Opinion
CASE NO. 620 CRD-7-87
JUNE 22, 1989
The claimant was represented by Glen A. Canner, Esq., Piazza, Melmed Ackerly.
The respondent-employer was represented by M.L. Bloomenthal, Esq., Melzer Bloomenthal.
The Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General. The Second Injury Fund did not appear at oral argument, nor did it file a brief.
This Petition for Review from the July 28, 1987 Finding and Dismissal of the Commissioner for the Seventh District was heard December 2, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and Andrew Denuzze.
OPINION
This appeal concerns a December 15, 1986 back injury found not compensable by the Seventh District's July 28, 1987 ruling.
Claimant alleges the injury occurred December 15, 1986 while she was employed as a radiologist for the respondent-employer. On that date she states she had helped move an examination table and later bent over to process X-ray films when she felt her back snap. The claimant has filed a Motion to Correct and seeks correction of various factual findings made by the trial Commissioner. Other issues presented on appeal are whether it was error for the trial Commissioner to apply the adverse inference rule and to permit questioning of the claimant regarding statements at a prior informal hearing.
First we address the failure to include in the Finding that part of a United Hospital Discharge Report stating claimant, "injured her back while working as an X-ray technician in Stamford." That report was an evidentiary declaration which the commissioner was free to disregard in light of conflicting testimony. Besides it concerned an ultimate factual conclusion with regard to compensability. Such an ultimate conclusion was for the commissioner to make after hearing all the evidence and not within the exclusive province of the expert witness.
Paragraph #9 of the Finding stated, "Dr. Ecker, who has been a radiologist for over fifteen years, testified that it is not necessary to bend over in order to process X-ray films." That statement was a mere recital of evidence, Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 273 (1948). If the commissioner included it because it cast doubt on the claimant's allegation that she had in fact bent over the table, then the Finding should have so stated. If the Finding was included because the commissioner thought that it somehow indicated negligence on the employee's part, then it certainly was error as the negligence of the employee is a tort law defense which has no place in Workers' Compensation, Ray v. Schneider, 16 Conn. App. 660, 674 (1988).
However, Finding #9 standing alone is not so clearly erroneous that its inclusion mandates remand.
Claimant also attacks Paragraph #17:
"The patient, Mr. Burroughs, during the processing of whose X-Ray films claimant claims to have been insured, and who was the only other person in the office at the time of the alleged injury, was not called to testify."
Her contention is that the commissioner in that Finding seems to have derived an adverse inference from the claimant's failure to produce an eyewitness. The adverse inference rule was discussed at some length in Secondino v. New Haven Gas Co., 147 Conn. 672 (1960). Secondino holds that the "failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause", Id at 675. However, as the Supreme Court ruled in Turner v. Scanlon, 146 Conn. 149, 161 (1959), no unfavorable inference may be drawn where it was within the power of both parties equally to produce such a witness. Here, clearly, the employer-doctor had at least equal if not superior access to the patient-witness. Insofar as Finding #17 indicates that the commissioner drew an adverse inference from the failure to produce, then it was error.
Finally we address the issue of whether the trial Commissioner erred in allowing questioning of the claimant as to statements made at a prior informal hearing. Daniele v. Angelo Monarca, Inc., 6 Conn. Workers' Comp. Rev. Op. 25, 519 CRD-3-86 (1988), considered this issue. In Daniele the respondents argued that it was error not to allow respondents to cross-examine as to claimant's statements at an informal hearing. We upheld the trial Commissioner's ruling excluding questions relating to the statements made at an informal hearing. "[I]n workers' compensation matters, informal pretrial hearings and the fact-finding procedures as well as possible settlement discussions occurring during such conferences have always enjoyed a special privileged status, Kirsten v. B.F. Goodrich Sponge Products Co., 178 Conn. 401 (1979). That status reflects the common law doctrine that declarations made in such compromise discussions are not ordinarily admissible in evidence. Simone Corporation v. Connecticut Light Power Co., 187 Conn. 487, 490 (1982); Riccio v. Montano, 93 Conn. 289, 293 (1919); Stranahan v. East Haddam, 11 Conn. 507, 512-19 (1836); Tait La Plante, Handbook of Connecticut Evidence Sec. 11.5 (6) p. 336 (1988)." The instant matter presents the obverse situation. Based on our ruling in Daniele, we hold it was error for the commissioner to permit cross-examination concerning statements at the informal hearing.
The totality of errors found mandates that we remand for further proceedings consistent with our decision. It is the cumulative nature of the flaws found which lead us to this conclusion. In such new proceedings the trial Commissioner may reach the same result but only after following the course we have charted.
Commissioners Andrew Denuzze and Frank Verrilli concur.