Opinion
CASE NO. 1034 CRD-7-90-6
DECEMBER 5, 1991
The claimant was represented by Harry Cohen, Esq., Cohen Kessler.
The respondents Excalibur Store Fixtures, Inc. and Lumber Mutual Insurance were represented by Douglas Drayton, Esq., Anne Kelly Zovas, Esq. and Richard L. Aiken, Jr., Esq. all of Pomeranz, Drayton and Stabnick.
The respondents Della Construction Company and CIGNA were represented by Robert E. Mansfield, Esq. and David W. Schoolcraft, Esq., Trowbridge, Ide, Courtney Mansfield. However respondent insurer CIGNA did not participate in appellate proceedings.
These Petitions for Review from the June 4, 1990 Finding and Award of the Commissioner for the Seventh District was heard March 22, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and James Metro.
OPINION
The claimant and respondents, Excalibur Store Fixtures, Inc. and Lumber Mutual Insurance, have both appealed the Seventh District ruling. Claimant contends he should have received a higher award for fifteen (15%) per cent partial disability of the back rather than the seven (7%) per cent granted by the commissioner. Respondents contend the commissioner was wrong to award total disability for the period March 25, 1989 to July 10, 1989.
Claimant sustained a compensable back injury April 13, 1987 and received temporary total disability benefits for some time. The parties than agreed that maximum improvement was reached and he received specific disability benefits for a seven (7%) per cent permanent partial disability of the back for thirty six weeks beginning April 25, 1988. Later that year on August 29, 1988 claimant suffered more symptoms of back disability while in the employ of another firm, Della Construction. He again underwent medical treatment and was unable to work until January 20, 1989. He then continued to work until March 25, 1989 when he suffered other disabling back symptoms while performing some tasks at home.
During this period his principal treating physician was Dr. Arlen Lichter, the Director of Physical Medicine and Rehabilitation at the Waterbury Hospital Health Center. In a January 20, 1989 report the doctor concluded claimant still had the same seven (7%) per cent permanent partial disability he had previously found. However on October 4, 1989 Dr. Lichter raised the permanent disability rating to fifteen (15%) per cent. He still considered the April 13, 1987 injury to be the cause of the disability.
The respondents has claimant examined by Dr. Dennis M. Ogiela, a Danbury orthopedic surgeon. In his August 25, 1989 report, Respondents Exhibit 3, that doctor rated the permanent partial back disability as five (5%) per cent. The claimant objects to the admission of that report in evidence.
Under Sec. 52-174(b), C.G.S. the report was admissible. However, Sec. 52-174(c), by not prohibiting either party from calling the medical witness whose report is entered, basically guarantees the right of cross-examination. Here the matter had been drawn out through three hearings extending from April 26, 1989 to March 21, 1990, and the commissioner decided to end the taking of evidence with the March 21, 1990 hearing, the same hearing where Dr. Ogiela's report had been admitted. This effectively ended any opportunity claimant may have had to cross-examine the doctor. "The admission of hearsay . . . without an opportunity to cross-examine is ordinarily a deprivation of procedural due process," Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). Therefore the matter needs to be remanded to permit this opportunity.
The respondent's cross appeal argues that claimant failed to satisfy the burden of proof that he was totally disabled from March 28, 1989 through July 10, 1989, the date when claimant began receiving Division of Worker Rehabilitation benefits. There was evidence of total disability in that period, Dr. Lichter's Deposition, pp. 19-20. That testimony was sufficient to support the commissioner's conclusion. We therefore will not disturb that finding. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
Claimant's appeal is sustained and respondents' appeal is dismissed. The matter is remanded for further proceedings consistent with this opinion.
Commissioners Robin Waller and James Metro concur.