Flemmings v. Waveny Care Center, Inc.

The claimant was represented by Neal Rogan, Esq., Bai, Pollock & Coyne, 10 Middle Street, Bridgeport, CT 06604.

The respondents were represented by Margaret McGrail, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the January 7, 1999 Finding and Award of the Commissioner acting for the Seventh District was heard October 15, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

ANGELO L. dos SANTOS, COMMISSIONER. The respondents have petitioned for review from the January 7, 1999 Finding and Award of the Commissioner acting for the Seventh District. In that decision the trial commissioner found that the claimant sustained a compensable injury on May 20, 1995 when she injured her back while lifting a patient. In support of their appeal, the respondents contend that the trial commissioner’s determination that the claimant sustained an injury on May 20, 1995 is not supported by the evidence in the record. In addition, the respondents argue that the trial commissioner abused his discretion in granting the claimant’s request for a continuance at the first formal hearing in order to allow the claimant to produce medical evidence.

We will first address the respondents’ contention that the record does not support the trial commissioner’s determination that the claimant sustained an injury on May 20, 1995. Specifically, the respondents argue that the claimant’s testimony was inconsistent and contradictory regarding the date of the injury, and that the two Notice of Claim forms filed by the claimant listed incorrect dates. In the instant case, the trial commissioner specifically addressed the issue of the claimant’s imperfect memory regarding the date of injury and the incorrect dates on the Notice of Claim forms. The trial commissioner found as follows:

It was within the discretion of the trial commissioner, as the trier of fact, to assess the credibility of all of the evidence, including the testimony of the claimant. In their appeal, the respondents are essentially seeking to retry the facts of this case, which this board may not do. When reviewing a trial commissioner’s decision, it is well established that this board “is obligated to hear the appeal on the record and not retry the facts….” Reilly v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999) (quotations omitted). The determination of whether an injury arose out of and in the course of the employment requires a factual determination by the trial commissioner. O’Reilly, supra; McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). “In reviewing the factual determinations of the commissioner, the review [board’s] scope of review is limited. The review [board] may not disturb the conclusions that the commissioner draws from the facts found unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 351 (1999) (citations omitted). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it….” Id. at 349 (citations omitted). In the instant case, the evidence in the record supports the trial commissioner’s conclusion that the claimant sustained a compensable injury on May 20, 1995.

In further support of their appeal, the respondents contend that the trial commissioner abused his discretion by granting the claimant’s request for a continuance in order to procure medical evidence supporting her claim. We find no error, as it was within the trial commissioner’s discretion to grant or deny that request. “We have consistently held that it ‘is within the broad discretion of the commissioner to grant or deny a continuance, and such a decision is virtually unreviewable.’” Liano v. Bridgeport, 3199 CRB-4-95-10 (March 25, 1997), quoting Mercado v. Personal Moving Services, 14 Conn. Workers’ Comp. Rev. Op. 364, 365, 2023 CRB-4-94-5 (Sept. 26, 1995); see also Rindos v. J.F. Barrett & Sons, 3188 CRB-3-95-8 (February 27, 1997); Hirth v. United Parcel Service, 12 Conn. Workers’ Comp. Rev. Op. 353, 1497 CRB-1-92-8 (August 2, 1994).

We recognize the concern articulated in the dissent that a party should be prepared to present its case at a formal hearing, and not be allowed to present the case in a piecemeal fashion. In general, we share this concern. However, of equal or greater importance is the discretion of the trial commissioner to determine the process of a hearing, including whether a continuance should be granted. In the instant case, both of the parties presented extensive arguments regarding the requested continuance (see 6/9/98 TR. at 88-95; 8/17/98 TR. at p. 5-9) and the trial commissioner, in his discretion, chose to grant the continuance.

The trial commissioner’s decision is affirmed.

Commissioner Stephen B. Delaney concurs.

JESSE M. FRANKL, COMMISSIONER, DISSENTING. I respectfully dissent. In my opinion, it was an abuse of discretion for the trial commissioner to grant the continuance in this case.

I recognize that it is within the broad discretion of the commissioner to grant or deny a continuance, and that such a decision is virtually unreviewable. See Liano, supra. However, in the instant case the claimant’s request for a continuance was unreasonable because the claimant had ample time to prepare her case regarding a 1995 injury prior to the formal hearing on June 9, 1998. The medical evidence which the claimant obtained after the June 9, 1998 hearing was a medical opinion dated June 18, 1998, signed by a treating physician, Dr. Marks, regarding the causation of the claimant’s back condition. Such supporting medical evidence in a disputed case such as this one should have been procured prior to the formal hearing, and the record should not have been held open to allow the claimant to present her claim in a piecemeal fashion. Accordingly, I dissent.