Kudlacz v. Lindberg Heat Treating Co. et al.

The claimant was represented by Jacek Smigelski, Esq., 122 Main Street, New Britain, CT 06051.

The respondents Lindberg Heat Treating Co. and Crawford & Co. were represented by Richard S. Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

The respondents United Parcel Service and Liberty Mutual Insurance Co. were represented by Nicone Gordon, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.

This Petition for Review from the August 8, 1996 Findings and Facts and Dismissal of Claim of the Commissioner acting for the Sixth District was heard December 1, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the August 8, 1996 Findings of Facts and Dismissal of Claim of the Commissioner acting for the Sixth District. In that decision, the trial commissioner concluded that the claimant was not injured as he alleged at either of the respondent employers, Lindberg Heat Treating Company (“Lindberg”) or United Parcel Service (“UPS”). The trial commissioner vacated a voluntary agreement which had been issued by Lindberg and its insurer as it was based upon a mutual mistake of fact. In support of his appeal, the claimant makes three arguments. First, the claimant contends that the medical evidence indicates that the claimant sustained compensable injuries. Second, the claimant contends that the trial commissioner did not have jurisdiction to vacate the voluntary agreement because the respondent Lindberg had only requested that the date of injury be changed on the voluntary agreement. Finally, the claimant argues that the trial commissioner erred by refusing to admit the deposition of Dr. Bralliar. The claimant has also filed a Motion to Submit Additional Evidence. We find no error.

Initially, we will briefly set forth the procedural history of this case. In Kudlacz v. Lindberg Heat Treating, 16 Conn. Workers’ Comp. Rev. Op. 214, 3407 CRB-8-96-8 (June 6, 1997), the board found that the claimant’s appeal was late, and thus dismissed the claimant’s appeal from the August 8, 1996 Findings and Facts of Dismissal of Claim of the Commissioner acting for the Eighth District. This decision was affirmed by the Appellate Court in Kudlacz v. Lindberg Heat Treating, 49 Conn. App. 1 (1998) (with dissenting opinion), cert. granted, 247 Conn. 909 (1998). In Kudlacz v. Lindberg Heat Treating, 250 Conn. 581 (1999), the Supreme Court reversed the Appellate Court, and held that although the ten day appeal period begins to run when notice is sent by the commissioner, nevertheless the statutory time period may be tolled if the party wishing to appeal establishes that through no fault of his own, he did not receive notice within ten days of the date that notice was sent.

On remand from the Supreme Court’s decision, the board was ordered to make factual findings as to whether, through no fault of his own, the claimant did not receive notice of the trier’s Finding and Dismissal within ten days of the date that it was sent. In Kudlacz v. Lindberg Heat Treating Co., 3407 CRB-8-96-8 (July 21, 2000), the board found that the claimant was not at fault for failing to receive such notice, and thus reinstated the claimant’s appeal. Accordingly, this board may now consider the merits of the claimant’s appeal from the August 8, 1996 decision.

The trial commissioner found the following relevant facts. On May 29, 1992, the claimant was employed by the respondent Lindberg as a delivery driver; and on June 3, 1992, he was employed by the respondent UPS. On May 29, 1992, the claimant was making a delivery for Lindberg to its customer, Bourdon Forge Company. The claimant backed his truck up to the loading dock which had rubber bumpers. After the truck was unloaded the claimant had to remove the loading plate. The claimant testified that he put his right foot on the dock and his left foot on the rubber bumper as he lifted the plate, and that at that point the rubber bumper gave away.

The claimant testified on direct examination that he fell between the truck and the dock, and he so testified numerous times during his deposition of June 30, 1995. The employer’s first report of injury which was filled out by the claimant corroborated that he fell between the truck and the dock. However, the trial commissioner found that it was physically impossible for a man of the claimant’s size (six feet three inches tall, 215 pounds) to fall between the seven inch space between the truck and the dock. During cross examination at the formal hearing, the claimant denied that he had testified that he fell between the truck and the dock. The trial commissioner set forth numerous other instances where the claimant’s testimony was contradictory regarding the alleged May 29, 1992 injury. See Findings No. 14-23.

