THESE ANNOTATIONS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY
Full texts of opinions, statutes and court decisions should be consulted and all citations and references fully researched by the reader.
The Annotations to Compensation Review Board Opinions are presented “as is” and the Commission makes no warranties as to the suitability of this information for any given purpose.
Please note also that Annotations change periodically due to several factors including, but not limited to, Appellate and Supreme Court decisions issued in workers’ compensation cases.
Cortes v. Judicial Branch, 6195 CRB-2-17-5 (July 20, 2018).
Claimant challenged multiple Forms 36 filed by respondent arguing that she did not have a work capacity and respondents had not offered work within her limitations. Commissioner accepted her argument and awarded indemnity and permanency benefits. On appeal, CRB remanded for new hearing. CRB unable to ascertain foundation for factual findings, particularly as commissioner found key witnesses “marginally credible” and “partially credible.” Due process issue also present as it appeared commissioner copied findings verbatim from claimant’s brief. See also, Cortes, § 31-296; § 31-301 Factual findings; § 31-308(b).
Rauser v. Pitney Bowes, Inc., 6163 CRB-3-16-12 (October 20, 2017), appeal pending at AC41025 (2017).
Trial Commissioner did not err in admitting testimony of toxicologist when disclosure of witness was not identified in accordance with Practice Book Rule §13.4. Proceedings in this forum on a different footing than those in Superior Court. See also, Rauser, § 31-275(1).
Wilson v. Capitol Garage, Inc., 6109 CRB-2-16-6 (May 16, 2017).
Claimant asserted lung injury from work at body shop, where he was asked to stop working. After a Motion to Preclude was granted he presented evidence as to disability and commissioner ordered a commissioner’s examination. Commissioner then denied claim for temporary or partial benefits. Claimant appealed, arguing in part trial commissioner should not have ordered a commissioner’s examination, asserting he had a prima facia case. CRB affirmed re; right to order a commissioner’s examination, citing Donahue v. Veridiem, Inc., 291 Conn. 537 (2009). However, CRB determined trial commissioner’s statements at hearing could have prejudiced claimant, and remanded for further proceedings. See also, Wilson, § 31-275(1); § 31-275(16); § 31-294c; § 31-294f.
Mikucka v. St. Lucian’s Residence, Inc., 6051 CRB-6-15-11 (September 14, 2016), appeal pending AC 39673.
Respondents filed a Form 36 seeking to establish maximum medical improvement and permanency rating. Claimant objected and at hearing, argued Form 36 could not be granted without ruling on an Osterlund theory of total disability. Trial commissioner determined respondent had met burden on Form 36 and bifurcated issue of total disability for future proceedings. Claimant appealed. CRB affirmed. Case indistinguishable from Rivera v. Patient Care of CT, 6005 CRB-6-15-4 (April 12, 2016) and stare decisis requires reaching the same result. Trial commissioner had due process grounds to bifurcate proceedings, see Martinez-McCord v. State/Judicial Branch, 5055 CRB-7-06-2 (February 1, 2007), Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009) and Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009). See also, Mikucka, § 31-296; § 31-301 Factual findings; § 31-301-9; § 31-307.
Tiffany v. Cheer Virtue Evolution & Athletic Training Center, LLC, 6046 CRB-7-15-11 (August 23, 2016).
Claimant filed claim asserting compensable injury and respondent-employer never filed disclaimer to claim and did not attend formal hearing. Trial Commissioner found respondent had notice of claim and found claimant credible, and awarded benefits. Respondent, through its principal, appealed asserting a jurisdictional defense that no employer-employee relationship existed and she would have presented this defense but was not aware of the hearing. CRB affirmed decision. While notice of hearing is essential to due process review of record indicated respondent should have received notice of claim and numerous subsequent notices. Respondent’s argument that her town had serious problems with postal delivery uncorroborated by any supportive evidence. CRB found no basis to set award aside. See also, Tiffany, § 31-301 Factual findings; § 31-321.
Melendez v. Fresh Start General Remodeling and Contracting, LLC, 6001 CRB-2-15-4 (June 10, 2016), appeal pending AC 39373.
Respondent, found liable in his individual capacity for injuries sustained by claimant in motor vehicle accident, challenged finding that claimant was his employee and contended he was deprived of his constitutional right to due process because he was not afforded reasonable notice that he was potentially liable for workers’ compensation benefits in his individual capacity. CRB affirmed, noting that testimony offered by both claimant and respondent provided reasonable basis for conclusion that claimant satisfied definition of employee per § 31-275(9)(A)(i) C.G.S. given that respondent had authority to direct means and order of work performed by claimant and, by providing transportation to job site, had significant control over the claimant’s schedule. Evidentiary record also supported trier’s conclusions that claimant was regularly employed by respondent to work more than twenty-six hours a week and claimant was not merely a casual employee. CRB rejected respondent’s assertion that he was deprived of due process, noting that claimant had deliberately served Form 30C on respondent in his individual capacity, respondent disregarded repeated recommendations to obtain counsel, and trier had granted respondent’s Motion to Vacate and allowed respondent additional time to file a brief before closing record and issuing second Finding and Award. See also, Melendez, § 31-275(9); § 31-275(10); § 31-278; § 31-301 Factual findings.
DeOliveira v. Florenee Cleaning, LLC, 6024 CRB-4-15-8 (June 6, 2016).
Claimant was injured in car owned and driven by respondent’s principal en route to first cleaning job of the day. Stipulated statement of facts presented that claimant was not been paid at time of injury. Based on stipulated facts trial commissioner concluded no exception to “coming and going” rule was present and found claimant’s injury were not in the course of her employment. On appeal, CRB reversed this decision. Labadie v. Norwalk Rehabilitation Services, Inc., 274 Conn. 219 (2005) established four exceptions to the “coming and going” rule and one such exception, an employer “furnishing transportation” to the claimant at the time of the injury, was unequivocally met. Respondent Second Injury Fund argument trial commissioner may have found parties not credible inapplicable to cases decided solely on documentary evidence, Bode v. Connecticut Mason Contractors, The Learning Corridor,130 Conn. App. 672 (2011), if commissioner doubted veracity of stipulation he should have sought live testimony on the record. Quinones v. RW Thompson Company, Inc., 5953 CRB-6-14-7 (July 29, 2015). See also, DeOliveira, § 31-275(1).
Ramsahai v. Coca-Cola Bottling Company, 5991 CRB-1-15-2 (January 26, 2016).
Claimant asserted total disability from seronegative/polyarthropathy/polyarthritis. Trial Commissioner granted this relief and CRB affirmed on appeal. CRB however remanded issues to whether claimant’s alleged depression was compensable back to the trial commissioner as well as issue as to interest on the award. Inadequate factual findings existed on those issues to support those findings. Citing Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009); CRB found the respondent should be allowed to present whatever defense it may possess on these issues; and noted issue of awarding interest had never been a noticed issue for the hearing. See also, Ramsahai, § 31-275(1); § 31-300; § 31-301 Factual findings; § 31-307.
Raphael v. Connecticut Ballet, Inc., 5985 CRB-7-15-2 (December 10, 2015).
Self-represented claimant, who appeared both individually and as president of respondent employer, appealed findings relative to compensability and apportionment of medical and indemnity expenses for series of knee injuries commencing March 1987. CRB vacated findings regarding apportionment and compensability of right knee injury on basis that findings went beyond scope of inquiry as identified by trier. CRB reversed and remanded findings attributing need for surgery to left knee injury of January 2012 as findings were inconsistent with medical evidence in record. CRB rejected claim that trier failed to properly advise claimant regarding inherent conflict of interest arising from claimant’s decision to appear as both claimant and employer’s representative, noting that provisions of neither § 31-278 C.G.S. nor § 31-298 C.G.S. impose upon trial Commissioner an obligation to advise self represented claimant. CRB did find problematic circumstances surrounding claimant’s withdrawal of claim for March 1, 1987 injury and remanded for additional findings relative to whether medical care furnished to claimant following March 1987 injury sufficed to bring claimant within “exceptions” to § 31-294c C.G.S. CRB also found denial of proposed corrections erroneous insofar as denial was inconsistent with CRB analysis. See also, Raphael, § 31-275(1), § 31-278, § 31-294c, § 31-301. Factual Findings.
Sanchez v. Edson Manufacturing, 5980 CRB-6-15-1 (October 6, 2015).
Claimant sustained workplace injury in CT after two prior shoulder injuries at MA employers. Trial commissioner relied on opinion of respondent’s examiner that CT injury was not proximate cause of claimant’s current medical condition. Claimant appealed, arguing this opinion was unreliable as it was rendered prior to witness fully reviewing prior medical records. CRB affirmed on appeal. Record shows witness issued addendum prior to record closing representing he had reviewed all records and had not changed his initial opinion. See also, Sanchez, § 31-275(1); § 31-294d; § 31-294f; § 31-301 Factual findings; § 31-308(b).
Jodlowski v. Stanley Works, 5976 CRB-6-15-1 (August 12, 2015), appeal pending AC 38261.
Claimant’s bid for lumbar spine surgery was denied. On appeal, claimant argued commissioner erred by not ordering a commissioner’s examination prior to ruling on request. CRB affirmed trial commissioner, who was not obligated to order a commissioner’s examination. See also, Jodlowski, § 31-294d; § 31-294f; § 31-301 Appeal procedure; § 31-301-9.
Quinones v. RW Thompson Company, Inc., 5953 CRB-6-14-7 (July 29, 2015), appeal pending AC 38256.
Claimant appealed denial of Motion to Preclude by trial commissioner who conducted additional formal hearings after trier who had presided over initial formal hearing passed away. Claimant challenged second trial commissioner’s authority to reopen formal hearing and also claimed as error trier’s denial of Motion to Preclude given that respondents never filed Form 43 or voluntary agreement. CRB affirmed, holding that Supreme Court’s directive in Stevens v. Hartford Accident & Indemnity Co., 29 Conn. App. 378 (1992), and provisions of §§ 31-278, 31-282 and 31-298 C.G.S. afforded trier ample discretion to reopen formal hearing and take additional evidence. CRB also found that because evidentiary record indicated claimant had been paid medical and indemnity benefits following date of injury continuing until Form 36 was approved, trier could have reasonably inferred that respondents never contested claim and were under no obligation to file Form 43. CRB rejected claimant’s contention that respondents’ failure to file voluntary agreement provided basis for preclusion, noting that provisions of § 31-294c(b) C.G.S. do not refer to voluntary agreements and provisions of § 31-296 C.G.S. and Admin. Reg. 31-296-1 C.G.S. identify penalty for non-compliance as sanctions per § 31-288 C.G.S. See also, Quinones, § 31-278; § 31-294c(b); § 31-296.
Lazzari v. Stop & Shop Supermarket Co., 5978 CRB-8-14-12 (July 23, 2015).
Claimant filed “Motion for Contempt” asserting respondents had violated trial commissioner’s discovery orders issued at informal hearing. At informal hearing trial commissioner denied motion “w/o prejudice”. Claimant appealed. CRB affirmed decision. Contempt not a form of relief enumerated under Chapter 568, claimant must seek statutory sanctions. In addition, motions denied without prejudice are interlocutory decisions that should not be appealed to the CRB, in accord with precedent in Dow v. Lowe’s, 5956 CRB-2-14-7 (March 9, 2015) and Quinones v. RW Thompson Company, Inc., 5792 CRB-1-12-10 (January 16, 2014). CRB also noted trial commissioner has great discretion in resolving evidentiary and discovery disputes, citing Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009). See also, Lazzari, § 31-301 Appeal procedure.
Camp v. Lupin Pharmaceuticals, Inc., 5936 CRB-6-14-5 (April 24, 2015), appeal pending AC 37932.
Claimant argued that respondent’s disclaimer conceded compensability of her injuries and trial commissioner erred in dismissing her claim. CRB reviewed disclaimer and record and found that as respondents clearly contested compensability at inception of the hearing, and claimant raised no objection, issue as to adequacy of the disclaimer to contest compensability could not be raised for the first time on appeal. CRB also ruled that reliance on surveillance video was proper, claimant failed to object to its admission. Argument on appeal that claimant should be able to present additional evidence to contest surveillance also rejected on appeal. See also, Camp, § 31-294c; § 31-275(1); § 31-301 Appeal procedure; § 31-301 Factual findings.
Summers v. R R Donnelley Printing Company, 5914 CRB-1-14-2 (February 26, 2015).
Trial commissioner found claimant sustained compensable injury but prior to hearing any evidence, said he would be hard pressed to find respondents engaged in undue delay or unreasonable contest. Claimant sought recusal of trial commissioner; which he declined. CRB affirmed commissioner on this issue. Case cannot be distinguished from Martinez-McCord v. State/Judicial Branch, 5647 CRB-7-11-4 (August 1, 2012). Alleged source of bias was information within record of the case which does not support recusal. Later in case claimant’s counsel sought deposition of claims adjuster to try and prove respondents lacked justification for defending claim. Trial commissioner denied this motion. Claimant appealed arguing he was denied due process as commissioner had predetermined sanctions issue. CRB determined that while ordinarily trial commissioners have broad discretion to resolve discovery issues Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009) and determine liability for sanctions, Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008); commissioner’s initial statement created a due process issue and claimant should have been extended additional latitude. CRB remanded matter to another trial commissioner to rule on discovery and sanctions issues. See also, Summers, § 31-278; § 31-288; § 31-300.
Staurovsky v. Milford - Police Department, 5906 CRB-4-14-1 (January 30, 2015), appeal pending, AC 37670.
Claimant filed a Motion for Reconsideration after original Finding asserting trial commissioner erred in application of the law. Trial commissioner granted this Motion. Respondents appealed asserting that this motion was ultra vires. CRB affirmed decision; commissioner has broad statutory powers to ascertain substantive rights of the parties including having issue of legal interpretation brought to his or her attention. See also, Staurovsky, § 7-433c.
Hatcher v. State of Connecticut/UConn Health Center, 5903 CRB-1-13-12 (January 22, 2015).
Claimant’s argument that the trier failed to comply with that part of the statute permitting the Commissioner to make inquiry in a manner best calculated to ascertain the substantial rights of the parties was without merit. CRB found no legal error in trial commissioner’s failure to compel the claimant to undergo a Commissioner’s examination. Further the trier scrupulously informed the claimant as to the steps he was taking to assure that both sides were recorded a fair hearing. See also, Hatcher, § 31-275(1); § 31-278; § 31-294f; § 31-297; § 31-301 Factual findings and § 31-301 Appeal Procedure.
Jeremy M. Reid v. Sheri A. Speer d/b/a Speer Enterprises, LLC, 5818 CRB-2-13-1 (January 28, 2014).
Respondent appealed, arguing trial commissioner should not have deemed hearing closed after fifth session of formal hearing when respondent did not have more witnesses available that day. CRB affirmed decision. Record indicated that the trial commissioner could have reasonably concluded that additional witnesses respondent sought would only add cumulative evidence to the record on peripheral issues. See also, Reid, § 31-275(9); § 31-275(10); § 31-278; § 31-294c; § 31-301 Appeal procedure; § 31-301 Factual findings.
