Opinion
CASE NO. 04005 CRB-01-99-03CLAIM NO. 100105403
MARCH 13, 2000
The claimant was represented by Seymour Rothenberg, Esq., Rothenberg Law Offices, 239 Silas Deane Highway, P.O. Box 290767, Wethersfield, CT 06129-0767.
The respondent employer and Peerless Insurance were represented by David Kelly, Esq., Montstream May, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.
The respondent AIG Claims Services, Inc. was represented by Richard Stabnick, Esq., Pomeranz, Drayton Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033-4412.
This Petition for Review from the March 16, 1999 Finding and Award of the Commissioner acting for the First District was heard September 10, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Amado J. Vargas.
OPINION
The respondent Peerless Insurance ("respondent") has petitioned for review from the March 16, 1999 Finding and Award of the Commissioner acting for the First District. In that decision the trial commissioner found that the claimant's permanent partial disability of his right shoulder had increased from eleven percent to fifteen percent. In addition, the trial commissioner found undue delay and unreasonable contest on the part of Peerless regarding the increased four percent permanency. In support of its appeal, Peerless contends that the trial commissioner erred in denying its request for a continuance in order to depose the claimant's treating physician. Additionally, Peerless has filed a Motion to Submit Additional Evidence.
The trial commissioner found the following relevant facts. On May 16, 1992, the claimant sustained an injury to his right shoulder. The respondent Peerless was the insurer at that time, and subsequently AIG became the insurer on June 24, 1995. An approved voluntary agreement with Peerless dated October 23, 1995 provided an eleven percent permanent partial disability of the right shoulder and listed Dr. Woodbury as the claimant's treating physician. The claimant's shoulder condition became worse after May 16, 1992, and he discontinued approximately ninety percent of his performance of repetitive type work. Dr. Woodbury performed right rotator cuff surgery on March 4, 1993. In a report dated September 30, 1996, Dr. Woodbury opined that the claimant's permanent partial impairment had increased to fifteen percent. The trial commissioner found this medical opinion to be credible. Furthermore, the trial commissioner found that the claimant did not re-injure his right shoulder after May 16, 1992, and thus AIG was not responsible for the increased impairment. The respondent contended during the formal hearing that the claimant had not sustained his burden of proof as to an increase in the permanent partial disability assessment.
We will first address the respondent's contention that the trial commissioner improperly denied its request to continue the formal hearing of September 24, 1998 so that it could depose the claimant's treating physician. The trial commissioner denied the respondent's request for a continuance of the formal hearing to depose Dr. Woodbury, finding that the respondent did not act with due diligence in attempting to obtain the deposition prior to the formal hearing. Specifically, Peerless was aware of Dr. Woodbury's reports of September 30, 1996 and January 22, 1998, which increased the claimant's permanency rating to fifteen percent. Moreover, the trial commissioner took administrative notice that prior to the formal hearing in this matter, several hearings had been conducted regarding the issue of increased permanent partial disability.
Although the general rule is that a trial commissioner should not review notes from a prior informal hearing (Moccia v. Dr. Martin Ecker, 7 Conn. Workers' Comp.Rev.Op. 10, 620 CRD-7-87 (1989); Daniele v. Angelo Monarca, Inc., 6 Conn. Workers' Comp.Rev.Op. 25, 519 CRD-3-86 (1988)), in the instant case the trial commissioner merely referred to the fact that these hearings had been held.
We find no error, as it was within the trial commissioner's discretion to deny that request. See Martinez v. Gordon Rubber Packaging Co., 3828 CRB-5-98-6 (July 22, 1999). "We have consistently held that it `is within the broad discretion of the commissioner to grant or deny a continuance, and such a decision is virtually unreviewable.'" Liano v. Bridgeport, 3199 CRB-4-95-10 (March 25, 1997), quoting Mercado v. Personal Moving Services, 14 Conn. Workers' Comp.Rev.Op. 364, 365, 2023 CRB-4-94-5 (Sept. 26, 1995); see also Rindos v. J.F. Barrett Sons, 3188 CRB-3-95-8 (February 27, 1997).
