CRB Case Annotations re: Section 31-294f

Greater familiarity of treating physicians with claimant’s condition as compared to commissioner’s examiner was a valid reason for commissioner to rely on their opinions regarding wisdom of surgery. See, Phaiah, § 31-294d, § 31-301. Factual findings.

CRB affirmed trier’s granting of Form 36 effective April 3, 2001 where claimant did not receive updated report of independent medical examiner until May 18, 2001, three days before the formal hearing. Though § 31-294f(b) was violated insofar as doctor did not furnish his report to claimant within thirty days and in same time and manner as it was given to the respondent, trier found that claimant was not unfairly prejudiced by this delay. CRB held that it was within trier’s discretion to accept report into evidence and rely on it in setting April 3, 2001 cutoff date for total disability benefits. See, Carozza, § 31-296. Voluntary agreements (discontinuance of payments).

Trier is not required to credit report of § 31-294f examiner. Though CRB has stressed that reasons behind decision to disregard commissioner’s exam should be articulated, the ultimate decision still lies with the trier. No error where trier chose to rely on report of treating physician over that of § 31-294f examiner because trier thought that treater was in better position to assess and track claimant’s respiratory condition due to his familiarity with claimant’s case. See also, Champagne, § 31-301. Factual findings.

See, Taylor, § 31-301. Appeal procedure, § 31-355 (Second Injury Fund required to pay for cost of § 31-294f exam on behalf of uninsured employer even though underlying claim dismissed).

CRB affirmed trial commissioner’s decision dismissing claim that claimant sustained reflex sympathetic dystrophy as a result of her compensable carpal tunnel syndrome. Trier adequately explained his reason for not following the opinion of the § 31-294f examiner; specifically, that said opinion was “somewhat conflicting and less reliable [than the other] physicians who rendered opinions on the issue.”

Board affirmed trier’s decision to authorize surgery for claimant’s compensable back injury. Respondents contended that trier failed to provide sufficient reason for not following the opinion of the § 31-294f examiner. CRB held that the trier adequately explained his reasons for not following that opinion: treating physician’s opinion was more persuasive, and examiner’s opinion was not very certain.

CRB affirmed trier’s finding of no permanent partial disability. Trier chose not to follow the opinion of his § 31-294f examiner, explaining that this opinion was based upon the claimant’s significantly exaggerated version of the incident and of his subsequent physical condition. (Santos, C., concurring) Trial commissioner should not be required to state a reason for disregarding opinion of commissioner’s examiner. See also, Osowiecki, § 31-301-9.

CRB found no error in trier’s finding that claimant continued to be totally disabled. Respondents argued that trial commissioner failed to cite reasons for not accepting the opinion of the § 31-294f examiner, and did not even state in the findings that this physician’s examination was at the request of a commissioner. Board found no error, as trier is not bound by the opinion of any one physician, even where that physician conducted a commissioner’s exam. Moreover, in the instant case, the opinion did not contradict the conclusion that the claimant continued to be totally disabled. (Santos, C., concurring) Trier should not be required to state a reason for disregarding opinion of commissioner’s examiner. See also, Agosto, § 31-307.

CRB affirmed trier’s decision in which he chose to accept some, but not all, of the opinion rendered by the § 31-294f examiner. Trier accepted examiner’s opinion that claimant was capable of sedentary work, but did not agree that the claimant had reached maximum medical improvement. Although board has stressed that a trier should articulate the reasons behind a decision to disregard a § 31-294f examiner’s opinion, the ultimate decision is always with the commissioner. Here, he articulated his reasons for concluding that claimant had not yet reached MMI and still needed medical care. See also, Zito, § 31-308(a).

Trier was entitled to credit independent medical examination over report of § 31-294f examiner. Trier explained that the former contained a more complete history of claimant’s symptoms, and CRB noted that the commissioner’s examiner drew a questionable connection between injury and disability. See also, Barton, § 31-294d.

