Besade v. Interstate Sec. Services, 13689

Decision Date08 August 1989
Docket NumberNo. 13689,13689
CourtConnecticut Supreme Court

Richard S. Bartlett, Vernon, for appellants (named defendant et al.).

Mark W. Oberlatz, with whom, on the brief, was Matthew Shafner, Groton, for appellee (plaintiff).


PETERS, Chief Justice.

The central issue in this appeal is the validity of a workers' compensation commissioner's award issued over three and one-half years after the close of the hearings. The commissioner concluded that the plaintiff, Cynthia Besade, was entitled to workers' compensation benefits because her disability was causally related to an injury she had received while employed by the defendant Interstate Security Services (ISS). After the commissioner denied their motion to open, the defendants appealed to the workers' compensation review division (review division), 1 which affirmed the award. They then appealed to the Appellate Court and we transferred the appeal to ourselves pursuant to Practice Book § 4023. We find no error.

The facts relevant to this appeal are as follows. On December 5, 1980, while employed by ISS, the plaintiff suffered a compensable injury when she inhaled ammonia fumes. She experienced coughing, difficulty in breathing and chest tightness and was taken to Lawrence and Memorial Hospital by ambulance. She continued to suffer recurrent pain, fever and gastrointestinal distress after her discharge from the hospital. In the spring of 1981, she experienced pain in her jaw, joints and bones, accompanied by swelling of her lymph nodes, which was diagnosed as mononucleosis. Subsequently, she experienced increased headaches and her doctor referred her to a dentist who concluded that she suffered from temporomandibular joint dysfunction.

ISS paid the plaintiff workers' compensation until March 20, 1983, when the commissioner approved its notice of intention to discontinue payments. The plaintiff contested the approval and the commissioner held a formal hearing, which closed on September 19, 1983. On April 29, 1987, the commissioner issued his finding and award, which held that the plaintiff's disability, temporomandibular joint dysfunction, was causally related to her compensable injury, and, therefore, was compensable. After a denial of the defendants' subsequent motion to open, they appealed to the review division which, on January 13, 1989, affirmed the commissioner's decision in all respects, but limited his finding and award "to the situation prior to and up to September 19, 1983." The review division remanded the case for further hearings "to address the situation thereafter."

On appeal the defendants claim that the review division erred in affirming the commissioner's award because the plaintiff had not established by a preponderance of the evidence that her temporomandibular joint dysfunction was causally related to her inhalation of ammonia fumes and because the lengthy delay in rendering his decision denied the defendants due process. The defendants also claim that the commissioner should have granted their motion to open the award. 2 These claims are unpersuasive.


Before addressing the defendants' claims, we must determine whether this appeal is properly before this court. This appeal bears some similarity to Matey v. Estate of Dember, 210 Conn. 626, 556 A.2d 599 (1989), a workers' compensation case, in which we held that the appeal was premature because we concluded that the review division, in remanding the case for further evidentiary proceedings to determine the appropriate compensation rate, had not rendered a final judgment. The present appeal, however, is not premature. We conclude that the award was a final judgment as to the plaintiff's entitlement to workers' compensation benefits through September 19, 1983, the date of the last hearing, because the award contained a finding of the amount due through that date and the review division limited its remand to a determination of the plaintiff's entitlement to benefits after that date.

Pursuant to General Statutes § 31-315, 3 a workers' compensation award is always limited to a claimant's current condition and always subject to later modification upon the request of either party during the entire period of compensation if the complainant's condition changes. Accordingly, any workers' compensation award, although a final judgment as to benefits through the date of the hearing, is always subject to further proceedings, such as those ordered in the present case, to determine whether the award should be modified. If such an award were not a final judgment because it was subject to such modification, no workers' compensation award could ever be final, and therefore appealable, until the claimant either died or recovered, thereby ending the disability period.

