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Mele v. City of Hartford Board of Education

CASE NO. 5495 CRB-1-09-9



SEPTEMBER 13, 2010











The claimant was unrepresented.

At trial, the claimant was represented by Mark E. Blakeman, Esq., Michelson, Kane, Royster & Barger, P.C., Ten Columbus Boulevard, Hartford, CT 06108.

The respondents were represented by Jason Dodge, Esq., and Anne Kelly Zovas, Esq., Pomeranz, Drayton & Stabnick, LLC, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.

This Petition for Review from the August 25, 2009 Finding and Dismissal of the Commissioner acting for the First District was heard on March 26, 2010 before a Compensation Review Board panel consisting of Commissioners Jack R. Goldberg, Amado J. Vargas and Christine L. Engel.


JACK R. GOLDBERG, COMMISSIONER. The claimant has petitioned for review from the August 25, 2009 Finding and Dismissal of the Commissioner acting for the First District. We find error and accordingly reverse the decision of the trial commissioner.

The trier made the following factual findings which are pertinent to our review. The claimant testified that she was employed by the City of Hartford as a teacher and guidance counselor for more than thirty years. In 1985, she sustained injuries to her knees, shoulders, back, wrist and elbow for which Gordon A. Zimmerman, M.D., is her treating physician. In 1988, she sustained ankle injuries for which her treating physician is Michael S. Aronow, M.D. In 1990, the claimant injured her neck, thoracic spine, lumbar spine, shoulders, wrist and elbow; Gerald J. Becker, M.D., is her treating physician for those injuries. The claimant testified that as a result of her injuries, all three of her treating physicians prescribed a motorized wheelchair for her, and respondents eventually provided a chair in 2003 or 2004. However, the claimant also testified that the first chair she received was unsuitable, in that it was designed primarily for indoor use and the claimant was required to use the chair to attend medical appointments and do errands. The chair eventually developed mechanical problems and the motors were replaced at least twice by the respondents’ then wheelchair vendor, Hudson Health.

The claimant testified that in 2007, she met with Brian Rossi, a representative from Connecticut Rehab (now ATG Rehab), the respondents’ new wheelchair vendor, for the purposes of obtaining a new wheelchair. On June 12, 2007, Connecticut Rehab delivered to the claimant a “Quantum 600,” whereupon the claimant immediately discovered that the chair lacked the tiedown straps necessary for transportation in a wheelchair van.1 Although Rossi was able to arrange for tie-down straps to be installed on the chair, the claimant also felt the chair was too big for her and testified that by July 2007, “[t]he chair was rattling, the seat was moving, and it was killing my back.” October 7, 2008 Transcript, p. 33. The claimant continued to complain of back pain associated with her use of the Quantum 600, and Rossi made three attempts to correct the problem, first with duct tape and then with two different lumbar support pads. The claimant testified that she experienced ongoing difficulties with the Quantum 600 because of its lack of lumbar support, which she attributes to the gap between the back of the chair and the seat and the concave shape of the seat which prevents her from sitting up straight.

Unable to rectify the problem himself, Rossi advised the claimant to consult a physical therapist.2 On September 27, 2007, the claimant met with Paul Zelinsky, P.T., M.S., a physical therapist at Eastern Connecticut Health Network, Inc., the facility where the claimant received her physical therapy.3 In his report of November 15, 2007, Zelinsky recommended modifications to the Quantum 600 which would cost $18,955.00.4 See Claimant’s Exhibits E, F. Dr. Becker reviewed this report and, in correspondence dated December 11, 2007, concurred with the recommendations provided by Zelinsky.5 See Claimant’s Exhibit D. However, at trial, Rossi testified that in his opinion, Zelinsky did not possess the necessary qualifications to match patients with wheelchair specifications. January 6, 2009 Transcript, p. 51. Prior to this matter proceeding to trial, the claimant was given the opportunity to undergo a wheelchair assessment at Gaylord Hospital in Wallingford, Connecticut in order to obtain a medical necessity evaluation as to what, if any, modifications to the Quantum 600 were required. The claimant declined to attend this evaluation.

