Summary
In Besade v. Interstate Security Services, 6 Conn. Workers' Comp. Rev. Op. 83, 593 CRD-2-87 (Jan. 13, 1989), aff'd., 212 Conn. 441 (1989), the trial commissioner's decision specifically stated that there was a necessity for "further hearings... to determine the present status of disability."
Summary of this case from Morris v. a a AcousticsOpinion
CASE NO. 593 CRD-2-87
JANUARY 13, 1989
The claimant was represented by Matthew Shafner, Esq.
The respondents were represented by Richard S. Bartlett, Esq., McGann, Bartlett Brown.
The Second Injury Fund was represented by Diane Duhamel, Esq., Assistant Attorney General.
This Petition for Review from the April 29, 1987 and October 20, 1987 Findings and Awards of the Commissioner for the Second District was heard April 29, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and A. Thomas White, Jr.
OPINION
All parties agree that claimant suffered a compensable injury while serving as a security guard at the Millstone facility in Waterford when she inhaled ammonia fumes December 5, 1980. She then experienced difficulty in breathing, coughing, tightness in the chest, a burning sensation in the eyes and nasal passages, recurrent pain, fever and gastrointestinal distress. In the spring of 1981 she developed swelling of the lymph nodes, jaw pain, joint pains and bone pain, symptoms similar to those experienced in December. She was then diagnosed as suffering from mononucleosis. Compensation benefits were paid until March 30, 1983 when they were discontinued pursuant to the trial Commissioner's approval of a Form 36 filed by respondents.
Claimant's consultations with several specialists in 1981 resulted in a diagnosis of chronic bronchitis and bronchial spasm caused by the December 5, 1980 exposure. It was also determined that she suffered from temporomandibular joint (TMJ) dysfunction and cervical adenopathy which the trial Commissioner found to be a direct result of the work. The Commissioner also held that claimant's mononucleosis was causally related to that event. Therefore, his April 29, 1987 Finding and Award vacated the prior Form 36 approval and ordered payment for temporary total disability from March 31, 1983 until such total disability diminished or ceased. Subsequently, on October 20, 1987 he ordered the Second Injury Fund to pay all compensation benefits due pending appeal pursuant to Sec. 31-301(b), C.G.S.. The Fund has appealed that order.
To consider first the Second Injury Fund appeal, in Annechiarico v. Friendly Ice Cream Co., 640 CRD-7-87 (September 16, 1988) we addressed that issue. We there held that the Fund was liable to make payments pending appeal even if the injury predated the amendment in Sec. 31-301(b). No appeal was taken from that C.R.D. ruling so that remains a ruling authority for this tribunal. Therefore, the Fund's appeal is dismissed.
The employer and carrier respondents have identified five issues as a basis of their appeal. Three points are basically evidentiary ones, the other two principally relate to the law. Respondents' evidentiary contentions dispute the Second District Finding Paragraph #36 (1) that the TMJ dysfunction was work-related and (2) that claimant was totally disabled after March 30, 1983. The third evidentiary contention is (3) that Finding Paragraph #6 was based on inadmissible evidence. On the issues of law respondents argue (4) the long delay between the close of evidentiary hearings, September 19, 1983, and the Finding and Award, April 29, 1987, constituted a denial of due process and (5) the 1987 Motion to Reopen proceedings on the basis of newly discovered evidence should have been granted by the trier.
I
Claimant's TMJ syndrome was related to the December 5, 1980 compensable work event by Dr. I.L. Cantner II, D.M.D. in his deposition of July 12, 1983. His theory of causation was that claimant's mononucleosis created swelling of the lymph glands, lymphadenopathy, which caused cervical tension which in turn produced the TMJ dysfunction. Dr. Cantner's analysis relied in part on the patient's own history and the medical reports and telephone information supplied by Dr. Mark Cullen who had also treated the claimant. Respondents argue in essence that Dr. Cantner's interpretation of Dr. Cullen's reports was incorrect and that his opinion of work related causation was therefore not supportable by the evidence.
Deposition of I.L. Cantner, II, D.M.D., July 12, 1983 at 20-23 from which the following is quoted in part:
"Q: Doctor, do you have an opinion as to what was the cause of the temporomandibular joint disc displacement that you found?
A: I feel that there's a likelihood that this was caused by an indirect route from the lymphadenopathy, or recurrent lymphadenopathy, occurring in Cynthia's case.
Q: Perhaps you could describe what that is and how it occurred in Cynthia's case.
A: Okay. There's a possibility, let me state, that this has occurred or was present for many years, and that the signs and symptoms of the case have only been severely aggravated or precipitated by the lymphadenopathy caused by the industrial — apparent industrial accident.
Q: All right.
A: Therefore, in either case I think her signs and symptoms currently relate to the disease entity, which apparently relates to the industrial — the disease entity of the recurrent lymphadenopathy and — we'll get into stress situations, et cetera, on the side.
Q: What is lymphadenopathy?
A: Swelling of the lymph nodes.
