Opinion
CASE NO. 5439 CRB-4-09-2
APRIL 7, 2010
This Petition for Review from the February 20, 2009 Finding and Approval/Finding and Dismissal of the Commissioner acting for the Fourth District was heard on September 25, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Christine L. Engel.
The claimant was represented by Robert F. Carter, Esq., Carter Civitello, One Bradley Road, Suite 301, Woodbridge, CT 06525.
The respondents were represented by Nicholas W. Francis, Esq., Law Offices of Jonathan M. Zajac, LLC, 152 Simsbury Road, P.O. Box 699, Avon, CT 06001.
OPINION
Both parties to this claim have petitioned for review from the February 20, 2009 Finding and Approval/Finding and Dismissal of the Commissioner acting for the Fourth District. Having reviewed the merits of both petitions, we affirm the decision of the Commissioner.
We note that two requests for extensions of time were granted during the pendency of this appeal.
The trial commissioner made the following factual findings which are pertinent to our review. On March 9, 1999, the claimant, who was employed by the respondent as a video communications specialist, sustained an injury to his lumbar spine while attempting to maneuver a cart holding a large television through a set of doorways. In October 1999, James Sabshin, M.D., performed a L4-5 discectomy, and in March 2006, the claimant underwent a four-level fusion with Jeffrey Sumner, M.D. Dr. Sumner performed a second fusion in June 2007. The claimant ultimately came under the care of Rakesh Patel, M.D. for pain management. The claimant has been totally disabled since the date of the injury.
Following routine blood work done on March 15, 2006, Dr. Patel discovered the claimant's testosterone count had fallen well below the normal range of 350-850, and referred the claimant to Adam Mayerson, M.D., an endocrinologist. Dr. Mayerson diagnosed the claimant as suffering from hypogonadism secondary to a combination of a partially empty sella and the chronic use of narcotic pain medication. Claimant's Exhibit B (Report of September 15, 2006). In his report of April 24, 2006, Dr. Mayerson stated that the claimant's "medical history include[d] a condition known as gynecomastia (male breast enlargement caused by an imbalance of the hormones estrogen and testosterone) that began in the claimant's early teens." Findings, ¶ 10. See also Claimant's Exhibit B. Noting that laboratory results from March 15, 2006 had revealed a total testosterone count of 19, Dr. Mayerson opined that "[w]hile chronic narcotic use can lead to secondary hypogonadism, the levels are not typically this low." Claimant's Exhibit B (Report of April 24, 2006). A subsequent head/cranial MRI performed on April 28, 2006 revealed a "[p]artially empty sella with a thin pituitary gland along floor of the sella." Claimant's Exhibit B. In his RME report dated October 3, 2008, William Druckemiller, M.D., opined that it was "not absolutely clear how much the chronic narcotic use contributes to [the claimant's] low testosterone level. If he did not have an empty sella it would be the causative factor." Respondents' Exhibit 5, p. 3.
The claimant testified that he had never been diagnosed with gynecomastia. September 4, 2008 Transcript, p. 45.
On June 4, 2008, Dr. Patel issued an office note in which he indicated the claimant was depressed and that he had discussed with the claimant a referral to a psychiatrist. Claimant's Exhibit H. In his correspondence of October 2, 2008 to the claimant's physician, Dr. Patel opined that the claimant's back pain was a substantial contributing factor for treatment with a psychiatrist. Claimant's Exhibit M. The claimant testified he had never been formally diagnosed with depression prior to 2005, when Eric Liben, M.D., a former treating physician, tried to give him some sample medications for depression. September 4, 2008 Transcript, p. 46. The evidentiary record also contains a discharge summary pertaining to the March 2006 surgery which indicates the claimant had a prior medical history of depression. Respondents' Exhibit 4. The claimant testified that he did not know where the diagnosis came from, September 4, 2006 Transcript, p. 47, given that Dr. Liben's notes are silent relative to a possible diagnosis of depression because the claimant told him he didn't want a reference to depression in his records in light of the "stigmata in our society for people who have mental problems." Id., at 46.
The March 26, 2006 surgery note also referenced a history of diabetes, hypertension, and asthma; the claimant denied having suffered from any of those conditions. September 4, 2008 Transcript, pp. 46-47; Respondents' Exhibit 4.
