Opinion
CASE NO. 1153 CRD-5-90-12
APRIL 20, 1992
The claimant was represented by Robert G. Montstream, Esq. and David Kelly, Esq., and Neil Ambrose, Esq. all of Montstream May.
The respondents ESIS were represented by Richard Stabnick, Esq., Jason Dodge, Esq., and Margaret Corrigan all of Pomeranz, Drayton and Stabnick, The respondents-Travelers were represented by Robert Cullen, Esq. The respondents-Travelers withdrew their appeal in the instant matter and did not file a brief or appear at oral argument.
The Petition for Review from the December 17, 1990 Finding and Award and June 10, 1991 Order denying Claimant's Motion to Open the Finding and Award of the Commissioner for the Fifth District was heard November 22, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Gerald Kolinsky and Donald H. Doyle.
OPINION
Both the claimant and the respondents have appealed in the present matter. The respondents appeal the December 17, 1990 Finding and Award and the claimant appeals the June 10, 1991 Order Denying Claimant's Motion to Open the Finding and Award dated May 13, 1991. The claimant also seeks to present additional evidence.
Claimant was found to have suffered a series of compensable back injuries. The first of two injuries occurred August 2, 1973 and September 6, 1981 and were acknowledged in Voluntary Agreements approved October 10, 1973 and January 6, 1982 respectively. On June 3, 1986 the claimant sustained a third compensable back injury. After the third injury two neurosurgeons, Dr. Franklin Robinson of New Haven (Letter, November 17, 1986) and Dr. Stanley Fromm of Bridgeport (Letter, June 2, 1987) concluded claimant had a thirty (30%) per cent permanent partial impairment of the back. See claimant's Exhibits #4 and #3. The commissioner ruled in his Finding and Award, paragraphs #8 #9. "Dr. Craig's examination also found three herniations and ascribed equal impairment to each incident. i.e. 1973, 1981 and 1986; he found eleven percent of the whole person and eighteen percent of the spine. It is found that claimant's impairment is thirty percent divided equally among the three incidents set forth above." The report to which the trial commissioner clearly referred was the October 10, 1990 Report of Dr. Michael Craig, never formally presented in evidence, although it is in the district file.
The parties have submitted voluminous documentation, but the ultimate issue is whether the trial commissioner erred in failing to identify both Dr. Craig reports as exhibits in evidence. It seems the reports should have been admitted into evidence. Otherwise, part of the conclusions found by the commissioner would have been without evidence. Certainly, the reports were relevant and material and seem to have been omitted through inadvertence.
Due process considerations require that the respondent be given an opportunity to object to the admission. If the claimant's Motion to Reopen had been granted, that opportunity certainly would have been present. Under Sec. 31-315 a workers' compensation commissioner has ongoing jurisdiction over a claim. Sec. 31-315 provides that a "commissioner shall also have the same power to open and modify an award as any court of the state." Generally whether a party is allowed to present additional evidence is a matter controlled by Administrative Regulation Sec. 31-301-9 which provides that additional evidence is permitted where it is material and there were good reasons for failing to present the evidence in the proceedings before the trial commissioner. Paragraph #2 of the Finding and Award states "On August 2, 1990 a report was issued by Michael Craig, M.D. as a result of an examination undertaken by order of the undersigned." The formal hearing in the matter had been held January 25, 1990; apparently the commissioner felt that the evidence then presented was not enough to answer all the questions raised. Therefore he ordered the examination by Dr. Craig.
Sec. 31-315 provides: Sec. 31-315. Modification of award or voluntary agreement. Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter. shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.
Dr. Craig's August 2, 1990 report, also never formally admitted into evidence, failed to answer all the questions so the commissioner asked for more clarification. This led to the subsequent October 10 report mailed not to the commissioner but to an attorney for the employer. The commissioner, unaware of this October 10 communication, wrote to the doctor on October 24 requesting the clarification. The doctor's reply forwarded the October 10 report, finally received by the commissioner November 7, 1990. This information is all in the district file. Now, the respondent argues that the commissioner's findings in paragraphs #8 and #9 were found without evidence and further that the matter should not be reopened to receive such evidence.
It is elementary that when the commissioner orders an independent medical examination, the evidence derived from such an examination should be admitted into evidence as a matter of course. Therefore we rule that claimant's Motion to Reopen the proceedings should be granted in order to permit these reports to be offered in evidence.
We remand to the Fifth District for further proceedings consistent with this opinion. Given our ruling it is not necessary to consider the other issues raised in the appeals.
Commissioners Gerald Kolinsky and Donald H. Doyle concur.