Mycek v. U.S. Surgical Corp.

The claimant appeared pro se on appeal, and was represented at oral argument by her husband, Zdzislaw Mycek.

The respondent was represented by Charles E. Tiernan,III, Esq., Lynch, Traub, Keefe & Errante, P.C., 52 Trumbull Street, P. O. Box 1612, New Haven, CT 06508-1612.

This Petition for Review from the August 8, 1997 Finding of Dismissal by the Commissioner acting for the Third District was heard April 24, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the August 8, 1997 Finding of Dismissal of the Commissioner acting for the Third District. The trial commissioner found in that decision that the claimant had failed to submit medical evidence sufficient to support her claim that she sustained a compensable injury during the course of her employment at U.S. Surgical Corp. on August 15, 1994. The trial commissioner dismissed her claim, and we now affirm that decision.

We will first address the respondent’s motion to dismiss the claimant’s petition for review for failure to file timely reasons of appeal. Admin. Reg. § 31-310-2 states that within ten days after the filing of the appeal petition, the appellant shall file with the compensation review board her reasons for appeal. We note that the instant claimant has been proceeding on a pro se basis since the date of the formal hearing. The claimant filed her petition for review on August 15, 1997. She filed a document that effectively serves as both her reasons for appeal and her brief on March 2, 1998.

Generally, this board has the discretion to dismiss an appeal when the appellant fails to file documents in a timely fashion. Norton v. James Fleming Trucking, Inc., 15 Conn. Workers’ Comp. Rev. Op. 472, 474, 2119 CRB-1-94-8 (Sept. 16, 1996). Where a claimant is proceeding pro se on appeal, however, this board relaxes the rules of procedure in recognition of the average claimant’s unfamiliarity with the law. Hines v. Linc Scientific Imaging, 3037 CRB-8-95-3 (Apr. 14, 1997). In this case, the claimant has provided a brief that adequately communicates the basis of her appeal. We do not believe that the respondent was prejudiced in its defense of this appeal by the claimant’s failure to file Reasons for Appeal within ten days of the date she filed her petition for review. Thus, we deny the motion to dismiss. See Hines, supra.

We now turn to the merits of the claimant’s appeal. The claimant in her brief argues that the trial commissioner erred in his findings. This board does not retry the facts on appeal because the power to determine the facts rests with the trial commissioner as the trier of fact. This authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995)(citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences, or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The only way an appellant may correct the findings of a trial commissioner is by filing a Motion To Correct, pursuant to Admin. Reg. § 31-301-4. This motion gives the appellant an opportunity to have the trial commissioner reconsider the evidence and correct his findings. Without such a motion, this board is strictly limited to the trier’s factual findings on review. Seltenreich v. Stone & Webster 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). In the present case, the claimant never filed a Motion To Correct. Legally, we must therefore confine the scope of our review to the findings of the trial commissioner, and evaluate his conclusions on the basis of those findings. However, given the pro se status of the claimant, we will discuss the sufficiency of the underlying evidence as well.

In the instant case, the trial commissioner found that the claimant did not have to stretch or bend to perform her assembly suture work. (Findings, ¶ H). The claimant argues that this is not true, that she did in fact have to bend and stretch because she is a short person, and her work table was not adjustable. (Appellant’s Brief, pg. 3). However, the claimant herself testified at the January 14, 1997 Formal Hearing that she did not have to bend over and pick up any heavy items and that she only had to reach six inches or less to reach the attaching machine. (Transcript pp. 4, 9). This testimony was corroborated by Ms. Renita Morriar, who is responsible for ergonomics at U.S. Surgical Corp.(Transcript, pp. 37, 42). In light of this testimony we conclude the trial commissioner had sufficient evidence to support this finding.

The claimant takes issue with ¶¶ 44-47 of the Finding of Dismissal1. The claimant argues that her husband was not allowed to be at Dr. Michael Opalak’s deposition because the doctor did not want him present. It is the claimant’s contention that statements made by Dr. Opalak would not have been made had the claimant’s husband been allowed to be present at the deposition. However, the claimant’s attorney was present on her behalf at the deposition. Any dissatisfaction the claimant might have with her attorney’s performance is not material to our review of the commissioner’s decision. See Maio v. L. G. Defelice, Inc., 13 Conn. Workers’ Comp. Rev. Op. 197, 1734 CRB-5-93-5 (Mar. 22, 1995); Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (Dec. 13, 1996).

In her brief, the claimant states that, “she told Dr. Opalak that Dr. Wieslaw Ignatowicz checked her in Sept. 1993 (not treated her) for back problem, but did not find anything suspicious.” (emphasis added). This is completely consistent with ¶ 44 which states that Dr. Opalak was unaware of the claimant being treated for a back problem in 1993. Dr. Opalak understood the claimant’s statement to indicate she had been examined by Dr. Ignatowitz, and nothing more. Likewise the claimant states that she “never said she was lifting any heavy objects, but she told Dr. Opalak about bending, twisting, and pressing (the) foot pedal about 1200 times a day.” This statement is simply a restatement of ¶ 45. We see no discrepancy between those findings and the evidence.

The claimant also argues that her injury is the result of repetitive trauma. However, this is not strongly supported by the evidence. Dr. Sumner stated in his January 24, 1995 letter that he doubted that both disc herniations could have occurred on August 15, 1994, or whether a condition pre-existed the incident of that date. Dr. Robinson was of the opinion that the use of a foot pedal is unlikely to cause a herniated disc, and that the claimant’s herniated disc is not causally related to a work-related injury. (Findings, ¶¶ 39-40). Dr. Opalak indicated that if the claimant was not lifting on August 15, 1994 (as she testified), then the disc herniations were not related to her work activities on that date. The only doctor who opined that the claimant’s discs herniated on August 15, 1994 within a reasonable degree of medical probability was Dr. Ignatowitz. As stated above, the trial commissioner alone has the power to weigh the credibility of the witnesses. Webb, supra. The commissioner found the testimony of doctors Sumner, Robinson, and Opalak on this issue to be more credible than that of Dr. Ignatowitz.

Finally, the claimant states that no attempt was made to find what caused her disc herniation. However, it is the claimant who has the burden of submitting evidence proving what may have caused her injury. See Dakos v. Acme Wire, 3072 CRB-2-95-6 (Dec. 23, 1996). The claimant’s failure to do so limited the trial commissioner to the evidence that was presented before him. It was upon this evidence that the trial commissioner concluded the claimant’s back injury was not related to her work activities. That conclusion is fully supported by the subordinate factual findings, and cannot be reversed on appeal. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The trial commissioner’s decision is thus affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 These findings appear in the commissioner’s Finding of Dismissal as follows:

“44: Dr. Opalak was not aware that the Claimant had been treated for a back problem in 1993.

45: Dr. Opalak is of the opinion that the Claimant would have had to been lifting, bending, and twisting to develop the type of back injury she has.

46: Dr. Opalak testified that it would be difficult for him to indicate that it was reasonably, medically probable that the Claimant’s disc herniations occurred on August 15, 1994.

47: Dr. Opalak indicated that if the Claimant was not lifting on August 15, 1994, then the disc herniations are not related to her work activities on that date.” BACK TO TEXT