Gomez v. Laidlaw Education Services

The claimant was represented at the trial level by Amy Stone, Esq., and Carolyn Kelly, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340. The claimant appears pro se in this appeal.

The respondents were represented by David C. Davis, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review from the August 26, 2004 Finding and Dismissal of the Commissioner acting for the Second District was heard on July 15, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A. MASTROPIETRO. The claimant filed this appeal from the August 26, 2004 Finding and Dismissal of the Commissioner acting for the Second District.1 In that Finding and Dismissal the commissioner dismissed claimant’s claim for respiratory problems related to the indoor air quality of her office. The pertinent facts giving rise to this claim are as follows.

The claimant was initially employed by the respondent employer as a bus driver and rose through the ranks to become a branch manager. In her capacity as branch manager the claimant was responsible for the management of the New London School District busing operations. In September 2001 the claimant was provided with an office in the New London High School. The office was a girl’s dressing room with a small bathroom but no windows. When the claimant moved into the office, the ceiling contained some damaged and water stained tiles. After moving into the office there was a major water leak in the hallway outside claimant’s office.

The claimant contended that upon moving into the New London High School office she developed respiratory problems and a variety of other medical maladies. The claimant testified that prior to moving into the New London High School office she had no respiratory health problems.

In the summer of 2002 the air conditioning did not function at the New London High School office. During the summer of 2002 the claimant primarily worked at another office in Waterford, but would return to the New London High School office to complete computer related tasks and payroll. The claimant testified that her respiratory problems increased in the summer of 2002 when she returned to the New London High School office. On December 10, 2002 the claimant was seen at Lawrence and Memorial Occupational Health Center where she complained of frequent respiratory infections, headaches, tiredness, rash and weight loss. The claimant contended that her symptoms began in August 2002. Due to her symptoms the claimant left work on December 4, 2002 and returned January 3, 2003. Claimant’s medical records reflect; she was diagnosed with childhood bronchial asthma, had sinus surgery in 1998 for the removal of polyps, suffered from pneumonia in 2000 and was prescribed an inhaler, and was a cigarette smoker.

In December 2002 the claimant filed a complaint with OSHA regarding the indoor air quality of her New London High School office. On December 11, 2002 an indoor air quality assessment was done at the request of the respondent employer. That assessment indicated all ambient gas and vapor air were within applicable standards and interior spore counts were comparable to outdoor samples. The assessment noted no unusual spore types. Further, between the period of claimant’s absence between December 4, 2002 and January 3, 2003 the claimant’s New London High School office was inspected by Connecticut OSHA. The inspector suggested cleaning the office and replacing all damaged and stained ceiling tiles. These remedial measures were taken prior to claimant’s January 2003 return to work.

On January 20, 2003 the claimant again complained of respiratory related problems including congestion, ear pain, shortness of breath, cough, and loss of voice. On January 29, 2003 OSHA inspected the claimant’s New London High School office. No citation was issued nor was any water damage found. In February 2003 the claimant saw Dr. Radin and complained of facial numbness, weakness and severe headaches. On March 18, 2003 the claimant was released to return to work only with the caveat that she not work at the New London High School office.

On November 19, 2003, at the request of the respondents, the claimant was evaluated by Dr. Daniel A. Gerardi. Dr. Gerardi opined that claimant’s respiratory problems were longstanding and dated back to her childhood with the onset of bronchial asthma. He also opined that claimant had a history of upper respiratory infections which were adequately treated but the metered dosages of inhalators prescribed for the claimant were not always correct and not given for the appropriate duration. Dr. Gerardi further noted the claimant’s asthma problems in 2002 were most likely triggered by an upper respiratory infection which was not adequately treated. It was Dr. Gerardi’s opinion that the claimant’s work environment was substantially clean and not a substantial factor in the flare-up of claimant’s bronchial asthma. The trial commissioner found the testimony and opinion of Dr. Gerardi to be the most credible.

In his conclusion in the August 26, 2004 Finding and Dismissal the trial commissioner found the claimant worked from September 2001 until August 2002 in the New London High School office without symptoms. The trial commissioner also found the claimant’s testimony not credible. Thus, the commissioner dismissed the claimant’s claim.

The issue presented for review is whether the trial commissioner erred in dismissing the claimant’s claim for Workers’ Compensation benefits due to environmental exposures in her work place. We note in the proceedings below the claimant was represented by counsel but is appearing pro se in this appeal. In essence, the claimant argues the trial commissioner should have assigned greater weight and credibility to the medical evidence and opinions supporting her claim. We do not engage in de novo review. The weight and credibility assigned to the evidence and opinions proffered before the trial commissioner are a matter within the trial commissioner’s discretion. Barron v. City Printing, Inc., 3497 CRB-3-96-12 (April 29, 1998), aff’d, 55 Conn. App. 85 (1999). We will not disturb the findings and conclusions of the commissioner unless without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Parker v. Manafort Brothers, Inc., 4857 CRB-7-04-9 (September 19, 2005).

Additionally, we note the claimant included with her brief a number of documents. The documents appended to the appellant’s brief included: (1) EPA Fact Sheet Mold in Schools, (2) Guidance for Clinicians on the Recognition of Health Effects Related to Mold Exposure and Moisture Indoors published by the University of Connecticut Health Center Division of Occupational and Environmental Medicine dated September 30, 2004 and (3) Letter dated December 28, 2004 to Dr. Robert Galvin, Commissioner of Public Health from Dr. John Santilli, Jr. In a document received September 24, 2004 and captioned by the claimant-appellant as Claimant’s Reasons For Appeal, the claimant also attached a number of documents. These documents include a statement from Patricia M. Gronenthal, the claimant’s mother. The document is dated September 14, 2004 and purports the claimant outgrew her childhood asthma after tonsils and adenoids were removed at age five. Also attached are copies of newspaper articles, portions of medical literature and various articles concerning specific indoor air quality issues.

We understand claimant appears pro se on appeal and we generally grant some latitude to pro se litigants. However, the status as a pro se does not relieve a party from conforming with various substantive requirements in the law. Weinberg v. Weinberg, 89 Conn. App. 649 (2005). When seeking the opportunity to present additional evidence Administrative Regulation § 31-301-9 requires there must be good reasons why the evidence was not presented in the proceedings before the commissioner and the evidence must be material. See Administrative Regulation § 31-301-9.2

The documents claimant seeks to proffer are either (1) evidence that could have been discovered at the time of the proceedings before the trial commissioner or (2) merely cumulative of evidence already existing in the record. “Where an issue has been fairly litigated, with proof offered by both parties, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result.” Gonirenki v. American Steel & Wire Co., 106 Conn. 1, 11 (1927). Therefore insofar as claimant seeks to proffer additional evidence as indicated in appellant’s brief and Reasons for Appeal, the request is denied.

Finally, we note that on October 24, 2005 more than three months after oral argument was heard in this matter, the claimant sent a letter along with a packet of documents presumably for our consideration. Included in the packet of documents was a Federal OSHA Report dated May 19, 2005 and copies of various communications to and from Thomas J. Guilmartin of the Department of Labor’s Occupational Safety and Health Division pertaining to the indoor air quality complaints at New London High School. Some of the dates of these documents precede the date of oral argument in this matter. Other documents pre-date the time formal hearings were held before the trial commissioner. Mostly, they are cumulative of other evidence and in some instances relate to an indoor air quality complaint for a period of time different than the period in which the claimant alleges exposure. We therefore deny claimant’s request that these documents be included as part of our consideration in this matter.

We therefore affirm the August 26, 2004 Finding and Dismissal of the Commissioner acting for the Second District.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT

If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal. BACK TO TEXT