Giovino v. Town of West Hartford

The claimant was represented by Joseph Hourihan, Esq., Heffernan & Heffernan, 29 South Main St., West Hartford, CT 06127-0085.

The employer was represented by Marjorie S. Wilder, Esq., Corporation Counsel, 50 South Main St., West Hartford, CT 06107.

This Petition for Review from the November 26, 1993 Finding and Award of the Commissioner acting for the First District was heard November 18, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The employer has appealed from the November 26, 1993 Finding and Award of the Commissioner acting for the First District. In that Finding and Award the trier concluded that the claimant, a police officer, sustained a bilateral hearing loss of 25.65 percent which arose out of and during the course of his employment, due to his repeated exposure to gunfire. In support of its appeal, the employer makes the following four contentions: (1) the claimant’s notice of claim was untimely; (2) the commissioner improperly admitted into evidence hearsay documents by non-treating physicians; (3) the commissioner erroneously computed the claimant’s benefit rate based upon the claimant’s earnings immediately prior to his retirement; and (4) compensation for the claimant’s hearing loss is barred due to his willful and serious misconduct of failing to wear ear protectors as required by the employer.

“Our Appellate Court has recently made clear in Borent v. State, 33 Conn. App. 495 (1994), that a workers’ compensation claim of injury due to repetitive trauma is timely, as a matter of law, if it is made within one year of the date of last exposure, usually the last date of employment, regardless of when the claimant knew of the causal connection between the injury and work.” Seymour v. Bleich, 12 Conn. Workers’ Comp. Rev. Op. 312, 314, 1484 CRB-6-92-8 (June 24, 1994) (emphasis added). This Board has held that hearing loss which is caused by repeated exposure to loud noises at the workplace constitutes a repetitive trauma injury. Borent v. State of Conn./Department of Transportation, 10 Conn. Workers’ Comp. Rev. Op. 219, 1302 CRD-2-91-9 (Dec. 17, 1991). In the instant case, the trial commissioner has not made a finding regarding the date of the claimant’s last exposure to the gunfire which allegedly caused his hearing loss. Moreover, the commissioner did not make a factual determination as to the date on which the claimant filed notice of his claim in accordance with § 31-294c(a) C.G.S. Accordingly, we are unable to determine whether the claimant filed a timely notice of claim, that is, within one year of his last actual date of exposure to gunfire. We must therefore remand this matter to a trial commissioner for further proceedings. See Britt v. Fiskars/Wallace Manufacturing, 12 Conn. Workers’ Comp. Rev. Op. 375, 1503 CRB-1-92-9 (August 17, 1994).

The second issue raised by the employer is the admission of hearsay documents by non-treating physicians. At the formal hearing, the employer objected to the admission of a letter signed by Dr. Lessow, an otolaryngologist, dated November 28, 1989. The claimant “underwent an examination for hearing problems” with Dr. Lessow. (Finding No. 7) The employer contends that Dr. Lessow was not a treating physician because he did not prescribe medication or other medical treatment for the claimant. We disagree. We have stated that: “After all Connecticut since 1967 has permitted the employee rather than the employer to choose the physician. It is that initial choice by the employee which determines the authorized treater.” Greiger v. Leake & Nelson, 9 Conn. Workers’ Comp. Rev. Op. 17, 19, 890 CRD-4-89-6 (Jan. 10, 1991). As the claimant voluntarily went to Dr. Lessow for an evaluation of his hearing problems, we conclude that Dr. Lessow’s report was admissible pursuant to § 52-174(b) C.G.S. which provides that a report written by a treating physician is admissible as a business record exception to the hearsay rule.

The employer also objects to the admission of a report signed by Dr. Perkins, an otolaryngologist, dated June 7, 1990. The trial commissioner found that the report by Dr. Perkins was the result of the employer’s request that the claimant undergo an independent medical exam.1 (Finding No. 22). The employer objects to the admission of that report on the basis of hearsay. We have previously stated:

In the instant case, the claimant was the party offering Dr. Perkins’ medical report. Under the reasoning quoted above in Lee, therefore, it would be incumbent upon the claimant to subpoena or depose Dr. Perkins. However, our decision in Lee was limited to the specific factual circumstances of that case. We must therefore look to our prior rulings in Ruh v. Della Construction Co., 9 Conn. Workers’ Comp. Rev. Op. 269, 1034 CRD-7-90-6 (Dec. 5, 1991), Straub v. Bolt Technology Corp., 9 Conn. Workers’ Comp. Rev. Op. 212, 1130 CRD-3-90-11 (Sept. 12, 1991), and Diogostine v. Somers Thin Strip, 3 Conn. Workers’ Comp. Rev. Op. 139, 282 CRD-5-83 (Jan. 22, 1987).

In Ruh, we held that the admission of an independent medical examination report is admissible at a formal hearing, provided that the objecting party has the opportunity to cross-examine the medical witness. In Straub and Diogostine, we held that the party objecting to the medical report is not denied the opportunity to cross-examine a medical witness merely because the party offering the report fails to subpoena the medical witness or conduct a deposition. Rather, the objecting party must act with due diligence by obtaining a deposition or by subpoenaing the medical witness to appear at the formal hearing. If the objecting party chooses not to call the medical witness to testify or to be deposed, he assumes a calculated risk in presenting his evidence, and cannot wait until a decision is reached by the commissioner to complain on appeal that he was not afforded the opportunity to cross-examine the medical witness. See also Maylott v. Williams Engineering, 11 Conn. Workers’ Comp. Rev. Op. 320, 1353 CRD-6-91-12 (Dec. 23, 1993).