Based on the foregoing, the trial commissioner determined that the record was devoid of evidence “as to Mr. Zelinsky’s qualifications to render medical necessity opinions regarding wheelchair equipment.” Findings, ¶ D. The trial commissioner also found the record similarly lacking evidence that either Dr. Becker or Dr. Zimmermann possessed “any specialized knowledge as to what specific wheelchair equipment is medically necessary for the Claimant.”6 Findings, ¶ E. As such, the trial commissioner did not find the medical necessity opinion of Paul Zelinsky credible or persuasive and, likewise, did not find the medical necessity opinions of Dr. Becker or Dr. Zimmermann “credible or persuasive, given their reliance on Mr. Zelinsky’s recommendations, whose qualifications are unknown.” Findings, ¶ G. Noting that the claimant had declined the opportunity to undergo an objective evaluation at Gaylord Hospital, the trial commissioner dismissed the claim, concluding that the claimant failed to meet her burden of showing that the modifications to her Quantum 600 chair recommended by Paul Zelinsky and adopted by Dr. Becker were either reasonable or medically necessary. The trial commissioner also dismissed the claim of undue delay in the respondents’ administration of the claimant’s request for modifications or replacement of her Quantum 600 wheelchair.

The claimant hand-delivered to the Workers’ Compensation Commission a timely Petition for Review on September 14, 2009 and submitted on the same date a faxed document identifying the claimant’s reasons for appeal and individually rebutting a number of the trial commissioner’s findings.7 On September 17, 2009, the claimant faxed to the commission an additional document (received on September 18, 2009) attempting to introduce into the record information relating to the claimant’s communications with the Attorney General’s office and reiterating the claimant’s argument that the evidentiary record did not support the trial commissioner’s findings. The September 17, 2009 document was the subject of a Motion to Strike on the part of the respondents, who contended that the document “constitute[d] an improper pleading” and “addresse[d] evidence which is outside of the record and should not be considered.”8 Appellees’ Motion to Strike from File, p. 1.

On September 17, 2009, the claimant also provided to the commission a Motion to Submit Additional Evidence (received on September 18, 2009) relative to her request to submit information pertaining to the qualifications of Paul Zelinsky. The claimant, noting that the respondents never disputed Zelinsky’s qualifications at trial, also stated that “[t]he Commissioner needs to see the evidence the chair was prescribed by more than one physician due to her multiple injuries and mobility restrictions.” Appellant’s Motion to Submit Additional Evidence, p. 2. The claimant also desired the opportunity to elaborate upon her rationale for declining to attend the evaluation at Gaylord Hospital. The respondents filed a motion objecting to the claimant’s Motion to Submit Additional Evidence on the basis that the claimant’s submission did not comport with the standards for admission articulated in Administrative Regulation § 31-301-9.9 Finally, at oral argument held on March 26, 2010, the claimant again attempted to introduce additional evidence into the record, the submission of which was again objected to by the respondents.

The claimant ultimately provided a lengthy appellate brief consisting of a detailed narrative of the events surrounding her acquisition of the Quantum 600 and a reiteration of her rebuttal of a number of the trial commissioner’s findings. The claimant attached to her brief excerpts of the transcripts from the proceedings below, several Connecticut Rehab forms, a number of miscellaneous medical reports, and a copy of photographs of her two wheelchairs.10 Most of the claimant’s narrative pertains to the circumstances leading up to the delivery of the Quantum 600; as previously mentioned herein, we do not consider those events germane to this appeal.11 Moreover, while much of the claimant’s narrative and many of the submitted exhibits reproduce evidence already admitted into the record, the claimant also introduced evidence regarding a number of issues which were not the subject of litigation at the formal hearings. Given that we are prohibited from considering such evidence, any extraneous information included in the claimant’s narrative must be disregarded. “Where an issue has been fairly litigated, with proof offered by both parties, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result.” (Internal quotation marks omitted.) Dengler v. Special Attention Health Svcs., Inc., 62 Conn. App. 440, 456 (2001), citing Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 542 (1992).