The claimant testified that when he awoke following his second fusion surgery of June 27, 2007, he experienced numbness, aching and shooting pain in three fingers of his left hand. Id., at 23. Although the claimant testified that he told Dr. Sumner about the hand symptoms at several office visits following the surgery, the doctor "never noted the problem and his complaints fell on deaf ears." Findings, ¶ 24. See also September 4, 2008 Transcript, pp. 54-55. In his office note of October 1, 2007, Dr. Sumner indicated he had "inadvertently omitted" to mention the claimant's left-hand symptoms at the claimant's office visit of September 14, 2007 and noted the claimant believed it was "a function of positioning." Claimant's Exhibit D. The claimant also testified that he informed Dr. Patel of the hand symptoms right after the June 27, 2007 surgery, and Dr. Patel opined that he had probably not been positioned correctly during surgery. September 4, 2008 Transcript, pp. 23-24. Dr. Patel's notes for the claimant's office visits of August 1, 2007 and October 9, 2007 — the first two office visits following the claimant's surgery — do not contain a reference to any hand symptoms. Similarly, Dr. Druckemiller, in his RME report of October 3, 2008, stated that "[t]he exact etiology of the ulnar nerve symptoms is not documented in the medical records." Respondents' Exhibit 5, p. 2. Dr. Druckemiller also observed that "[t]here is no history of onset of numbness in the arm at the time of surgery. When this happens, it is noted immediately in the hospital and there is never a question regarding this." Id.
There is no mention of any left-hand symptoms in Dr. Sumner's office notes of July 6, 2007, July 13, 2007, August 10, 2007, or September 14, 2007. Claimant's Exhibit A.
On November 13, 2007, the claimant consulted Mark Altman, M.D., who diagnosed the claimant with "ulnar nerve neuropathy arising from the elbow and probably secondary to compression" and performed ulnar nerve surgery some time in December 2007. Claimant's Exhibit G. However, on August 29, 2006, the claimant had apparently consulted an associate of Dr. Altman regarding bilateral shoulder pain, who reported that "the claimant has had intermittent numbness in both hands approximately two times each week and that he had been diagnosed years earlier with carpal tunnel syndrome." Findings, ¶ 28. See also Respondents' Exhibit 2.
The trial commissioner incorrectly identified the author of the August 29, 2006 note as Dr. Altman. The misidentification is at most harmless error. See D'Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002), cert. denied, 262 Conn. 933 (2003).
The claimant submitted an exhibit documenting unreimbursed out-of-pocket payments for testosterone supplements in the amount of $2,915.96 and co-payments for treatment with Dr. Mayerson in the amount of $45.00. Claimant's Exhibit C. The claimant also contends that he is owed $2,695.46 in unreimbursed out-of-pocket expenses for medications prescribed by Dr. Patel which the respondents failed to authorize, Claimant's Exhibits J and K, Claimant's Memorandum on Cross-Appeal, p. 1, and $389.45 for mileage associated with medical treatment from January 10, 2007 through March 11, 2008. Claimant's Exhibit L. Finally, the claimant's group health insurer, Healthnet, has filed a lien for medical expenses in the amount of $2,655.02. Findings, ¶ 33.
See also Claimant's Exhibit E, which recites different lien amounts as of March 2008 and August 2008, respectively.
The trial commissioner accepted the compensability of the depression claim, noting that "it is reasonable to infer the claimant's depression relates to the accepted back claim and is compensable." Findings, ¶ x. Accordingly, the trier ordered the respondent to pay all reasonable medical expenses associated with the treatment of the claimant's depression. The trier also ordered the respondents to reimburse the claimant for out-of-pocket expenses incurred in purchasing prescriptions related to the back injury authorized by Dr. Patel and for mileage expenses associated with medical treatment for the accepted back claim. However, the trier denied the compensability of the testosterone supplement treatments and the ulnar nerve surgery and accordingly dismissed the Healthnet lien. The trier also determined there had not been an unreasonable contest and sanctions were not warranted. Finally, the trier indicated that because the respondents had not submitted their Exhibit 7, consisting of a surveillance DVD, to the claimant in a timely manner, it was not considered in his deliberations.
The trier dismissed the claim for mileage expenses associated with driving to the pharmacy and to workers' compensation meetings. A parking expense reim]bursement claim was also dismissed.