Q: Okay. And, do you have an opinion as to what the cause of the swelling of the lymph nodes was, either from your own examination or through the reports that you got from Yale Medical School?
A: Through the reports that I got from Dr. Cullen, it was directly apparent that he diagnosed it as due to the exposure of a chemical which was inhaled in an industrial accident causing the lymphadenopathy and recurrent mononucleosis, or recurrent swelling of the nodes. . . . The swollen lymph glands can cause significant pain in the cervical musculature. This pain can cause spasms of the posterior extension head movement. Then via afferent central nervous system input in the cervical musculature, you develop reflex adaptation of an anterior head posture. . . . You then get muscle bracing, spasm of the muscles, stomatognathic muscles, and finally temporomandibular joint dysfunction and pain."
Idem., p. 32.
"Q: Doctor, the diagnoses that you made in this case, do you uphold those opinions with reasonable medical certainty?
A: Yes, I do.
And the same in regard to the causal relationship of them that you've described and their — the treatment and the therapy that you've prescribed for her, are those also held with reasonable medical certainty?
A: Yes, I do."
It is apparent from the excerpts of Dr. Cantner's testimony cited in the footnote that there was evidence below sufficient to justify the commissioner's conclusion in Finding #36 that the TMJ dysfunction was work related. That evidence together with Dr. Mark Cullen's meets the standard for causation set down in a long line of cases, e.g. Mahoney v. Beatman, 110 Conn. 184 (1929), Bailey v. Mitchell, 113 Conn. 721 (1931), McDonough v. Connecticut Bank Trust Co., 204 Conn. 104 (1987), Fair v. People's Savings Bank, 207 Conn. 535 (1988). As those cases proclaim, an appellate tribunal cannot interfere with the trier's conclusions when such evidence exists to support them.
II
Respondents' second evidentiary issue attacks that part of Finding #36 which concludes that claimant was totally disabled from August, 1982 on. Here, too, there is evidence in Dr. Cantner's July 12, 1983 deposition, pp. 76-77, and Dr. Cullen's February 3, 1983 letter, Exhibit H-6, which supports the trier's conclusion. However, since the last evidentiary hearing was held September 19, 1953, there was no evidence relating to disability after that date. In fact, the decision below noted the necessity for "further hearings . . . to determine the present status of disability". So that there may be no confusion as to our holding, we rule that the April 29, 1987 Finding and Award only spoke to the situation prior to and up to September 19, 1953. We remand for further hearings to address the situation thereafter.
III
Finding #6, respondents claim, was based on inadmissible evidence. It does not seem that any of the commissioner's conclusions on causation or disability relied on that particular evidence, so the error if any would be harmless. However, neither does it appear that any motion was made by respondents to strike that evidence. The testimony in question appears in the August 12, 1983 transcript, pp. 59-64. It was admitted by the trial commissioner on the proviso that it would be tied in later. Respondents argue it was never tied in and therefore should have been stricken, but we have searched the record and as indicated above find no motion to that effect at the end of th [the] hearings. From all that appears, it may have been tied in. At any rate, even if we were to strike Finding #6, it would not alter the result.
IV
With respect to the due process argument and the delay in rendering the decision, we have already ruled that the Finding and Award only speaks to the situation existent prior to and at the time of the last evidentiary hearing. Given that rulings we fail to see how the respondents have been prejudiced by the delay. At the close of hearings September 19, 1983, P.A. 85-64 effective January 1, 1986 had not yet been enacted. That amendment required a decision to issue within one hundred and twenty days of the conclusion of hearings. Section 31-300, C.G.S. had no such deadline September 19, 1983. It simply provided that a decision be rendered "as soon as may be after the conclusion of any hearing". We think that language simply implies a reasonable time. In workers' compensation practice many factors could have conceivably existed which would not make a 3 1/2 year delay in this matter an unreasonable time.
Actually, it would have been the claimant rather than the respondents who may have suffered prejudice from the delay. Presumably, during that period of time the respondents had the use of the money which they later became obligated to pay by the decision, and the claimant did not. Since we do not see how the delay prejudiced the respondents, we must deny their contention on this issue.
V
The final issue raised by respondents is the trial commissioner's failure to grant their motion to open proceedings in order that they might present the testimony of another dental expert, Dr. Caspar Burke. As noted in Finding #30, respondents had already presented the testimony of Dr. Lester Luntz who did not believe that claimant's condition was work related. It does not therefore appear that Dr. Burke's testimony would be really new testimony but rather it would be cumulative. Kearns v. Torrington, 119 Conn. 522, 526 (1935). Under the circumstances, given the limited role of an appellate tribunal, we cannot say the trier's ruling in the matter was unreasonable or an abuse of discretion.
The decision of the commissioner below is affirmed, the appeal is denied and the matter is remanded to the Second District for further proceedings to address all issues relating to the period after the last evidentiary hearing, September 19, 1983.
Commissioners Frank Verrilli and A. Thomas White, Jr. concur.