Harris v. UTC/Pratt & Whitney, 3762 CRB-1-98-1 (February 23, 1999), aff’d, 56 Conn. App. 912 (2000)(per curiam), cert. denied, 253 Conn. 907 (2000).

Trier had authority to order claimant to attend independent medical examination, and to dismiss claim when claimant failed to show up for appointment. See also, Harris, § 31-301-9, § 31-315; prior decision at Harris, 15 Conn. Workers’ Comp. Rev. Op. 357, 3143 CRB-5-95-8 (June 26, 1996), § 31-275(17), § 31-298.

The respondents contended on appeal that the trier failed to articulate his reasons for not following the opinion of Dr. Fisher, who conducted an examination at the request of a commissioner. CRB found no error, as the trier satisfactorily set forth findings of fact which indicate that he considered Dr. Fisher’s opinion, but chose not to accept it.

Case was originally remanded to trial commissioner for articulation of her reasons for disregarding the report of the commissioner’s examiner. See, Matteau, 16 Conn. Workers’ Comp. Rev. Op. 112 (November 25, 1996). Commissioner provided those reasons. Commissioner was within her discretion to choose report of independent medical examiner over that of commissioner’s examiner. Original decision affirmed.

The respondent argued that the trier should have credited the opinion of a physician who reviewed medicals and wrote a report at the request of a trial commissioner at a prior informal hearing. CRB disagreed, as the trier who presided over the formal hearing was not the commissioner who ordered the report, and more importantly, the physician did not examine the claimant, but merely reviewed some of the medicals. See also, § 31-301. Factual findings.

Trial commissioner chose to credit treating physician’s report over those of an independent medical examiner and a § 31-294f examiner. CRB affirmed. Trier of fact is not required to accept opinion of commissioner’s examiner just because he ordered the exam.

It was within the discretion of the trial commissioner, as the trier of fact, to accord greater weight to the opinion of the physician who conducted the independent medical examination than to the opinions of the claimant’s treaters. CRB thus affirmed trial commissioner’s conclusion that claimant’s hypertension and arterial occlusion were not caused by his employment.

See, Diaz, § 31-298.

Acting commissioner ordered a commissioner’s exam, stating in the process that the respondents could not submit depositions and other records to the physician because only medical reports could be considered by the examining doctor. CRB reversed; there is no categorical prohibition against providing extra information to a § 31-294f medical examiner. Commissioner has discretion to allow other items to be considered if they would be helpful.

See, Wilson-Shirley, § 31-301. Factual findings.

CRB previously remanded case because trier did not explain his disregard of the § 31-294f examiner’s opinion. On remand, trier explained why he felt the claimant’s injuries hastened his need for knee surgery. Respondents argued on appeal that the medical examiner’s opinion that the incident was relatively trivial must be followed absent evidence that he relied on improper facts or that his medical analysis is patently erroneous. Held: adopting respondents’ proposition would shift fact-finding role from commissioner to medical examiner whenever § 31-294f was invoked. Such a result would be improper. Nieves, infra, cited; Iannotti v. Amphenol/Spectra Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995), aff’d, 40 Conn. App. 918 (1996)(per curiam), distinguished.

The parties reasonably expect that a commissioner-ordered medical examination will provide him with strong guidance, but he is not bound to credit any given medical report when making his findings. CRB’s emphasis of the need for a trier to articulate his reasons for disregarding a § 31-294f exam does not require him to accept it if he finds that other evidence is more credible. There is no legal presumption of credibility for an expert witness in a workers’ compensation case. Sufficient evidence existed to support the outcome here.

Commissioner declined to admit report into evidence as a § 31-294f commissioner’s exam, and ordered that a new exam be scheduled with a different doctor. Respondents appealed. CRB found no error. Respondents communicated ex parte with trier in initial scheduling of exam, and sent a letter to the doctor that was not copied to claimant’s counsel until the day before the examination. Further, respondents’ counsel agreed at the formal hearing to offer the initial examination as an IME and to allow another doctor to perform the commissioner’s examination. CRB noted proper procedure in scheduling commissioner’s exams involves communication and agreement between both parties as to contents of any communication with doctor.