The respondents filed a Motion to Correct which was denied in its entirety. The claimant filed a Motion to Correct and a Motion for Articulation, both of which were also denied save for proposed corrections granted to Findings, ¶ d in order to make the language of that paragraph consistent with the award, and Findings, ¶ 4 in order to make the award consistent with the findings and reduce the award to a sum certain. Subsequent to filing his Reasons for Appeal on March 3, 2009, the claimant filed Amended Reasons for Appeal on March 26, 2009. The respondents' objected, arguing that the second petition was untimely and the rationale for the additional reason for appeal ? i.e., the claimant's objection to the admission into the record of Respondents' Exhibit 7 ? had been waived by the claimant as grounds for appeal when he failed to depose the investigator who had provided the surveillance DVD.
On appeal, the respondents assert that the trier's decision to find the claimant's depression compensable lacked adequate evidentiary support and the trier erred in denying the respondents' Motion to Correct. As cross-appellees, the respondents contend that the trier's failure to grant their Motion to Dismiss the claimant's amended Reasons for Appeal for lack of timeliness was erroneous, and the surveillance evidence (Respondents' Exhibit 7) should have been admitted as a full exhibit because the claimant had waived his right to examine the investigator. On cross-appeal, the claimant argues that the trier's failure to find that the respondents unreasonably contested and delayed the authorization for a psychiatric authorization constituted an abuse of discretion. In addition, the claimant contends that the trier's failure to find the respondents unreasonably contested payment for the medications prescribed by Dr. Patel and unreasonably contested and unduly delayed reimbursement to the claimant for same also constituted an abuse of discretion. Finally, the claimant asserts that the trier's decision to admit into the record the unauthenticated surveillance video proffered by the respondents constituted reversible error.
The standard of deference we are obliged to apply to a trial commissioner's findings and legal conclusions is well-settled.
? the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner's role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene's (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier's legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998).
McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).
We begin our analysis with the respondents' contention that the trier's decision to find the claimant's depression compensable constituted error. The respondents assert that the evidentiary record provided an insufficient basis on which the trier could reasonably rely in making the determination that the claimant's depression was causally related to his compensable back injury. We disagree. The record contains two referrals for psychiatric treatment from Dr. Patel dated June 4, 2008 and July 2, 2008, respectively. Claimant's Exhibit I. In addition, the record contains correspondence from Dr. Patel to claimant's counsel dated October 2, 2008 in which the doctor identified the claimant's back pain as a substantial contributing factor for treatment with a psychiatrist. Claimant's Exhibit M. We also note that the record contains earlier reports from Dr. Patel noting symptoms of depression/anxiety dating back to 2001 and 2002, Claimant's Exhibit H (Reports of August 9, 2001 and April 11, 2002), as well as the discharge summary dated March 26, 2006 from the Hospital of St. Raphael following the claimant's laminectomy which cited depression as part of the claimant's prior medical history. Respondents' Exhibit 4. Finally, the claimant testified at trial regarding the discussion he had with Dr. Liben in 2005 about accepting pharmaceutical samples for the treatment of depression, September 4, 2008 Transcript, p. 46, and also offered lengthy testimony regarding his recent attempts to secure psychiatric treatment through other channels. Id., at 49-51.
We believe that the foregoing evidentiary submissions provided a reasonable basis for the trial commissioner's inference that the claimant's current symptoms of depression are causally related to the compensable injury to his lumbar spine. Dr. Patel's recommendations for psychiatric treatment were generated in his capacity as the claimant's long-time pain management physician. Given the unique role such physicians play in evaluating and monitoring the effects of chronic pain and long-term narcotic use, we believe it can be reasonably inferred that Dr. Patel possessed the necessary qualifications to render a diagnosis of depression and refer the claimant to a psychiatric practitioner for an assessment of the extent of the claimant's disability and recommended mode of treatment. In addition, we note that in both the referral note of June 4, 2008 and the correspondence to claimant's counsel dated October 8, 2008, Dr. Patel specifically indicates that the claimant's depression diagnosis is secondary to his low back pain, thereby providing the trier with a reasonable basis for inferring that the claimant's low back pain was a significant contributing factor to his depression. Tartaglino, supra.
Our review indicates that in his correspondence of October 8, 2008, Dr. Patel merely expanded upon the information contained in his referral notes of June 4, 2008 and July 2, 2008. As such, we find nothing improper in the procurement of this correspondence following the formal hearing of September 4, 2008.
