Opinion
CASE NO. 282 CRD-5-83
JANUARY 22, 1987
The claimant was represented by Joseph J. Trantolo, Jr., Esq., Trantolo Trantolo.
Employer-Respondent was represented by John J. Keefe, Jr., Esq., Lynch, Traub Keefe Errante.
This Petition for Review from the November 21, 1983 Finding and Award of the Commissioner for the Fifth District was heard June 29, 1984 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Frank Verrilli and Rhoda Loeb.
FINDING AND AWARD
The November 21, 1983 Finding and Award of the Fifth District Commissioner is affirmed and adopted as the Finding and Award of this Division.
The matter is remanded to the Commissioner to hold a further hearing for the reasons stated in the accompanying Opinion.
OPINION
Evidentiary matters form the basis of this appeal. Claimant suffered a compensable injury to his left arm. March 3, 1980. The Commissioner found he has a 30% permanent partial disability of the arm as a result and awarded him permanent partial disability benefits. But claimant contends a greater permanency exists and has appealed. He argues it was error to admit the March 31, 1982 report of Dr. A Roger Bobowick into evidence as that document was not a signed report of a treating physician in conformity with Sec. 52-174(b) C.G.S. Further, claimant contends he was thus denied the right to cross-examine the doctor in question.
We do not agree that the March 31 letter was inadmissible. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 cites Sec. 31-298 C.G.S., "Workmen's Compensation Commissioners are not `bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry on such manner, through oral testimony or written or printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit of this chapter'." This is a modern restatement of then Justice Wheeler's classic description, "He proceeds to hearing without pleadings and without regard to the ordinary rules of evidence." Powers v. Hotel Bond, 89 Conn. 143, 149 (1915). Justice Bogdanski reiterated his Balkus analysis in Kirsten v. B.F. Goodrich Sponge Products Co., 178 Conn. 401 (1979). The Kirsten holding emphasized again the more informal character of proceedings before a workers' compensation commissioner as contrasted to a trial before a judge of the Superior Court, Krattenstein v. G. Fox Co., 155 Conn. 609 (1967), Timm v. Timm, 195 Conn. 202 (1985).
But nonetheless, commissioners' proceedings, as Balkus clearly holds, must still be faithful to common law concepts of fairness. Thus, they must provide an opportunity for cross-examination of hearsay utterances which are admitted into evidence The business records statute itself provides for this, Sec 52-174(c). Claimant argues he was denied the right to cross-examine because the respondent failed to produce Dr. Bobowick as a witness in the October 26, 1983 hearing before the commissioner. His argument is inaccurate. When Dr. Bobowick failed to appear at the hearing, the Commissioner specifically asked claimant's attorney whether he intended to produce any further evidence (TR Oct 26, 1983, 4-5). That certainly evinced an intention on the commissioner's part to hold still another hearing, the previous ones having been on June 21 and October 26, in order that counsel could himself call Dr. Bobowick or any other witness he wished. It has become routine at least since World War II, as Kirsten, supra, indicates, that Workers' Compensation hearings unlike Superior Court trials are not necessarily concluded in one continuous session.
So claimant was in fact offered the opportunity for cross-examination. Moreover, claimant's argument that it was not shown that Dr. Bobowick was a treating physician as required by 52-174 is incorrect. The administrative record alluded to by the commissioner in the October hearing contains an official Commission Form, Form 36, signed by that doctor as a treating physician. Equally inaccurate is the contention that the proffered March 31 letter fails to conform to Sec. 52-174 as it is unsigned. Actually, the document is a photostat of a signed original which was sent to claimant's then counsel and which therefore should have been in claimant's possession.
With respect therefore to the hearings of June 21 and October 26 and the November 21, 1983 Finding and Award, there is no error. However, claimant's second evidentiary issue relates to events occurring after those hearings. On that same date, November 21, Dr. Bobowick wrote another medical report addressed to claimant's counsel. The new report assessed 45% partial permanent disability of the left arm differing thus from the 25% assessment in the doctor's March 31, 1982 report. This new evaluation also coincided with the estimate given in the oral testimony by Dr. Francis O'Brien, a neurosurgeon, at the June 21, 1983 hearing.
Thus since the Bobowick 1983 rating of incapacity was greater than the one rendered almost two years previously, it could arguably comply with the requirement of Sec. 31-315 C.G.S. for modification of an award in that it was evidence that the incapacity had increased. Moreover, that statute gives to a Commissioner the same power to open and modify an award "as any court of the state has to open and modify a judgment", Gonirenki v. American Steel Wire Co., 106 Conn. 1 (1927) McGrath v. Crane Co., 119 Conn. 170 (1934), Kearns v. City of Torrington, 119 Conn. 522 (1935). Olivieri v. City of Bridgeport, 126 Conn. 265 (1940), Meadow v. Winchester Repeating Arms, 134 Conn. 269 (1948). Here the 1983 doctor's report was evidence not in existence and therefore not discoverable by the claimant when the last hearing was held before the commissioner in October, 1983. This new evidence again would arguably be a ground for opening and modifying the award. Finally, under Sec. 31-315, a compensation commissioner retains jurisdiction over claims, awards and voluntary agreements during the whole period applicable to the injury. The relevant period in the instant matter is the claimant's lifetime.
Sec. 31-315 Modification of award or voluntary agreement. Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or the changed conditions of facts have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify a judgement of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.
Therefore, although we affirm the Commissioner's Finding and Award as stated above, we remand the matter to him to hold a hearing on claimant's "Motion to Reopen, Reargue and/or to Reconsider" dated November 28, 1983.
Commissioners Frank Verrilli and Rhoda Loeb concur.