Green v. United Illuminating Co.

The claimant was represented by Dennis Driscoll, Esq., Law Office of Douglas Daniels, 234 Church Street, New Haven, CT 06510.

The respondents were represented by Kristen Sotnik Falls, Esq., Letizia, Ambrose and Cohen, One Church Street, New Haven, CT 06510.

This Petition for Review from the February 8, 2001 Finding of Dismissal of the Commissioner acting for the Third District was heard September 14, 2001 before a Compensation Review Board panel consisting of the Commission Chairman, John A. Mastropietro and Commissioners Ernie R. Walker and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the February 8, 2001 Finding of Dismissal of the Commissioner acting for the Third District. In that decision the trial commissioner concluded that the claimant did not sustain her burden of proof regarding her claim that she suffered from Lyme disease which arose out of and in the course of her employment. In support of her appeal, the claimant contends that the trial commissioner erred by admitting into evidence the deposition of Dr. Sikand who performed an independent medical examination of the claimant.

The trial commissioner made numerous findings of fact, including the following facts. The claimant was employed by the respondent employer as a line worker. Her duties required her to climb poles and work with wires and transformers, and to occasionally work in areas where there was tall grass, bushes, and leaves. For a period in April and May of 1996, the claimant worked along the beach area in Milford. While working as a line worker, the claimant was required to wear long pants, work boots, a long sleeved shirt, hard hat, and thick rubber gloves. When wearing her work clothing, only her face and neck were exposed.

In April and May of 1996, the claimant began to experience back pain, rib pain, shoulder pain, joint pain, swollen knees, swollen hands, muscle twitching, fatigue, and brain fog. In June of 1996, the claimant’s personal physician started her on a course of antibiotics. On June 14, 1996 the claimant filed a First Report of Occupational Injury or illness with the respondent employer based upon an alleged diagnosis of Lyme disease. In her injury report, the claimant alleged that she contracted Lyme disease during the course of her employment with the respondent employer, alleging that she had been bitten by a tick at work between April 19, 1996 and May 1, 1996. On October 24, 1996, the claimant filed a Notice of Claim for the alleged Lyme disease.

The trial commissioner further found that the claimant “never observed a deer tick on her person while working” for the respondent employer (Findings, ¶ 17); that the claimant was “unable to state that she was aware of any tick bite. . . .” (Findings, ¶ 18); that the claimant was “unable to state where or when she was bitten by a deer tick. . . .” (Findings, ¶ 19); and the claimant did not sustain a “bulls eye rash” that occurs in approximately 60 to 90% of the people that experience a deer tick bite. (Findings, ¶ 20; see also Claimant’s Exh. V). Lyme disease occurs within 3 to 30 days after a tick bite and the common clinical finding is the “bulls eye rash.” The claimant treated with numerous doctors for her condition. See Findings, ¶ 22. An independent medical examination was performed by Dr. Sikand at the request of the respondent. Dr. Ruiz, Dr. Anhalt, Dr. Phillips, Dr. Fallon, and Dr. Ponte are of the opinion that the claimant has Lyme disease. Dr. Evans (one of the claimant’s treating physicians) and Dr. Sikand are of the opinion that the claimant does not have Lyme disease.

The trial commissioner made findings regarding the possibility that the claimant was bitten by a tick in her own yard or during recreational activities, concluding that the claimant “had a fairly active outdoor life and if she in fact had been bitten by a deer tick it could have occurred during her normal life activities.” Findings, ¶ G. Furthermore, Dr. Stafford indicated that a person can get a tick bite in their own back yard as likely as they could anywhere else. Findings, ¶ 55; Feb. 17, 1999 Transcript, p. 30, 49. The trial commissioner concluded that the claimant failed to sustain her burden of proof that she was bitten by a deer tick in the course of her employment. Additionally, the trial commissioner found that “it is certainly questionable as to whether the medical evidence even supports the diagnosis of Lyme disease.” Findings, ¶ J.