Commissioner ordered examination, but did not hold a formal hearing on the issue or take exhibits into evidence, even though respondents objected. Thus, CRB had no record to review. Reversed and remanded for formal hearing.

Commissioner declined to authorize knee arthroscopy on grounds treatment was not reasonable and necessary. CRB remanded matter to trial commissioner for articulation of findings. Although trial commissioner had discretion to believe any of the conflicting medical opinions in the case, and the respondents’ examiner provided reports that supported the commissioner’s decision, the commissioner was still required to articulate the reasons for her decision to disregard the report of the doctor who examined the claimant at the commissioner’s request.

The respondents objected to the commissioner’s failure to accept the medical opinion of the IME who examined the claimant pursuant to a commissioner’s ordered exam. CRB held that when a commissioner orders a medical examination, there is usually an expectation among the parties that said examination will provide strong guidance to the commissioner. Thus, where a commissioner chooses not to adopt the diagnosis of the physician performing that examination, he or she should articulate the reasons behind his or her decision to disregard the examiner’s report. CRB remanded for articulation by trial commissioner. See, Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995), aff’d, 40 Conn. App. 918 (1996)(per curiam), infra. See also, Gillis v. White Oak Corporation and Waterbury Construction, 3337 CRB-5-96-5 (July 15, 1997), aff’d, 49 Conn. App. 630 (1998).

Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers’ Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995), aff’d, 40 Conn. App. 918 (1996)(per curiam).

Commissioner not required to rely on conflicting report of commissioner’s examiner where other medical reports supported finding of permanent partial disability. However, commissioner should articulate reasons for failure to adopt the diagnosis of the physician performing the § 31-305 examination. No harmful error in this case.

Claimant argued examination improper in brief, but did not object to order when given, and did not raise issue in Motion to Correct or Reasons of Appeal. Thus, we declined to address issue further. See also, Baccielo, § 31-275(1) and § 31-301. Appeal procedure.

Lee v. Norwalk, 13 Conn. Workers’ Comp. Rev. Op. 23, 1626 CRB-7-93-1 (November 7, 1994).

Employer must properly introduce results of IME examination into evidence and pay the cost of the subpoena or deposition testimony. Absent the opportunity for cross examination of IME physician, trier’s admission of medical report is improper. See also, Lee, § 31-275(1) and § 31-298.

Casman v. Lego Systems, 12 Conn. Workers’ Comp. Rev. Op. 178, 1520 CRB-3-92-10 (May 2, 1994).

Claimant must attend medical examinations requested by employer even though a third party tort action is pending in superior court. Medical examinations in superior court forum proceed independent of those within the workers’ compensation forum. See also, Casman, § 31-293(a).

Hurley v. Carolina Freight, 12 Conn. Workers’ Comp. Rev. Op. 44, 1406 CRB-6-92-4 (January 26, 1994).

Independent medical examination while reasonable and appropriate when scheduled became unreasonable when claimant waited more than two hours for the examination. Claimant justified in leaving physician’s office after the delay in conducting the examination.

Straub v. Bolt Technology Corporation, 9 Conn. Workers’ Comp. Rev. Op. 212, 1130 CRD-3-90-11 (September 12, 1991).

Trial commissioner’s denial of further medical examination cannot be termed an abuse of discretion where there is substantial medical evidence below to support his conclusion. See also, Straub, § 31-298, § 31-308(b).

Applebee v. State/Southbury Training School, 8 Conn. Workers’ Comp. Rev. Op. 142, 841 CRD-5-89-4 (August 20, 1990).

Benefits cannot be suspended or discontinued without the commissioner’s approval of a Form 36 even if respondents contend claimant failed to submit to a reasonable medical examination.

Garfitt v. Pfizer, Inc., 7 Conn. Workers’ Comp. Rev. Op. 62, 742 CRD-3-88-6 (August 11, 1989).

Section 31-305 sanctions prevail only where a reasonable medical exam is refused.

CRB Case Annotations re: Section 31-294f

Medical examination of injured employee. Medical reports.