Besade v. Interstate Security Services

The claimant was represented by Matthew Shafner., Esq., and Mark Oberlatz, Esq., both of O’Brien, Shafner, Bartinik, Stuart & Kelly, P.C., P.O. Drawer 929, Groton, CT 06340.

The respondents were represented by Richard Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the January 31, 1992 Finding and Award of the Commissioner for the Second District was heard January 22, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The factual circumstances which give rise to the claimant’s claim were originally outlined in both the Compensation Review Division’s opinion in Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (1989) and again in our Supreme Court’s opinion in Besade, 212 Conn. 441 (1989) affirming the C.R.D.’s decision. We briefly review the facts from which the claimant’s claim originates.

On December 5, 1980 the claimant was employed as a security guard. While performing her duties in that capacity, the claimant sustained a compensable injury due to the inhalation of ammonia fumes. Claimant experienced various respiratory system complaints including chest tightness, breathing difficulty, coughing and a burning in the eyes. She was transported by ambulance to a hospital. The claimant also experienced recurrent pain, fever and gastrointestinal distress which continued after her release from the hospital. In the Spring of 1981 the claimant complained of jaw pain as well as pain in her joints and bones and swelling of her lymph nodes. The claimant was diagnosed as suffering from mononucleosis. Thereafter, the claimant complained of headaches and was diagnosed as suffering from temporomandibular joint dysfunction [hereinafter TMJ]. Both the mononucleosis and the TMJ were found by the trial commissioner to be causally related to the claimant’s December 5, 1980 compensable injury. That finding of causal relationship was one of the issues reviewed by both the C.R.D. and the Supreme Court, and the trier’s findings and conclusion as to a causal relationship were affirmed by both tribunals.1

The trier in his earlier decision which was the subject of the earlier appeal, found that the claimant was temporarily totally disabled after March 30, 19832 and until September 19, 1983. The claimant claims she is entitled to additional compensation benefits for the period after September 19, 1983 as well as the payment of various medical bills. Hearings were held before the same Commissioner who presided over the earlier proceedings referred to above. The trier issued his January 31, 1992 Finding and Award in which he concluded that the symptoms from which claimant continues to suffer were identified as Epstein Barr Virus or chronic fatigue syndrome and that claimant’s symptoms were causally related to her compensable injury of December 5, 1980. The trier also concluded that the respondents pay medical expenses for treatment and prescriptions and found that the claimant was temporarily partially disabled from September 19, 1983 until December 31, 1990.3

Both sides appealed the commissioner’s January 31, 1992 Finding and Award. The respondents present the following issues on appeal; (1) whether the commissioner erred in finding that the claimant’s chronic fatigue symptoms and her present symptoms are causally related to her compensable injury, (2) whether the commissioner erred in ordering the payment of temporary partial disability benefits and (3) whether the commissioner erred in ordering payment of medical bills when he made no finding of a causal relationship between the treatment and the claimant's compensable injury. The claimant asks for review as to whether the commissioner erred in calculating the amount of temporary partial disability benefits as he failed to consider an increase in the claimant’s “pre-injury” average weekly wage based upon the percentage increases in the average production wage from 1980 through 1990.

We begin by considering the issues raised in the respondents’ appeal. Firstly we consider whether the trier erred in concluding that claimant’s present symptoms, ascribed by one physician as chronic fatigue syndrome, were causally related to claimant’s December 5, 1980 injury.

As our Supreme Court opined in its earlier consideration of causation issues relating to this matter, a commissioner’s conclusion will not be disturbed “unless [it] result[s] from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Besade, supra at 449; Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). Additionally a commissioner’s conclusion where dependent upon the weight and credibility to be accorded the evidence will not be disturbed. Rivera v. Guida’s Dairy, 167 Conn. 524 (1975).