As such, we find the trial commissioner was well within his discretion to weigh the probative value of this opinion and reach his conclusions regarding compensability accordingly, particularly in light of the fact that Dr. Patel's qualifications to make such a diagnosis were never challenged by the respondents. We also note that the claimant testified quite eloquently on his own behalf regarding this issue. Thus, given that the trial commissioner's conclusion does not appear to "result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them," Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988), we decline to overturn this determination on appeal.
Furthermore, we must confess to being troubled by the apparent delay on the part of the respondents regarding authorization of the psychiatric evaluation recommended by Dr. Patel in June and July 2008. In McInnis v. Shelter Workz, 5299 CRB-3-07-11 (June 11, 2009), this board affirmed the decision of the trier to award temporary total benefits commencing on the date of the claimant's referral to an orthopedic specialist even though the actual examination did not occur until almost one year later. Citing the obligations of the respondent pursuant to § 31-294d(a)(1) C.G.S. to promptly furnish reasonable or necessary medical care to an injured claimant, we dismissed the respondents' claim that the record contained insufficient probative evidence for the trier's findings and instead identified a "`selfcreated' hardship on the part of the respondent . . . who failed to provide the claimant timely access to a specialist." Id.
Sec. 31-294d(a)(1) C.G.S. (Rev. to 1999) states, in pertinent part, that "[t]he employer, as soon as he has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services, as the physician or surgeon deems reasonable or necessary. . . ."
Moreover, we also find no merit to the instant respondents' assumptions that the demeanor and appearance of the claimant at trial somehow provide a foundation for the inference that the claimant is not suffering from depression. While "physical slovenliness and demonstrable cognitive impairment," Claimant's Memorandum as Appellee, p. 2, would logically serve to bolster a diagnosis of depression, we do not think the fact that the claimant was neatly dressed for trial and appeared to follow the legal proceedings without untoward difficulty necessarily negates the possibility of such a diagnosis, especially in light of the claimant's testimony to the contrary. September 4, 2008 Transcript, pp. 29, 30, 46.
As a corollary to the preceding issue, the claimant has alleged on appeal that the respondents' refusal to authorize the psychiatric evaluation sought by Dr. Patel constituted an unreasonable contest, and therefore the trier's failure to sanction the respondents, presumably pursuant to § 31-300 C.G.S., was an abuse of discretion. "An abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided it based on improper or irrelevant factors." In re Shaquanna M., 61 Conn. App. 592, 603 (2001). However, this board has "repeatedly held that whether to award attorney's fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner." McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (November 12, 1998). As the preceding discussion demonstrates, we have reviewed the circumstances surrounding the respondents' failure to authorize the psychiatric evaluation recommended by Dr. Patel and expressed herein our concern with said failure. That being said, we do not believe the trier's refusal to sanction the respondents either "vitiated logic" or appeared to be "based on improper or irrelevant factors" and we therefore decline to overturn this determination on appeal.
The pertinent language of § 31-300 C.G.S. (Rev. to 1999) is as follows: "In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney's fee."
The claimant has also alleged that the trier erred in failing to find that the respondents' unreasonably contested paying for prescriptions authorized by Dr. Patel and unreasonably delayed reimbursing the claimant after he paid out of pocket for same. The record indicates that claimant's counsel repeatedly faxed correspondence pertaining to the unpaid prescriptions beginning on August 10, 2007 and continuing until August 13, 2008. Claimant's Exhibit J. The claimant also faxed correspondence to respondents' counsel on January 16, 2008, February 14, 2008, February 28, 2008, May 14, 2008, and June 13, 2008. Claimant's Exhibit K. The trier ultimately determined that the total unreimbursed amount sought by the claimant was $2,695.46. Findings, ¶ gg. See also; Claimant's Exhibits J, K, Claimant's Memorandum on Cross-Appeal, p. 1.
We begin by stating that the timely and diligent provision of coverage for the cost of medications associated with a compensable injury and prescribed by the treating physician is unquestionably contemplated by the provisions of § 31-294d(a)(1) C.G.S. which addresses the obligation of an employer to promptly furnish reasonable or necessary medical care. Clearly the claimant, via counsel, was forced to expend a considerable amount of time and energy in first attempting to obtain coverage for the Lyrica and Ambien and then seeking reimbursement for the out-of-pocket costs associated with the purchase of these prescriptions. However, as previously discussed herein relative to the charge of unreasonable contest/delay raised by the claimant concerning the respondents' failure to authorize a psychiatric evaluation, the discretion to award attorneys' fees pursuant to § 31-300 C.G.S. rests solely with the trier and can only be reversed by an appellate body if the decision constitutes an abuse of discretion. Our review of the record does not suggest that an abuse of discretion occurred.
