Opinion
CASE NO. 4605 CRB-1-03-1CLAIM NO. 100127603
DECEMBER 30, 2003
The claimant was represented by Domenic Perito, Esq. Law Offices of Nicholas T. Kocian, P.C., 182 Collins Street, Hartford, CT 06105.
The respondents, the City of Hartford and Constitution State Services Company, were represented by Richard T. Stabnick, Esq., Pomeranz, Drayton Stabnick, LLC, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the December 27, 2002 Finding and Award of the Commissioner acting for the First District was heard June 20, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.
OPINION
The respondents, City of Hartford and Constitution Services Company, have appealed from the December 27, 2002 Finding and Award of the Commissioner acting for the First District. We affirm the decision of the trial commissioner.
The pertinent facts are as follows. The claimant, Cynthia B. Walker, was employed by the respondent City of Hartford as a Child Development Aide. She worked at a preschool daycare program at the McDonough School. The claimant's job required close contact with the children. On or about September 13, 1999, the claimant noticed one of the children came to school with what she observed to be a "pink watery eye." The claimant saw the child touching his face and rubbing his eye. On that date the claimant held hands with the child and the child also sat on her lap while stories were being read. Later that day, the child was sent home from school due to his eye condition. Several days later, the claimant learned the child was suffering from conjunctivitis and he remained out of school for a number of days.
About a week later the claimant's right eye became irritated and developed a pink condition, which persisted for several days. The claimant was referred to Dr. Duane Austin, a board-certified ophthalmologist. Dr. Austin's letter/report dated October 15, 2000 states during the claimant's initial visit to him on September 23, 1999, she expressed her belief she had contracted the conjunctivitis from a student in her school. Dr. Austin states, "viral conjunctivitis is extremely contagious and it would be very likely that such an occurrence could happen" (referring to the claimant contracting the conjunctivitis from a student); Claimant's Exhibit B. When the condition persisted, the claimant went on to treat with other specialists. As a result of the condition, she has developed blurry vision, and had not fully recovered as of the date of the formal hearing. The trial commissioner found the eye condition the claimant contracted on the job on September 13, 1999 to be compensable. He authorized treatment and prescriptions, awarded temporary total disability benefits, and ordered the case to remain open for future hearings at the request of the claimant, the respondent or the commissioner. Findings, ¶¶ C-E.
The respondents filed a Motion to Correct the commissioner's findings. They asked the commissioner to strike a paragraph which stated the teacher in charge called the child's mother, the child was sent home due to his pink watery eye, and several days later the claimant learned the child suffered from conjunctivitis and remained out of school for a few days, because said paragraph was allegedly founded in hearsay. They also sought to strike the commissioner's finding that the September 13, 1999 injury was compensable, as they contended that such a finding was unsupported by the evidence and speculative. The respondents asked the commissioner to make an alternative finding that the claimant failed to sustain her burden of proof and dismiss the claim. The trial commissioner denied the Motion to Correct in its entirety. The respondents also filed a Motion for Articulation asking which specific medical evidence the commissioner had relied on in finding the claimant was injured due to a workplace exposure that occurred on September 13, 1999. In response, the commissioner explained the evidence he relied on were in the facts found in the findings, specifically Dr. Austin's letter/report and a note from Dr. Gilbert that referred to a "viral infection which started around September 13, 1999."
The respondents appeal the commissioner's findings for the following reasons: Firstly, the respondents allege the commissioner erred in admitting hearsay evidence in the form of the October 15, 2000 letter from Dr. Austin to the claimant's attorney. Secondly, the respondents argue the commissioner had no competent medical evidence to support the conclusion that the claimant's conjunctivitis arose from her employment. Thirdly, the respondents contend the commissioner erred because he never made a finding as to whether the claimant sustained a personal injury that could be definitely located as to time and place, an occupational disease as defined by § 31-275, or a personal injury caused by repetitive trauma. The respondents allege such a finding is necessary for purposes of appellate review. The respondents argue the commissioner's response to their Motion to Articulate indicates the commissioner relied upon insufficient facts to support the conclusion he reached. Further, the respondents allege the commissioner erred in denying their Motion to Correct.
The first issue we will address is the admissibility of alleged hearsay evidence. The respondents argue the October 15, 2000 letter the claimant submitted from Dr. Austin to her attorney is inadmissible hearsay. The pertinent part of the letter/report states the following: "On the initial visit, her story that she relates stated that she believes that she had contracted the condition from a student who had conjunctivitis where she worked. Viral conjunctivitis is extremely contagious and it would be very likely that such an occurrence could happen."
