Wooten v. UTC/Pratt & Whitney

The claimant was represented by Jack Senich, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondents were represented by Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the April 22, 1998 Corrected Findings of Facts and Award of the Commissioner acting for the Sixth District was heard November 6, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the April 22, 1998 Corrected Findings of Facts and Award of the Commissioner acting for the Sixth District. She argues on appeal that the trier erred by granting the respondents’ Motion to Correct, thereby reducing her periods of entitlement to temporary total disability benefits. We affirm the trial commissioner’s decision.

The claimant suffered injuries to her head, neck, back and right shin on December 27, 1989, when a row of metal lockers toppled onto her at work. She went to the hospital, limiting her complaints to the contusions on her legs. A week later, she sought treatment from Dr. Perri, a chiropractor. She complained of neck, shoulder and back pain, along with intermittent headaches that brought with them a sensation of vertigo. Dr. Perri diagnosed a shoulder girdle injury and post-concussive syndrome, though the claimant denied that she had ever lost consciousness. She returned to work on or about March 15, 1990. Over the course of the next four years, the claimant continued to complain of vertigo and disequilibrium. She treated with Dr. Perri periodically, and was examined by several other doctors as well. The trial commissioner concluded that the claimant’s compensable injury resulted in injuries to her head and cervical spine, and resulted in 80 vertiginous episodes between 1990 and 1994.

The dispute in this appeal centers on the periods of total disability that the trier found after reviewing Dr. Perri’s reports, notes and testimony. In his initial Findings of Facts and Award of August 15, 1997, the trier specified eleven separate periods of temporary total disability, including 1/8/90-3/15/90, 3/23/90-4/5/90, 4/12/90-7/1/90, 8/2/90-8/3/90, 6/20/91-6/27/91, and 8/17/94-8/24/94. The respondents filed an appeal from that decision. Six months later, on February 19, 1998, they filed a Motion to Correct. The respondents sought the expunction of those findings that depicted Dr. Perri’s assignment of the intervals of total disability enumerated above, alleging that the evidence did not establish such facts. The trier granted the motion, and of the disability periods listed here, he eliminated his award for all but 1/8/90-2/1/90, 1/19/94, and half-days on 8/17/94 and 8/24/94. He added total disability awards for 6/27/91-6/30/91 and 1/27/93-1/28/93, but the net effect of the corrections was to reduce the claimant’s compensation by about four months of benefits. The claimant has appealed that decision, and the trier’s denial of her subsequent Motion to Correct. The respondents, meanwhile, withdrew their earlier appeal upon the granting of the changes they requested.

The claimant’s first step in challenging the trier’s ratification of the respondents’ Motion to Correct is the raising of a procedural objection to his consideration of that motion. According to Admin. Reg. § 31-301-4, an appellant who wishes to have the finding of the trial commissioner corrected “must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding . . . The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.” The respondents did not file a motion for extension of time with the trial commissioner concerning their Motion to Correct, and did not submit the motion itself until six months had passed from the date of the trier’s award. The claimant argues that the trier thus lacked jurisdiction to entertain that motion.

In their brief, the respondents explain that their Motion to Correct was late because they had requested a copy of the trial transcript in conjunction with their appeal, and could not propose their corrections until they had received the transcript. Brief, p. 6. They also describe this issue as “ephemeral” and “lacking in substance,” because a Motion to Correct was not integral to their original appeal anyway. Although it does not damage their defense, the latter viewpoint appears to be tenuous. Without a Motion to Correct, this board would have been bound on review by the trial commissioner’s original factual findings. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). The record is not so devoid of evidence to support those findings that this board could have somehow ignored them in its review.

However, a Motion to Correct was filed, and granted by the trier. Where such a motion is filed late, and an extension of time is not expressly granted, the appellant risks being precluded from filing a Motion to Correct by the trier. Mendoza v. Raposo, 15 Conn. Workers’ Comp. Rev. Op. 155, 157, 2172 CRB-7-94-10 (Jan. 26, 1996); Whalen v. General Building Supply Co., 11 Conn. Workers’ Comp. Rev. Op. 177, 178, 1294 CRD-1-91-9 (Sept. 3, 1993). Then again, the trier may choose to rule on a late Motion to Correct, implying that he has waived its tardiness. Shanklin v. UTC/CTVIP, 3537 CRB-5-97-2 (June 22, 1998); Cooper v. Sisters of Mercy, 3218 CRB-6-95-11 (Dec. 10, 1996). As Admin. Reg. § 31-301-4 does not expressly prohibit the consideration of a late Motion to Correct, stating instead that the two-week filing deadline may be “extended for cause,” a prudent appellee cannot assume that an appellant will be automatically barred from filing a Motion to Correct once fourteen quiet days have passed from the issuance of the trier’s decision. Instead, a diligent defense would require that the appellee file a timely objection to a late Motion to Correct or a late motion for extension of time, i.e., an objection within ten days of the filing of the tardy motion. Compare Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 696-97 (1987) (failure to file timely Reasons of Appeal renders appeal voidable; appellee must then take subsequent action). Here, nothing of this sort was done, and the commissioner had discretion to address the respondents’ Motion to Correct.

The claimant next raises her primary argument on appeal, which is her assertion that the commissioner’s findings as corrected are not supported by the medical evidence. She argues that the medical reports of Dr. Perri establish the periods of disability set forth in the original findings, and that his deposition testimony should not have been construed as contrary to those records. In our reply to the respondents’ remarks disputing the necessity of a Motion to Correct, we alluded to the fact that Dr. Perri’s medical reports in Claimant’s Exhibit A provided support for the commissioner’s original findings. Had the trier’s original findings remained intact, we could not have reversed them on appeal. The trial commissioner has the discretion to weigh the credibility of all medical and testimonial evidence, even that which appears to be unopposed. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997).

The trier did amend his findings, however, to concord with the oral testimony of Dr. Perri at his deposition. Like his initial decision to credit the medical reports, his subsequent decision to discount those reports is not one that this board can overturn on review. It was the trier’s prerogative to decide whether those reports proved that the claimant was temporarily totally disabled for all of the intervals alleged. We do not retry cases on appeal, or declare doctor’s reports to be binding as a matter of law. Id.; Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). We do understand the claimant’s argument. However, if the trier came to believe that the disability periods discussed in the deposition were the only ones he could rely on as accurate, he was entitled to amend his findings and conclusions accordingly.

Finally, the claimant objects that the trial commissioner failed to find that Dr. Sugar was an authorized treating physician referred by Dr. Perri. She alleges that, although the respondents did not request a correction to ¶ E of the original award, the trier nonetheless changed his initial order to pay the “outstanding bills of Dr. Perri and Dr. Sugar” to an order that the respondents pay “the outstanding bill of Dr. Perri.” This would appear to be a meaningful omission. However, the trier did not omit his finding that Dr. Perri referred the claimant to Dr. Sugar. Findings, ¶ 17. We also observe that ¶ C of the corrected decision states that the claimant’s post-concussive syndrome required treatment with Drs. Perri, Eisen and Sugar, strongly implying that Dr. Sugar’s treatment is still authorized. The trial commissioner’s elimination of his name from ¶ E of the order thus appears to be erroneous or inadvertent, especially considering that Dr. Sugar’s October 26, 1992 treatment marked the conclusion of a two-week period of total disability. We hold that the respondents are still required to pay Dr. Sugar’s bills, if any are still outstanding.