We begin our analysis of the merits of this appeal with a recitation of the wellsettled standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions.

… the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).

McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

Having reviewed the voluminous submissions of the claimant, we find that insofar as the claimant is contending that the trier drew unreasonable and impermissible inferences from the facts presented, the claimant has provided a rationale for appellate review. The gravamen of the claimant’s appeal appears to lie in the allegation that the trial commissioner failed to appropriately consider the testimony of certain material witnesses and erroneously credited the testimony of others. Specifically, the claimant contends that the trier erred in finding persuasive the testimony of the Connecticut Rehab personnel called by the respondents (Brian Rossi, Lori LaVallee and Brian Dyson) and in failing to credit the written submissions of Paul Zelinsky and Dr. Becker. The claimant states that “the Commissioner erred in finding Mr. Rossi [credible], who was not certified, and finding two board certified physicians, and a certified physical therapist not credible, regarding an issue of medical necessity.”12 Appellant’s Brief, p. 7. We agree.

As previously discussed herein, the claimant submitted an extensive report prepared by Paul Zelinsky who, in addition to being a licensed physical therapist, holds a Master of Science degree and was, as of the date the report was issued (November 15, 2007), the Manager of Rehabilitation Services at ECHN’s Evergreen Walk facility. See Claimant’s Exhibit E. Our review of this report indicates that Zelinsky began by identifying the claimant’s numerous orthopedic injuries and then proceeded to itemize the deficiencies present in the claimant’s current chair. Zelinsky concluded his report by reciting a number of modifications necessary to directly address the claimant’s complaints regarding the chair.13

The claimant also submitted Dr. Becker’s report of December 11, 2007 wherein Dr. Becker indicated he had reviewed Zelinsky’s report and essentially concurred with the recommendations suggested. Claimant’s Exhibit D. In addition, the record contains notes from Dr. Becker dated October 5, 2007, December 14, 2007, April 4, 2008, and July 30, 2008, all of which reference the claimant’s need for seating modifications. Id. These reports are in addition to the scripts dated September 11, 2000 and November 1, 2000 wherein Dr. Becker specifically stated that the claimant required lumbar support. Claimant’s Exhibit B.

It is of course axiomatic that an appellate board must defer to the factual findings of the trier. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 196, 1721 CRB-2-93-5 (March 22, 1995); aff’d, 54 Conn. App. 296 (1999), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[i]t is … immaterial that the facts permit the drawing of diverse inferences. 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.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935). Alternatively, however, if the trier appears to have drawn inferences which, based on an examination of the record, are improper or unreasonable, a reviewing body cannot sustain the conclusions reached on the basis of such inferences. Our review of the instant record suggests that this matter represents such an instance.

As previously noted herein, Brian Rossi, at trial, did offer the essentially unchallenged observation that in his opinion, Zelinsky was not qualified to render an opinion relative to matching patients with wheelchairs. At first blush, this remark would certainly seem to buttress the trier’s conclusion to disregard Zelinsky’s report. However, on closer examination, nowhere in the record do we find a basis for this statement.14 On the contrary, the entirety of the record supports the inference that Zelinsky was perfectly qualified to render such an opinion. For instance, Rossi did not testify that he ever advised the claimant to seek out a physical therapist with certain qualifications; rather, Rossi “just suggested a therapist that – whoever she’s seeing as the therapist.” January 6, 2009 Transcript, p. 72. Rossi also conceded that although it was his general practice to work with a patient’s physical therapist in designing a suitable wheelchair, such collaboration did not occur in this instance.15 It was not until the second chair had been delivered to the claimant and she immediately registered complaints regarding the chair’s shortcomings that Rossi recommended the claimant consult a physical therapist “[b]ecause I recognized that she may be having some more further medical issues than, you know, I think the seat that she’s currently in may have – the seat that she’s currently in may not be meeting her needs.” Id., at 76-77. Rossi then stated that after the claimant involved Paul Zelinsky in the process, Rossi met with Zelinsky twice, accompanied by the claimant.16 Id., at 77. At no point in his testimony did Rossi indicate that he had any misgivings with Zelinsky’s qualifications prior to Zelinsky issuing his report.