Quinones v. RW Thompson Company, Inc., 5792 CRB 1-12-10 (January 16, 2014).
Claimant had filed Motion to Preclude in claim. Parties had argued merits of matter before the late Commissioner Cliff Thompson, and after Commissioner Thompson’s death had asked new commissioner to render decision on existing record. New trial commissioner sought to examine claimant prior to ruling on Motion. Claimant objected to adding to record and appealed to CRB. CRB ruled that as the underlying Motion to Preclude had not been ruled on the appeal was unripe, citing Gorelick v. Montenaro, 94 Conn. App. 14 (2006) and Bailey v. Stripling Auto Sales, Inc., 4516 CRB-2-02-4 (May 8, 2003). Matter remanded to rule on pending Motion to Preclude. See also, Quinones, § 31-301 Appeal procedure.
Barichko v. State/Department of Transportation, 5813 CRB-4-12-12 (January 13, 2014).
Respondents sought repayment of allegedly overpaid compensation to the claimant, citing in part moratorium from third party action and prior orders in the case. Trial commissioner denied claim for reimbursement. On appeal, CRB remanded matter. Record indicated that trial commissioner could have reasonably found respondent’s evidence as to amount sought unpersuasive, but the “law of the case” required implementing certain prior findings barring a change in circumstances. See also, Barichko, § 31-296; § 31-293; § 31-301 Factual findings; § 31-301(g).
Moreno v. Cablevision Systems Corporation, 5795 CRB-4-12-11 (October 8, 2013).
Claimant injured while installing equipment at customer of Cablevision cable TV system. Claimant employed by subcontractor of Cablevision which lacked insurance, and testified that he received instructions and tools from Cablevision. Trial commissioner found that Cablevision was liable under the “principal employer” statute, citing Pelletier v. Sordoni/Skanska Construction Company, 264 Conn. 509, 520 (2003). Cablevision appealed, arguing it reached agreement on subordinate facts regarding control of premises in an unsigned stipulation; which trial commissioner then decided not to deem controlling. CRB affirmed decision. Pursuant to Snyder v. Gladeview Healthcare Center, 5735 CRB-8-12-2 (February 27, 2013) trial commissioner not obligated to rely on an unsigned stipulation. Leonetti v. MacDermid, 310 Conn. 195 (2013) stands for principle trial commissioner has great latitude in determining whether or not to rely on certain evidence, and commissioner’s right to obtain additional evidence. That evidence was claimant acted at Cablevision’s direction. See also, Moreno, § 31-298; § 31-355(b).
Kinsey v. World Pac, 5783 CRB-7-12-10 (September 17, 2013).
Claimant sought sanctions for undue delay in respondent making payments and providing COLA adjustments. Trial commissioner awarded claimant’s counsel award under § 31-300 C.G.S. for time spent prior to informal hearing wherein respondents offered to pay sanctions to settle dispute. Claimant appealed claiming commissioner should have recused herself and demanded trial de novo. CRB affirmed decision. Trial commissioner has broad latitude under statute to manage proceedings and consider evidence. See also, Kinsey, § 31-278; § 31-288; § 31-300; § 31-327.
Lessard v. Dattco, Inc., 5685 CRB-6-11-9 (September 17, 2012).
CRB vacated and ordered a trial de novo where trial commissioner personally observed the claimant’s demeanor and mobility as claimant exited the building. While there may have been evidence in the record from which the trier could have reached the same conclusion, it appears the claimant’s was not informed of the trier’s observation until the trier issued his decision. Therefore, the claimant was not permitted a meaningful opportunity to be heard or to challenge by cross examination the eyewitness account of the trier. See also, Lessard, § 31-301 Factual findings.
Henry v. City of Ansonia, 5674 CRB-4-11-8 (August 8, 2012).
Claimant suffered cardiac event while at work in 2005 and was treated thereafter. Respondent filed Form 43. Claimant later filed Firm 30C in 2008 alleging hypertension, heart disease and sinus tachycardia. Respondent did not file a timely Form 43 to this claim. Claimant later filed Motion to Preclude which trial commissioner granted on issues of heart disease and sinus tachycardia. Commissioner also determined that hypertension case lacked subject matter jurisdiction. Respondent appealed granting of Motion to Preclude, CRB affirmed commissioner; fact-driven decision herein. Claimant appealed arguing they had no notice jurisdictional issue was going to be decided. CRB sustained appeal; record did not reflect parties on notice jurisdictional issue would be decided. Case remanded for further proceedings. See also, Henry, § 31-294c; § 31-275(16); § 31-301 Appeal procedure.
Martinez-McCord v. State/Judicial Branch, 5647 CRB-7-11-4 (August 1, 2012).
Claimant appealed from denial of claim for temporary total disability benefits from alleged RSD ailment. Trial commissioner concluded medical evidence she found credible and persuasive did not establish claimant had RSD, and that claimant had a work capacity. Claimant appealed, arguing she had moved for trial commissioner to recuse herself at start of the hearing, and this motion should have been granted. Claimant argued that as same trial commissioner had heard case in Martinez-McCord v. State/Judicial Branch, 5275 CRB-7-07-9 (September 12, 2008) commissioner had biased view of claimant’s credibility. CRB affirmed Finding and Dismissal. Precedent disfavors recusal of workers’ compensation commissioners and leaves it to their discretion to ascertain if they believe they have a personal bias in a case. Knowledge from a earlier proceeding does not require recusal under CT law (see State v. Rizzo 303 Conn. 71 (2011)) unless circumstances are “extreme or unusual.” Review of findings indicates trial commissioner reached conclusions entirely consistent with commissioner’s examiner in case; hence, decision well founded. See also, Martinez-McCord, § 31-294f; § 31-278; § 31-301 Factual findings; § 31-307; § 31-308(b).
Perun v. City of Danbury, 5650 CRB-7-11-05 (May 3, 2012).
Claimant had received Finding and Award determining that a 2007 injury was a new compensable injury. In that decision, the trial commissioner found the claimant’s treater credible and did not rely on respondent’s expert witness. After hearing on level of permanent disability, another trial commissioner did not find the treater credible and determined respondent’s expert was persuasive on level of permanent impairment. Claimant appealed asserting initial trial commissioner decision as to witness credibility controlled all further proceedings. CRB upheld Finding. Trial commissioner could find a witness credible on one issue and not another. Trial commissioner adequately explained her rationale for not relying on treating physician. “Law of the Case” doctrine inapplicable when there has not been a prior interlocutory ruling on an issue, see Schenkel v. Richard Chevrolet, Inc., 5302 CRB-8-07-12 (November 21, 2008). See also, Perun, § 31-301 Factual findings; § 31-308(b); § 31-349.
Leonetti v. MacDermid, Inc., 5623 CRB-5-11-1 (March 19, 2012).
Respondent employer appealed trier’s determination that termination agreement signed by claimant purporting to release workers’ compensation claim release was unenforceable in workers’ compensation forum. Trier also concluded claimant received no consideration for release of workers’ compensation claim. Record indicated subject agreement was never presented to trial commissioner for approval and employer ultimately instructed claimant to sign agreement or forfeit severance package. CRB affirmed, noting that claimant and his counsel had attempted unsuccessfully to persuade respondent employer to remove release language from agreement and respondent employer declined to send representative to informal hearing scheduled to address whether provision regarding release of workers’ compensation claim was enforceable absent trial commissioner approval. CRB also held that claimant’s testimony regarding his understanding of method by which respondent employer generally calculated severance packages provided adequate basis for trier’s inference that claimant was not paid consideration for release of workers’ compensation claim. CRB denied respondent employer’s Motion to Submit Additional Evidence on basis that proposed testimony of claimant’s supervisor could have been provided during proceedings below. See also, Leonetti, § 31-278; § 31-290; § 31-296; § 31-301-9.
Turrell v. State/DMHAS, 5640 CRB-8-11-3 (March 21, 2012).
Trial commissioner took administrative notice of various forms in file, including voluntary agreements, without specifically notifying parties. Claimant appealed. CRB upheld commissioner. Record indicates that similar to Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009) scope of potential remedy was presented to the litigants; while “wiser approach would have been to provide the parties with advance notice” Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003), appeal dismissed for lack of final judgment, A.C. 24991 (May 5, 2004); decision herein was at worst harmless error. See also, Turrell, § 31-301Factual findings; § 31-294d; § 31-301 Appeal procedure.
Valiante v. Burns Construction Company, Inc., 5393 CRB-4-08-11 (October 15, 2009).
Claimant sought to depose claims adjuster. Respondent filed for protective order and Motion to Quash subpoena. Trial commissioner denied motions and ordered deposition to proceed. Respondent appealed, asserting that claimant failed to properly define issues under consideration. CRB upheld trial commissioner. Record demonstrates respondents clearly were on notice as to scope of relief considered by trial commissioner. Trial commissioners clearly have power to order deposition of witnesses under plain meaning of statutes, as well as precedent such as Powers v. Hotel Bond Co., 89 Conn. 143 (1915) and Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008) which give commissioners power to “run one’s own courtroom.”
Dahle v. Stop & Shop Companies, Inc., 5356 CRB-6-08-6 (June 5, 2009).
CRB affirmed trier’s dismissal of claimant’s request for additional medical care on grounds that pain management regimen sought was palliative and not curative and therefore did not constitute reasonable or necessary treatment. Claimant contended trial commissioner’s reliance on orthopedic surgeon’s opinion was in error as orthopedic specialist was not qualified to comment on efficacy of pain management. CRB determined that expert testimony contained in evidentiary record, along with medical reports from several experts, including a pain management specialist, provided adequate support for trial commissioner’s inferences regarding utility of pain management regimen. Trial commissioner also found claimant eligible for benefits pursuant to § 31-308a C.G.S. and awarded attorneys’ fees due to respondents’ unreasonable contest, which findings were not challenged on appeal. The claimant filed a Motion to Correct, which was denied in its entirety. See also, Dahle, § 31 294d, § 31-301. Factual Findings. § 31-301-4.
Mohamed v. Domino’s Pizza, 5352 CRB-6-08-6 (April 22, 2009).
Respondents sought to void an executed stipulation and obtained an ex parte order voiding the stipulation. Claimant sought formal hearing and did not appeal order within statutory time limit. Respondent argued claimant now barred from further relief. CRB upheld trial commissioner who denied dismissal and remanded for new hearing. Due process requires contested hearing.. Commissioner must “make inquiry” prior to issuance of final, binding order. See also Mohamed, § 31-297, § 31-301. Appeal procedure, § 31-315.
Keeney v. Laidlaw Transportation, 5199 CRB-2-07-2 (May 21, 2008).
Claimant sought temporary total disability benefits asserting original work related back injury had been aggravated. Trial Commissioner awarded benefits and respondents appealed, asserting that the commissioner improperly refused to admit an “MRI aging study” offered by respondents. CRB upheld trial commissioner. Issue governed by LaMontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008);trial commissioner has broad discretion as to whether to admit evidence; document in question had not been generated by a treating physician or a physician who had examined the claimant. See also Keeney, § 31-301. Appeal procedure, § 31-301. Factual findings, § 31-307.
Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008).
Claimant suffered compensable injury and sought to have respondents pay for reconstructive shoulder surgery. Expert witnesses differed on causation; commissioner’s examiner placed least weight on compensable injury, did not opine accident was a “substantial factor” and placed 15% of the need for surgery on the accident. Trial commissioner denied claim. CRB upheld commissioner. Commissioner properly applied the “substantial factor” test; as matter of law no precedent states there is a threshold percentage which is “substantial” or that least weighty of three factors is “substantial.” Remainder of commissioner’s examiner’s opinion unsupportive of claimant. Fratino v. Harry Grodsky & Co., Inc. 5087 CRB-7-06-5 (May 8, 2007) and Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB-3-05-10 (November 16, 2006), support commissioner’s use of discretion. See also, Weir, § 31-294d.
Dzienkiewicz v. State/Dept. of Correction, 5211 CRB-8-07-3 (March 18, 2008), aff’d, 291 Conn. 214 (2009).
Correction officer suffered stroke at home following shift. He sought benefits asserting he was totally disabled due to the stroke and that the stroke was caused due to stress at work. Trial commissioner presented with conflicting medical evidence, and credited evidence stroke was due to non-work related health issues, dismissing claim. Trial commissioner declined to admit report from state Medical Examining Board, which had granted claimant a disability pension finding the stroke work related. Claimant appealed, stating trial commissioner was obligated to admit report as evidence. CRB upheld trial commissioner. LaMontagne v. F & F Concrete, 5198 CRB-4-07-2 (February 25, 2008) stands for proposition commissioner has broad discretion to determine whether to admit evidence. Medical Examining Board decision is similar to social security disability decision, which are not binding on Commission, See, Bidoae v. Hartford Golf Club 4693 CRB-6-03-7 (June 23, 2004) aff’d 91 Conn. App 470, (2005), cert denied, 276 Conn. 921 (2005). See also Dzienkiewicz, § 31-275(16), § 31-301. Factual finding.
Vannoy-Joseph v. State/DMHAS, 5164 CRB-8-06-11 (January 29, 2008).
Rules of evidence not binding in this forum, and expert opinion may be based on data from outside sources as long as that data type is reasonably relied on by other physicians as a foundation for opinions. However, procedural latitude regarding mechanics of admitting evidence into record does not reduce quality of medical evidence needed to create scientifically valid factual foundation for innovative surgical procedure, such as three-level disc replacement surgery. Evidence must be sufficient for trier to grasp concepts and methods that support procedure, and to anticipate it will be effective for individuals comparable to claimant. Trier must take steps to verify that physician’s methodology is reliable. Novelty of suggestion will not render underlying opinion incompetent if derived from valid scientific method, even if other methodologies lead to other recommendations. CRB gave examples of relevant methodological issues, and other forums’ critiques of methodologies used in clinical testing of medical device. CRB also noted that federal statutes and regulations may be subject of judicial notice by court of appeal. See Vannoy-Joseph, §§ 31-294d, 31-301-4, 31-301-9.
Heilweil v. Montville-Board of Education, 5161 CRB-8-06-11 (October 24, 2007).
Claimant suffered compensable injury while employed as bus driver. Respondents challenged claim for temporary total disability benefits. Trial commissioner awarded claimant total disability benefits based on testimony from vocational expert and awarded her reimbursement for the cost of the vocational expert. Respondents appealed. CRB upheld on s§ 31-307 benefits and reversed on reimbursement issue. No statutory authority to award the claimant reimbursement for testimony by a vocational expert, as per Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003). See also Heilweil, § 31-301. Factual findings, § 31-307.
DiLeone v. State/DMR, 5147 CRB-5-06-10 (October 5, 2007).
CRB affirmed trier’s dismissal of temporary total disability claim based, in part, on medical report attached to a Form 36 of which the commissioner took administrative notice. Claimant argued error for the commissioner to rely on medical report as claimant was not given opportunity to cross-examine doctor. CRB held claimant waived right as trier made it clear she would be taking administrative notice of the Form 36 and claimant failed to object. CRB did not counsel that while the trial commissioner did not err in this instance, it is preferable for a trier to permit a full opportunity to be heard for matters which may be contradicted or explained. See also, DiLeone, § 31-301. Factual findings and § 31-307.