In the instant case the evidence which most clearly supports the trier’s conclusion that the claimant suffered from chronic fatigue syndrome causally related to her December 5, 1980 injury, is the deposition of Dr. Paul Cheney, an internist specializing in chronic fatigue syndrome. See Deposition of Paul Cheney M.D., March 29, 1990 at 4-6. In their brief, respondents essentially contend that Dr. Cheney’s opinion as to causation was unduly speculative and therefore was not stated in terms of reasonable medical probability. The argument put forth by the respondents is similar to the argument raised in Dumont v. Southern Connecticut State University, 11 Conn. Workers’ Comp. Rev. Op. 122, 1320 CRD-3-91-10 (1993). In Dumont, this tribunal relied on the Supreme Court’s standard of review as to reasonable probability and its relationship to the opinion of an expert witness. The Dumont panel noted that the opinion of an expert witness “[m]ust be based upon reasonable probabilities rather than mere speculation or conjecture . . . . Whether an expert’s testimony is expressed in terms of a reasonable probability . . . is determined by looking at the entire substance of the expert’s testimony.” (citations omitted) Id. at 125. Struckman v. Burns, 205 Conn. 542, 554-55 (1987); Aurora v. Miami Plumbing and Heating, Inc., 6 Conn. App. 45, 46 (1986).

We think the above standard was satisfied. In his deposition, Dr. Cheney reviewed the Center for Disease Control’s definition of chronic fatigue syndrome and testified that claimant suffered eleven out of eleven symptoms set out in the CDC’s criteria. Finding paragraphs #30 and 31, March 29, 1990 Deposition of Dr. Cheney at 14-15. Dr. Cheney noted that the CDC’s criteria for chronic fatigue syndrome were not published until March 1988 and that prior to that time people with the symptoms described in the CDC’s criteria would typically be diagnosed as chronic mononucleosis-like syndrome. March 29, 1990 Deposition of Dr. Cheney at 16. Dr. Cheney then confirmed that his opinions were expressed with reasonable medical probability. March 29, 1990 Deposition of Dr. Cheney at 24. Clearly, Dr. Cheney’s deposition supports the trier’s conclusion that the claimant suffered from chronic fatigue syndrome. As to its causal link to claimant’s December 5, 1980 injury, the following colloquy took place on redirect examination:

“Attorney Oberlatz: Is it your opinion that the chronic fatigue syndrome that you have currently diagnosed is a continuation of the disease process originally diagnosed by Dr. Cullen in 1981?

Atty. Bartlett: Objection. I'm going to object for the record. It’s a leading question.

Dr. Cheney: I believe that it’s a continuation of her initial illness following her ammonia gas exposure.” March 29, 1990 Deposition of Dr. Cheney at 69-70.

Respondents counsel’s objection to the form of the question was raised at the May 29, 1991 Formal Hearing. See TR at 8-9. While the trier did not directly rule on the objection, the commissioner’s reliance on Dr. Cheney’s expert opinion leads to the conclusion that he inferrentially overruled respondents’ counsel’s objections. As to the appropriateness of the trier allowing a leading question on direct or redirect examination, our courts have held that a trier has wide discretion in such matters and his ruling will stand unless he has permitted so many leading questions that prejudice has resulted. Wright v. Blakeslee, 102 Conn. 162, 168 (1925). See also, C. Tait & J. LaPlante, Connecticut Evidence (2d Ed) Sec. 7.12.1. Assuming arguendo that we agreed that the question objected to was a leading question (and we decline to make that determination at this juncture) it is clear that the trier did not abuse his discretion by allowing the question to stand.

The next issue we consider is whether the commissioner erred in ordering payment of temporary partial benefits. The respondents contend that the claimant has reached maximum medical improvement and is thus not entitled to temporary partial benefits pursuant to Sec. 31-308(a). The evidence which respondents claim supports its contention is referred to in its Motion to Correct. The trier granted certain corrections to his factual findings. Among the factual findings which the commissioner allowed were the following:

(1) Claimant’s gross sales in 1989 were $20,079.00. After deduction for supplies and depreciation, her profit was $8,556.00 (Amendment to paragraph 54).

(2) In 1986 the claimant valued her services at $6.00 per hour and in 1990 she valued her services at $10.00 per hour.

(3) The claimant worked part-time jobs because she needed extra money to make her photography business profitable and part of the reasons she quit part-time work in 1985 was because her photography business occupied more of her time.

(4) Claimant did not take advantage of the offerings of the workers’ compensation rehabilitation program and she refused respondents’ offer to have her work with Dr. James Cohen, a vocational placement expert, in order to assist her in maximizing her earning ability.