As such, we can discern no reasonable basis for Rossi’s statement at trial that Zelinsky was unqualified to render an opinion regarding modifications to the claimant’s wheelchair. Rather, the record indicates that Rossi willingly cooperated with Zelinsky in evaluating the claimant’s medical condition and her associated wheelchair requirements. Moreover, in his correspondence of December 11, 2007, Dr. Becker indicated he had carefully reviewed Zelinsky’s report and concurred with the recommendations therein.17 Claimant’s Exhibit D. As noted previously herein, Dr. Becker’s other reports entered into the record also support the claimant’s oft-repeated testimony at trial that the second chair simply failed from the beginning to provide sufficient lumbar support. Having reviewed the record in its entirety, we can discern no reasonable basis for the trier’s conclusion that the claimant failed to meet her burden of proof with regard to the medical necessity for wheelchair modifications.

That being said, however, we would offer a note of caution regarding the claimant’s refusal to attend the recommended evaluation at Gaylord Hospital. The claimant testified at trial that she had had a “bad experience” with the insurance company and she felt it was wrong.18 January 6, 2009 Transcript, p. 108. Similarly, in her appellate brief, the claimant indicated that she was “exasperated” with the respondents’ “continued game playing” and that logistically, the trip would be a “painful hardship.” Appellant’s Brief, p. 18. We recognize that this claim has had a long and difficult history of protracted litigation. We also are cognizant of the fact that for claimants and respondents alike navigating the workers’ compensation forum can seem arduous.

Nevertheless, we would be remiss if we failed to draw the claimant’s attention to the provisions contained in § 31-294f C.G.S., which requires that a claimant “submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner.” Given the extenuating circumstances of this particular matter, we are willing to give the claimant “the benefit of the doubt” on this issue. However, we would respectfully suggest that had the claimant availed herself of the opportunity to undergo the suggested evaluation at Gaylord, the recommendations generated by that evaluation might have succeeded in paving the way for her to receive a replacement wheelchair far more quickly and efficiently than has resulted from the claimant’s decision to litigate the commissioner’s recommendation.19

As noted above, the claimant on three different occasions has sought the admission of additional evidence into the file. It is well-settled that our decision to admit such evidence is governed by the provisions of Administrative Regulation § 31-301-9, which sets forth the rationale for filing a Motion to Submit Additional Evidence.20 However, “[s]uch a motion cannot be granted unless the new evidence is material to the case, and the party submitting it has good reasons for not having made it available at trial.” Krajewski v. Atlantic Machine Tool Works, 4500 CRB-6-02-3 (March 7, 2003), citing Drew v. Sears, Roebuck & Co., 4400 CRB-7-01-5 (May 2, 2002), appeal dismissed, A.C. 23094 (August 21, 2002). Our review of the claimant’s various submissions does not suggest that the additional materials she seeks to introduce comport with the standards set forth in Admin. Reg. 31-301-9. Similarly, although we have chosen to rely on the record in support of our conclusion that Paul Zelinsky possessed the necessary qualifications to proffer an opinion regarding the medical necessity for certain modifications to the claimant’s wheelchair, there is no reason why additional evidence relative to those qualifications could not have been presented in the proceedings before the trial commissioner.