Liebel v. Stratford, 5070 CRB-4-06-3 (May 17, 2007).
See Liebel, § 31-294d (trier had power under expanded discovery provisions of § 31-298 to order another evaluation of claimant by treating physician).
Sellers v. Sellers Garage, 5090 CRB-5-06-5 (May 11, 2007), aff’d, 110 Conn. App. 110 (2008).
CRB affirmed commissioner’s dismissal of claim for worsening of depression and related symptomotology on the basis of res judicata and collateral estoppel principles. Also affirmed denial of total disability benefits. See also, Sellers, § 31-307.
Martinez-McCord v. State/Judicial Branch, 5055 CRB 7-06-2 (February 1, 2007).
Trial commissioner granted Form 36 finding claimant was no longer totally disabled for elbow injury, bifurcated matter for additional hearings on issue of whether the claimant was totally disabled for psychiatric illness. Claimant appealed stating she presented sufficient evidence to uphold an award. CRB upheld trial commissioner. Precedent in Mosman v. Sikorsky Aircraft Corp., 4180 CRB-400-1 (March 1, 2001) and Vetre v. State, 3443 CRB-06-96-10 (November 28, 2000) does not extend to having the CRB direct a trial commissioner to issue an award when he believes additional evidence is required. “Piecemeal litigation” precedent such as 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) do not limit the discretion of a trial commissioner who determines the interests of justice require a matter be bifurcated. Absent a “clear legal right to have the duty performed. . . .” Miles v. Foley, 253 Conn. 381, 391 (2000), appellate panel must defer to trier’s discretion to obtain more evidence. See also, Martinez-McCord, § 31-301. Factual findings, § 31-307.
Richardson v. Bic Corporation, 4953 CRB-3-05-6 (September 7, 2006).
Respondents sought clarification of prior remand order. Board held that trier had authority to admit evidence on subject of earning capacity for earlier time periods. Board had instructed trier to “consider further issues” in remand order, and had included phrases anticipating that new evidence might be factored in. Claimant had burden of proving earning capacity as part of temporary partial disability claim, but focus of testimony at trial was on preliminary question of entitlement to benefits. Trier had discretion to decide those issues without resolving question of earning capacity, though best practice is to bifurcate proceedings on record. See also, Richardson, § 31-301. Appeal procedure; also cited at Richardson, § 31-308(a). Prior case at Richardson, 4413 CRB-3-01-7 (August 5, 2002), § 31-308(a), § 31-308a.
Birnie v. Electric Boat Corporation, 4947 CRB-2-05-5 (May 15, 2006).
CRB affirmed commissioner’s application of collateral estoppel doctrine on the basis that the issue of causation was litigated and decided under the federal Longshore Act. See also, Birnie, § 31-275(1).
Mangual v. Andrew LeBlanc d/b/a Express Tiles, 4957 CRB-1-05-6 (April 26, 2006).
The hearing was concluded and the record closed subsequent to the death of the trial commissioner. Parties mutually agreed to permit another commissioner to render a decision, which prevented the party that subsequently lost from successfully challenging this procedure on appeal. Moreover, a demeanor evaluation of the parties’ testimony was unnecessary to support commissioner’s Finding and Award. See also, Mangual, § 31-275(9), § 31-301. Factual findings.
Bailey v. Willimantic Dodge/Nissan Stripling Auto Sales, 4929 CRB-5-05-3 (April 13, 2006).
Respondents contended that doctor had retired by date of formal hearing, making him unavailable for cross-examination. As there was no indication in record that respondents sought to take his deposition during trial proceedings, CRB had no basis to investigate possible denial of due process. Also, trier permissibly inferred that information relied upon by that physician was sufficient to support a competent medical opinion regarding causation. See also, Bailey, § 31-301. Factual findings, § 31-307. Prior decisions at Bailey, 4516 CRB-2-02-4 (May 8, 2003), infra, § 31-307a; Bailey, 3461 CRB-3-96-11 (April 9, 1998), § 31-315, and Bailey, 15 Conn. Workers’ Comp. Rev. Op. 369, 3095 CRB-2-95-6 (June 28, 1996), § 31-278, infra, § 31-308a.
Barnes v. Waterbury Hospital, 4941 CRB-5-05-5 (April 7, 2006).
CRB remanded for further proceedings so as to give claimant’s counsel an opportunity to be heard on the issue of the imposition of sanctions under § 31-288(b) resulting from claimant’s counsel’s failure to appear at a formal hearing. See also, Barnes, § 31-288.
Mahoney v. Bill Mann’s Tree Removal, Inc., 4776 CRB-4-04-1 (September 19, 2005).
Issue: res judicata and collateral estoppel. CRB affirmed trier’s finding that claimant with compensable neck injury could no longer raise permanency claim after failing to establish permanent partial impairment in earlier evidentiary proceedings, although he would remain eligible to seek treatment for further neck symptoms under § 31-315, absent full and final stipulation. Back injury claim had been properly raised in prior proceedings, and claimant could not return later with new evidence to establish compensability. Prior decisions at Mahoney, 3025 CRB-4-95-3 (October 5, 1996), § 31-294d, § 31-298, and Mahoney, 4095 CRB-4-99-8 (August 10, 2000), aff’d, 67 Conn. App. 134 (2001), § 31-303(b), § 31-308a.
Vetre v. State/Dept. of Children & Families, 4848 CRB-6-04-8 (August 19, 2005).
CRB affirmed trier’s evidentiary and procedural rulings. See also, Vetre, §§ 31-278, 31-300, 31-301-9, 31-307a.
Rodriguez-Colon v. Easter Seals Goodwill Industries, 4804 CRB-3-04-4 (June 22, 2005).
See, Rodriguez-Colon, § 31-299b (trier limited scope of hearing on record). See also, Rodriguez-Colon, § 31-294c, § 31-301. Factual findings.
Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005).
CRB found commissioner improperly left period of total disability open for lack of evidence. Parties are not allowed to present case in piecemeal fashion. See also, Hines, § 31-307.
Sellers v. Work Force One, 4807 CRB-5-04-5 (March 3, 2005), aff’d, 92 Conn. App. 683 (2005).
CRB affirmed commissioner’s dismissal of claim for depression on the basis of res judicata and collateral estoppel principles. Prior decision at Sellers v. Sellers Garage, 4762 CRB-5-03-12 (February 3, 2005), aff’d, 92 Conn. App. 650 (2005); 4391 CRB-5-01-5 (April 26, 2002), aff’d, 80 Conn. App. 15 (2003), cert. denied, 267 Conn. 904 (2003).
Ryker v. Bethany, 4780 CRB-3-04-2 (February 16, 2005), aff’d, 97 Conn. App. 304 (2006), cert. denied, 280 Conn. 932 (2006).
CRB affirmed trier’s credibility determination based on a review of transcripts where the parties agreed to submit transcripts to a subsequent commissioner in lieu of a trial de novo and where those determinations were supported by the substance of the testimony. See also, Ryker, § 31-275(1), § 31-301. Factual findings.
Horn v. State/Dept. of Correction, 4764 CRB-3-03-12 (January 24, 2005).
Trier must balance importance of protecting privileged communications with relevance and materiality of evidence sought. No error for trier to determine that in camera inspection of attorney-client fee agreement was appropriate safeguard of privilege, where respondent sought to review agreement to determine whether language existed that would support potential third-party beneficiary claim. See also, Horn, § 31-301(f), § 31-301(g). Prior decisions at Horn, 4177 CRB-3-00-1 (February 22, 2001), § 31-301. Factual findings, § 5-145a; Horn, 3727 CRB-3-97-11 (December 16, 1998), § 31-294c, § 5-145a.
Bailey v. State, 4744 CRB-1-03-10 (December 3, 2004).
Appellate Court reversed award of total disability benefits on ground that respondent had been denied opportunity to conduct independent medical examination in contravention of law, and remanded case for further proceedings. Trier subsequently ordered claimant to comply with motion for discovery, having found that claimant has not complied with state’s requests for mental health records requested by examining psychiatrist. CRB affirmed, citing Appellate Court’s statement that respondent should be allowed to follow through on independent medical examination. See also, Bailey, § 31-301(g), § 31-301(f). Prior decisions at Bailey, 3922 CRB-2-98-10 (November 30, 1999), aff’d in part, rev’d in part, 65 Conn. App. 592 (2001), § 31-300, § 31-307, § 31-284b, § 31-294d, § 31-301. Factual findings, Bailey, 3694 CRB-1-97-9 (January 12, 1999), rev’d, 65 Conn. App. 592 (2001), § 31-298, § 31-301. Appeal procedure; and Bailey, 15 Conn. Workers’ Comp. Rev. Op. 433, 3152 CRB-5-95-8 (September 3, 1996), § 31-301. Appeal procedure, § 31-301. Factual findings.
Horobin v. West Haven, 4724 CRB-3-03-9 (December 2, 2004).
See, Horobin, § 31-349 (parties were not notified that joint and several liability theory was being considered); See also, Horobin, § 31-296. Voluntary agreements (approval of), § 31-300, § 31-301. Appeal procedure; § 31-301. Factual findings, § 31-307.
Sadosky v. U.S. Properties, Inc., 4751 CRB-2-03-11 (November 2, 2004).
No error in trier’s reliance on medical expert’s opinion despite respondent’s contention that the doctor had insufficient history. Respondent never objected to admission of doctor’s report at hearing. Respondent was free to depose expert. Trier must consider record and determine whether expert has necessary information to form a credible opinion. See also, Sadosky, § 31-299b.
Brown v. State/DMR, 4748 CRB-6-03-11 (October 18, 2004).
CRB held commissioner’s admission of hearsay did not violate claimant’s due process rights. Claimant’s counsel was given an opportunity to procure evidence on the issue of benefit payments previously paid to the claimant, and indicated he would rely on the respondent’s representation as to prior payments. See also, Brown, § 31-301-4, § 31-308a.
Donaldson v. Continuum of Care, Inc., 4581 CRB-3-02-10 (October 4, 2004), aff’d, 94 Conn. App. 334 (2006).
No error in admitting psychologist’s medical report into evidence. Appellant had submitted similar evidence. See also, Donaldson, § 31-294d.
Dunlevy v. Infra Metals Corp., 4626 CRB-8-03-2 (April 5, 2004).
Claimant introduced two letters as exhibits, which respondents objected to as hearsay. Trier granted counsel an exception, and stated that he would allow it to depose the author of the letters. After hearing claimant’s testimony, trier then issued bench ruling in claimant’s favor, failing to address the objection. Respondents’ motion to reconsider trier’s ruling listed this issue as a ground for error, but motion was denied. CRB had no way of knowing how much weight trier placed on these exhibits, but acknowledged that due process principles concerning right to confront witnesses apply here. Board cannot assume that there was no prejudice. Award of benefits was reversed, and case remanded for new hearing. See also, Dunlevy, § 31-308a, § 31-310.
Capozzo v. Milford Jai Alai, 4655 CRB-3-03-3 (March 26, 2004).
CRB reversed trial commissioner’s ruling the respondents unduly delayed the authorization for claimant’s surgery as the respondents were not given adequate notice the issue was under consideration. Matter remanded for further proceedings consistent with respondents’ due process rights. See also, Capozzo, § 31-300.
Paige v. Hartford Insurance Co., 4594 CRB-2-02-12 (January 9, 2004).
CRB upheld admission of hearsay evidence where claimant never raised an objection to the nature of the evidence and never alleged she was not afforded an opportunity to cross-examine the author of the evidence. Commissioner’s findings did not mention the evidence and were supported by substantial evidence apart from the hearsay. CRB upheld admission of undisclosed witness’ testimony where pro se claimant never alleged she was unprepared to cross-examine the witness, was present during the events which the witness testified regarding and had actual notice the witness was to testify several months prior. See also, Paige, §§ 31-294c, 31-301. Factual findings.
Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003), appeal dismissed for lack of a final judgment, A.C. 24991 (May 5, 2004).
Testimonial fees may not be awarded for claimant’s vocational rehabilitation specialist and any other non-physician expert witness. Statute only allows payment for costs associated with testimony by “competent physician, surgeon or other medical provider.” Administrative notice of prior decisions in same case may be taken, but better approach is to give parties notice of intent to take such notice. Where Supreme Court vacated earlier decision in Fiorillo v. Bridgeport, 4337 CRB-4-01-1 (November 19, 2001), vacated, S.C. 16756 (December 16, 2002), based on mutual mistake in stipulation of facts regarding length of total disability period, CRB had to reverse finding of unreasonable contest of liability, which was based on incorrect notion that claimant had received five years of total disability benefits. See also, Fiorillo, § 31-301. Factual findings, § 31-301-4, § 31-307a, § 31-307.
Blaha v. Logistec Connecticut, Inc., 4544 CRB-3-02-6 (July 9, 2003).
Prevailing claimant’s entitlement to cost of testimony by competent physician includes time that physician has spent reviewing file and traveling to hearing, if it would otherwise be billed to claimant. See also, Blaha, § 31-300, § 31-312.
Bailey v. Stripling Auto Sales, Inc., 4516 CRB-2-02-4 (May 8, 2003).
Claimant sustained compensable hip injury. Prior total disability claim was denied through May 9, 1995 formal hearing. Respondents herein sought to preclude claimant from pursuing subsequent total disability claim from May 10, 1995 forward. Trier denied motion to dismiss claim that alleged res judicata, and denied motion to preclude introduction of evidence that was allegedly based on reports considered at prior hearings. CRB affirmed. Trier has broad discretion to admit evidence under § 31-298. Questions over proper weight to give medical reports in light of arguably uncertain diagnosis pertain to credibility, not admissibility. Reports of non-treating physician are now admissible under George v. Ericson, 250 Conn. 312 (1999). See also, Bailey, § 31-307. See prior decisions at Bailey v. Stripling Auto Sales, Inc., 3461 CRB-3-96-11 (April 9, 1998), § 31-315; Bailey, 15 Conn. Workers’ Comp. Rev. Op. 369, 3095 CRB-2-95-6 (June 28, 1996), § 31-278, § 31-298, § 31-301-9.
Catale v. Physicians Health Services, 4495 CRB-4-02-2 (March 5, 2003).
Respondents failed to authenticate videotape that was introduced into evidence and relied on by trier. Claimant objected in timely manner. Board reversed decision and remanded for new trial.
Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002).
Trier was not required to honor pro se claimant’s last-minute request to postpone hearing, where it had already been postponed twice before. Granting of continuances is almost completely discretionary. With regard to ex parte communication between nurse case managers/claims adjusters and treating physicians, CRB discussed July 12, 1999 Memorandum that creates safeguards designed to prevent respondent from unduly influencing doctor-patient relationship without cutting off communication entirely. See also, Duddy, § 31-296. Voluntary agreements (discontinuance of payments); § 31-301. Factual findings; § 31-307.
Kasfeldt v. Heitkamp, Inc., 4452 CRB-5-01-10 (September 18, 2002).