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 v. General Dynamics Corp., 52 Conn. App. 813, 816 (1999); 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., 349 (citations omitted). In the instant case, the trial commissioner’s determination that the claimant’s alleged injury (a tick bite which allegedly caused Lyme disease) did not occur in the course of her employment is amply supported by the findings and by the evidence in the record, and thus may not be disturbed. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

The claimant’s argument on appeal is that the trial commissioner erred in allowing the deposition transcript of Dr. Sikand into evidence, and that the trial commissioner’s decision must be reversed or vacated because he relied upon this deposition. We disagree with the claimant’s contention that the trial commissioner relied upon Dr. Sikand’s deposition testimony. To the contrary, our review of the deposition testimony reveals that Dr. Sikand testified extensively regarding the issue of whether the claimant was infected with Lyme disease, but that he did not testify regarding whether she was more likely to have contracted Lyme disease at work as opposed to during non-work hours.

In his deposition, Dr. Sikand opined, based upon a reasonable degree of medical probability, that the claimant did not have Lyme disease. December 3, 1999 Deposition p. 39. However, the deposition includes only limited (less than one page- see Id., p. 230) testimony in which the doctor indicated that a tick bite can occur while at work, during recreational activities, or in one’s own back yard, and this testimony says absolutely nothing about the claimant’s particular circumstances such as the location of her home, the location of her recreational activities, or the location of her work as a line worker for the respondent employer. Thus, Dr. Sikand gives no opinion whatsoever as to whether the claimant in this case was more likely to have had contact with Lyme disease carrying ticks while at work or during off-work hours.

The trial commissioner denied the claimant’s claim based upon his conclusion that she did not sustain her burden of proof that her alleged injury (a tick bite) occurred during her employment. In the alternative, the trial commissioner noted that it is even “questionable as to whether the medical evidence even supports the diagnosis of Lyme disease.” Findings, ¶ J. Regarding his conclusion that the claimant’s alleged injury did not occur in the course of her employment, the trial commissioner cited the testimony of Dr. Stafford, who indicated that an individual can get a tick bite in their own back yard as likely as they could anywhere else. Findings, ¶ 55; Feb. 17, 1999 Transcript, p. 30, 49. In addition, the trial commissioner made findings regarding the location of deer ticks, noting that they feed on deer and other small animals, and can also be transported on pets, and that they can be found on leaves, bushes, and grasses and can come into contact with people as they pass by. Findings, ¶ 56 and 57. The trial commissioner found that the claimant has a dog which she would walk in nearby parks, and that she lives near a river and near a state park.

It is clear that the deposition testimony of Dr. Sikand is not necessary, or even material, to the trial commissioner’s above findings and his conclusion that the claimant did not sustain her burden of proof that her alleged injury (a tick bite) occurred during her employment. Rather, Dr. Sikand’s testimony addresses whether the claimant actually suffered from Lyme disease, and supports the trial commissioner’s alternative conclusion that “it is certainly questionable as to whether the medical evidence even supports the diagnosis of Lyme disease.” Findings, ¶ J. Accordingly, the admission of the deposition could only constitute harmless error.

Moreover, regarding the claimant’s contention that the trier erred in admitting the deposition, we remind the parties that § 31-298 C.G.S. specifically states that a trier is not bound by the ordinary common-law or statutory rules of evidence, but instead shall make inquiry in a manner best calculated to ascertain the substantial rights of the parties and carry out the intent of the Workers’ Compensation Act. Accordingly, we have held that it is within the discretion of the trial commissioner to determine whether a deposition may be admitted into evidence. Norwood v. Custom Design Services, Inc., 3844 CRB-7-98-6 (Nov. 2, 1999). In the instant case, although the claimant argues that she was not provided with Dr. Sikand’s written report in a timely manner, nevertheless the claimant’s attorney was duly notified of the deposition of Dr. Sikand and indeed attended and participated in that deposition. Accordingly, we would not find that the trial commissioner abused his discretion in allowing the deposition into evidence.