In the instant case, soon after the issuance of Dr. Woodbury's report of September 30, 1996, the respondent could have conducted a deposition of Dr. Woodbury. It is significant that there were hearings regarding the claimant's request for an increased permanency rating which were held on September 30, 1997, December 2, 1997, and August 18, 1998 (Finding ¶ 1-4); during this time the respondent could have deposed Dr. Woodbury. We thus find no abuse of discretion on the part of the trial commissioner in denying the request for a continuance for a deposition which could have been completed prior to the formal hearing on September 24, 1998.
We will next address the Motion for Additional Evidence in which Peerless seeks to introduce evidence regarding alleged delays caused by the claimant and evidence that a formal hearing was scheduled on July 7, 1998 but was not heard on that day. (Respondent's Brief at p. 4-5). The admissibility of additional evidence is controlled by Administrative Regulations § 31-301-9 which states that additional evidence will be admitted if such evidence is material and if there were good reasons for failure to present it at the time of the proceedings before the trial commissioner. The evidence must not only be unavailable at the time of the proceedings, but must also be undiscoverable with due diligence.Crouse v. A.A.I.S., Inc., 3797 CRB-3-98-4 (June 16, 1999) (citing Murdock v. Squires, 6 Conn. Workers' Comp. Rev. Op. 64, 550 CRD-7-87 (Dec. 1, 1988)). Therefore, the additional evidence having been discoverable at the time of trial and no good reason for the failure to present this evidence at the time of trial having been given, the respondent's Motion to Submit Additional Evidence is denied.
In support of its appeal, the respondent contends that the claimant did not present sufficient evidence to support the reopening of the approved voluntary agreement under § 31-315. In essence, the respondent is seeking to retry the facts of the case, which this board may not do. Section 31-315 permits modification of an award or a voluntary agreement if the claimant's condition changes, or if changed conditions of fact arise which necessitate an alteration of the agreement to further the spirit of the Workers' Compensation Act. Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541 (1992). The determination of whether changed conditions of fact exist which support a reopening of a voluntary agreement is a question of fact. Lyons v. Wasley Products, Inc., 3788 CRB-6-98-3 (June 18, 1999); Knudsen v. GSD Inc., 8 Conn. Workers' Comp.Rev.Op. 81, 829 CRD-8-89-3 (May 9, 1990). In the instant case, the trial commissioner accepted as credible the treating physician's opinion dated September 30, 1996, that the claimant's permanent partial disability had increased from eleven percent to fifteen percent. It was thus within the discretion of the trial commissioner to modify the voluntary agreement based upon this changed condition of fact. See Lyons, supra; see also Garfitt v. Pfizer, Inc., 7 Conn. Workers' Comp.Rev.Op. 62, 742 CRD-3-88-6 (August 11, 1989).
In further support of its appeal, Peerless argues that the trial commissioner's determination of undue delay is not appropriate, as some of the delay was caused by the claimant's counsel. Peerless also disagrees with the order that interest be paid commencing September 30, 1996, the date of Dr. Woodbury's opinion increasing the permanent partial disability. We find no error. Whether the respondent unreasonably contested liability and delayed payment for the claimant's increased permanent partial disability was a factual question for the trial commissioner. Agnayo v. Franklin Mushroom Farms, Inc., 3697 CRB-2-97-1 (January 28, 1999); see also Robinson v. Allied Grocers Cooperative, Inc., 1 Conn. Workers' Comp.Rev.Op. 132, 135, 68 CRD 1-81 (July 13, 1982), aff'd., 39 Conn. Sup. 386, 388-89 (1983). Moreover, an award of interest and attorneys' fees is within the discretion of the trial commissioner. Hicks v. Department of Administrative Services, 21 Conn. App. 464, 466-67 (1990); Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers' Comp.Rev.Op. 140, 141, 1186 CRD-5-91-3 (June 5, 1992). We find no abuse of that discretion.
Finally, we will address the respondent's argument that the trial commissioner's award of $2,500.00 for attorney's fees is not supported by the record. We disagree, as the trial commissioner took administrative notice of the numerous hearings which were held, and the record contains numerous motions and briefs submitted by the claimant's counsel which amply justify the trial commissioner's award.
The trial commissioner's decision is affirmed. The respondent is also liable for interest on unpaid benefits through the date of this decision pursuant to § 31-301c(b).
Commissioners Angelo L. dos Santos and Amado J. Vargas concur.