Claimant stipulated at hearing that method-of-service issue raised in Motion to Preclude was no longer in dispute; trier nonetheless granted motion on basis of insufficient proof of proper service under § 31-321. Respondents appealed, and claimant did not actively object. CRB granted motion to reverse commissioner’s decision, as due process requires that parties be aware factual element of case is at issue. Remanded for further proceedings.
Millette v. Walmart, 4429 CRB-5-01-8 (July 19, 2002).
CRB affirmed trier’s ruling denying the respondent an opportunity to depose treating physician where respondent waited until after two formal hearing sessions and closing of evidentiary record to schedule deposition. Also, trier’s failure to rule on respondent’s request for sanctions due to cancellation of a scheduled deposition by claimant’s counsel was harmless error. Respondent had chance to cross-examine claimant and, given three-month period between formal hearings, had sufficient opportunity to investigate her testimony and challenge its veracity.
Bidoae v. Hartford Golf Club, 4424 CRB-6-01-8 (June 27, 2002).
Trier ruled that claimant could not introduce testimony and reports of her vocational rehabilitation expert unless she consented to examination by respondents’ vocational rehabilitation expert. CRB affirmed. Issue did not center around definition of “physician” in § 31-294f, but rather concerned fundamental due process issues that grant parties the right to produce relevant evidence and offer rebuttal evidence. Following subsequent proceedings and another CRB decision on additional issues, Appellate Court affirmed CRB ruling regarding vocational rehabilitation expert. See also, Bidoae, § 31-294f. See subsequent decision Bidoae, 4693 CRB-6-03-7 (June 23, 2004), aff’d, 91 Conn. App. 470 (2005), cert. denied, 276 Conn. 921 (2005), § 31-301. Appeal procedure, § 31-307.
Green v. United Illuminating Co., 4361 CRB-3-01-2 (February 28, 2002).
Board affirmed trier’s finding that alleged Lyme disease was not caused by claimant’s employment, as medical evidence was conflicting, and an expert testified that any tick bite she may have gotten could have occurred anywhere. Claimant argued that trier erred by admitting deposition of independent medical examiner. CRB ruled that trier did not rely on said deposition, as it set forth no opinion regarding whether tick bite occurred while at work or was more likely to have occurred during non-work hours. See also, Green, § 31-275(1).
Cordi-Allen v. Hartford, 4422 CRB-1-01-7 (January 30, 2002).
CRB affirmed trier’s ruling on Motion To Withdraw representation by claimant’s counsel.
Savage v. Rogers Corporation, 4330 CRB-2-00-12 (January 3, 2002).
Claimant appealed trier’s finding that she did not establish Multiple Chemical Sensitivity Syndrome, contending that notice had not been given that MCSS was at issue. Respondents contended MCSS was not a scientifically tenable diagnosis. CRB ruled that claimant should have been allowed to introduce evidence regarding MCSS at formal proceedings, which would have enabled trier to rule on both temporary total and partial disability, and to consider scientific viability of MCSS diagnosis. Remanded.
Rodrigues v. American National Can, 4329 CRB-7-00-12 (January 2, 2002).
At formal hearing, trier explained to the claimant (acting pro se) that he needed to present medical evidence to refute written report and deposition of respondents’ independent medical examiner. Trier would not allow claimant to present old medical records, as they did not address limited Form 36 issue at hand. CRB found no error, as decisions regarding relevance and remoteness of evidence in workers’ compensation proceedings fall solely within trier’s discretion. See also, Rodrigues, § 31-279-3, § 31-296. Voluntary agreements (discontinuance of payments), § 31-301-9. Prior decision at Rodrigues, 4043 CRB-5-99-4 (July 26, 2000), § 31-301. Appeal procedure, Factual findings, § 31-308a.
Mason v. Dale Construction, Inc., 4354 CRB-3-01-1 (November 7, 2001).
Intoxication defense is evidentiary issue rather than one implicating preclusion. Because of discretion afforded a trier under § 31-298, CRB was “not persuaded that any defense not listed in a Form 43 may subsequently never be asserted by a respondent.” Rather, respondent is expected to make diligent and timely investigation of claim, which may result in uncovering previously unknown evidence that may support additional defenses. Thus, trier should assess respondents’ diligence in investigating the claim, and should decide whether defense of intoxication was timely made. See also, Mason, § 31-284(a), § 31-301. Appeal procedure, § 31-294c. Subsequent decision at Mason, 4476 CRB-3-01-2 (April 28, 2003).
Rayhall v. Akim Co., Inc., 4321 CRB-2-00-12 (November 5, 2001).
Where all facts were stipulated, and no testimony was taken, CRB did not need to adhere to its normal deferential standard of review. See also, Rayhall, § 31-278, 31-295, § 31-307, 31-308(b).
Briggs v. American Medical Response, 4302 CRB-3-00-9 (September 24, 2001).
Trier has broad discretion to determine whether party has acted with sufficient diligence in gathering evidence to support or refute a claim. CRB affirmed trier’s decision to deny request to depose independent medical examiner where respondents could have obtained medical records and presented them to their examiner many months before formal hearing. Sufficient opportunity for examination of claimant was provided, and initial examination had already been performed. See also, Briggs, § 31-301. Factual findings, § 31-301-9.
Kuba v. Michael’s Landscaping & Lawn Service, 4266 CRB-4-00-7 (August 29, 2001).
CRB held that claimant was not precluded from raising evidentiary issues on appeal, notwithstanding failure to initially appeal denial of motion to preclude. Though § 31-301(a) allows parties to appeal within ten days after a decision on a motion, CRB held that “it would be imprudent for a party to delay the progress of an action for many months at a time in order to immediately appeal every one of a commissioner’s interlocutory rulings to the Compensation Review Board.” Absent likelihood of irreparable harm resulting from immediate actualization of evidentiary ruling, parties should wait until merits have been decided before appealing. CRB also held that trier permissibly allowed deposition of respondents’ doctor into evidence, as both parties were present at deposition, and claimant had time to obtain further evidence in response to contents of deposition. See also, Kuba, § 31-294c.
Baldino v. Corcoran & Son Landscaping & Paving, 4275 CRB-4-00-8 (July 23, 2001).
Board affirmed trier’s decision, including ruling denying entry of Superior Court transcript as full exhibit. Transcript was offered by claimant to show respondents had agreed to pay temporary partial disability benefits, but trier found that transcript did not indicate such an agreement. See also, Baldino, § 31-308(a).
Kudlacz v. Lindberg Heat Treating, 3407 CRB-8-96-8 (June 26, 2001).
CRB affirmed trier’s decision, including denial of claimant’s request to enter as an exhibit out-of-state deposition of Colorado physician. Trier is not required to allow every deposition into evidence. CRB highlighted importance of using physicians licensed in Connecticut, though admission of testimony from out-of-state physician is within commissioner’s discretion. See also, Kudlacz, § 31-315. Prior decision at Kudlacz, 16 Conn. Workers’ Comp. Rev. Op. 214, 3407 CRB-8-96-8 (June 6, 1997), aff’d, 49 Conn. App. 1 (1998) (with dissenting opinion), rev’d, 250 Conn. 581 (1999), appeal reinstated, 3407 CRB-8-96-8 (July 21, 2000).
Audi v. Blakeslee Arpaia Chapman, 4234 CRB-3-00-5 (June 26, 2001).
CRB reversed finding of total disability spanning from date of voluntary agreement to date of formal hearing. Respondent had not been sufficiently apprised total disability was at issue where nine of ten hearing notices had listed “modification of award/VA” as only issue, and claimant’s counsel had expressed doubt that continuing total disability should be resolved at first formal hearing. Trier did not clarify that total disability would be decided until after record was closed, and refused to allow respondent to submit further evidence on claimant’s work capacity. Remanded. See also, Audi, § 31-301-9, § 31-315, § 31-296. Voluntary agreements (discontinuance of payments), § 31-307. See prior decision Audi, 3418 CRB-3-96-9 (August 4, 1997), § 31-349. Also see subsequent decision Audi, 4311 CRB-3-00-10 , 4624 CRB-3-03-2 (February 10, 2004), § 31-278, § 31-284(b), § 31-288, § 31-300.
Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001).
See, Cirrito, § 31-294d, § 31-300 (trier improperly denied attorney’s request to call opposing counsel to stand in order to question him regarding attorney’s fee petition), § 31-301. Factual findings.
Melendez v. Valley Metallurgical, 4178 CRB-2-00-1 (May 1, 2001).
Trier did not violate due process rights of claimant by failing to remove action to Superior Court, as he had jurisdiction to decide issues surrounding claimant’s entitlement to COLAs, interest, and attorney’s fees. Relaxed rules of discovery prevail in this forum. No error in denying request for disclosure and production, which sought extensive discovery from insurer. No due process violation in refusing to allow such discovery, as claimant need not be given advance notice of every legal strategy respondent intends to pursue. Also, trier may exclude statements of witnesses if party is not given opportunity to cross-examine. Simplified hearing procedures in this forum entitled trier to restrict scope of evidence to be admitted in these proceedings. No error in admitting exhibit that incorporated evidence of settlement negotiations where issue was whether insurer unduly delayed payment of interest while efforts to reach compromise were ongoing. No error in admitting accountant’s interest calculations despite his unavailability for cross-examination, as nature of calculation method could be discerned by comparing tables that had been prepared. See also, Melendez, §§ 31-278, 31-300, 31-303; and see May 24, 2001 ruling on motion to correct/articulate CRB decision in Melendez, § 31-301. Appeal procedure. Related decision in Melendez, 4178 CRB-2-00-1 (November 19, 2003), rev’d, 86 Conn. App. 880 (2005)(no jurisdiction to rule on motion to reopen CRB decision), § 31-301. Appeal procedure.
Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001).
Trier did not err by admitting testimony of doctor during rebuttal phase of claimant’s case. Practice Book rules regarding disclosure of witnesses do not technically apply in workers’ compensation forum, and respondents did not request continuance so that they might depose witness or obtain his records. Also, case law no longer prohibits introduction of medical opinion that is prepared on basis of statements made by patient for purpose of enabling expert to testify in litigation, as per George v. Ericson, 250 Conn. 312 (1999). See also, Donaldson, § 31-294d, § 31-301. Factual findings, § 31-307.
Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001).
Claimant alleged that commissioner’s examiner had improper contact with respondents, and mistakenly viewed his role as that of an independent medical examiner rather than an impartial commissioner’s examiner. However, no objection was made at time of formal hearing; issue was first raised in trial brief, and was not discussed by trier in her findings and conclusions. CRB held that trier has broad discretion to determine admissibility of evidence, and that she apparently rejected claimant’s challenge to credibility of the examiner’s report. Board declined to commence exploration of motivation behind doctor’s diagnosis on appeal, particularly where claimant did not offer strong evidence that doctor was predisposed to provide an opinion favorable to respondents. See also, Mosman, § 31-297, § 31-301. Factual findings, § 31-294f.
Pantanella v. Enfield Ford, 4220 CRB-1-00-4 (December 19, 2000).
CRB declined to review trial commissioner’s granting of Motion to Quash a notice of deposition, as appellant declared at oral argument that subsequent developments had made the deposition unnecessary. Issue rendered moot. See also, Pantanella, § 31-300. Prior decisions at Pantanella, 3937 CRB-1-98-11 (January 7, 2000), § 31-299b, § 31-300, § 31-301. Factual findings, § 31-298, § 31-315; and Pantanella, 3377 CRB-1-96-7 (January 28, 1998), § 31-298, § 31-299b, § 31-301. Factual findings, § 31-355(e). Pantanella decisions 3937 and 3377, aff’d, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001).
Vetre v. State/Dept. of Children and Families, 3443 CRB-6-98-12 (November 28, 2000).
Trier’s conclusion that state was “estopped” from denying compensability of psychiatric condition was not the basis of his finding of compensability; trier instead invoked “estoppel” only in evaluating the reasonableness of respondent’s defense. Though there was no proof that traditional equitable estoppel defense had been established, trier was using the term “estopped” more generally in light of the purpose and language of Chapter 568. See also, Vetre, § 31-297, § 31-300, § 31-307. Prior decisions at Vetre, 3948 CRB-6-98-12 (February 14, 2000), infra, § 31-301. Appeal procedure; and Vetre, 3443 CRB-6-96-10 (January 16, 1998), infra. Subsequent decisions at Vetre, 4378 CRB-6-01-4 (March 14, 2002), Vetre, 4728 CRB-6-03-9 (October 8, 2003).
Brown v. State/Dept. of Mental Health & Addiction Services, 4053 CRB-2-99-5 (July 27, 2000), aff’d, 66 Conn. App. 882 (2001), cert. denied, 259 Conn. 913 (2002).
No error for trier to deny State’s last-minute request to convert formal hearing into a “pre-formal hearing.” Statute does not entitle parties to such a proceeding, and trier has full discretion regarding its scheduling. Further, “prejudice” to State was minimized because State was allowed to introduce independent medical examination into evidence later despite its own failing to begin preparation of case until shortly before formal. See also, Brown, § 31-307, § 31-296 Voluntary agreements (discontinuance of payments). Prior decision at Brown, 3100 CRB-2-95-6 (December 23, 1996), § 31-296 Voluntary agreements (discontinuance of payments), infra.
Lafayette v. General Dynamics Corporation/Electric Boat Division, 3943 CRB-8-98-12 (April 18, 2000), rev’d, 255 Conn. 762 (2001).
See, Lafayette, § 31-275(1) (claimant sought to invoke collateral estoppel doctrine on strength of LHWCA ruling regarding causation).
Wlodyka v. First National Stores, 4025 CRB-2-99-4 (March 15, 2000).
CRB found that it was not error for trial commissioner to find that hearings were not requested or held for many years, as it was within the trier’s discretion to take administrative notice of prior hearings. See also, Wlodyka, § 31-307.
Saleh v. Poquonock Giant Grinder Shop, 4005 CRB-1-99-3 (March 13, 2000).
CRB found no error in trial commissioner’s taking administrative notice that prior hearings had been held on the issue of increased permanent partial disability. Board explained that although general rule is that trier should not review notes from prior informal hearings, in the instant case the commissioner merely referred to the fact that these hearings had been held. See also, Saleh, § 31-279-2, § 31-300, § 31-301-9, § 31-315.
Vetre v. State/Dept. of Children and Families, 3948 CRB-6-98-12 (February 14, 2000).
CRB affirmed trier’s decision to deny respondent access to records from claimant’s 1960’s psychiatric hospitalization after conducting in camera inspection pursuant to earlier CRB decision. See Vetre, 3443 CRB-6-96-10 (January 16, 1998), infra. Board reaffirmed its earlier decision to honor the right of privacy granted by § 52-146e, establishing patient-psychiatrist privilege in workers’ compensation forum. Board also rejected respondent’s argument that trier’s in camera inspection was insufficient because neither a medical expert nor counsel was allowed to participate in record review. Solitary in camera review was appropriate. Trier may seek aid of expert if medical significance of information is beyond judicial ken. Appellate inspection of records revealed no abuse of discretion by trier. See also, Vetre, § 31-301. Appeal procedure; Subsequent decision in Vetre, 3443 CRB-6-96-10 (November 28, 2000), supra, and § 31-297, § 31-300, § 31-307. Subsequent decisions at Vetre, 4378 CRB-6-01-4 (March 14, 2002), Vetre, 4728 CRB-6-03-9 (October 8, 2003).
