Opinion
CASE NO. 1608 CRB-1-92-12
FEBRUARY 6, 1995
The claimant was represented by Neil Johnson, Esq.
The respondents Dr. Daniel Marshall and Wausau Insurance Co. were represented by David C. Davis, Esq., McGann, Bartlett Brown.
The respondents Greenwood Health Center/Beverly Enterprises and Travelers Insurance Co. were represented by Janine D'Angelo, Esq., Law Offices of Robert S. Cullen.
This Petition for Review from the December 11, 1992 Finding and Award of the Commissioner acting for the First District was heard April 8, 1994 before a Compensation Review Board panel consisting of Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.
OPINION
The respondents Dr. Daniel Marshall and Wausau Insurance Co. have petitioned for review from the December 11, 1992 Finding and Award of the Commissioner for the First District. They claim on appeal that: (1) the commissioner improperly denied their motion to correct; 2) the commissioner improperly refused to reopen and modify a stipulation between the claimant and the respondent Travelers Insurance Company; and 3) the commissioner improperly failed either to apportion benefits between Travelers and Wausau or to credit Wausau with benefits paid to the claimant for a previous injury. We affirm the finding and award of the trial commissioner.
The commissioner found that the claimant worked as a licensed practical nurse for the respondent Greenwood Health Center on May 8, 1988, when she claimed to have suffered a work-related low back injury. A stipulation was reached between the claimant and the employer, who disputed compensability, and was approved by Commissioner Angelo L. dos Santos on December 11, 1990. The claimant had begun working for the respondent Dr. Marshall when she suffered another low back injury in June of 1989 while lifting a water jug onto a water cooler in the doctor's office. Surgery was performed on the claimant's lower back in February of 1990. The trial commissioner found the June 1989 injury to be compensable and a new injury, and ruled that the claimant was entitled to benefits from Dr. Marshall's insurer. The respondents' subsequent motion to correct the award was denied.
It was noted at oral argument that Commissioner Santos approved the stipulation. It was also noted that Chairman Frankl had previously represented the former wife of Dr. Marshall in a legal matter. The parties waived any objections to either of those commissioners sitting on the Compensation Review Board in the instant proceedings, and they remain on the panel deciding this appeal.
The appellants' first claim, that the commissioner improperly refused to grant the motion to correct, hinges upon facts that the appellants assert are undisputed and material. We, of course, may not change a commissioner's finding unless it includes facts lacking an evidentiary basis or fails to include admitted or undisputed material facts. Grady v. St. Mary's Hospital, 179 Conn. 662, 669 (1980); Hill v. Pitney-Bowes, Inc., 8 Conn. Workers' Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990). Where the substitution of factual findings would not alter the legal conclusion of the commissioner, however, a motion to correct the findings may properly be denied. Id., 99; see alsoTovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994).
Upon review of the corrections sought by the claimant, it is apparent to this Board that none of the facts offered by the appellants would have an impact on the commissioner's decision, even though some of those details are undisputed. Many of them, such as the facts surrounding the claimant's employment with Dr. Marshall and her lifting of the water bottle, are irrelevant given the commissioner's conclusion that the claimant suffered a new injury arising out of and in the course of her employment with Marshall rather than a recurrence of a prior injury. There is evidence to support that conclusion, and we will not disturb it here. Fair v. People's Savings Bank, 207 Conn. 535, 541 (1988). Other corrections sought by the appellants are either superfluous or inappropriate in light of the commissioner's authority to assess the credibility of the testimony. SeeCholewinski v. Brake Systems, Inc., 6 Conn. Workers' Comp. Rev. Op. 105, 601 CRD-4-87 (1989). We thus find no error in the commissioner's denial of the appellants' motion to correct.
We note that one of the corrections sought by the appellants concerned an ex parte meeting between their counsel and the claimant's surgeon, as well as an alleged conversation between a representative of the respondent Travelers Insurance Co. and the surgeon. Despite the fact that the denial of those corrections was not error, we feel compelled to express our dismay regarding these practices. Although the respondents certainly had the right to communicate with the claimant's surgeon, the claimant should have been notified of the date and time of the meeting so her counsel might attend, or at least sent a letter detailing the essence of the ex parte communication. This board does not condone surreptitious behavior calculated to produce favorable medical reports by withholding relevant information from a treating physician, as such conduct is tantamount to the promulgation of false or misleading evidence. See Rules of Professional Conduct §§ 3.3, 3.4.
The appellants' second claim is that the trial commissioner improperly refused to grant the claimant's motion to reopen and modify the stipulation between Travelers and the claimant on the basis of changed conditions of fact under General Statutes § 31-315. The changed factual condition alleged by the appellants is the post-settlement revision of the claimant's surgeon's medical report assigning additional disability to the claimant. In his finding and award, however, the commissioner expressly stated that he believed the surgeon's original opinion to be dispositive of the medical question in this case even though he was confronted with both reports. The commissioner also declined to grant the appellants' motion to correct, which sought to add additional findings crediting the revised opinion. As making these findings was within the purview of the trial commissioner, he was not required to open the settlement agreement on the basis of a medical opinion that he had already determined to be unpersuasive.
Finally, the appellants claim that the commissioner improperly failed to apportion the award of benefits between Travelers and Wausau, or, alternatively, to credit Wausau with benefits paid by Travelers. This claim is without merit because the commissioner specifically found that the claimant's June 1989 injury was a new injury unrelated to the May 8, 1988 injury. Without a finding that the prior injury caused a disability that contributed to the harm caused by the second injury, the commissioner is not required either to apportion the award or to credit the appellants for payments made as a result of the first injury. See General Statutes § 31-349, Weinberg v. ARA Vending Co., 223 Conn. 336 (1992). The policy against double recovery for the same injury discussed in cases such asEnquist v. General Datacom, 218 Conn. 19, 26 (1991), is thus not implicated because the injuries in this case are legally separate.
The trial commissioner is affirmed.
Chairman Jesse M. Frankl and Commissioner Angelo L. dos Santos concur.