The respondents have filed a Motion to Strike from File correspondence which the claimant faxed directly to Chairman Mastropietro on September 17, 2009 on the grounds that “it constitutes an improper pleading and not one that is acceptable as a letter addressed directly to the Chairman.” Respondents’ Motion to Strike from File, p. 1. The respondents also argue that “the Claimant addresses evidence which is outside of the record and should not be considered.” Id. Having reviewed the claimant’s contentions relative to an alleged agreement reached between the respondents and the Attorney General’s office to secure for the claimant a replacement wheelchair, we hold that an inquiry into the instant parties’ negotiations with a sister state agency is well outside the scope of this appeal. Accordingly, the respondents’ Motion to Strike the portions of the correspondence which addressed that issue is granted and the claimant’s objection to same is denied. The remaining items addressed in the faxed correspondence appear to be duplicative of evidence already contained in the record; however, insofar as any of the claimant’s contentions contained therein purport to constitute a motion to introduce additional evidence, that motion is likewise denied.

Having found error, the August 25, 2009 Finding and Dismissal of the Commissioner acting for the First District is hereby reversed.

Commissioners Amado J. Vargas and Christine L. Engel concur in this opinion.

1 There was a great deal of testimony adduced in this matter regarding the circumstances and events leading up to the claimant’s acquisition of the Quantum 600. While we recognize the implicit right of litigants to conduct their trial in a manner they deem most appropriate, we respectfully submit that the events subsequent to the claimant’s acquisition of the wheelchair are more germane to the inquiry at bar. BACK TO TEXT

2 Brian Rossi testified that he did not initially consult a physical therapist regarding the specifications for the claimant’s wheelchair because her clinical diagnoses qualify her for a “Group 2 Chair,” per the Medicare classification, which is the type of chair that was provided to the claimant. January 6, 2009 Transcript, pp. 78-79. BACK TO TEXT

3 The report also indicates that Paul Zelinsky is the manager of rehabilitative services at the Evergreen Walk facility. BACK TO TEXT

4 The record indicates that the original cost of the chair was $8,369.00. Claimant’s Exhibit B (Delivery Receipt of June 12, 2007). BACK TO TEXT

5 The record also contains prescription scripts issued by Dr. Becker on September 11, 2000 and November 1, 2000 reflecting his opinion that the claimant required a chair with lumbar support. See Claimant’s Exhibit B. However, it does not appear that these scripts were reviewed by Connecticut Rehab personnel prior to providing the claimant with the Quantum 600; Brian Rossi testified that the claimant never proffered the scripts, January 6, 2009 Transcript, p. 40, and the claimant testified that she proffered the scripts when she met with Mr. Rossi at her home in February 2007 but he told her he would only need the scripts if the chair were denied. October 7, 2008 Transcript, p. 64. BACK TO TEXT

6 The record indicates that Dr. Zimmermann signed a letter of medical necessity on February 28, 2007 for a wheelchair which was denied by the respondents and a second letter of medical necessity on March 9, 2007 for the wheelchair which the claimant ultimately received. However, Lori LaVallee, Sales and Funding Coordinator of Connecticut Rehab (now ATG Rehab) testified that both letters were prepared without the doctor’s input and sent to him for his review and signature. See January 6, 2009 Transcript, p. 13. BACK TO TEXT

7 We note that the claimant did not file a separate Motion to Correct; as such, we would therefore ordinarily be bound by the “validity of the facts found by the trial commissioner and … limited to reviewing how the commissioner applied the law.” Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006). However, given that the faxed document of September 14, 2009 directly addresses a number of the trial commissioner’s findings in great detail, we are inclined to extend some latitude to the claimant on this procedural point on the premise that “it is the policy of Connecticut courts and this board to accommodate pro se claimants as much as possible by liberally construing procedural rules where doing so does not interfere with the rights of other parties.” Walter v. Bridgeport, 5092 CRB-4-06-5 (May 16, 2007), citing Ferrin v. Glen Orne Leasing/Webster Trucking, 4802 CRB-8-04-4 (March 28, 2005). See also Vanguard Engineering, Inc. v. Anderson, 83 Conn. App. 62, 65 (2004). Indeed, while we are generally confronted with a paucity of documentation from pro se claimants, in this case, the claimant has made a strong effort to furnish this board with a detailed and substantive narrative in support of her contentions regarding her claims of error. BACK TO TEXT

