Martinez-McCord v. State of Connecticut Judicial Branch

The claimant was represented by Steven D. Jacobs, Esq., Jacobs, Jacobs & Shannon, P.C., 265 Orange Street, New Haven, CT 06510.

The respondent was represented by Lawrence Widem, Esq., Assistant Attorney General, Office of the Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120. Respondent waived appearance at oral argument before the board and proceeded on papers.

This Petition for Review filed from the February 9, 2006 Finding and Order of the Commissioner acting for the Seventh District was heard August 25, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This instant appeal concerns the decision of a trial commissioner to bifurcate the issues at a formal hearing and defer judgment on certain matters until another hearing can be held. The claimant argues that she introduced sufficient evidence at the hearing to mandate a Finding and Award on the issue of psychiatric disability. We disagree that such an award can be mandated by this board as this matter goes to the discretion of the trial commissioner. As we cannot find an abuse of discretion herein, we dismiss this appeal.

The circumstances are not disputed in this matter. The claimant worked as a judicial marshal and suffered head and upper extremity injuries when attacked by a prisoner on November 20, 2001. She initially treated with Dr. W. Tracy Schmidt and Dr. Henry Rubinstein, who diagnosed her with reflex sympathetic dystrophy (RSD) of the right arm. Dr. Rubinstein also diagnosed her with right cervical radiculitis. In August 2002 Dr. Rubinstein referred the claimant to two other doctors, Dr. Vincent Carlesi and Dr. Justin Schecter. Dr. Carlesi confirmed the RSD diagnosis and also found the claimant was suffering from depression, while Dr. Schecter performed a psychological evaluation.

Subsequently the claimant was examined by Dr. Alan Weisel, an orthopedic surgeon, who opined in September that the claimant was temporarily totally disabled. She was also examined in March 2003 by another doctor on behalf of the respondents, Dr. David Levi, a pain management specialist. He confirmed that she was temporarily totally disabled. During that period the claimant received psychotherapy from Mary Ellen Lorefice MSW and psychotropic treatment from Lawrence Lorefice, M.D. She also had three ganglion blocks performed on her by Dr.Carlesi.

The respondents engaged an investigation firm to film videotape of the claimant. Timothy Christman of Atlantic International Investigations prepared a 30 minute surveillance tape which was presented to Dr. Levi and the trial commissioner. Following a viewing of the tape Dr. Levi concluded the claimant was no longer suffering from RSD and no longer temporarily totally disabled. On July 17, 2003 the respondents filed a Form 36 to terminate temporary total disability benefits.

A formal hearing was held concerning the Form 36 over three sessions commencing May 10, 2004 and concluding May 11, 2005. The matter was reopened December 12, 2005 at the request of the respondent (with the claimant’s consent) for admission of a medical exhibit omitted inadvertently. A Finding and Order was issued on February 9, 2006. The trial commissioner concluded that the claimant had suffered a compensable injury and her depression was because of the compensable injury. Findings, ¶¶ A-B. He found that as of May 10, 2003 the claimant was not temporarily totally disabled as a result of RSD. Findings, ¶¶ C-D. Therefore, he approved the Form 36, but only as to the claimant’s right upper extremity injury. Findings, ¶ F. Finding the claimant in need of psychiatric/psychological treatment he ordered the respondents to provide this treatment. Findings, ¶¶ E and G. He also determined additional hearings were required on the issue of whether the claimant’s psychiatric injuries rendered her temporarily totally disabled. Findings, ¶ H.

The claimant filed a Motion to Correct certain findings of the Finding and Order. The trial commissioner granted some requested corrections, but denied the corrections that sought a finding that the claimant was temporarily totally disabled due to her psychiatric injuries. The claimant has appealed seeking to overturn this determination.

The claimant’s primary argument is that were the trial commissioner to render a decision regarding a psychiatric based disability 1) there is no legal bar based on the notices the respondents received prior to the formal hearing and 2) sufficient evidence was presented at the formal hearing to support such an award. They cite Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001) and Vetre v. State/Dept. of Children and Youth Services, 3443 CRB-06-96-10 (November 28, 2000) for these propositions. We agree that these precedents would support a Finding and Award for the claimant regarding psychiatric injuries had one been issued. They are not persuasive on the issue of whether an appellate body can order a finder of fact to issue an award.

In Mosman we pointed out “the role of this appellate board is not to retry the facts of a case by drawing our own inferences from the evidence.” Prescott v. Community Health Center, Inc., 4426 CRB-8-01-8 (August 23, 2002). “The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). In the present case, the trial commissioner was not prepared to reach a determination regarding temporary total disability without additional evidence. The precedent advanced by the claimant provides no authority for appellate intervention directing a contrary result.

The claimant has raised precedent disfavoring piecemeal litigation as grounds to overturn the trial commissioner’s bifurcation decision. Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 84, 2150 CRB-3-94-9 (December 7, 1995). Reliance on this precedent is ineffectual. We have upheld the right of trial commissioners to determine a party failed to advance elements of their claim in a timely fashion. Schreiber v. Town & Country Auto Service, 4239 CRB-3-00-5 (June 15, 2001); Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005). These cases do not limit the discretion of a trial commissioner who determines the interests of justice require a matter be bifurcated.

“Bifurcation of trial proceedings lies solely within the discretion of the trial court; (Citations omitted) and appellate review is limited to a determination of whether this discretion has been abused.” Swenson v. Sawoska, 18 Conn. App. 597, 601 (1989). The claimant offers no material evidence pertaining to an abuse of discretion in this matter.

The lack of any identifiable error in these proceedings makes the relief the claimant seeks unavailable. Essentially what the claimant seeks is an order of mandamus from this panel directing the trial commissioner to issue a Finding and Order on the issue of psychiatric injuries. To obtain such extraordinary relief we believe the standard is one of demonstrating indisputable entitlement. As the Supreme Court held in Miles v. Foley, 253 Conn. 381, 391 (2000) this requires the moving party establish a “clear legal right to have the duty performed . . . .” The record in this instance does not establish that the trial commissioner has such a duty to issue an award. We must defer to the credibility and weight assessments of a trial commissioner in analyzing contested expert opinions. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006). We cannot conclude the trial commissioner acted unreasonably in seeking additional hearings.

As a result, we affirm the Finding and Order of the trial commissioner and dismiss this appeal. Additional hearings will be required on the issue of whether the claimant is entitled to temporary total disability benefits for her psychiatric injuries.

Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this decision.