Opinion
CASE NO. 1289 CRD-6-91-9
DECEMBER 2, 1992
The claimant appeared pro se. (However during a part of the initial appeal the claimant was represented by David T. Stone, Esq. Atty. Stone subsequently informed this tribunal that he would no longer be representing the claimant.)
The respondents were represented by Brian E. Prindle, Esq.
This Petition for Review from the August 26, 1991 Finding and Award of the Chairman acting at Large for the Sixth District was heard June 26, 1992 before a Compensation Review Board panel consisting of the Commission Chairman, Jesse Frankl and Commissioners Gerald Kolinsky and James Metro.
OPINION
The claimant has petitioned for review from the former Chairman acting as Commissioner at Large for the Sixth District's August 26, 1991 Finding and Award. In that Finding and Award the trial Commissioner found that the claimant sustained various work-related injuries to her back. The original work-related injury which has given rise to claimant's claim for benefits occurred December 3, 1971 while the claimant was in the employ of the respondent, New Britain Memorial Hospital. A Voluntary Agreement was executed for that injury and was approved by the Sixth District Commissioner on February 17, 1972. On May 19, 1972 the claimant sustained another compensable back injury while in the employ of the respondent, New Britain Memorial Hospital. While the trial commissioner found that the district file did not contain an executed Voluntary Agreement for that injury, the trial commissioner did find a Form 42-62 report from Dr. Stanley Filewicz, M.D. which indicated that the claimant suffered a ten percent (10%) permanent partial disability to her spine as a result of the May 19, 1972 injury.
On August 2, 1974 the claimant began work at Newington Veterans' Hospital, a federally operated facility. On October 9, 1982 the claimant suffered another back injury while in the employ of the Newington Veterans' Hospital. She was paid total disability benefits pursuant to the federal Workers' Compensation laws. Thereafter the claimant returned to work and claimed that there were periods of total disability following the October 9, 1982 incident which were related to the claimant's October 9, 1982 injury or due to recurrences of injury. The claims for federal Workers' Compensation benefits for those alleged periods were denied by the federal agency (See Paragraphs 18-21).
Following the claimant's 1971 and 1972 injuries, the claimant was treated by Dr. Stanley Filewicz. Following her October 9, 1982 injury, the claimant was treated by Dr. Jeffrey B. Steckler, M.D. Various medical bills were incurred by the claimant in the course of treatment for her injuries. Also in a June 15, 1988 medical report, Dr. Filewicz indicated that claimant's disability of her spine had increased from 10% to 15%.
The claimant appeared before the trial commissioner and sought the payment of certain unpaid medical expenses, payment for unspecified periods of total disability between May 19, 1972 and August, 1974 and more recently, and Sec. 31-308(a) or Sec. 31-308a benefits for partial disability.
As we noted at the outset, the claimant took the instant appeal and ultimately, appeared pro se before the Compensation Review Board. The claimant by letter dated September 4, 1991 presented the Compensation Review Board with her various statements, arguments and disagreements with the trial commissioner's Finding and Award. We have generously construed this document to be not only the claimant's reasons of appeal but a motion to correct. However, many of the assertions in claimant's document are merely a wholesale attack on the trial commissioner's factual findings and conclusions. We cannot discern from the record whether some of the issues raised by the claimant in her purported reasons of appeal were even raised before the trial commissioner. Although the claimant, arguably seeks a change of certain factual findings many of those factual findings were facts that were not admitted or undisputed and therefore not within our power to change. Cf. Grady v. St. Mary's Hospital, 179 Conn. 662 (1979).
In essence, the claimant asks us to review whether the trial commissioner erred in denying her claim for certain benefits, i.e., (1) whether the trial commissioner erred in failing to award the claimant total disability benefits for some undefined period between 1972 and 1974, (2) whether the trial commissioner erred in failing to find any (arguable) total disability more recently experienced by the claimant to be causally related to the claimant's 1971 and/or 1972 work-related injuries and (3) whether the trial commissioner erred in failing to order the respondents to pay certain medical bills.
As to the first issue, whether the trial commissioner erred in failing to award claimant temporary total benefits for some period between 1972 and 1974, the trial commissioner found that the evidence "failed to identify the exact periods between 1972 and 1974 when she claimed disability benefits and was not paid them." Paragraph #12. The claimant can hardly expect a trial commissioner to award total disability benefits nearly twenty years after the fact and in light of the claimant's failure to provide any evidence as to a more definite or certain period between 1972 and 1974 when such total incapacity is alleged to have occurred.
The second issue raised by the claimant is whether the trial commissioner erred in failing to find the claimant's more recent allegation of total disability was not causally related to the claimant's 1971 and/or 1972 work related injuries. Clearly the claimant has the burden of proving that there is a causal relationship between an alleged claim of total disability and an injury which arose out of and in the course of employment. Metall v. Aluminum Co. of America, 154 Conn. 48 (1966). As our Supreme Court noted in Metall, supra at 52.
The commissioner found that the evidence . . . did not establish any causal connection between the total disability of the plaintiff and his work for the company and, consequently, that it did not arise out of his employment. This conclusion, that a causal connection was not proven, is essentially one of fact to be determined in view of all of the relevant circumstances, and it must stand unless it is one which could not reasonably or logically be reached on the subordinate facts. It must be tested by the subordinate facts and must stand unless it resulted from an incorrect application of law to them or because of an inference illogically or unreasonably drawn from them. D'Angelo v. Connecticut Light Power Co., 146 Conn. 505, 508, 152 A.2d 636; DiLauro v. Bassetti, 133 Conn. 642, 644, 53 A.2d 512.
The claimant also contends that the trial commissioner erred in failing to order the respondents to pay certain medical bills. Again the trial commissioner found that there was insufficient evidence to causally relate certain medical expenses to her 1972 injury rather than to her 1982 injury. See paragraphs 25-31. We do not try matters de novo. Fair v. People's Savings Bank 207 Conn. 535 (1988). We cannot say that the trial commissioner's conclusion based on the evidence presented below is "so unreasonable as to justify judicial interference." Bailey v. Mitchell 113 Conn. 721, 725 (1931).
Finally we note that a Motion to Submit Additional Evidence was filed on claimant's behalf and denied by the trial commissioner. The grounds for claimant's motion to submit additional evidence are as follows.
MOTION TO SUBMIT ADDITIONAL EVIDENCE
The claimant, Michalina Lesczynski, requests that the following witness' testimony be taken.
1. Testimony of Dr. Filewicz the claimant's treating physician since the 1972 back injury. The claimant was unrepresented by counsel at the hearing before Commissioner Arcudi and failed to recognize the significant impact not calling the treating physician would have on the issue of causation.
Administrative Regulation Sec. 31-301-9 provides that a party may request an opportunity to present additional evidence but the party must demonstrate that the evidence was material and that there were good reasons for failing to present the evidence in the proceedings below. We do not think that the claimant's failure or decision not to secure, counsel at the hearings before the trial commissioner and thus, her inability to appreciate the impact of not providing the testimony of Dr. Filewicz, is a good reason for not presenting that evidence before the trial commissioner.
Administrative Regulations Sec. 31-301-9 provides If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal.
We therefore affirm the August 26, 1991 Finding and Award of the former Chairman acting as a Commissioner at Large for the Sixth District.
Commissioners Gerald Kolinsky and James Metro concur.