Student v. Corometrics Medical Systems, Inc., 3980 CRB-8-99-2 (February 9, 2000).
CRB affirmed trial commissioner’s scarring award, which mentioned another commissioner’s assessment made at a prior informal hearing. Board cautioned that a commissioner should not review notes from a prior informal hearing. However, reference to informal hearing was harmless error, because the trier specifically stated that his scarring award was based upon his “own observation” and upon a physician’s evaluation which was in the record. See also, Student, § 31-275(1), § 31-294d, § 31-308(c).
Pantanella v. Enfield Ford, 3937 CRB-1-98-11 (January 7, 2000), aff’d, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001).
See, Pantanella, § 31-299b, § 31-300, § 31-301. Factual findings, § 31-315. Subsequent decision in Pantanella, 4220 CRB-1-00-4 (December 19, 2000), supra, § 31-300. Prior decision at Pantanella, 3377 CRB-1-96-7 (January 28, 1998), § 31-298, 31-299b, § 31-301. Factual findings, § 31-355(e).
Sansone v. Enfield, 3885 CRB-1-98-9 (November 18, 1999).
Commissioner decided general question of law and specific applicability of § 31-284b to claimant, even though both parties had signed a “Stipulation As To Procedure” contemplating bifurcated proceedings, with respondent having interlocutory appeal rights. Facts of case had also been stipulated, but respondent wished to introduce evidence regarding prior settlement agreement should it lose on the general legal question. CRB held that workers’ compensation commissioner does not have authority to issue an advisory opinion; specific facts of case must be addressed in order for an award to ensue. However, respondent was misled into believing that proceedings had been bifurcated, and effectively had no opportunity to introduce its evidence. Remand for another hearing. See also, Sansone, § 31-306, § 31-284b.
Johnson v. Braun Moving, Inc., 3861 CRB-7-98-7 (November 2, 1999).
Photocopies of medical reports were not admitted as full exhibits, but only for identification. Trier’s findings based on contents of those reports were vacated, and case was remanded for further proceedings. CRB also noted in footnote that it was not hearsay for claimant’s wife to testify that none of insurer’s representatives told her not seek out-of-state care for her husband. Statement (or omission) offered solely to show its effect on the hearer is not hearsay. See also, Johnson, § 31-275(9), § 31-294d.
Norwood v. Custom Design Services, Inc., 3844 CRB-7-98-6 (November 2, 1999).
Claimant objected to admission of IME deposition where physician did not recall having viewed videotape that showed another employee demonstrating claimant’s job duties. Videotape was not available during the deposition, but was viewed during the formal hearing by the trial commissioner and the claimant, who testified regarding alleged inaccuracies of said videotape. Board ruled that it was within the discretion of the commissioner to admit deposition and videotape. See also, Norwood, § 31-294d.
Pietraroia v. Northeast Utilities, 3838 CRB-8-98-6 (August 18, 1999), rev’d, 254 Conn. 60 (2000).
Claimant, a resident of Australia, refused to fly to United States in order to testify and submit to medical examination, protesting that he was too ill to travel. Trial commissioner dismissed his claim with prejudice, citing claimant’s failure to offer proof that he was medically unable to make the trip. CRB affirmed. Trial commissioner has authority to dismiss case where claimant refuses to attend hearings, and where he is not convinced that the claimant has adequately established an excuse for failing to appear. Reversed and remanded by Supreme Court. Though a commissioner has the power to dismiss a claim without adjudicating it on the merits if equity favors such a result, the trier here abused his discretion because procedures were available short of dismissal that would have protected both the claimant and the respondents’ legitimate interests. Prior decision at Pietraroia, 3597 CRB-8-97-4 (September 8, 1997), infra.
Zizic v. Sikorsky Aircraft Division, 3732 CRB-4-97-11 (July 7, 1999).
Claimant contended that trial commissioner erred in failing to allow into evidence the reports of two treating physicians, who were not authorized treating physicians. CRB agreed with claimant that even though the physicians were not authorized (and therefore their treatment was not compensable), as treating physicians their reports were admissible into evidence under § 52-174.
Cabral v. Metropolitan District Commission, 3770 CRB-1-98-2 (May 13, 1999).
Trial commissioner did not err by relying on the medical opinion of a doctor whose “rebreathing diffusion capacity test” was allegedly disfavored by the general medical community. Section 31-298 gives the trier discretion to choose among alternative diagnostic methods in fulfilling fact-finding duties. CRB acknowledged existence of preferred procedures and medical protocols, but stressed the importance of maintaining a degree of flexibility regarding authorized diagnostic and treatment techniques where customized treatment proves necessary. CRB discussed impact of State v. Porter, 241 Conn. 57 (1997), which mildly relaxed the common-law standard in Connecticut for the admissibility of scientific evidence by changing the nature of the admissibility test. Panel decided that Porter corroborates the deferential approach sanctioned by this board. See also, Cabral, § 31-301. Factual findings.
Bryan v. Sheraton-Hartford Hotel, 3730 CRB-1-97-11 (May 7, 1999), rev’d, 62 Conn. App. 733 (2001).
Trial commissioner affirmed as to scope of proceedings after CRB remand where CRB granted, in part, the claimant’s Motion to Submit Additional Evidence. Trial commissioner refused to consider respondents’ evidence admitted after remand. That evidence tended to undermine the credibility and foundation of the additional report proffered by the claimant. CRB concluded the weight to be given the respondents’ evidence was a matter within the trier’s purview and noted that the report in question was cumulative of an earlier report given by the same physician. Appellate Court reversed, holding that the evidence was not cumulative, but rather constituted a recantation of previously admitted evidence, and that due process entitled the respondents to offer evidence in rebuttal of claimant’s evidence. Judgment directed. See related case, Bryan, 3320 CRB-1-96-4 (January 29, 2002), aff’d, 74 Conn. App. 901 (2002), cert. denied, 263 Conn. 916 (2003).
Capra v. State/Dept. of Correction, 3791 CRB-4-98-4 (April 27, 1999).
No legal requirement that doctor’s diagnosis be obtained in the form of a hypothetical question. Acceptance of deposition into evidence was not an abuse of discretion, as non-hypothetical questions asked by respondent to its examiner did not rely improperly on underlying hearsay information. See also, Capra, § 5-145a, § 31-301. Appeal procedure.
Wysocki v. State/Cedarcrest Hospital, 3807 CRB-6-98-4 (April 12, 1999).
Trial commissioner did not order the respondent to pay for the deposition of one of the claimant’s treating physicians/expert witnesses. Respondent claimed the necessity to pay for the deposition was pursuant to P.A. 97-106 (amending § 31-298), which was passed after the claimant’s date of injury. CRB held, inter alia, that P.A. 97-106 only affected a matter of procedure, thus making it applicable to the instant matter. Case remanded to determine the reasonableness of witness’ fee.
John v. State/University of Connecticut Health Center, 3729 CRB-3-97-11 (March 1, 1999).
Claimant made a convincing argument regarding the inequitable nature of the formal hearing proceedings caused by the surprise introduction of medical reports that opposing counsel had promised to provide to the claimant. In order to provide her with a full and fair opportunity to present her case and to respond to the employer’s evidence, CRB remanded the matter to be heard de novo by another trial commissioner.
Aguayo v. Franklin Mushroom Farms, Inc., 3697 CRB-2-97-1 (January 28, 1999).
CRB reversed trial commissioner’s order that respondents pay for the cost of claimant’s witness, a vocational rehabilitation expert, as § 31-298 does not allow for same. See also, Aguayo, § 31-300.
Bailey v. State/Greater Hartford Community College, 3694 CRB-1-97-9 (January 12, 1999), aff’d in part, rev’d in part, 65 Conn. App. 592 (2001).
Interlocutory appeal from two evidentiary decisions by trial commissioner. Trier must abide by restriction of proceedings on remand to disability period through January 20, 1994. Ruling that employer should be denied another independent medical examination or further opportunity to obtain records was within trier’s discretion; he felt that respondent had not pursued discovery with proper diligence. Parties had agreed that claimant would only have to testify on one occasion, and trier’s adherence to that agreement was reasonable as well. Appellate court reversed, holding that respondent had right under § 31-294f to demand examination at any time upon reasonable request, and commissioner should have worked with parties to ensure that respondent obtained examination with “all deliberate speed . . . and with consideration for the [claimant]’s psychological condition.” See also, Bailey, § 31-301. Appeal procedure. Subsequent decision at Bailey, 3922 CRB-2-98-10 (November 30, 1999), aff’d in part, rev’d in part, 65 Conn. App. 592 (2001), § 31-300, § 31-307, and Bailey, § 31-284b, § 31-294d, § 31-301. Factual findings. Prior decision at Bailey, 15 Conn. Workers’ Comp. Rev. Op. 433, 3152 CRB-5-95-8 (September 3, 1996), § 31-301. Appeal procedure, § 31-301. Factual findings.
Boland v. Solar Atmospheres of New England, Inc., 3673 CRB-8-97-9 (October 19, 1998).
The respondents argued on appeal that the trial commissioner erred in allowing the reports of the IME physician into evidence without requiring that the claimant conduct a deposition, even though it was the respondents who had requested the examination by the IME physician. During the formal hearing, the respondents were provided with the opportunity to depose or subpoena the physician, but chose not to, and thus cannot now claim that they were denied due process.
Villalta v. Paychex, Inc., 3680 CRB-7-97-8 (October 13, 1998).
The claimant appeared pro se during the formal hearings. When the respondents introduced an IME report, the claimant was not advised that he had a right either to request that the respondents conduct a deposition, or in the alternative, that he had the right to himself pursue a deposition. The trial commissioner’s decision was largely based upon the IME report. Accordingly, the CRB remanded for a de novo hearing.
Artese v. Sikorsky Aircraft, 3621 CRB-4-97-6 (July 30, 1998).
Parties agreed in 1990 stipulation that respondents would be responsible for lumbar surgery if treating physician prescribed it and if it was related to 1987 compensable injury. Claimant declined surgery at that time, but sought to have it several years later. Respondents offered evidence that subsequent incidents were the cause of the claimant’s back problems, while treating physician issued report in 1996 that ascribed L4-L5 discopathy to 1987 injury, and recommended surgery. Trial commissioner concluded stipulation was valid, and authorized the claimant to return to the treating physician for an opinion as to whether surgery as a result of the 1987 injury was appropriate. If the doctor opined that it was, the commissioner stated that he would be authorized to perform the surgery. CRB affirmed decision. Credibility issues regarding other doctors’ medical reports and claimant’s testimony were for trial commissioner to resolve, and the trier was not precluded by § 31-298 from seeking another examination by Dr. Lipow.
Fenton v. A.C.E.S., 3752 CRB-3-97-12 (June 23, 1998).
The respondents appealed from the trial commissioner’s denial of their Motion to Compel the claimant to testify at a deposition. The trial commissioner denied the motion because the claimant’s physician opined that it would threaten the claimant’s health (the claimant was awaiting a heart transplant). CRB remanded in order for the trial commissioner to issue a ruling regarding how the discovery process would proceed.
Cutler v. State/DMR Region 4, 3506 CRB-7-96-12 (April 28, 1998).
CRB set forth procedure for determining whether a non-attorney qualifies as an “accredited representative” under § 31-298. Instant case remanded, as trier’s refusal to allow union staffer to represent claimant was apparently premised solely on her lack of malpractice insurance.
Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998).
Respondent argued that commissioner erred by failing to admit an independent medical examiner’s deposition into evidence. CRB affirmed. Respondent failed to mark deposition as an exhibit, making review more difficult, and discussion of deposition at formal hearing showed that respondent did not notify claimant of the deposition until the day before it was being held, which was two days before the formal hearing. Reasonable exercise of trier’s discretion to exclude it from evidence. See also, Tanzi, § 31-301. Factual findings.
Dixon v. United Illuminating Co., 3543 CRB-4-97-3 (April 9, 1998).
No error in admitting testimony of psychologist into evidence and relying on it regarding causation of decedent’s suicide. Trier has wide discretion to admit expert opinion in workers’ compensation matters, and psychologists’ reports are generally admissible. Although psychologist was not specifically an expert in suicide, nor was she a medical doctor, she had experience in substance abuse, depression and chronic pain patients. This gave her opinion a sufficient foundation to warrant its entry into evidence; any other questions implicated the weight of the evidence rather than its admissibility. See also, Dixon, § 31-301. Factual findings.
Diaz v. Robert W. Baker Nursery, Inc., 3309 CRB-1-96-3 (March 5, 1998).
Respondents objected to admission of IME report where IME doctor was located in Massachusetts. During formal hearing, respondents advised trial commissioner that they may wish to depose said doctor, but later on during the formal hearing the respondents decided to rest their case. As respondents chose the out-of-state doctor, and never attempted to depose him, there was no denial of due process.
Fenn v. Hospital of St. Raphael, 3444 CRB-3-96-10 (February 25, 1998).
Where evidence was apparently misplaced by this Commission, the trier had the authority to schedule a second formal hearing for the sole purpose of readmitting the misplaced exhibit. See also, Fenn, § 31-300, § 31-325.
Swaggerty v. Mattie’s Service Station, 3378 CRB-6-96-7 (February 3, 1998).
Trier did not err by failing to include findings regarding prior convictions of alleged assailant, nor was he required to find for claimant based on fact that alleged assailant pleaded no contest to criminal charges of ridicule based on race and reckless endangerment. Exception allowing evidence of violent character based on prior convictions where a homicide defendant alleges self-defense on his own behalf does not automatically extend to other cases, and trier was not bound by ordinary evidentiary rules anyway. Factual findings based on testimony of several witnesses supported the trier’s finding that the claimant engaged in horseplay unrelated to work duties when he was injured. See also, Swaggerty, § 31-284(a), § 31-301. Factual findings.
Gibbs v. New England Home Care, 3291 CRB-3-96-2 (February 2, 1998).
Trier concluded car accident occurred outside course of claimant’s employment. Affirmed. Respondents’ questioning of claimant on witness stand about prior arrests was not referred to in trier’s decision, and even assuming it was irrelevant, a trial commissioner is unlikely to be swayed by the introduction of irrelevant evidence. Introduction of claimant’s no-fault auto insurance claim at supplemental formal hearing not improper. Impact of that item likely minimal, and trier has the right to accept evidence until the time the record is formally closed. CRB agreed that telephonic deposition compromised claimant’s ability to effectively cross-examine witness, but claimant failed to object to the introduction of that deposition into evidence. Evidentiary rulings must be preserved by an objection before they may be considered on review by an appellate body.
Pantanella v. Enfield Ford, 3377 CRB-1-96-7 (January 28, 1998), aff’d, 65 Conn. App. 46 (2001), cert. denied, 258 Conn. 930 (2001).
