Martinez v. Gordon Rubber & Packaging Co.

The claimant was represented by Robert Photos, Esq., 1115 Main St., Bridgeport, CT 06604, who did not appear at oral argument.

The respondent employer and Travelers Insurance were represented by Frank Ancona, Esq., Law Offices of Christine L. Harrigan, One Civic Center Plaza, 3CC, Hartford, CT 06103.

The respondent Wausau Insurance was represented by James Powers, Esq., Law Offices of Larry Lewis, 639 Research Parkway, Meriden, CT 06450.

The respondent Maryland Casualty Insurance Co. was represented by Leslie Aldrich, Esq., Hassett, George & Siegel, 567 Franklin Ave., Hartford, CT 06114.

This Petition for Review from the May 27, 1998 Finding and Award of the Commissioner acting for the Fifth District was heard January 8, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent Wausau Insurance has petitioned for review from the May 27, 1998 Finding and Award of the Commissioner acting for the Fifth District. In that decision the trial commissioner found that the claimant’s injury of February 20, 1995 constituted a recurrence of a prior compensable injury which occurred on October 26, 1990. In support of its appeal, Wausau contends that the trial commissioner erred in denying its request for a continuance in order to depose the claimant’s treating physician.

A brief procedural history is in order. The trial commissioner issued an initial Finding and Award on May 24, 1996. In that decision the trial commissioner determined that the claimant had sustained an initial injury to his back on October 26, 1990, and that he subsequently sustained a new injury to his back on February 20, 1995. The employer and its insurer Travelers argued on appeal to the Board that the trial commissioner improperly concluded that the claimant suffered a new injury rather than a recurrence or relapse. The Board decided in Martinez v. Gordon Rubber & Packaging Co., Case No. 3348 CRB-4-96-6 (May 4, 1998) that “we were unable to locate any medical evidence in the record to support the conclusion that the claimant’s injury which occurred on February 20, 1995 constituted a new injury so as to interrupt the chain of causation from the initial injury of October 26, 1990. In fact, the findings made by the trial commissioner appear to indicate otherwise.” Accordingly, the Board remanded the matter to the trial commissioner for further proceedings, including the presentation of further evidence if necessary.

Pursuant to the Board’s remand, the trial commissioner held a formal hearing and issued a decision on May 27, 1998 which is the subject of the present appeal. During the formal hearing on May 26, 1998, counsel for Wausau requested a continuance in order to depose the claimant’s treating physician, Dr. Mintz. The trial commissioner denied that request on the basis that it was not timely. (5/26/98 TR. at p. 5).

We find no error in the trial commissioner’s denial of Wausau’s request for a continuance, as it was within the trial commissioner’s discretion to deny that request. “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, Case No. 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, Case No. 3188 CRB-3-95-8 (February 27, 1997). In the instant case, after the issuance of the Board’s remand decision on May 4, 1998, Wausau could have immediately conducted a deposition of the claimant’s treating physician or, if unsuccessful, Wausau could have requested a continuance or postponement prior to the formal hearing on May 26, 1998. We find no abuse of discretion on the part of the trial commissioner in denying the request for a continuance.

We have long held that the question of whether an injury is a recurrence of a prior injury pursuant to § 31-307b or a new injury is a factual determination for the trial commissioner. Uva v. Valleries Transportation Service, Inc., 13 Conn. Workers’ Comp. Rev. Op. 106, 107, 1625 CRB-7-93-1 (Jan. 30, 1995); Perry v. Union Lyceum Taxi Co., 13 Conn. Workers’ Comp. Rev. Op. 16, 17, 1695 CRB-4-93-4 (Nov. 3, 1994). In the instant case, the medical evidence amply supports the trial commissioner’s conclusion that the February 20, 1995 incident constituted a recurrence of the initial injury rather than a new injury.