Opinion
CASE NO. 519 CRD-3-86
SEPTEMBER 19, 1988
The claimant was represented by Joel K. Alderman, Esq.
The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the October 1, 1986 Finding and Award of the Commissioner for the Third District was heard January 22, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Andrew Denuzze.
FINDING AND AWARD
The Third District Finding and Award of October 1, 1986 is affirmed and adopted as the Finding and Award of this Division.
OPINION
After hearings, January 31, 1984, June 11, 1984, March 15, 1985, November 12, 1985 and June 24, 1986 and the admission into evidence of an October 26, 1984 deposition by Dr. Willard F. Greenwald, a treating orthopedic surgeon, the Third District Commissioner ruled October 1, 1986 that claimant's injury was compensable. She found claimant had injured his lower back, neck, right knee and jaw in a fall from scaffolding June 20, 1983. Claimant had previously suffered an injury to his jaw at work January 12, 1981. That 1981 injury was the subject of a stipulated settlement approved February 11, 1982 by the Third District.
In her October 1, 1986 ruling the Commissioner ordered temporary total disability payments and made findings that claimant had sustained a ten percent permanent partial disability of the back and a five percent permanent partial disability of the knee with maximum improvement for both conditions February 17, 1984. She also found that the June 20, 1983 fall "contributed to a degenerative right temporomandibular joint (TMJ) dysfunction with increased crepitus and pain which substantially contributes to claimant's inability to work" (Finding #10). This finding was based on the testimony of Dr. Robert R. Sorrentino, an oral and maxillofacial surgeon of the New Haven area, who treated claimant's TMJ condition after both the 1981 and 1983 incidents.
On appeal respondents raise three issues: (1) the Commissioner's findings should only have addressed compensability and not the extent of disability, (2) there should have been no benefits awarded for the TMJ dysfunction as that was the subject of the 1982 stipulation and (3) there was error in limiting the cross-examination of the claimant by excluding inquiries about statements made at an informal pre-trial conference.
Respondents' argument that the Commissioner should have limited her findings to compensability is based on an alleged stipulation by the parties to that effect in the June 24, 1986 hearing. Respondents have not furnished the panel with a transcript or with evidential excerpts of that hearing to substantiate this claim. We have had the opportunity to examine the district file and the transcripts of January 31, 1984, June 11, 1984, March 15, 1985 and the October 26, 1984 Greenwald deposition. At the onset of hearings January 31, 1984 the Commissioner requested the attorneys to state the issue for the record. Claimant's attorney's answer appears in the footnote. Respondents' attorney's answer offered no answer or objection to attorney Alderman's statement of the issues. That statement declared that in addition to compensability, the other issue to be decided was how much of the present medical condition was due to the 1981 incident and how much to the 1983. Such an inquiry necessitated an examination of the extent of disability.
Commissioner: Will the attorneys please state the issue for the record. Atty. Alderman: As I understand it, there are two issues. One is did an accident occur. And the other the accident did occur how much of his present medical condition is due to this particular accident, and how much was due to a pre-existing condition.
Moreover, both parties were requested to submit draft findings. Claimant's draft finding contained seven paragraphs referring to disability and extent of disability. Respondents' draft only sought dismissal of the claim, so it understandably did not mention extent of disability. But respondents' brief filed at the same time did argue that the TMJ syndrome was all due to the 1981 incident, and no part of that disability resulted from the 1983 event. Additionally, at the October 26, 1984 deposition it was respondents' counsel who elicited testimony from the doctor that there was a ten percent permanent partial disability of the back (Joint Exhibit, p. 10).
If there had been a stipulation between the parties to limit the issues, it does not appear in the record before us. Even if there had been an agreement, it was clear Dr. Greenwald's deposition and Dr. Sorrentino's March 15, 1985 testimony also related to the extent of disability. Respondents had ample opportunity to present evidence in rebuttal; more than a year. There was no denial of their due process rights when proceedings extended over a period lasting thirty-two months, and the Commissioner made findings and conclusions relating to issues presented by the evidence. To have delayed findings on extent of disability beyond October 1, 1986 may well have constituted a denial of due process, not to the respondents but to the claimant. Litigants' attorneys need to be reminded that one of the principal objectives of the workers' compensation administrative remedy is prompter resolution of disputed claims, prompter than possible in the court system. We therefore find no error as to this first issue.
Similarly, the second issue raised provides no grounds reversal. The testimony we reviewed and alluded to above provided sufficient basis for the Commissioner's conclusion that claimant's June 20, 1983 new injury created increased disability from the TMJ dysfunction, temporary total disability for which she awarded benefits. In paragraph #16 of her finding the trial Commissioner ruled that new symptoms and increased disability after the 1983 accident did not result "from any natural progression" due to the 1981 injury but rather resulted from the new 1983 fall. As there was substantial evidence to sustain such a finding, an appellate tribunal cannot interfere, Fair v. People's Savings Bank, 207 Conn. 535 (1988). Moreover, Sec. 31-315, C.G.S. arms commissioners with the power to open and modify any award or agreement when "changed conditions of fact have arisen".
Respondents' final issue refers to the alleged limitations imposed on the cross-examination of the claimant. Respondents' cross-examination covers 50 pages (TR January 31, 1984, pp. 49-77; TR June 11, 1984, pp. 1-12). On page 70-71 the January 31, 1984 hearing respondents' counsel sought to elicit from claimant an admission concerning a statement made informal pre-trial conference before the same commissioner who subsequently rendered the finding and award being appealed. The Commissioner sustained an objection but suggested the question could be rephrased. On at least two other occasions during the cross-examination the same inquiry was made. At the second asking, the attorney included in his inquiry a statement that claimant had at the informal session denied that he had entered into a stipulation concerning the previous TMJ injury and that the Commissioner had then "pulled the file with the stipulation which reflected that jaw?" (TR January 31, 1984, p. 73). If the examiner as he stated was seeking to impeach the witness' credibility, he certainly achieved that result by communicating the information through the wording of his question. Therefore, if the the question was error, it was harmless.
Moreover, in workers' compensation matters, informal pretrial hearings and the fact finding procedures as well as possible settlement discussions occurring during such conferences have always enjoyed a special privileged status, Kirsten v. B.F. Goodrich Sponge Products Co., 178 Conn. 401 (1979). That status reflects the common law doctrine that declarations made in such compromise discussions are not ordinarily admissible in evidence, Simone Corporation v. Connecticut Light Power Co., 187 Conn. 487, 490 (1982); Riccio v. Montano, 93 Conn. 289, 293 (1919); Stranahon v. East Haddam, 11 Conn. 507, 512-519 (1836); Tait La Plante, Handbook of Connecticut Evidence, Sec. 11.5(b), p. 336 (1988). The same principle is recognized in Fed.R.Evid. 408. Modern attempts at alternate dispute resolution contained in Connecticut's 1982 legislation, Sec. 52-549s(c), C.G.S. also reflect that doctrine. That statute provides that the fact-finder shall not be called as a witness. The net effect of the case law and the rule and statute cited is to insulate alternate dispute resolution and fact finding procedures from the full-dress combat rules prevailing at a court trial or at a formal workers' compensation hearing. Therefore, the Commissioner correctly excluded questions relating to the pre-trial informal hearing.
The October 1, 1986 Third District Finding and Award is affirmed and the appeal is dismissed.
Commissioners Robin Waller and Andrew Denuzze concur.