No error for trier to refuse to hold record open so CIGA attorney could depose treating physician where counsel had already been given sufficient opportunity to do so, but had not acted with due diligence. Further, failure to mark deposition as an exhibit for identification after it was denied admission as a full exhibit prevented the CRB from taking notice of its existence on appeal. See, Pantanella, § 31-299b, § 31-301. Factual findings, § 31-355(e). Subsequent decisions in Pantanella, 4220 CRB-1-00-4 (December 19, 2000), supra, § 31-300; Pantanella, 3937 CRB-1-98-11 (January 7, 2000), § 31-299b, § 31-300, § 31-301. Factual findings, § 31-315.
Vetre v. State/Dept. of Children and Youth Services, 3443 CRB-6-96-10 (January 16, 1998).
Trier has discretion to admit psychiatric records where claimant raised mental condition as part of claim and where interests of justice favor their introduction into evidence. In this case, trier should have conducted in camera inspection of claimant’s psychiatric records from 1960’s hospitalization before ruling that those records were too remote to be relevant. Subsequent decisions at Vetre, 3443 CRB-6-96-10 (November 28, 2000), supra, and § 31-297, § 31-300, § 31-307; Vetre, 3948 CRB-6-98-12 (February 14, 2000), supra. Subsequent decisions at Vetre, 4378 CRB-6-01-4 (March 14, 2002), Vetre, 4728 CRB-6-03-9 (October 8, 2003).
Ferrara v. The Hospital of St. Raphael, 3260 CRB-3-96-2 (November 14, 1997), aff’d, 54 Conn. App. 345 (1999), cert. denied, 251 Conn. 916 (1999).
A commissioner can order a respondent to pay the appearance fee for a doctor deposed by the claimant. Although not mandatory, such an order is permissible, and respondents contested extent of disability here, so a separate hearing was not required before the order could be made. See also, Ferrara, § 31-301. Factual findings.
Spears v. Spears, 2082 CRB-2-94-6 (October 30, 1997), dismissed for lack of a final judgment, A.C. 17819 (January 15, 1998).
Supreme Court has stated that a fact conceded by a party has the force of a judicial admission, with the court retaining the discretion to allow its withdrawal if made by improvidence or mistake. CRB would apply a similar rule in workers’ compensation proceedings. However, the “admission” in this case concerned a purely legal question not susceptible to judicial admission, and the issue was thus obviated. See also, Spears, § 31-278.
Leary v. Stamford, 3280 CRB-7-96-3 (September 17, 1997).
Commissioner is not bound by ordinary rules of evidence under this statute. Broad discretion existed to determine admissibility of hospital record. Claimant had reasonable basis to object at trial that said record was incomplete, and that single 1986 blood pressure reading was not a reliable indicator of hypertension. No error. See also, Leary, § 7-433c.
Casertano v. Shelton, 3329 CRB-4-96-4 (September 16, 1997).
Claimant’s attorney believed that he had restricted the disputed issue below to the date the claimant found out he was hypertensive. Trial commissioner proceeded to rule that notice was untimely. Despite policy against cases being tried piecemeal, a party must be aware that a certain element of a case is at issue. Here, the date notice of injury was provided and the form and method of that notice were never discussed. Case remanded to trial commissioner for further proceedings on the notice issue.
Pietraroia v. Northeast Utilities, 3597 CRB-8-97-4 (September 8, 1997).
Claimant, who lives in Australia and claims to be unable to travel due to infirmity, was ordered by trier to attend a deposition, independent medical examination, and a formal hearing in Connecticut by 9/1/97, or “absent good cause,” the trier might declare a mistrial. Claimant appealed that ruling. Held: Appeal is not premature, as the claimant has manifested a clear intent to disobey order akin to “anticipatory breach” in contract law. No error on merits of appeal; trier has discretion to order a claimant to appear in this state so that he may be confronted by respondents. Due process applies to all parties in workers’ compensation proceedings. Also, claimant had not offered evidence to show that he was actually incapable of travel. Subsequent decision at Pietraroia, 3838 CRB-8-98-6 (August 18, 1999), rev’d, 254 Conn. 60 (2000), supra.
Conetta v. Stamford, 16 Conn. Workers’ Comp. Rev. Op. 228, 3231 CRB-7-95-12 (June 23, 1997), appeal dismissed, 246 Conn. 281 (1998).
CRB noted in earlier decision that trier had attached a copy of the Stamford city charter to her decision and referred to it in her findings, but had not taken it into evidence or administratively noticed it. On remand, the trier ruled that the charter would be excluded from evidence “in accordance with the remand directive.” She ultimately dismissed the claim. Realizing that the trial commissioner had misunderstood the nature of its previous ruling in this case, and that this had likely affected her decision, the board ordered that the case be reheard. It was assigned to a different commissioner in order to preserve the vital appearance of impartiality in Commission proceedings. See also, Conetta v. Stamford, 13 Conn. Workers’ Comp. Rev. Op. 68, 1491 CRB-7-92-8 (December 29, 1994), § 31-294c, § 31-275(1), § 31-301. Factual findings.
Soto v. Hawie Manufacturing Co., 16 Conn. Workers’ Comp. Rev. Op. 196, 3238 CRB-4-95-12 (May 20, 1997).
At the first formal hearing in this case, the commissioner apparently recommended to the respondents that they advance $6000 to the claimant until the continuation of the proceedings. She then stated that she would consider rendering a decision if that amount was not paid. When the advance was not tendered, the claimant requested that the trier issue a decision. Instead, she scheduled a second formal hearing, at which she expressed anger at the insinuation that she had communicated ex parte with either party or that there were “monies involved” in her communication with claimant’s counsel. The respondent requested that she disqualify herself, but she declined. Eventually, a decision was issued in the claimant’s favor. Held: the appearance of impropriety is the benchmark of whether disqualification should occur, not actual impartiality. Even though the trier undoubtedly believed that she had not prejudged the case, the record shows that she suggested an advance to the claimant, and felt the need to defend herself from allegations of bias. To a neutral observer, there would be a suspicion that the commissioner had already decided this case. Decision vacated; new trial. Subsequent decision at Soto, 3787 CRB-4-98-3 (May 21, 1999), § 31-301. Factual findings.
Hodgdon v. UTC/Pratt & Whitney, 16 Conn. Workers’ Comp. Rev. Op. 164, 3150 CRB-1-95-8 (May 2, 1997).
Claimant argued that trier improperly decided the issues of total disability and entitlement to § 31-308a benefits after limiting the formal hearing to the issue of causation. Affirmed. At the first formal hearing, compensability and benefits were both at issue, and the claimant introduced evidence regarding both. At the end of the hearing, the parties agreed to leave the record open only for the introduction of specific items. The next formal hearing was held several years later, and the claimant was represented by different counsel, who wanted to introduce further evidence. The trier decided that the previous agreement limiting the evidence applied despite the change in counsel. He admitted the previously discussed evidence, and then closed the record “on causation.” CRB held that the trier was not required to exercise his discretion to allow further evidence; claimant was not denied due process. See also, Hodgdon, § 31-301. Factual findings.
Brown v. Connecticut Aerosol, 3169 CRB-3-95-5 (April 7, 1997).
Claimant was hurt in a chemical explosion at Connecticut Aerosol on June 14, 1974, which injury was accepted as compensable. He subsequently worked for other employers, and made a claim against them for repetitive trauma injuries to his right leg and vascular system, which was dismissed for failure to file a timely claim. The claimant then sought to collect temporary total disability benefits from Connecticut Aerosol, alleging that his condition was due to the 1974 injury, and denying the occurrence of intervening repetitive trauma. Trier took notice of 1993 Finding and Dismissal in making his decision here. CRB held that a party cannot present his case in a piecemeal fashion, taking a second bite at the apple after a first attempt fails. Claimant not entitled to seek compensation from original employer now that his claim for compensation against subsequent employers for the same time period failed in prior proceedings. Issue of total disability from 1990 through date of formal hearings has now been litigated, and trier did not err by holding that the claimant was bound by his prior allegations of repetitive trauma. See also, Brown, § 31-301. Factual findings.
Liano v. Bridgeport, 3199 CRB-4-95-10 (March 25, 1997).
Within discretion of trial commissioner to limit claimant’s testimony to events within relevant time period. See also, Liano, § 31-279-3, § 31-298, § 31-307, § 31-296 Voluntary agreements (discontinuance of payments). Subsequent decisions at Liano, 3561 CRB-4-97-3 (June 3, 1998), rev’d in part, 55 Conn. App. 75 (1999), cert. denied, 252 Conn. 909 (1999), § 31-300; Liano, 3447 CRB-4-96-10 (January 6, 1998), aff’d, 51 Conn. App. 905 (per curiam), cert. denied, 248 Conn. 907 (1999), § 7-433c; companion decision at Liano, 3299 CRB-4-95-10 (March 25, 1997), § 31-294c, § 31-297, § 31-301. Factual findings. Prior decision at Liano, 14 Conn. Workers’ Comp. Rev. Op. 201, 2033 CRB-4-94-5 (July 25, 1995), appeal and cross appeal dismissed, lack of final judgment, A.C. 15082 (June 6, 1996), cert. denied, 238 Conn. 906 (1996), § 7-433b, § 31-300, § 31-310.
Rindos v. J.F. Barrett & Sons, 3188 CRB-3-95-8 (February 27, 1997).
See, Rindos, § 31-279-2, Attendance at hearings.
Santora v. A.C.E.S., 2299 CRB-3-95-11 (February 26, 1997).
Insurer sent timely notice of intent to transfer neck injury on October 25, 1993. However, commissioner found that compensation paid through January 24, 1994 was for other injuries, as claimant was not yet disabled on account of neck. Further, doctor’s opinion did not make clear whether pre-existing arthritic condition in cervical spine made resulting disability materially and substantially greater. Commissioner “dismissed without prejudice” the insurer’s claim for transfer, subject to two conditions: that parties stipulate medical causation not at issue, and that respondents “have paid 104 weeks of disability on behalf of cervical spine.” Trier also granted Motion to Correct, adding a finding that claimant’s initial disability was due to all injuries, including cervical spine. Held: corrected finding plainly contradicts original finding, and is inconsistent with conclusion that 104 weeks not yet paid. Also, commissioner clearly did not believe that respondents had met burden of proving entitlement to transfer, but tried to leave claim open by dismissing without prejudice. Such a decision is not appropriate in workers’ compensation proceedings. If respondents cannot prove case, commissioner should dismiss claim unconditionally. Dismissal “without prejudice” left parties uncertain as to effect of decision and proper course of action to take thereafter. This was not a meaningful disposition of the case. CRB remanded the matter for clarification of findings on the two open issues, limited to the evidence in the record. Respondents did not request further evidence at formal hearing, and are not entitled to “second bite at the apple.” See also, Santora, § 31-349 and § 31-315.
Pinto v. General Signal Corp., 2277 CRB-5-95-1 (January 22, 1997), dismissed for lack of a final judgment A.C. 16874 (October 30, 1997).
See, Pinto, § 31-315.
Brown v. State/Norwich State Hospital, 3100 CRB-2-95-6 (December 23, 1996).
See, Brown, § 31-296 Voluntary agreements (discontinuance of payments). Subsequent decision in Brown, 4053 CRB-2-99-5 (July 27, 2000), infra and § 31-307; See also, Brown, § 31-296 Voluntary agreements (discontinuance of payments).
Minneman v. Norwich/Board of Education, 2294 CRB-2-95-2 (December 13, 1996), aff’d, 47 Conn. App. 913 (1997)(per curiam), cert. denied, 243 Conn. 962 (1998).
Although a document not offered into evidence normally may not be relied on in the findings, even if marked for identification, the depositions in this case were properly used in the decision. Both parties’ attorneys were present at the depositions, and they agreed on the record that said depositions would be forthcoming. Neither appeared to contemplate that a formal introduction into evidence of the transcripts would be necessary. See also, Minneman, § 31-300, and § 31-301.
Blassingame v. Acme Steel Co., 16 Conn. Workers’ Comp. Rev. Op. 20, 3007 CRB-6-95-3 (October 8, 1996), aff’d, 45 Conn. App. 914 (1997)(per curiam).
Trial commissioner did not err by failing to award claimant the costs of certain medical examinations and testimony; although § 31-298 authorizes the commissioner to award such fees, it does not require such an award in any given case. See also, Blassingame, § 31-308.
Mahoney v. Bill Mann Tree Service, 16 Conn. Workers’ Comp. Rev. Op. 17, 3025 CRB-4-95-3 (October 4, 1996).
Commissioner relied on doctor’s report that was not part of the exhibits and transcripts. As this report was the sole basis of the commissioner’s finding of permanent partial disability, the case was remanded for further findings. See also, Mahoney, § 31-294d. Subsequent decision at Mahoney, 4095 CRB-4-99-8 (August 10, 2000), aff’d, 67 Conn. App. 134 (2001), § 31-303(b), § 31-308a.
Norton v. James Fleming Trucking, Inc., 15 Conn. Workers’ Comp. Rev. Op. 472, 2119 CRB-1-94-8 (September 16, 1996).
Commissioner found that no evidence was presented to establish employment relationship between claimant and alleged employer. Claimant argues that commissioner should not have determined jurisdiction because it was not made an issue in the hearing notice, and it was undisputed among the parties. Held, claimant must establish elements of claim, including employment relationship and its causal link to an injury, to prove entitlement to compensation. No proof provided that parties had agreed to jurisdiction. Allingham v. Burns International Security, 14 Conn. Workers’ Comp. Rev. Op. 333, 1977 CRB-1-94-2 (September 20, 1995), infra, distinguished. There, parties had assumed jurisdictional issue settled by stipulation, and commissioner did not give them a chance to address that issue before ruling on it. See also, Norton, § 31-301. Appeal procedure.
Mulroy v. Becton Dickinson, 15 Conn. Workers’ Comp. Rev. Op. 455, 2295 CRB-8-95-2 (September 6, 1996), aff’d, 48 Conn. App. 774 (1998).
Commissioner has discretion to determine relevancy and remoteness of evidence. No error in limiting scope of bias inquiry regarding doctor’s departure from employer, as his testimony was not fundamental to the decision, and exploring such a peripheral issue would have required significant extra time and testimony. Also, regardless of a possible private arrangement between claimant and UConn Medical Center, commissioner had authority to order respondents to pay testimonial fees for medical center employees. See also, Mulroy, § 31-301, Factual findings and Mulroy, 16 Conn. Workers’ Comp. Rev. Op. 7, 2295 CRB-8-95-2 (October 2, 1996), § 31-301c (Interest added to award affirmed on appeal). Also see later Mulroy, 4083 CRB-5-99-7 (September 29, 2000), § 31-349.
Bailey v. Stripling Auto Sales, 15 Conn. Workers’ Comp. Rev. Op. 369, 3095 CRB-2-95-6 (June 28, 1996).
Social Security records were excluded from evidence, but claimant never attempted to introduce them. No appealable issue. See also, Bailey, § 31-278, and § 31-308a. See subsequent decision Bailey, 3461 CRB-3-96-11 (April 9, 1998), § 31-315 and Bailey, 4516 CRB-2-02-4 (May 8, 2003), § 31-298, § 31-307a.
Harris v. UTC/Pratt & Whitney, 15 Conn. Workers’ Comp. Rev. Op. 357, 3143 CRB-5-95-8 (June 26, 1996).