Whether claimant actually reached maximum medical improvement is a factual determination to be made by the commissioner. In the instant case, the deposition of Dr. Paul Cheney as well as the claimant’s own testimony can be read to support a finding that the claimant has not reached maximum medical improvement. We note that in his deposition Dr. Cheney stated the claimant’s prognosis is towards improvement. See, March 29, 1990 Deposition of Dr. Cheney at 55-56, and Transcript of Formal Hearing at 3-8.

Claimant’s claim for temporary partial incapacity is controlled by Sec. 31-308(a). For the years for which claimant seeks those benefits Sec. 31-308(a) provided:

The trier’s conclusions that the claimant was entitled to temporary partial benefits and in what amount is dependent upon ascertaining “wages currently earned by an employee in a position comparable to the position held by the injured employee prior to his injury.” In the instant matter, the phrase “wages currently earned” reflects a calculation which is computed for the comparable period in which benefits are claimed. In paragraph 62 the trier found:

The respondents argue that the above finding demonstrates that the claimant failed to maximize her earnings potential. However the statute does not require that a Commissioner find that a claimant maximize earnings potential. Sec. 31-308(a) requires a determination of the “amount he [the claimant] is able to earn after such injury.” Given the purpose of the statute, ability to earn contemplates an evaluation factoring in the physical condition of the claimant. The commissioner found, and there is evidence to support his conclusion that the claimant sustained a wage difference and supports an inference that her employment activities were within the limits of her physical capabilities.

The third issue raised by the respondents is that the trier erred in ordering payment of medical bills when no finding of a causal relationship between the treatment and the workers' compensation injury was made. However, the commissioner detailed the myriad of symptoms and physical complaints from which the claimant suffered, see e.g., paragraphs 4, 5, 6, 7, 8 and 31. The trier’s findings that the claimant’s symptoms, their relationship to chronic fatigue syndrome and his conclusion that the chronic fatigue syndrome was related to claimant’s December 5, 1980 injury support his order of payment of medical bills for various physicians. See paragraphs #10-25. The trier also detailed the chain of treating physician referrals to the various medical providers. Thus, under the totality of the trier’s findings as to claimant’s symptoms, physical condition and relationship to the December 5, 1980 work related injury, the order of the payment of medical bills for various physicians was not without support in his factual findings.

We therefore dismiss the respondents’ appeal.

Finally we consider the issue raised in claimant’s cross appeal, whether the commissioner erred in failing to consider an increase in the claimant’s pre-injury average weekly wage based upon the percentage increases in the average production wage from 1980 through 1990 in calculating the amount of temporary partial disability benefits. In paragraph #62 the trier stated, inter alia, “There is no evidence that there has been any increase in wages for her original job at the respondent employer beyond the $202 designated as the average weekly wage.” if the claimant believes that the wage base calculation should be increased from her average weekly wage at the time of her injury, it is her obligation to provide evidence of that fact. That evidence was not provided at the time of the proceedings below.

Additionally, the claimant filed a Motion to Modify Finding and Award, Motion to Present Additional Evidence at Hearing on Motion to Modify and a Motion for Respondent Employer to Produce Additional Evidence. The trier denied the motions in his December 7, 1992 rulings. His denial was predicated on the basis that the respondent employer was no longer in business and thus, the granting of the motions were moot. Whether a commissioner’s finding should be modified is a matter controlled by Sec. 31-315 C.G.S.4 Given the basis of the trier’s denial, we cannot say his ruling was an abuse of discretion. See, Wysocki v. Bradley & Hubbard Co., 113 Conn. 170 (1931). See also, Davis v. Al’s Auto Service, 7 Conn. Workers’ Comp. Rev. Op. 3, 612 CRD-6-87 (1989).

Commissioners George Waldron and Donald H. Doyle, Jr. concur.

1 For evidence supporting the trier’s conclusion as to causation see Besade, supra at 446-47 notes 8 and 9. BACK TO TEXT

2 Respondents paid temporary total disability benefits through March 30, 1983 and filed a Form 36 contending that the claimant was no longer totally disabled after March 30, 1983. BACK TO TEXT

3 The finding of temporary partial disability was corrected in the commissioner’s December 4, 1992 Ruling on Respondent’s Motion to Correct so as to show the period from temporary partial disability was to continue from September 19, 1983 and not September 3, 1983. BACK TO TEXT

4 Sec. 31-315 provides: Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question. BACK TO TEXT