likely contaminated based on the elimination of other factors. Thus, the trial commissioner acted within his authority in finding that Dr. Kemler’s testimony established causation in this case. We do not have the power to alter that finding on review. See Webb, supra.