See footnote 9, supra.
First, we note that the May 14, 2008 correspondence from claimant's counsel to respondents' counsel indicates that the claimant was issued a partial payment in the amount of $707.95 covering the time period from December 14, 2007 to March 11, 2008 and leaving a claimed balance due of $987.52. Claimant's Exhibit K. This payment is reflected in the medical/indemnity expense print-out supplied by the respondents, which also reflects subsequent payments to the claimant on March 7, 2008 and April 21, 2008 in the amounts of $74.15 and $518.98, respectively. Respondents' Exhibit 6. Second, the claimant himself testified that the Ambien and Lyrica had in fact been covered until "only recently." September 4, 2008 Transcript, p. 27. Finally, we note that the prescription receipts submitted to the carrier were not solely limited to Lyrica or Zolpidem (Ambien). In fact, the claimant testified, and the trier so found, that the claimant takes Ambien, Miralax, Roxycodone, Oxycontin, Zanaflex, Lyrica, Neurontin, and Klonopin. Findings, ¶ 8; September 4, 2008 Transcript, pp. 22-23. Given such an extensive medication regimen, it is not entirely shocking that an occasional "glitch" in the processing of the costs associated with these prescriptions may occur. Obviously, it is incumbent upon respondents to rectify any problems as soon as possible, and it does not appear that the respondents did so in this matter. However, we cannot say, given the totality of the circumstances, that the trier's failure to sanction the respondents on this issue constituted an abuse of his discretion and we decline to rule otherwise on appeal.
The final issue for discussion concerns the claimant's assertion that the trier's decision to accept into the record the unauthenticated surveillance evidence constituted reversible error, and the respondents' contention as cross-appellees that because the claimant waived his objection to the admission of the surveillance evidence, the trier's decision to accept but not rely on the exhibit constituted error. In his findings, the trier indicated that because the respondents' submission of the surveillance DVD was untimely, he did not rely on it in his deliberations. Findings, ¶ b. However, the claimant asserts that the "erroneous admission of the exhibit vigorously alleged by the respondent to negate the claimant's credibility taints the proceedings with a question of potential bias, however subconscious." Claimant's Memorandum on Cross-Appeal, p. 5.
We find unpersuasive the respondents' argument in support of dismissing on grounds of untimeliness the claimant's amended Reasons for Appeal. We note that the claimant's initial Reasons for Appeal were timely filed on March 5, 2009, and the Amended Reasons for Appeal on March 31, 2009, less than one month later. The respondents have not alleged that this delay was in any way prejudicial or harmful to their prosecution of this appeal, and given that they did not file their Brief as Cross-Appellees until August 10, 2009, we can discern no valid reason why it would have been. As such, we find no error in the trier's refusal to grant the respondents' Motion to Dismiss.
The law governing the submission of secondary evidence, such as a photograph or recorded image, is well settled. In order to verify the accuracy of such a submission, "[o]rdinarily it should be substantiated by testimony that it is a correct representation of the conditions it depicts, and in so far as it is properly so authenticated it becomes evidence of those conditions." Cagianello v. Hartford, 135 Conn. 473, 475 (1949). See also Pisel v. Stamford Hospital, 180 Conn. 314, 323-324 (1980) (rules governing the admissibility of photographs are also applicable to videotapes). As this board observed in Catale v. Physicians Health Services, 4495 CRB-4-02-2 (March 5, 2003), although we recognize the broad discretion, pursuant to § 31-298 C.G.S., afforded trial commissioners relative to the manner in which they choose to conduct their hearings, "the trier must remain mindful of the requirements of procedural due process, such as a party's right to cross-examination upon the offering of evidence." Id. Thus, in Catale, we reversed and remanded the matter for a new trial because "no evidence or testimony was offered by the respondents to corroborate the accuracy of the dates and subject matter that the videotape purported to cover," id., and, despite a timely objection by the claimant, "the trier simply admitted it as an exhibit without conducting inquiry into any of the claimant's stated concerns." Id.
The pertinent provisions of § 31-298 C.G.S. (Rev. to 1999) are as follows: "In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and 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."