The claimant did not seek medical attention until June 5, 1992, when he was examined at a hospital emergency room. The records from the emergency room indicate that the claimant had fallen two days before, which would have been June 3, 1992. There was no mention of a May 29, 1992 injury. Additionally, the claimant received treatment at a health care center on June 8, 1995. The history taken there was that the claimant presented for evaluation of low back pain which was first noted by the claimant while on duty at UPS on June 5, 1992. The report makes no mention of a fall.

The claimant testified that for about three or four weeks prior to May 29, 1992, he had pain in his low back which he attributed to his work at UPS. The claimant began working for UPS in July of 1991, where his job duties included repetitive lifting. The claimant testified that his back pain culminated on June 4, 1992 at UPS when the pain became so severe that he had to work on his knees. The claimant contended at the formal hearing that he hurt his head and neck when he fell while working for Lindberg on May 29, 1992, and that he hurt his back while doing repetitive lifting at UPS culminating on June 4, 1992. The claimant did not feel that he hurt his back on May 29, 1992. Regarding an x-ray of his lumboscral spine, Dr. Belman opined that said x-ray revealed a compression fracture. However, the trial commissioner did not credit Dr. Belman’s opinion, instead relying upon the opinion of Dr. Barnett, who conducted an independent medical examination, and opined that the claimant did not sustain a compression fracture. See Finding ¶ 37.

The claimant and Lindberg (with its insurer Crawford & Company) entered into a voluntary agreement approved November 10, 1992, which indicates an injury date of June 3, 1992 and an injury described as a compression fracture at L2 and L3. As set forth above, the claimant contends that his injury on June 3, 1992 occurred while working for UPS, not Lindberg. Regarding why he signed the voluntary agreement with Lindberg, the claimant explained that he did not understand what he was signing; that he did not know what a compression fracture was; that he does not claim an injury date of June 3, 1992 while working for Lindberg; and that the June 3, 1992 date of injury was against UPS. The respondents Lindberg and Crawford moved to open the voluntary agreement based upon mistake of fact. The trial commissioner granted the respondents’ motion as the voluntary agreement was based upon a mutual mistake of fact.

We will first address the claimant’s contention on appeal that the medical and other evidence presented at the formal hearing indicates that the claimant sustained permanent partial disability of his back due to repetitive lifting at UPS and that he sustained an injury when he fell on May 29, 1992 while working for Lindberg. Whether an injury arose out of and in the course of the employment requires a factual determination. McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 117 (1987). The power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding 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). We have specifically held that it is within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of the physician who conducted an independent medical examination than to the opinion of the claimant’s treater. Sherman v. Construction & General Laborers Union Local 390, 3056 CRB-5-95-5 (Jan. 8, 1997), (citing Hawley v. Shell Oil Co., 13 Conn. Workers’ Comp. Rev. Op. 246, 1663 CRB-4-93-3 (April 17, 1995)).

The record in the instant case fully supports the trial commissioner’s conclusion that the claimant did not sustain either an injury on May 29, 1992 or a repetitive trauma injury with UPS on June 3, 1992. The trial commissioner specifically found that the claimant’s testimony was contradictory and not credible. Thus, the claimant failed to meet his burden of proof regarding his alleged fall down injury on May 29, 1992. Moreover, the trial commissioner was not required to find that the claimant sustained a compensable repetitive trauma injury to his back while working for UPS. Rather, the trial commissioner was entitled to rely upon the medical opinions of Dr. Weeks and Dr. Barnett, who both attributed zero permanent partial disability to the claimant’s back from his alleged injuries. See Finding, ¶ 46. Moreover, the trial commissioner specifically found that the claimant continued working after his alleged injuries and drove his family to Colorado, driving back to Connecticut several times. Furthermore, the trial commissioner found that the claimant’s testimony regarding his physical restrictions was directly contradicted by video surveillance tapes which showed the claimant performing physically arduous tasks, including cleaning and loading his van for his trips to Colorado. Thus, as the trial commissioner’s determination was based upon the credibility of the evidence, and the record fully supports the trial commissioner’s determination, we may not disturb it. Fair, supra.

We will now address the claimant’s Motion to Submit Additional Evidence in which the claimant seeks to present medical records regarding treatment received by the claimant subsequent to the last formal hearing. The claimant has not identified any specific medical records, nor has the claimant explained how any of this evidence would change the outcome of the trial commissioner’s decision. Moreover, the claimant has not alleged that any medical experts have changed their opinions subsequent to the last formal hearing.