Trial commissioner dismissed claimant’s work-related emotional stress claim (which was not yet excluded by § 31-275(16) at time of injury). Commissioner had discretion under § 31-298 to exclude physician’s reports that were expressly prepared for use in workers’ compensation claim. See, Zawisza v. Quality Name Plate, Inc., 149 Conn. 115 (1961). However, commissioner erroneously failed to consider admitting the reports of a treating psychologist, as the Act allows inclusion of psychologists’ reports into evidence. De novo trial ordered. See also, Harris, § 31-275(17). Subsequent decision at Harris, 3762 CRB-1-98-1 (February 23, 1999), aff’d, 56 Conn. App. 912 (2000)(per curiam), cert. denied, 253 Conn. 907 (2000), § 31-294f, § 31-301-9, § 31-315.
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).
Trial commissioner had authority to admit signed, undated document into evidence; statute grants broad discretion. See also, Nelson, § 31-275(9) for details of case.
Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 2150 CRB-3-94-9 (December 7, 1995).
Commissioner improperly left total disability issue open for claimant to produce additional evidence. Parties are not entitled to present their cases piecemeal, and the absent wage records cited by the commissioner have no discernible impact on the total disability issue. (Vargas, C., DISSENTING) (commissioner must be given discretion to hear claim in the manner he deems appropriate; no jurisdictional bar against postponing a decision to await further evidence).
Olds v. Howe Place Associates, 15 Conn. Workers’ Comp. Rev. Op. 63, 2099 CRB-3-94-7 (December 5, 1995).
Commissioner found no insurance on date of injury; respondent argued on appeal neither it nor Second Injury Fund knew proceedings were closed on issue of insurance. Held: respondent placed several documents related to insurance issue into evidence. In light of concurrent Superior Court suit on insurance issue, commissioner properly chose to award claimant benefits immediately. If civil proceedings establish existence of insurance contract, respondent can seek modification of award to allow reimbursement from insurer.
McClinton v. Bridgeport, 15 Conn. Workers’ Comp. Rev. Op. 39, 2079 CRB-4-94-6 (November 28, 1995).
CRB affirmed commissioner’s determination that the claimant suffered from a stress disorder which caused her to be temporarily totally disabled, and that her condition was caused by a prior compensable head injury. Contrary to arguments made by the respondents, in reaching his determination a trial commissioner may rely upon a medical report which is the result of a commissioner-ordered examination.
Pothier v. Stanley-Bostitch/The Bostitch Co., 15 Conn. Workers’ Comp. Rev. Op. 13, 2019 CRB-3-94-4 (November 7, 1995).
Commissioner had vacated his decision in order to allow CIGNA to present a brief, which CIGNA had not done due to legitimate confusion. Based upon the compelling circumstances regarding due process in this case, CRB concluded that the commissioner properly exercised his discretion in granting the motion to vacate.
Mercado v. Personal Moving Services, 14 Conn. Workers’ Comp. Rev. Op. 364, 2023 CRB-4-94-5 (September 26, 1995).
Respondent requested a postponement of the commissioner’s hearing on the day prior to the hearing, which commissioner denied. Section 31-279-4 states in part that no party can assume the granting of a continuance to produce witnesses at a later date. It is within the broad discretion of the commissioner to grant or deny a continuance, and such a decision is virtually unreviewable. CRB concluded that it was within the trial commissioner’s discretion to conduct the formal hearing and to issue a decision without the respondent’s participation.
Senoski v. Corometrics, Inc., 14 Conn. Workers’ Comp. Rev. Op. 344, 1906 CRB-8-93-11 (September 22, 1995), appeal dismissed, A.C. 15289 (April 30, 1996).
CRB affirmed commissioner’s determination that the claimant’s tendonitis was not caused by her use of a glass-pulling machine at work. Claimant on appeal objected to the showing of a video of another person using the glass-pulling machine. Because the claimant failed to make a timely objection to the admission of the video film at the formal hearing, the CRB would not consider the matter on appeal. Trial commissioner made a credibility determination based upon the transcript of claimant’s testimony (taken by a prior commissioner who had since retired) of the claimant regarding the use of the machine and based upon viewing the video. See also, Senoski, § 31-275(1).
McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 2050 CRB-3-94-5 (September 20, 1995), aff’d, 43 Conn. App. 912 (1996)(per curiam).
See, McVety, § 31-294 (due process requirements as to notice and hearing; parties must have chance to be heard).
Smith v. Aetna Life & Casualty, 14 Conn. Workers’ Comp. Rev. Op. 336, 2006 CRB-1-94-3 (September 20, 1995), aff’d, 43 Conn. App. 910 (1996)(per curiam).
Trial commissioner had discretion to deny admission of letter of resignation as evidence, as its credibility would have been questionable, and claimant could have testified to its substance. See also, Smith, § 31-294c, and § 31-301. Factual findings.
Allingham v. Burns International Security, 14 Conn. Workers’ Comp. Rev. Op. 333, 1977 CRB-1-94-2 (September 20, 1995).
Claimant, respondent stipulated to existence of subject matter jurisdiction. Trial commissioner found this improper, and found that facts did not support jurisdiction. Petition for review was received fourteen days after award; it noted that the commissioner’s decision was received by regular mail. Held, normally CRB would require a finding as to date notice of appeal sent. See, Conaci v. Hartford Hospital, 36 Conn. App. 298 (1994). However, two reasons prevent doing so here. First, § 31-321 was not complied with in sending notice of decision, thus potentially prejudicing claimant. Second, trial commissioner deprived the claimant of due process by dismissing claim for lack of subject matter jurisdiction without notifying parties that it was at issue; parties had assumed it was stipulated, and did not have a chance to be heard. Remanded.
Pascarelli v. Moliterno Stone Sales, 14 Conn. Workers’ Comp. Rev. Op. 328, 2115 CRB-4-94-8 (September 15, 1995), aff’d, 44 Conn. App. 397 (1997).
See, Pascarelli, § 31-287 (CRB deferred to commissioner’s decision to honor bankruptcy stay); See also, Pascarelli, § 31-310.
Manns v. UTC/Pratt & Whitney, 14 Conn. Workers’ Comp. Rev. Op. 267, 1960 CRB-1-94-1 (September 6, 1995).
Claimant contended that trial commissioner did not have jurisdiction to decide no further treatment necessary when issue at hearing was payment of prescription bills. CRB affirmed: because medical reports were already in evidence, claimant was not denied opportunity to present his argument. Issues surrounding prescriptions substantially similar to those surrounding further medical treatment; decision not beyond scope of commissioner’s jurisdiction. Also, evidence supported finding that further treatment was unnecessary.
Dixon v. United Illuminating Co., 14 Conn. Workers’ Comp. Rev. Op. 215, 1996 CRB-4-94-3 (August 4, 1995).
Trial commissioner should have allowed respondents’ request to depose claimant widow; our system encourages full disclosure and cooperation, and commissioner has power to order such a deposition under § 31-278. Failure to produce psychiatric records could not be addressed, as that issue was not ruled on by trial commissioner (although CRB noted that § 52-146f applies). Board also had jurisdiction to hear appeal from this particular interlocutory ruling. (Brouillet, C., DISSENTING in part) (discusses need for limitation on interlocutory appeals; no written decision in this case, so review inhibited. Also, no formal hearing on request to depose. Respondents should have used § 51-85 procedure to obtain deposition of witness; ruling exceeded commissioner’s authority and conflicted with that procedure). See also, Dixon, § 31-278.
Yablonski v. Danbury Hospital, 14 Conn. Workers’ Comp. Rev. Op. 212, 1968 CRB-7-94-2 (July 27, 1995), aff’d, 43 Conn. App. 912 (1996)(per curiam).
CRB affirmed the trial commissioner’s determination that the claimant sustained a traumatic brain injury as a result of an attack by a patient. The respondents specifically objected to the admission of a medical report signed by a clinical neuropsychologist who treated the claimant. The respondents contended that the report was not admissible pursuant to § 52-174(b) C.G.S. CRB found no error on the basis that under § 31-298, the trial commissioner had the discretion to admit the medical reports of the claimant’s treating neuropsychologist. The respondents failed to exercise their opportunity to cross-examine the doctor, and cannot complain on appeal that they did not receive due process. Distinguished Lee v. Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 1626 CRB-7-93-1 (November 7, 1994) and stated that Lee was limited to the specific factual circumstances of that case.
Burr v. Hoffman Water Treatment Co., 14 Conn. Workers’ Comp. Rev. Op. 180, 2125 CRB-8-94-8 (June 29, 1995).
CRB has power to take judicial notice of matters of fact; decision to do so is discretionary, and depends on nature of subject. Here, commissioner erred in not giving parties prior notice and opportunity to be heard before construing Notice of Claim to be for permanent partial disability benefits; meaning of notice was susceptible to more than one explanation, and parties should have had a chance to contest its meaning. See also, Burr, § 31-308(b).
Holle v. The William Backus Hospital, 14 Conn. Workers’ Comp. Rev. Op. 166, 169, 2039 CRB-2-94-4 (June 29, 1995).
The trial commissioner found that the claimant failed to sustain her burden of proof that she suffered any injuries which were causally related to her employment. Specifically, the trial commissioner found that the claimant, a registered nurse, failed to establish that her symptoms were causally related to a vaccine which had been administered in the course of her employment. In support of appeal to CRB, claimant contended that the deposition of her treating physician and a rubella screen were improperly admitted into evidence. CRB found no error as claimant’s attorney attended the deposition and had not objected to the admissibility of the rubella screen which the respondents submitted as an exhibit at the deposition.
Lee v. ABB Combustion Engineering, 14 Conn. Workers’ Comp. Rev. Op. 157, 2134 CRB-1-94-8 (June 27, 1995).
Trial commissioner denied motion for discovery and production seeking psychologist’s records on the ground that it was beyond claimant’s power to produce his notes. CRB reversed. Section 52-146c(b) privilege does not extend to situation where party introduces her psychological condition as part of her claim, and claimant here agreed to waive her privilege. Psychologist did not have independent standing to assert statutory privilege. Also, notes requested here must be produced under § 31-294f(b), and commissioner had power under § 31-278 to order psychologist to release his notes as soon as he submitted himself to jurisdiction of commissioner by testifying for claimant. See also, Lee, § 31-301.
Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995).
Claimant objected to admission of hearsay documents and hearsay testimony regarding his unsatisfactory work record, contending it was irrelevant. CRB found no error. Discussion of hearsay, due process, and irrelevant evidence. Distinguishes Lee v. Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 1626 CRB-7-93-1 (November 7, 1994). See also, Peters, § 31-275(1), and § 31-301. Factual findings.
Giovino v. West Hartford, 14 Conn. Workers’ Comp. Rev. Op. 74, 1912 CRB-1-93-12 (May 12, 1995).
Respondents objected to claimant’s submission of an IME at formal hearing on basis of hearsay. The IME had been arranged at the request of the respondents. CRB held that an independent medical exam report is admissible at a formal hearing provided the objecting party has an opportunity to cross-examine the author. If the objecting party does not act with due diligence by failing to either depose or subpoena the authoring physician, the objecting party cannot later complain that it did not have the opportunity to cross-examine. CRB distinguished holding in Lee v. Norwalk, 1626 CRB-7-93-1 (November 7, 1994) by stating that “the decision in Lee was limited to the specific factual circumstances of that case.” See also, Giovino, § 31-294c, and § 31-310.
Fontanella v. C.H. Moore Company, 14 Conn. Workers’ Comp. Rev. Op. 66, 1916 CRB-2-93-12 (May 11, 1995).
Commissioner found claimant’s back injury compensable. Respondent’s sole contention on appeal was that the commissioner improperly admitted a handwritten note by claimant’s treater. CRB found no error, citing § 31-298. Moreover, even without that note, the commissioner’s decision was amply supported by the record.
Pereira v. Taylor & Fenn Co., 14 Conn. Workers’ Comp. Rev. Op. 16, 1816 CRB-1-93-8 (April 28, 1995).
Second Injury Fund claimed no formal hearing held, and no consent to factual stipulation between claimant and employer. Held, record shows formal hearing was held on transfer of claim to Fund, where a Fund attorney appeared. As to stipulation, Fund had opportunity to sign it or present evidence against it, and commissioner did not rely on it anyway. No error. See also, Pereira, § 31-301(f), and § 31-349.
Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 1592 CRB-5-92-12 (April 27, 1995).
Respondents contended that doctor’s conclusion regarding apportionment was unreliable because it was based on claimant’s own representations. Zawisza v. Quality Name Plate, Inc., 149 Conn. 115 (1961). Held: Zawisza similar, but inapplicable. There, claimant had sought medical expert who would diagnose a compensable injury in the face of four contrary medical opinions; here, contested examination was ordered by commissioner, and claimant had no motivation to lie on issue of apportionment, as claimant’s recovery would be unaffected. Therefore, commissioner did not err in admitting testimony of doctor. Also, trier entitled to accept part of expert’s testimony and reject other parts, so long as parts are not interdependent. See also, Nasinka, § 31-301. Factual findings.
Southard v. Southard Development, 13 Conn. Workers’ Comp. Rev. Op. 348, 1891 CRB-4-93-11 (April 27, 1995).
Not enough evidence in record to support finding that insurer was negligent in administering claim. Commissioner should not presume existence of evidence that is not in the record without giving notice to both parties; due process considerations are implicated. See also, Southard, § 31-315.
Muniz v. Koteas, 13 Conn. Workers’ Comp. Rev. Op. 284, 1720 CRB-4-93-5 (April 21, 1995).
Request for disqualification of commissioner normally need not be considered if raised for the first time on appeal. Code of Ethics for Workers’ Compensation Commissioners requires recusal where trier’s impartiality might reasonably be questioned; fact that commissioner represented former clients against one of the parties does not automatically create such a situation. Also, no error in failure to continue hearing; appellant did not indicate that he had additional evidence, and cannot show prejudice. Moreover, a commissioner’s decision to grant or deny a continuance is virtually unreviewable. See Admin. Reg. § 31-279-4. Lastly, commissioner was entitled to restrict hearing to issue of employment relationship; respondent would have opportunity to present evidence concerning other issues later. See also, Muniz, § 31-275(9).
Raccio v. Stone Safety Corp., 13 Conn. Workers’ Comp. Rev. Op. 281, 1641 CRB-8-93-2 (April 21, 1995).
Commissioner engaged in ex parte communication with claimant’s treating physician regarding her light work capability. Held: broad scope of § 31-298 does not stretch so far as to allow a commissioner currently hearing a case to engage in ex parte communication with a material witness. See § 4-181(a) C.G.S.; Canon 3 A (4) of Code of Judicial Conduct.
Simmons v. Philip Bonhotel, d/b/a Bonhotel’s Lawn Maintenance, 13 Conn. Workers’ Comp. Rev. Op. 234, 1778 CRB-5-93-7 (April 13, 1995), aff’d, 40 Conn. App. 278 (1996).