In their brief, the respondents raise the issue that the fact the commissioner marked a treatise as an exhibit for identification, did not have it sealed, and never ruled on its admissibility. Yet the treatise was included in the file when he rendered the award. This issue was never addressed in the respondents' Reasons for Appeal. Therefore, we will not review the issue now. Baccielo v. Business Products, Inc., 13 Conn. Workers' Comp.Rev.Op. 163, 1732 CRB-4-93-5 (March 9, 1995); Peters v. State/Southern Connecticut State University, 10 Conn. Workers' Comp.Rev.Op. 32, 1103 CRD-3-90-8 (Jan. 13, 1992). Additionally, there is no indication in the findings that the commissioner relied on this treatise.
The respondents argue the October 15, 2000 letter should not have been admitted because of its hearsay nature. Strict adherence to the rules of evidence is not mandatory in workers' compensation proceedings. Lapia v. Town of Stratford, 47 Conn. App. 391, 400 (1997); Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 740 (2001).
However, a case should proceed in a manner consistent with upholding the parties' basic due process rights. Huck v. Inland Wetlands Watercourses Agency, 203 Conn. 525, 542 (1987). The admission of hearsay material without an opportunity to cross-examine may raise a due process issue. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974). The workers' compensation commissioner has broad discretion to determine admissibility of evidence and his judgment will not be set aside without evidence of abuse of discretion. Cruz v. State/Dept. of Correction, 4168 CRB-1-00-1 (February 9, 2001); Nelson v. Deb's Inc., 15 Conn. Workers' Comp.Rev.Op. 274, 2228 CRB-3-94-12 (June 20, 1996), aff'd, 45 Conn. App. 909 (1997) (per curiam), appeal dismissed, 244 Conn. 349 (1998).
In this case, the letter in question falls under the § 52-174 (b) C.G.S. exception to the hearsay rule. Section 52-174 (b) "permits the admission into evidence of any `treating' physician's report as a business entry." Aspiazu v. Orgera, 205 Conn. 623 (1987). The letter at issue was written and signed by the claimant's treating physician and therefore falls under the § 52-174 (b) business records exception to the hearsay rule.
Section 52-174 (b) C.G.S. states: "In all actions for the recovery of damages for personal injuries or death, pending on October 1, 1977, or brought thereafter, and in all court proceedings in family relations matters, as defined in section 46b-1, or in the Family Support Magistrate Division, pending on October 1, 1998, or brought thereafter, and in all other civil actions pending on October 1, 2001, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist and that the report and bill were made in the ordinary course of business. The use of any such report or bill in lieu of the testimony of such treating physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist shall not give rise to any adverse inference concerning the testimony or lack of testimony of such treating physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist."
The purpose of § 52-174 (b) is to allow medical evidence into the record in the absence of the treating physician's testimony. Lopiano v. Lopiano, 247 Conn. 356, 383 (1998). "The need for this statutory exception allowing for a substitute for testimony was clearly driven by economics due to the necessity for medical evidence in every personal injury action for damages." Id. However, the right to cross-examine has not been eliminated by statute. Section 52-174 (c) C.G.S. allows either party to call the medical professional as a witness. This is an option that was not exercised.
Section 52-174 (c) C.G.S. states: "This section shall not be construed as prohibiting either party or the court from calling the treating physician, dentist, chiropractor, natureopath, physical therapist, podiatrist, psychologist, emergency medical technician or optometrist as a witness."
The next issue we address is whether the claimant made a claim for an injury or disease which is compensable in the workers' compensation forum. The respondents argue the commissioner did not find the claimant's contraction of conjunctivitis to be a personal injury which could be definitely located as to time and place, a repetitive trauma injury or an occupational disease. The relevant statute is § 31-275 (16) (A). "The statute requires proof of an accidental injury which can be definitely located both as to time and place." Stier v. Derby, 119 Conn. 44, 49 (1934). Exposure to a contagious disease has been found to be an accidental injury under § 31-275 (16) (A). Doe v. City of Stamford, 241 Conn. 692 (1997).
Section 31-275 (16) (A) provides: "`Personal injury' or `injury' includes, in addition to accidental injury which may be definitely located as to the time when and the place where the accident occurred, an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment, and occupational disease."
Whether or not there was a causal relationship between the claimant's exposure to the student on September 13, 1999 and the conjunctivitis that she developed approximately one week later was a question of fact for the trial commissioner. Levesque v. Consumer Interstate, 14 Conn. Workers' Comp.Rev.Op. 280, 282, 1886 CRB-2-93-10 (Sept. 11, 1995); Niebler v. Waldbaum's Foodmart, 14 Conn. Workers' Comp.Rev.Op. 61, 62, 1851 CRB-3-93-9 (May 11, 1995). We will defer to the trial commissioner's finding, as we would to a judge or a jury on the issue of proximate cause. Rogers v. Laidlaw Transit, Inc., 45 Conn. App. 204, 206 (1997) (per curiam); Pothier v. Stanley-Bostitch/The Bostitch Company, 3411 CRB-3-96-8 (January 21, 1998). The commissioner here found an injury which arose directly out of and during the course of her employment on September 13, 1999. Findings, ¶¶ A-C. Read practically, the accident was the workplace exposure to the conjunctivitis. Therefore, the commissioner made a finding the claimant's accidental injury was compensable under § 31-275 (16) (A).
