Opinion
CASE NO. 1968 CRB-7-94-2
JULY 27, 1995
The claimant was represented by Brian Prucker, Esq., Fitzgerald Prucker.
The respondents were represented by Kevin J. Maher, Esq., Maher Williams.
This Petition for Review from the February 4, 1994 Finding and Award of the Commissioner acting for the Seventh District was heard January 13, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D'Oyen and Amado J. Vargas.
OPINION
The respondents have appealed from the February 4, 1994 Finding and Award of the Commissioner acting for the Seventh District. In that Finding and Award the trier concluded that the claimant, a secretary in the psychiatric unit of the Danbury Hospital, suffered a traumatic brain injury as a result of a physical attack by a patient. The parties agree that the claimant sustained compensable injuries due to the attack which occurred on June 7, 1991. The sole issue on appeal is whether the trial commissioner properly found that the claimant sustained a traumatic brain injury as a result of the attack. We find no error.
The respondents specifically object to the admission of a medical report signed by Emily Littman, Ph.D., a clinical neuropsychologist, who treated the claimant. The respondents contend that the report was not admissible pursuant to § 52-174(b) C.G.S., which provides that reports written by certain medical providers are admissible as a business record exception to the hearsay rule. Section 52-174(b) specifically refers to "any treating physician, dentist, chiropractor, osteopath, natureopath or podiatrist" but does not refer to psychologists. In their argument, the respondents have overlooked § 31-298 which specifically provides that trial commissioners "shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony or written or printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter." Under § 31-298, the trial commissioner had the discretion to admit the medical reports of the claimant's treating neuropsychologist.
Section 52-174(b) has subsequently been amended by Public Act 94-158 to include psychologists.
In the instant case, the respondents objected to the medical reports by Dr. Littman when they were submitted at the March 29, 1993 hearing. A second formal hearing was held on October 7, 1993, but the respondents did not call Dr. Littman as a witness nor did they request to depose her. We therefore conclude that the respondents failed to exercise their opportunity to cross-examine the doctor, and cannot now complain on appeal that they did not receive due process. See Straub v. Bolt Technology Corp., 9 Conn. Workers' Comp. Rev. Op. 212, 1130 CRD-3-90-11 (Sept. 12, 1991); Diogostine v. Somers Thin Strip, 3 Conn. Workers' Comp. Rev. Op. 139, 282 CRD-5-83 (Jan. 22, 1987); and Maylott v. Williams Engineering, 11 Conn. Workers' Comp. Rev. Op. 320, 1353 CRD-6-91-12 (Dec. 23, 1993).
At oral argument before this Board, the respondents referred to Lee v. City of Norwalk, 13 Conn. Workers' Comp. Rev. Op. 23, 1626 CRB-7-93-1 (November 7, 1994) for the proposition that the medical report at issue constituted inadmissible hearsay. However, our decision in Lee was limited to the specific factual circumstances of that case. Moreover, Lee is distinguishable because it involved the report of an independent medical examiner whose opinion was not corroborated by any other medical providers, whereas the instant case involves a report by a treater which is corroborated by other medical providers.
Whether a disability is causally related to a compensable injury requires the commissioner to make a factual determination.Northrop v. Boehringer Ingelheim, 9 Conn. Workers' Comp. Rev. Op. 228, 1032 CRD-7-90-6 (October 30, 1991). We will not disturb a factual determination made by a commissioner unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). In the instant case, there was sufficient evidence in the record to support the commissioner's conclusion that the claimant suffered a traumatic brain injury as a result of the attack. We note that Dr. Littman's opinion that the claimant sustained a traumatic brain injury due to the attack on June 7, 1991 is consistent with the opinions of other medical providers. (Finding of Fact Nos. 21 and 22).
The trial commissioner's decision is affirmed, and the appeal is dismissed.
Commissioners Roberta Smith D'Oyen and Amado J. Vargas concur.