CRB affirmed denial of benefits where commissioner found claimant lacked credibility regarding alleged injury and where alleged injury occurred due to horseplay initiated by claimant. Commissioner had wide discretion to allow continuance for pro se claimant to present witnesses. Also, no error in commissioner’s admission of testimony regarding prior acts of horseplay which were objected to by claimant. See also, Simmons, § 31-275(1), § 31-294c, and § 31-284(a).
Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (April 12, 1995), appeal dismissed, A.C. 14747(June 29, 1995).
I. Respondents contended that trial commissioner exhibited bias at formal hearing by acting as claimant’s attorney and by having ex parte communication with claimant. A trier may not exhibit a position of “advocacy” in the case before him. Labow v. Labow, 13 Conn. App. 330 (1988). Discussion regarding propriety of assisting pro se claimants at hearings. CRB found no bias. Also, no bias found regarding alleged ex parte communication, where communication regarded procedural as opposed to substantive matter (citing § 12 of Code of Ethics). II. Issue of temporary total benefits remanded to afford due process where commissioner repeatedly stated during formal that temporary total benefits would not be an issue at the formal, but then awarded temporary total in Finding and Award. CRB agreed with respondents that they were not afforded notice of that issue or opportunity to present evidence. See also, Cummings, § 31-294d.
York v. General Dynamics Corporation/Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 166, 1770 CRB-2-93-6 (March 9, 1995).
Commissioner did not err by allowing into evidence depositions of doctors who testified in LHWCA proceedings. Statute grants commissioner broad discretion to determine admissibility of evidence, and evidentiary ruling cannot be set aside absent a clear abuse of discretion. Because depositions were not expressly relied on in award, it is uncertain whether their admission would constitute harmful error. However, fact that insurers were not party to LHWCA proceedings did not lessen employer’s interest in defending its own liability, and commissioner could reasonably have determined that respondent represented insurers’ position closely enough to render doctors’ depositions probative. Difference in burden of proving compensability did not require inadmissibility of depositions. Also, evidence other than decedent’s lost testimony exists to support finding of total disability, including wife’s testimony and medical reports. CRB declined to declare a mistrial. See also, York, § 31-294c.
Phelan v. Soda Construction Co., 14 Conn. Workers’ Comp. Rev. Op. 389, 1979 CRB-3-94-3, 2107 CRB-3-94-7 (October 17, 1995).
See, Phelan § 31-310.
Schiano v. Bliss Exterminating, 13 Conn. Workers’ Comp. Rev. Op. 45, 1852 CRB-4-93-9 (December 7, 1994).
Not improper for commissioner to require additional hearing upon decision that evidence surrounding payment of benefits unclear; commissioner not required to render decision on insufficient evidence. This is not the same as an improper failure to exercise discretion. See also, Schiano, § 31-293.
Weglarz v. State/Dept. of Correction, 13 Conn. Workers’ Comp. Rev. Op. 35, 1648 CRB-4-93-2 (November 8, 1994).
Trier’s decision to proceed with formal hearing absent a party’s appearance affirmed on appeal where record discloses prior formals had been repeatedly cancelled and formal hearings rescheduled where same party failed to appear. See also, Weglarz, § 31-300.
Lee v. Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 1626 CRB-7-93-1 (November 7, 1994).
Reversed. Trier erred in basing the dismissal of stress claim on an IME report improperly admitted into evidence where claimant timely objected to the admission of said report and was denied the opportunity to cross examine the IME physician. See also, Lee, § 31-275(1) and § 31-294f.
Hirth v. United Parcel Service, 12 Conn. Workers’ Comp. Rev. Op. 353, 1497 CRB-1-92-8 (August 2, 1994).
Trier’s refusal to hold open evidentiary proceedings so that respondents would have the opportunity to depose physician and admit deposition into evidence upheld on appeal. CRB held respondents’ due process was not violated as there existed sufficient time for discovery prior to the trial date which notice indicated the trial would conclude on that scheduled date. Further, respondents failed to show how the deposition evidence would aid their defense of the claim. See also, Hirth, § 31-301. Appeal procedure and § 31-279-3, Request for continuance.
Cummings v. Twin Tool Mfg. Co., 12 Conn. Workers’ Comp. Rev. Op. 341, 1542 CRB-1-92-10 (July 11, 1994), aff’d, 40 Conn. App. 36 (1996).
A factual finding which relies on a document not offered into evidence, but marked for identification only, must be stricken. Additionally, findings not properly before trier, i.e. continued medical treatment, must be vacated. See also, Cummings, § 31-296, § 31-301. Factual findings, § 31-301-9. Additional evidence and § 31-307.
Flowers v. Benny’s of Connecticut, 12 Conn. Workers’ Comp. Rev. Op. 162, 1527 CRB-2-92-10 (April 26, 1994).
The claimant contended that trier erred in admitting into evidence certain irrelevant testimony of witnesses regarding claimant’s conduct. The admission and use of alleged irrelevant evidence is generally harmless and will not be the basis of appellate reversal. See also, Flowers, § 31-275(1) and § 31-301. Appeal procedure and Factual findings.
Vetro v. Banton Dry Wall, Inc., 12 Conn. Workers’ Comp. Rev. Op. 154, 1316 CRD-3-91-10 (April 22, 1994).
Record before CRB fails to support respondent employer’s claim they were precluded from presenting evidence or from participating in proceedings below. See also, Vetro, § 31-301. Appeal procedure and § 31-301-9. Additional evidence.
Morris v. A & A Acoustics, 12 Conn. Workers’ Comp. Rev. Op. 221, 1488 CRB-7-92-8 (March 22, 1994).
Claimant’s challenge to impartiality of commissioner’s conduct of the formal hearing below not supported by the record. See also, Morris, § 31-301. Factual finding and § 31-301-9. Additional evidence.
Besade v. Interstate Security Services, 12 Conn. Workers’ Comp. Rev. Op. 103, 1383 CRB-2-92-2 (February 28, 1994), aff’d, 37 Conn. App. 903 (1995).
Trier did not abuse his discretion in allowing a leading question on direct examination to stand. See also, Besade, § 31-301. Factual findings and § 31-308(a). Prior decision at Besade, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (January 13, 1989), no error, 212 Conn. 441 (1989).
Besitko v. McDonald’s Restaurant, 12 Conn. Workers’ Comp. Rev. Op. 111, 1415 CRB-8-92-5 (February 28, 1994).
Remanded as trier must limit decision to issues before him. It was improper to order payment of medical bills where issue was not before trier nor were medical bills introduced into evidence. See also, Besitko, § 31-294d.
Maylott v. Williams, 11 Conn. Workers’ Comp. Rev. Op. 320, 1353 CRD-6-91-12 (December 23, 1993).
Trier’s failure to close record at the conclusion of a formal hearing and granting continuances is not an abuse of discretion. Also, claimant’s objection to doctor’s deposition unwarranted as claimant had notice of the deposition, was present at its taking, and exercised his right to cross-examine physician. See also, Maylott, § 31-301. Factual findings.
Furrey v. Wells Fargo Alarm System, 11 Conn. Workers’ Comp. Rev. Op. 192, 1307 CRD-3-91-9 (September 22, 1993).
Trier admitted into evidence a journal article which had not been adopted or approved by the AMA or the ADA. Medical experts testified that the challenged article is generally accepted as authoritative for making impairment ratings. Therefore, it was up to the trial commissioner to determine the admissibility and weight to be given the evidence. See also, Furrey, § 31-308(c).
Petta v. Waterbury Hospital, 11 Conn. Workers’ Comp. Rev. Op. 161, 1310 CRD-5-91-9 (August 23, 1993).
Commissioner has the authority to order payment of deposition fees where there exists a finding to support such an order. Where no finding exists, no payment can be ordered. See also, Petta, § 31-299b, § 31-300, § 31-301. Appeal procedure and § 31-308a.
Crochiere v. Enfield/Board of Education, 10 Conn. Workers’ Comp. Rev. Op. 165, 1069 CRD-1-90-7 (August 27, 1992), aff’d, 227 Conn. 333 (1993).
CRB affirmed trial commissioner’s decision to exclude the transcribed testimony of a female student on the basis that respondent did not satisfy the exceptions to the hearsay rule. Specifically, respondent’s claim the witness was unavailable and therefore, transcripts should be admitted, was based upon two phone calls to schools outside this state. A party seeking to proffer evidence that a witness was unavailable must do so by a showing of due diligence to procure the attendance of the absent witness. State v. Aillon, 202 Conn. 385, 391 (1987). See also, Crochiere, § 31-275(1), § 31-284(a), § 31-294c, § 31-301. Factual findings and Appeal procedure.
Ruh v. Della Construction Co., 9 Conn. Workers’ Comp. Rev. Op. 269, 1034 CRD-7-90-6 (December 5, 1991).
Remanded as trier concluded evidentiary hearings without giving claimant the opportunity of cross-examine as provided by § 52-174(c). See also, Ruh, § 31-301. Factual findings, § 31-307. Total disability.
Straub v. Bolt Technology Corporation, 9 Conn. Workers’ Comp. Rev. Op. 212, 1130 CRD-3-90-11 (September 12, 1991).
Respondents had ample opportunity below to depose or cross-examine treating physician and or any other physician concerning their claim that trier erred in awarding a 15% loss of use of the lumbar spine. See also, Straub, § 31-308(b), § 31-294f.
Tomkus v. Upjohn Company, 9 Conn. Workers’ Comp. Rev. Op. 163, 972 CRD-3-90-1 (June 28, 1991).
Trier has wide discretion in allowing leading questions on direct examination. See also, Tomkus, § 31-294c & § 31-301. Factual findings.
Merchant v. J.S. Nasin Company, 9 Conn. Workers’ Comp. Rev. Op. 122, 952 CRD-2-89-11 (May 1, 1991).
Trier has broad discretion to determine both the relevancy and remoteness of evidence. It was not an abuse of discretion in ruling federal social security medical vocational guidelines inadmissible where claimant was being paid social security retirement benefits and not social security disability benefits. See also, Merchant, § 31-301. Appeal procedure.
Colas v. Marriott Food Services, 9 Conn. Workers’ Comp. Rev. Op. 86, 939 CRD-7-89-11 (February 26, 1991).
Trier’s failure to admit document into evidence or take administrative notice of it would not have affected the result of the decision. One respondent sought to admit a letter (notice of claim) from claimant’s counsel in order to support a Motion to Preclude. CRD held that while the letter which purported alternative theories for the basis of the compensation claim was sufficient notice under § 31-294, the letter would not support the preclusive effects of § 31-297(b) as it was not a direct assertion of a claim against the other respondents. See also, Colas, § 31-298, § 31-307b, § 31-294c and § 31-349.
Laime v. American Standard, 9 Conn. Workers’ Comp. Rev. Op. 62, 914 CRD-2-89-9 (February 6, 1991).
CRD remanded matter to trial commissioner where decision was issued as a result of an informal hearing and there was no record of the proceedings below. See also, Laime, § 31-301. Appeal procedure.
Case v. McClinch Crane, 7 Conn. Workers’ Comp. Rev. Op. 92, 727 CRD-7-88-4 (October 4, 1989).
See, Case, § 31-301. Appeal procedure.
Moccia v. Dr. Martin Ecker, 7 Conn. Workers’ Comp. Rev. Op. 10, 620 CRD-7-87 (June 22, 1989).
Error for trial commissioner to permit cross-examination concerning statements at informal hearing, Daniele v. Angelo Monarca, Inc., 6 Conn. Workers’ Comp. Rev. Op. 25, 519 CRD-3-86 (1988). Error for trial commissioner to use the adverse inference rule on failure to produce an eyewitness. Turner v. Scanlon, 146 Conn. 149, 161 (1959). Remanded. CAVEAT: This inference known as the Secondino or adverse inference rule has been amended in part by P.A. 89-153 to be codified as amending § 52-174(b).
Mauro v. General Dynamics Corporation/Electric Boat Division, 713 CRD-2-88-3 (1989).
See also, Mauro, § 31-301. Appeal procedure. Case ordered remanded for trial proceedings so a transcript record can be prepared.
Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (January 13, 1989), no error, 212 Conn. 441 (1989).
Trier’s admission of evidence was merely harmless error. Subsequent decision in Besade, 12 Conn. Workers’ Comp. Rev. Op. 103, 1383 CRB-2-92-2 (February 28, 1994), aff’d, 37 Conn. App. 903 (1995), § 31-298, § 31-301. Factual findings, § 31-308(a).
Fappiano v. Nutmeg Concrete Inc., 6 Conn. Workers’ Comp. Rev. Op. 29, 652 CRD-3-87 (September 27, 1988).
(1) Payment of transcript fees is to be made by party ordering transcript (§ 51-63(e)), (2) Deposition fees are to be paid by party taking deposition, see Practice Book § 247(b), (3) Commissioner may order respondents to pay expert witness fees.
Daniele v. Angelo Monarca, Inc., 6 Conn. Workers’ Comp. Rev. Op. 25, 519 CRD-3-86 (1988).
Statements made at informal conferences are similar to common law statements made during settlement discussions and are therefore not ordinarily admissible. Cf. § 52-549s(c) C.G.S.
Debarros v. A.L. Singleton, 6 Conn. Workers’ Comp. Rev. Op. 22, 498 CRD-5-86 (September 19, 1988), no error, 21 Conn. App. 107 (1990).
See, Debarros, § 31-301. Factual findings.
Todd v. Jazlowiecki, 6 Conn. Workers’ Comp. Rev. Op. 9, 493 CRD- 6-86 (August 26, 1988), no error, 20 Conn. App. 805 (1989)(per curiam).
Rules of evidence do not preclude physicians who were not authorized treating physicians from testifying. See also, Todd, § 31-278, § 31-294d.
Bergin v. Waterbury, 5 Conn. Workers’ Comp. Rev. Op. 156, 537 CRD-5-86 (August 2, 1988).
OSHA and EPA regulations may be submitted into evidence.
Adams v. Stop & Shop, 4 Conn. Workers’ Comp. Rev. Op. 80, 380 CRD-2-85 (June 4, 1987).
Commissioner may allow treatment with out-of-state physician.
Evans v. Lightolier, Inc., 4 Conn. Workers’ Comp. Rev. Op. 69, 517 CRD-2-86 (May 20, 1987).
Adopted § 52-148d as rule for the furnishing of depositions.
Diogostine v. Somers Thin Strip, 3 Conn. Workers’ Comp. Rev. Op. 139, 282 CRD-5-83 (January 22, 1987).
An unsigned doctors report which is a photostat of a signed original arguably in claimant’s possession is admissible. Also, claimant’s argument that he was denied the opportunity to cross-examine fails where commissioner evidenced his intention to hold further hearings. See also, Diogostine, § 52-174.
Kiley v. Executone of Fairfield, Inc., 2 Conn. Workers’ Comp. Rev. Op. 103, 107 CRD-7-81 (August 29, 1984).
Psychological treatment fees payable if commissioner determines, inter alia, they are reasonable.
Aquino v. Mt. Vernon Die Casting Co., 2 Conn. Workers’ Comp. Rev. Op. 72, 159 CRD-7-82 (July 11, 1984).
See, Bowen, infra.
Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (June 19, 1984).
Commissioner is the arbiter under statute to determine reasonableness of medical fees.