Saporoso v. AETNA Life & Casualty

The claimant was represented by Morris R. Borea, Esq., Polinsky, Santos & Polinsky, 890 West Boulevard, Hartford, CT 06105.

The respondents were represented by James L. Pomeranz, Esq., and Douglas Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the January 5, 1998 Finding and Dismissal of the Commissioner acting for the First District was heard February 26, 1999 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Stephen B. Delaney and John A. Mastropietro.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The claimant has petitioned for review from the January 5, 1998 Finding and Dismissal of the Commissioner acting for the First District. She argues on appeal that the trial commissioner’s order should be vacated due to his failure to comply with § 31-300’s 120-day time limit for issuing decisions, and that the trier erred by finding that her current disability was due to “litigation neurosis” rather than the injury itself. We affirm the trial commissioner’s decision.

The claimant was an employee of the respondent Aetna, who, during the fall of 1984, was promoted to a new job in a different department of that company. Her training for the new position was unstructured and sporadic, however, and her new supervisor became dissatisfied with her performance. The claimant, who put in overtime hours and took work home with her on weekends, felt that she was being treated unfairly, and feared that she would lose her job. She sought medical attention in early March 1985, as she was suffering physically and emotionally from stress. In accordance with a doctor’s opinion, a trial commissioner found the claimant to be totally disabled, and declared that, until her disability was “cured or diminished,” the claimant was entitled to receive total disability benefits from the respondents (who unreasonably contested compensability, having offered no evidence to contradict the claimant’s allegations). See April 16, 1987 Finding and Award.

Late in 1991, a different commissioner conducted formal hearings to determine whether or not the claimant’s benefits should be terminated pursuant to the respondents’ Form 36. In a September 9, 1992 Finding, Award and Dismissal, the trier cited Dr. Shea’s testimony, which indicated that the claimant’s concern about not settling her case had placed her in the position of not being able to be rehabilitated, and he also cited Dr. Wiesel’s opinion that the claimant would not recover without settling her case. Inferably based on this testimony, the trier concluded that the Form 36 should be approved, and terminated the claimant’s benefits effective December 23, 1991, the date of the last formal hearing.

The claimant appealed that ruling to the CRB, which held that the trial commissioner’s decision contained insufficient factual findings to support the conclusion that the claimant was no longer totally disabled, and remanded the case to the First District. Saporoso v. Aetna Life & Casualty Ins. Co., 13 Conn. Workers’ Comp. Rev. Op. 88, 1513 CRB-1-92-9 (Jan. 23, 1995). The trier issued another decision on January 5, 1998, in which he specifically stated that, based on the testimony of Drs. Shea and Wiesel, he had come to the conclusion that the claimant’s focus on the litigation process was causing her current incapacity. He again terminated benefits effective December 23, 1991. The claimant again petitioned for review from that decision.

The claimant raises two grounds of appeal in this matter. Her first argument is that the trier’s September 9, 1992 decision was voidable, because it was issued in an untimely manner pursuant to § 31-300. Setting aside the fact that said 1992 decision has already been reversed by this board, and that the decision from which this appeal originates is the trier’s January 5, 1998 Finding and Dismissal, that claim of error is still insufficient under the law given the circumstances of this case.

It is true that § 31-300 requires a trial commissioner to send each party a copy of his decision no later than 120 days after the last formal hearing, and that a party need not demonstrate prejudice from an untimely decision. Stewart v. Tunxis Service Center, 237 Conn. 71 (1996). However, a party that fails to raise the issue of tardiness before the trier’s decision is issued may implicitly waive compliance with the 120-day deadline. Minneman v. Norwich Board of Education/Norwich Public Schools, 2294 CRB-2-95-2 (Dec. 13, 1996), affirmed, 47 Conn. App. 913 (1997)(per curiam). “A party shall not be allowed to choose to enforce its right to invalidate a ruling only after the party reviews the decision and decides that it is adverse to its interests, barring special circumstances.” Stewart v. Tunxis Service Center, 1684 CRB-6-93-4 (Oct. 30, 1996). “We will not allow parties to acquire a type of veto power over a decision by failing to object to a late award until they have an opportunity to see whether they approve of the result.” Minneman, supra. In this case, during the eight and one-half month interval between the last formal hearing and the trier’s 1992 decision, the claimant did not file any sort of objection on the ground that the 120-day period had lapsed, or was about to lapse. She only raised this concern after a decision adverse to her interests was issued by the factfinder. This is precisely the sort of circumstance we discussed with disapproval in Minneman, and we likewise rule here that the claimant’s objection under § 31-300 is deemed waived.

The claimant’s second argument encompasses both the trier’s denial of her Motion to Correct and her allegation that there was insufficient evidence to support his decision. Noting that the commissioner decided this case on the record that resulted from the 1991 formal hearings, the claimant requested that the trier revise his opinion to reflect the claimant’s continuing total disability since March 6, 1985, based on the deposition of Dr. Shea and the testimony of Dr. Wiesel. She proposed that he find that “the cause of Claimant’s mental illness is the same as it has been all along and is related to her work.” Motion to Correct, ¶ 7. The trial commissioner declined to make those changes.

In a workers’ compensation case, the trial commissioner is the individual charged with determining the credibility of witnesses, and gauging the appropriate inferences to draw from their testimony. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Dixon v. United Illuminating Co., 3543 CRB-4-97-3 (April 9, 1998). This fact-finding responsibility includes the authority to reject seemingly uncontradicted testimony, and to accept only a portion of someone’s opinion. Id.; Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335-36, 1592 CRB-5-92-12 (April 27, 1995). When reviewing the decision of a trial commissioner, this board may not disturb his findings unless they demonstrate that he abused his discretion in evaluating the evidence, or unless they fail to include undisputed material facts. Pallotto, supra. We do not hear cases de novo, and we are forbidden from substituting our own inferences for those drawn by the trier. Kolomiets v. Syncor International Group, 51 Conn. App. 523, 526 (1999); Dixon, supra.

The claimant maintains that the doctors’ testimony clearly established that her condition was caused by her work, and her brief states that there was “simply no evidence to find that the focus of [her] illness is her obsession with her workers’ compensation case.” Brief, p. 17. We disagree. Although Dr. Wiesel testified that the claimant’s condition could be traced to her unsettling experiences at work in 1985; November 18, 1991 Transcript, p. 81; he also testified that this pending litigation was “a major factor” in her psychological condition, and he referred to it as an “obsessive preoccupation.” Id., 32-33. He did not waver from his opinion that, within a reasonable degree of medical probability, the claimant would not be able to let go of her anger and rage until her case was settled. Id., 24, 27, 74-79. Similarly, Dr. Shea stated that, though the source of the claimant’s illness was not her preoccupation with her workers’ compensation case and a companion Superior Court lawsuit, her anxiety over these matters was acting as an impediment to resolving her psychological problems, with her inability to move beyond her resentment and frustration causing her more pain. Respondents’ Exhibit B, p. 11-12.

Thus, the record indeed appears to contain evidence that opposes the claimant’s position. The trial commissioner, as the finder of fact, did not abuse his discretion by inferring from this evidence that the claimant’s continuing disability was the product of “litigation neurosis” rather than her initial compensable injury. It was within the trier’s discretion to credit all, part or none of this expert testimony, and his determination cannot be overruled by this board. O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 819 (1999); Pallotto, supra. Consequently, we are required to affirm the decision of the trial commissioner.