Bryan v. Sheraton-Hartford Hotel

The respondents were represented by Diane Duhamel, Esq., Duhamel & Schoolcraft, L.L.C., 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

This Petition for Review from the November 13, 1997 Finding and Award of the Commissioner acting for the First District was heard June 12, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the November 13, 1997 Finding and Award of the Commissioner acting for the First District. They argue on appeal that the trier erred by failing to consider evidence in response to a ruling by this board that granted the claimant’s Motion to Submit Additional Evidence. We disagree, and affirm the trial commissioner’s decision.

The claimant initially appealed from a March 26, 1996 Finding and Dismissal of the trial commissioner. He found there that she had suffered a compensable back injury on December 23, 1989, but that she had failed to meet her burden of proof regarding the relationship of other medical conditions to that injury. The claimant filed a Motion to Submit Additional Evidence on December 16, 1996 in conjunction with her appeal from that decision, seeking to introduce an April 12, 1996 medical report from Dr. Selden and a November 25, 1996 medical report from Dr. Levine. Both of those reports were issued after the date of the last formal hearing. Oral argument was heard on the claimant’s motion on January 10, 1997, and in an opinion dated March 12, 1997, this board denied the Motion to Submit Additional Evidence with respect to Dr. Levine’s report, but granted it with respect to Dr. Selden’s report.

The case was remanded, and a hearing was quickly assigned for April 16, 1997, at which the respondents introduced into evidence as a full exhibit a letter from Dr. Selden retracting the substance of his April 12, 1996 report. See Respondents’ Exhibit 1. At that hearing, and at subsequent hearings on July 31, 1997 and September 16, 1997, other documents were also introduced into evidence as claimant’s exhibits and as joint exhibits. However, in his November 13, 1997 award, the trial commissioner stated that, “[a]lthough the parties seek to have the undersigned consider other evidence which may have some bearing on Dr. Selden’s report of April 12, 1996, the remand of the CRB is clear and unequivocal. The remand specifically restricts the consideration of evidence to that report of Dr. Selden, . . . [and] [t]he undersigned will not permit this trial to be expanded beyond [those] limits.” Conclusions, ¶¶ C-D. Thus, the trier found in accordance with Dr. Selden’s report, which states that “ten percent of the patient’s permanency should be considered attributable to her [compensable] injury of December, 1989.” See Findings, ¶ 2. He ordered the respondents to pay the claimant 29.1 weeks of benefits at her base compensation rate, from which ruling the respondents appealed.

The disposition of our ruling on the claimant’s Motion to Submit Additional Evidence reads as follows: “We, therefore, grant the claimant’s Motion to Submit Additional Evidence limited to the report from Dr. Selden dated April 12, 1996, and remand this matter to the trial commissioner.” Bryan v. Sheraton-Hartford Hotel, 3320 CRB-1-96-4 (March 12, 1997). The respondents argue on appeal that its reading of the trial commissioner’s statement leads to a conclusion that the trial commissioner only considered Dr. Selden’s April 12, 1996 report. In essence the respondents contend that the trier disregarded all the evidence presented in previous proceedings before him. We recognize that it would be possible to read this statement as meaning that the only additional evidence that the trier could consider was Dr. Selden’s report. But we are not convinced that the only conclusion one can reasonably draw from the trier’s statement is that he failed to consider the evidence previously presented by the respondents. We believe the respondents have read the trial commissioner’s statement in ¶¶C-D of the November 13, 1997 Finding and Award too narrowly. We understand the trial commissioner’s statement that he was not going to consider any “other” evidence as meaning any other evidence than that which existed in the record from the prior proceedings before him. In other words, the Compensation Review Board in its March 12, 1997 Ruling on the Claimant’s Motion To Submit Additional Evidence instructed the trial commissioner to review the conclusion reached in his March 26, 1996 Finding and Dismissal in light of particular evidence, Dr. Selden’s April 12, 1996 medical report. By virtue of the Compensation Review Board’s granting of the Claimant’s Motion To Submit Additional Evidence, and by definition of the word “additional” itself, the CRB conveyed to the trial commissioner that he should consider Dr. Selden’s April 12, 1996 medical report along with the evidence which already existed in the record.

The CRB’s March 12, 1997 ruling on the claimant’s Motion To Submit Additional Evidence, stated that the ruling was being granted “limited to the report from Dr. Selden dated April 12, 1996.” We believe the use of the term “limited” was meant to convey that the CRB was authorizing the trial commissioner’s consideration of Dr. Selden’s April 12, 1996 report and not the consideration of other additional evidence which the claimant sought to proffer, i.e., Dr. Levine’s report dated November 25, 1996. Thus, we believe the respondents’ inference that the trial commissioner’s conclusion set out in his November 13, 1997 Finding and Award was based only on Dr. Selden’s April 12, 1996 report and not the other evidence existing in the record is misplaced.

Furthermore, as we believe the trial commissioner did review the additional evidence with the evidence already existing in the record, we believe that the trier’s conclusion was based on his factual findings and thus, must stand unless it results “from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . .” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988) (citations omitted); see also, Kish v. Nursing & Home Care, Inc., 47 Conn. App. 620, 623, 706 A.2d 1372, aff’d., 248 Conn. 379 (1999).

We also note the evidence that the respondents proffered following the CRB’s remand, was evidence which conflicted with Dr. Selden’s April 12, 1996 letter. Evidence of this nature by Dr. Selden already existed in the record. See Claimant’s Exhibit T, Reports of Dr. Steven Selden.1 Thus, arguably even if the trier did consider Respondents’ Exhibit 1 (Dr. Selden’s April 11, 1997 letter contradicting his April 12, 1996), the information contained in that exhibit was evidence which was cumulative of evidence that already existed in the record. What weight to give the Respondents’ Exhibit 1 was a matter within the trial commissioner’s purview. Englehard v. Capewell Mfg. Co., 137 Conn. 32 (1950); Garcia v. Bridgeport, 3595 CRB-04-97-04 (June 8, 1998); Rivera v. New Britain, 3501 CRB-6-96-12 (April 28, 1998); Hodgdon v. UTC/Pratt & Whitney, 16 Conn. Workers’ Comp. Rev. Op. 164, 3150 CRB-1-95-8 (May 2, 1997). We can find no harm in the trial commissioner’s refusal to consider evidence which was merely cumulative of evidence already existing in the record especially where it was fundamentally cumulative of Dr. Selden’s own reports.