Catale v. Physicians Health Services

The claimant appeared pro se at oral argument, accompanied by her husband, Vito Catale, who spoke on her behalf.

The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Road, Glastonbury, CT 06033.

This Petition for Review from the February 20, 2002 Finding and Award of the Commissioner acting for the Fourth District was heard September 20, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the February 20, 2002 Finding and Award of the Commissioner acting for the Fourth District. She argues in her appeal that the trier erred by finding that she was not totally disabled during a six-month period between May and November, 2000. We find error, and reverse the trial commissioner’s decision with direction that the claimant be given a new trial.

The claimant suffered a compensable injury to her back on September 1, 1999, as a result of moving a box. Dr. Shanley, her treating physician, released her to light duty work effective January 12, 2000. Dr. Dugdale, an orthopedic surgeon, examined the claimant on May 2, 2000. At the time, he stated that it was appropriate for her to continue working four-hour days with lifting and movement restrictions, but he later opined that she had been capable of full-time work as of that date. See Respondents’ Exhibit 1. A videotape purported to show the claimant working on June 28, 2000. In a February 8, 2001 report, Dr. Shanley stated that the claimant had a 10% permanent partial disability of her back. The trier concluded that she had been totally disabled from the date of her injury through January 12, 2000, and found her entitled to a 10% permanency award as of February 8, 2001, her maximum medical improvement date. He ordered that an offset be taken for total disability benefits that she had been paid between January 12, 2000, and October 27, 2000. The claimant has appealed that decision to this board.

The claimant’s main objection on appeal concerns the aforementioned videotape, which was entered into evidence on December 4, 2001, as Respondents’ Exhibit 2. On September 26, 2000, Dr. Dugdale viewed the tape and prepared a report stating that the claimant had been capable of full-time work “unless the patient’s condition has objectively deteriorated since I examined her on May 2, 2000 . . . and [if] the video footage presented by [the respondent’s attorney] is representative of this patient’s usual comfort level.” Respondents’ Exhibit 1. According to Dr. Dugdale’s report, the tape showed the claimant walking normally on June 28, 2000 and July 25, 2000, and showed her loading three bicycles into the back of a sport utility vehicle on the former date with no significant difficulty. The claimant protests that she was denied access to this tape until October 2001, despite repeated requests to obtain it earlier. She also alleges that the tape was edited, with no foundation having been provided to substantiate the dates, times, or location that was filmed.1

The record shows that the claimant was initially shown the video on November 2, 2000, at an informal hearing that was ordered by the commissioner. See November 28, 2000 Transcript, p. 2; December 4, 2001 Transcript, pp. 5-9, 12. The claimant requested a copy of the tape at that point. The respondents declined to provide that copy until she first submitted to a deposition, relying on unspecified Superior Court caselaw. November 28, 2000 Transcript, p. 2. The claimant never followed through on her deposition; December 4, 2001 Transcript, p. 7; and thus the respondents did not turn over the reproduction. The claimant later stated that she had wanted to study the tape prior to the deposition of Dr. Dugdale so that she could ask questions based on her analysis, including questions that concerned the tape’s authenticity. Id., 8. Instead, the claimant did not attend Dr. Dugdale’s December 5, 2000 deposition, though she received notice of its having been scheduled. Respondents’ Exhibit 1.

Section 31-298 states that, in presiding over hearings, a workers’ compensation commissioner “shall not be bound by the ordinary common law statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties . . . .” Kirsten v. B.F. Goodrich Sponge Products Co., 178 Conn. 401, 404-405 (1979). This law gives the trier broad discretion to determine the admissibility of evidence, and we cannot set aside his rulings on appeal absent an abuse of discretion. Nelson v. Deb’s Inc., 15 Conn. Workers’ Comp. Rev. Op. 274, 2228 CRB-3-94-12 (June 20, 1996), aff’d, 45 Conn. App. 909 (1997)(per curiam), appeal dismissed, 244 Conn. 349 (1998) (certiorari improvidently granted). Still, the trier must remain mindful of the requirements of procedural due process, such as a party’s right to cross-examination upon the offering of evidence. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974); Diogostine v. Somers Thin Strip, 3 Conn. Workers’ Comp. Rev. Op. 139, 282 CRD-5-83 (Jan. 22, 1987).

Prior to the admission of documentary or secondary evidence, such as a contract or a recorded sound or image, it is usually necessary to establish the probity and relevance of such hearsay evidence by providing authentication. Caganiello v. Hartford, 135 Conn. 473, 475 (1949)(photograph should be substantiated by testimony or other evidence that it correctly represents the conditions depicted); Nelson, supra (claimant acknowledged her signature on contract, and other evidence allowed inference that this contract was authentic). The accurate establishment of a time frame for the taking of a photograph, video or sound recording, as well as the nature of any alterations or edits, is essential before one can judge the relevance of such evidence. Pisel v. Stamford Hospital, 180 Conn. 314, 323 (1980)(rules applying to admissibility of photographs also apply to movies); Caganiello, supra, 474-75; Gioielli v. Mallard Cove Condominium Ass’n, Inc., 37 Conn. App. 822, 834 (1995)(defendant failed to offer proof as to date aerial photograph was taken).

The claimant here made a timely objection regarding the authenticity of the videotape. December 4, 2001 Transcript, pp. 7-9. Thus, we must decide whether the commissioner could reasonably have deemed the respondents’ offer of proof satisfactory to overcome that objection. Balkus, supra; Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999)(evidence may be excluded after an objection is raised). At the December 4, 2001 formal hearing, no evidence or testimony was offered by the respondents to corroborate the accuracy of the dates and subject matter that the videotape purported to cover. After it was mentioned that the claimant had been allowed to view the tape at the November 2, 2000 informal hearing, the trier simply admitted it as an exhibit without conducting inquiry into any of the claimant’s stated concerns. We do not believe this foundation was adequate to support its admission into evidence. Given the heavy reliance on that videotape by Dr. Dugdale, whose opinion formed the basis of the trier’s conclusion regarding total disability, it was crucial that the authenticity of the videotape be confirmed. In the absence of such verification, the video was improperly allowed into evidence. The trier’s conclusions are therefore without sufficient evidentiary support, and cannot stand on appeal. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001).

Accordingly, the trial commissioner’s decision is reversed, and this matter is remanded for a new trial.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

1 The claimant has appended to her brief five notes from Dr. Shanley, which show that he excused her from work from May 22, 2000 through November 20, 2000. Those notes were not marked as exhibits at trial, and cannot be accepted into the record now for the first time. See Drew v. Sears Roebuck & Co., 4400 CRB-7-01-5 (May 2, 2002)(Pro se claimant could not introduce documents via Motion to Submit Additional Evidence where they were available at the time of trial). BACK TO TEXT