8 The claimant filed an objection to the respondents’ Motion to Strike. BACK TO TEXT

9 Administrative Regulation § 31-301-9 (Rev. to 1985) states: “If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal. BACK TO TEXT

10 The claimant also attached transcript excerpts taken from a deposition of Dr. Zimmermann on August 16, 2004. Given that this transcript was neither proffered nor admitted into the evidentiary record for this appeal, we are prohibited from considering this submission in our review. BACK TO TEXT

11 The claimant also put forward a number of contentions concerning the severity of her injuries and whether those injuries warrant the use of a wheelchair. We note that the numerous voluntary agreements in the file and voluminous medical record clearly attest to the extent of the claimant’s injuries; moreover, given that the respondents have accepted the claimant’s need for a wheelchair, we regard that issue as the law of the case and therefore moot. As such, we hold that the trial commissioner’s statement that “[b]ased upon personal observations of the undersigned, together with credible testimony of Mr. Rossi, the Claimant has the ability to ambulate. Her complaints of discomfort are subjective and exaggerated,” is improper and should be stricken. See Findings, ¶ M. BACK TO TEXT

12 Brian Rossi testified that when he first met with the claimant in February 2007, he had not yet received his certification as an Assistive Technologies Practitioner. January 6, 2009 Transcript, p. 57. BACK TO TEXT

13 We note that Zelinsky indicated the chair analysis was done in consultation with a representative from Connecticut Rehab, although he does not specifically identify with which individual he conducted the analysis. Claimant’s Exhibit E, p. 1. BACK TO TEXT

14 The statement is doubly perplexing in light of Rossi’s admission that he himself was not yet certified when he originally evaluated the claimant in February 2007. See footnote 12, supra. BACK TO TEXT

15 The witness testified as follows:

Q: And you did indicate that a lot of times you when you [sic] meet with someone you also coordinate the chair selection with their physical therapist if they have one and/or their doctors, isn’t that correct?

A: Generally that is correct, yes.

Q: Okay. But you didn’t do that in this case, did you?

A: Correct. I would like to add -

Q: No question’s pending.

January 6, 2009 Transcript, p. 57. BACK TO TEXT

16 The claimant indicated that she and Rossi met with Zelinsky on only one occasion. Appellant’s Brief, p. 6. BACK TO TEXT

17 Although the role of Dr. Becker as the claimant’s treating physician was much discussed at trial, we can find no satisfactory explanation in the record for the omission of his input into the design of the claimant’s wheelchair. At trial, Lori LaVallee testified that she could not remember whether the claimant had ever instructed her to contact Dr. Becker directly regarding the wheelchair specifications. January 6, 2009 Transcript, p. 17. BACK TO TEXT

18 Responding to a query from the trial commissioner as to why she had refused to attend an evaluation at Gaylord, the claimant stated, “Oh, no, I would have gone along with your suggestion, but my objection was it would be above and beyond what my physicians, who have treated for me 25 years, would have no value, and I didn’t feel that was appropriate. There’s something in my gut that told me that that was wrong.” January 6, 2009 Transcript, p. 108. BACK TO TEXT

19 Insofar as the claimant’s claims of error may be construed as including the allegation that the trier erred in failing to find the respondents liable for undue delay relative to the administration of the claimant’s request for modifications to her Quantum 600 wheelchair, we do not think the claimant has provided the necessary legal support for such a claim other than her own general sense of frustration. Furthermore, we would be hard-pressed to find in accordance with the claimant’s wishes given her own failure to avail herself of the opportunity for an assessment at Gaylord Hospital which arguably would have expedited the determination as to the medical necessity for the modifications. While the claimant may have had very valid reasons for not attending an assessment at Gaylord, it does not appear those reasons were articulated sufficiently in the proceedings before the trial commissioner. BACK TO TEXT

20 See footnote 9, supra. BACK TO TEXT


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