Awards under other statutes that provide for subsequent modification in the event of changed circumstances have been viewed as final judgments for purposes of appeal. For example, General Statutes § 46b-86(a), 4 permits modification of orders for the periodic payment of permanent alimony or support, and General Statutes § 46b-56 5 permits modification of orders concerning child custody and visitation. Nonetheless, alimony, support, custody and visitation orders have routinely been treated as final judgments for purposes of an appeal. See, e.g., Blake v. Blake, 211 Conn. 485, 560 A.2d 396 (1989); Perez v. Perez, 212 Conn. 63, 561 A.2d 907 (1989). We conclude, therefore, that the workers' compensation award in this case is a final judgment that is presently appealable.


With respect to the merits of their appeal, the defendants first contend that the review division erred in upholding the commissioner's award because the plaintiff failed to prove that her disability was causally related to her injury at work. 6 This claim of error has two parts: (1) that the review division erred procedurally by employing an improper standard in reviewing the findings of the commissioner; and (2) that the review division erred substantively in its conclusion about the required causal relationship.

The decision of the review division on the causal relationship between the plaintiff's injury and her present temporomandibular condition 7 relied on the record created in the hearing before the commissioner. At that hearing, the commissioner received two reports from Mark R. Cullen, M.D., which stated his belief that the plaintiff's exposure to ammonia fumes had caused her to have mononucleosis and swollen lymph glands, which in turn contributed to her temporomandibular joint dysfunction. 8 The commissioner also received the testimony of I.L. Cantner II, D.M.D., who gave his opinion that the plaintiff's "signs and symptoms currently relate to the disease entity, which apparently relates to the industrial [exposure to ammonia fumes]." 9 The commissioner also received further evidence, some of which contradicted the clinical opinions of the plaintiff's expert witnesses.

In its appraisal of this record, the review division concluded that the record supported the commissioner's finding that the plaintiff's temporomandibular joint dysfunction was work related. The review division took the view that, as an appellate tribunal, it should not interfere with the trier's factual findings "when ... evidence exists to support them."

The defendants claim that the review division should not have deferred to the commissioner as fact finder, because the evidence before the commissioner was largely documentary, including medical reports and depositions. To the extent that the commissioner's assessment of the evidence before him did not rest on a personal appraisal of the demeanor and credibility of the witnesses before him, they urge us to hold that such deference is inappropriate and to engage in a broader appellate scrutiny. We are unpersuaded.

In Fair v. People's Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988), we construed General Statutes § 31-301(a) 10 and Regulations of Connecticut State Agencies § 31-301-8 11 to require the review division "to hear the appeal on the record and not 'retry the facts.' " See Castro v. Viera, 207 Conn. 420, 440, 541 A.2d 1216 (1988). It is the commissioner who has the power and the duty to determine the facts; Adzima v. UAC/Norden Division, 177 Conn. 107, 118, 411 A.2d 924 (1979); and the review division may take evidence in addition to that certified to it by the commissioner only if good reason exists why the evidence was not presented to the commissioner. Fair v. People's Savings Bank, supra. " 'The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.' " Id., quoting Adzima v. UAC/Norden Division, supra, at 117-18, 411 A.2d 924; Mathurin v. Putnam, 136 Conn. 361, 366, 71 A.2d 599 (1950).

The defendants' argument cannot be reconciled with the holdings of these precedents. We have not heretofore distinguished between documentary and testimonial evidence in defining the role of appellate tribunals in reviewing findings of fact; see, e.g., Connecticut Bank & Trust Co. v. Wilcox, 201 Conn. 570, 576, 518 A.2d 928 (1986); Bead Chain Mfg. Co. v. Saxton Products, Inc., 183 Conn. 266, 274-75, 439 A.2d 314 (1981); DiLieto v. Better Homes Insulation Co., 16 Conn.App. 100, 104, 546 A.2d 957 (1988); and we are not prepared to introduce such a distinction into administrative proceedings. 12

Since the correct standard, as the review division held, is one of review on the record, we find no error in its conclusion that the evidence provided by Cantner and Cullen provided a tenable basis for the commissioner's finding that the plaintiff's condition at the time of the hearing was...

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