Finally, we consider whether the claimant submitted competent evidence from which the commissioner could make a factual finding she sustained an accidental injury arising out of and in the course of her employment. In a workers' compensation case, the claimant has the burden of proof to show the injury was causally connected to the workplace, and to do so via competent evidence. Keenan v. Union Camp Corporation, 49 Conn. App. 280, 282 (1998). A review of the commissioner's findings reveals he could have relied on the claimant's testimony and the medical reports admitted to make the necessary causal connection. The claimant testified she personally observed a child with a pink watery eye touch his face and his eye. She came in close contact with the student, holding his hand and having him sit on her lap. July 2, 2002 Transcript, p. 20. She testified the certified teacher called the child's mother and sent him home. The student was out of school for a few days, and when he returned to school his mother said it was conjunctivitis. July 2, 2002 Transcript, p. 21. The claimant also testified a coworker also was out of work due to conjunctivitis around the same time as the claimant developed her eye condition. July 2, 2002 Transcript, p. 22.
The respondents never objected to the hearsay nature of this testimony at the formal hearing. Therefore we will allow the testimony to stand. Balkus, supra, 177.
See supra note 5.
In their brief, the respondents raise the issue the claimant is missing the necessary nexus between the child's eye condition and her contraction of such as the child's diagnosis was not put into evidence. In certain circumstances the cause of an injury may be proven without the existence of any medical testimony, but through knowledge of ordinary human experience. Garofola v. Yale Towne Mfg. Co., 131 Conn. 572, 574 (1945); Garofalo v. Jarvis Products Corp., 4249 CRB-8-00-6 (September 12, 2001). "Where the trier accepts a claimant's recounting of the circumstances of an injury, that account may become the basis of a finding of compensability." Id. In this case, the claimant herself observed a student with a pink watery eye. She had close physical contact with the child, holding his hand and having him sit on her lap. The student's mother reported to the school her son had conjunctivitis. During the same time period a coworker was diagnosed with conjunctivitis. These facts lend themselves to the conclusion the claimant very likely caught the virus from the student at her place of employment. These are facts that the claimant relayed to her doctor. "Ultimately, reliance on a patient's history is a common ingredient in diagnosing the cause of an injury." Sprague v. Lindon Tree Service, Inc., 4460 CRB-2-01-11 (November 15, 2002). Here the claimant's testimony is corroborated by her physician's medical report, both of which the trial commissioner could have relied on to make a finding of compensability.
Respondents object to the commissioner's reliance on Dr. Austin's opinion regarding causation, alleging it is not competent medical evidence to prove legal causation. "In order to sustain a legal conclusion of liability, a medical opinion must be definite and positive and not merely speculative or likely." Aurora v. Miami Plumbing Heating, 2 Conn. Workers' Comp.Rev.Op. 113, 238 CRD-7-83 (December 10, 1984), aff'd, 6 Conn. App. 45 (1986). In their brief the respondents object to the doctor's use of the terms "very possible" and "very likely." They argue that neither is sufficient to constitute the "reasonable medical probability" standard of competent medical evidence. We disagree; the trier of fact can evaluate the medical opinions in evidence and draw his own conclusions in terms of credibility. Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998); Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (January 24, 1997). His findings of causation will not be overturned if they are based on an opinion that is founded on reasonable probability. Tanzi, supra. There are no specific words necessary to meet this requirement. O'Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817 (1999). The term "very likely" would seem to indicate a strong degree of probability sufficient to meet that standard.
Additionally, we have held that if a party wishes to further investigate whether a physician's written statements are sufficient to establish a legal conclusion of liability; the party is free to call the doctor as a witness. Connell v. Long Line Trucking Co., Inc., 8 Conn. Workers' Comp.Rev.Op. 54, 801 CRD-2-88-12 (March 21, 1990); Aurora, supra. We do not find the physician's word themselves insufficient to meet the reasonable medical probability standard. Therefore, we will not reverse the commissioner's findings based on his reliance on the medical reports in evidence.
We thus affirm the December 27, 2002 Finding and Award of the Commissioner acting for the First District.
Commissioners James J. Metro and Howard H. Belkin concur.