This board has repeatedly held that it is the claimant’s burden to recognize and resolve any inconsistencies in the evidence at the formal hearing, whether or not those discrepancies seemed significant to the claimant at the time of the hearing. Liano v. City of Bridgeport, 3299 CRB-4-96-2 (March 25, 1997) (citations omitted). This includes the duty of obtaining the necessary medical evidence to meet one’s burden of proof at the formal hearing. Under Admin. Reg. § 31-301-9, a party must allege that the additional evidence is material and that there was a good reason for failing to admit it during the trial stage of the proceedings in order to prevail on a motion to submit additional evidence. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). The failure of a party to anticipate the need for further medical testimony is not generally considered a “good reason.” Pallotto, supra, citing Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers Comp. Rev. Op. 205, 208-209, 1289 CRD-6-91-9 (Dec. 2, 1992). In the instant case, at the formal hearing, it was the claimant’s burden to prove that he sustained compensable injuries. As the claimant has not demonstrated that the proffered evidence is material to the issues before this board, and is not cumulative, the motion is denied. See Pallotto, supra.

Next, we will briefly address the claimant’s contention that the respondents Lindberg and its insurer only requested that the date be changed on the voluntary agreement, and thus that the trial commissioner had no jurisdiction to reopen and vacate the entire voluntary agreement. We find no merit to this argument, as both the respondents’ Motion to Amend Stipulation and Addendum to Motion to Amend Stipulation (Voluntary Agreement) were the subject of the formal hearing. See July 19, 1995 Transcript, p. 3. The Addendum to Motion to Amend clearly stated that significant facts in the voluntary agreement were incorrect, and that the respondents requested that the voluntary agreement be opened so as to “conform any finding of liability relative to Lindberg Heat Treating and Crawford & Company to the proof to be presented at the formal hearing….”

Finally, we will address the claimant’s contention that the trial commissioner erred in denying his request to enter as an exhibit a deposition taken in Colorado of a Colorado physician, Dr. Bralliar. In his appeal, the claimant explains that he contacted Dr. Bralliar “for the purposes of examination, review [of] medical records, and expert testimony in the case with respect to causation and partial permanent disability issues.” (Claimant’s Brief at pp. 1-2). The claimant further explains that the attorney for the respondent Lindberg and its insurer appeared at the deposition of Dr. Bralliar. At the formal hearing, the trial commissioner did not rule upon the admission of said deposition, but rather requested that the parties submit memoranda of law regarding whether the deposition should be admitted into evidence. July 19, 1995 Transcript, p. 11. It appears that both the claimant and the respondents filed their memoranda of law, but that the trial commissioner did not rule on the issue. There is no indication in the file that the claimant subsequently requested a ruling, filed any type of Motion for Articulation regarding the proffered deposition, or in any way pursued a ruling on this issue. We thus are inclined to dismiss this issue as there is no ruling before us to review. See Southington v. State Board of Labor Relations, 210 Conn. 549, 563-64 (1989).

Even if we were to construe the trial commissioner’s lack of a ruling regarding the admissibility of Dr. Bralliar’s deposition as a denial of the claimant’s request, we would affirm that ruling as a trial commissioner is not required to allow every deposition into evidence. Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998). We have previously stressed the importance of using physicians who are licensed in Connecticut (see § 31-294d; § 31-280-1) although the admission of testimony from an out-of-state physician is within the discretion of the trial commissioner. See Diaz v. Robert W. Baker Nursery, Inc., 3309 CRB-1-96-3 (March 5, 1998). In the instant case, the claimant relies on George v. Ericson, 250 Conn. 312 (1999), in which our state Supreme Court addressed the admissibility of the testimony of a nontreating physician in a civil case. The court held that the fact that the medical opinion is from a nontreating physician “should not, in and of itself, preclude the evidence categorically.” George, at 322-23. Certainly, under § 31-298, a trial commissioner retains the discretion over the admission of evidence, and is not required to admit every deposition. See Tanzi, supra.

Moreover, the trial commissioner’s dismissal of the claimant’s claims in the instant case was based upon his assessment of the credibility of the evidence, including the medical evidence. There is ample evidence in the record to support his decision, as discussed above, and even if the trial commissioner admitted the deposition of Dr. Bralliar into evidence, he would of course not be obligated to accept Dr. Bralliar’s opinion.