In the instant appeal, we find the circumstances surrounding both the submission and admission of the surveillance evidence problematic. First, the record indicates that the surveillance DVD was not received by the claimant until 4:00 p.m. on the Monday afternoon before the formal hearing of Tuesday, December 16, 2008. December 16, 2008 Transcript, p. 6. Although at the formal hearing respondent's counsel indicated that the surveillance periods dated back as far as October 3, 2008, id., he offered no explanation for the delay in transmittal to the claimant, other than stating that his office had not received the surveillance DVD until the prior Friday. Id., at 8. We believe such tactics begin to approach a "trial by ambush" and are, as such, to be vigorously discouraged. Second, although the respondents introduced the surveillance DVD, they did not produce the investigator responsible for filming the footage, apparently because she was recuperating from an automobile accident and was unable to travel to Connecticut from her home in Massachusetts. Id., at 6. Although claimant's counsel strenuously objected to the admission of the surveillance DVD on grounds of timeliness and relevance, the trier chose to admit the DVD with the proviso that the investigator be produced at a later date for crossexamination. Id., at 8. However, the claimant subsequently requested the trier close the record without having obtained the investigator's testimony by way of either formal hearing or deposition, and the trier ultimately decided not to rely on the exhibit in making his determinations.
The respondents contend that the claimant "was given every opportunity to have the video authenticated" at the formal hearing of December 16, 2008. Brief of Respondent/Cross-Appellee, p. 4. We fail to comprehend how the claimant could have competently authenticated the DVD in the absence of the investigator responsible for filming it. The respondents have also asserted that because the claimant indicated a willingness to take the testimony of the investigator by way of deposition rather than formal hearing, the claimant somehow assumed the burden of authenticating the DVD. This is simply not so. The burden of authenticating the surveillance DVD rested squarely on the shoulders of the respondents and their inability to produce the investigator at the formal hearing of December 16, 2008 did not obviate that responsibility. However, it cannot be denied that the claimant did ultimately request the trier close the record without having taken the investigator's testimony, and under those circumstances, the respondents' contention that it could be reasonably inferred that the claimant thereby waived his right to examine the witness is not without a certain logic. "Waiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. . . . In other words, waiver may be inferred from the circumstances if it is reasonable to do so." (Citations omitted; internal quotation marks omitted). Stewart v. Tunxis Service Center, 237 Conn. 71, 80-81 (1996), citing Hensley v. Commissioner of Transportation, 211 Conn. 173, 179 (1989).
Having reviewed the rather unfortunate sequence of events surrounding the admission of the surveillance DVD, we conclude that while the admission of the unauthenticated DVD constituted error, it does not rise to the level of reversible error under the particular circumstances of this claim. As claimant's counsel pointed out at the December 16, 2008 formal hearing, the surveillance footage was utterly irrelevant to the issue of unpaid/unreimbursed prescriptions. We are also unable to discern how surveillance footage would have been relevant to the issue of the existence of a depressive disorder or illuminated a lack of credibility on the part of the claimant regarding this disorder. Finally, as discussed herein, the evidentiary record contained ample support, independent of any surveillance footage, for the trier's findings on the issues of the compensability of the claimant's hypogonadism and ulnar nerve surgery. Nevertheless, we would strongly reiterate that, consistent with the precepts set forth in Cagianello, supra, and Catale, supra, secondary evidence must be authenticated prior to admission into the record as a full exhibit in order to afford all parties their due process rights and preserve the integrity of the hearing process.
As mentioned previously herein, both parties filed Motions to Correct. The trier granted two of the claimant's three proposed corrections and denied the third, which sought to reverse the commissioner's findings with regard to the unreasonable delay/contest of the prescription payments and psychiatric disorder. Given that the proposed correction would seem to reflect the claimant's desire "to have the commissioner conform his findings to the [claimant's] view of the facts," D'Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003), we find no error in the trial commissioner's denial of the Motion to Correct. "The [claimant] cannot expect the commissioner to substitute the [claimant's] conclusions for his own." Id. Relative to the respondents' Motion to Correct, our review suggests that the primary purpose of the proposed corrections was to restate the respondents' arguments as to why the psychiatric disorder should not have been found compensable. As such, we would not deem erroneous the trier's denial of these corrections. This board has previously observed that when "a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct." Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002).
Having found no error, the February 20, 2009 Finding and Approval/Finding and Dismissal of the Commissioner acting for the Fourth District Award is accordingly affirmed.
Commissioners Ernie R. Walker and Christine L. Engel concur in this opinion.