In the instant case, the employer objected to the medical report by Dr. Perkins, and the trial commissioner advised the employer that “if you want the doctor to be in this you’re more than welcome to bring him in.” (Transcript, 12/16/92, p. 64-5) A second formal hearing was scheduled, but the employer did not call Dr. Perkins as a witness. We therefore conclude that the employer failed to exercise its opportunity to cross-examine the doctor, and cannot now complain on appeal that it did not receive due process. See Diogostine, supra.

In addition, the employer objects to the trial commissioner’s admission into evidence of the deposition of Dr. Mancoll, an otolaryngologist, which was initiated by the employer, and attended by both parties.2 The employer specifically objects to the admission of the entire deposition, rather than the limited portions which it sought to introduce. However, as the employer has failed to set forth in its brief the specific portions of the deposition to which it objects, together with the specific objections and corresponding references to the transcript, we will not rule on this issue. See Anderson v. State of Conn./UConn Health Center, 11 Conn. Workers’ Comp. Rev. Op. 197, 1318 CRD-6-91-10 (Sept. 23, 1993). However, we note that § 52-149a C.G.S. provides that depositions of physicians are admissible in workers’ compensation proceedings if not otherwise inadmissible. We further note that trial commissioners are not “bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry in such manner, through oral testimony or written or printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit of this chapter.” Diagostine v. Somers Thin Strip, 3 Conn. Workers’ Comp. Rev. Op. 139,140, 282 CRD-5-83 (Jan. 22, 1987) (quoting Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974).

The third issue which the employer raises on appeal is the computation of the claimant’s weekly benefit rate. Section 31-310 C.G.S. provides that the average weekly wage is based upon “the total wages received by the injured worker ... during the twenty-six calendar weeks immediately preceding that during which he was injured....” The Connecticut Supreme Court recently ruled that where a claimant’s injury is caused by an occupational disease, the weekly benefit rate should be determined based upon the period immediately preceding his incapacity to work, rather than his last date of exposure to the circumstances which caused his incapacity. Mulligan v. F.S. Electric, 231 Conn. 529 (1994). Even though the instant case involves an injury caused by repetitive trauma rather than an occupational disease, we find the reasoning in Mulligan to be persuasive. The court in Mulligan cited Rousu v. Collins Co., 114 Conn. 24 (1931), which held that where a claimant suffered from an occupational disease, the claimant’s benefit rate should not be based upon the period preceding his last exposure to the wet grindstone which caused his disease, but instead should be based upon the period preceding his incapacity to work.3 In the instant case, there is no alleged incapacity to work on the part of the claimant. The trial commissioner found that the claimant did not become aware that his disability was causally related to his employment until after he retired. Under these circumstances, we conclude that the trial commissioner properly ruled that the claimant’s benefit rate should be determined based upon the period immediately preceding his last date of employment.

Finally, the employer reiterates its contention made at the formal hearing that the claimant’s failure to wear protective ear equipment, which was required by the employer, constituted willful and serious misconduct which bars compensation pursuant to §31-284 C.G.S. The trial commissioner did not make any findings of fact regarding this issue, and therefore we are unable to properly review this contention. See Platt v. UTC/Pratt & Whitney Aircraft Division, 3 Conn. Workers’ Comp. Rev. Op. 3, 164 CRD-6-82 (Aug. 16, 1985). At the remand proceedings, the trial commissioner should address this issue.

This matter is remanded in accordance with the above decision.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur.

1 On appeal the employer contends that it did not request the claimant to obtain the hearing test from Dr. Perkins. However, as the employer has not filed a motion to correct, for the purposes of this appeal, the facts found by the trial commissioner must stand. Marzano v. Manuel Luis d/b/a Manny’s Pizza, 10 Conn. Workers’ Comp. Rev. Op. 129, 1181 CRD-5-91-2 (May 21, 1992). BACK TO TEXT

2 We note that this deposition was marked for identification, but was neither offered nor marked as a full exhibit by either party. We further note that Dr. Mancoll never examined the claimant, but merely answered hypothetical questions posed to him by the attorneys after reviewing the medical reports of Dr. Lessow and Dr. Perkins. (Deposition at p.27). Thus, the deposition appears to have little evidentiary weight. BACK TO TEXT

3 The court in Mulligan quoted the following from Rousu: “(i)n cases like the present, where a considerable period ... intervenes between the actual injury and the consequent incapacity, determination as to whether the date of the former or the latter is to be taken as the basis of the award becomes of practical importance.... The just measure of the value of the earning power of an employee and the correlative loss incurred by him would seem to relate to his earnings at the time the loss occurs through incapacity to work, rather than his earnings at an earlier time, perhaps so remote that, through changing conditions, personal or industrial, or both, his earnings at that time no longer accurately or correctly reflect the present value of the earning power of the workman.” Mulligan, supra, 30-31. BACK TO TEXT