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Hurley v. Carolina Freight

CASE NO. 1406 CRB-6-92-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 26, 1994

WAYNE HURLEY

CLAIMANT-APPELLEE

v.

CAROLINA FREIGHT

EMPLOYER/SELF INSURED

RESPONDENT-APPELLANT

APPEARANCES:

The claimant appeared pro se.

The respondent was represented by A. Patrick Alcarez, Esq., Regnier, Taylor, Curran & Eddy, City Place, Hartford, CT 06103-3402.

This Petition for Review from the April 3, 1992 Finding and Award of the Commissioner At Large acting for the Sixth District was heard February 26, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. This appeal presents the issue of whether a claimant’s justifiable failure to remain at a doctor’s office for an independent medical examination amounts to a refusal to submit to a reasonable examination permitting the suspension of benefits pursuant to General Statutes (Rev. to 1991) Sec. 31-305. We hold that, under the circumstances of this case, it does not.

The trial commissioner found the following facts. The claimant sustained a work-related injury to his right arm on May 1, 1991 for which a voluntary agreement was issued and approved on June 17, 1991. On May 6, 1991, an adjuster, who handled the employer’s processing of the compensation claim, went to the claimant’s home to take his statement and determine the extent of the claimant’s injury. The adjuster scheduled an immediate medical appointment for the claimant to be seen on May 8, 1991 at 9:00 a.m. by Dr. Donald Kelly of Hartford.

The claimant cooperated by arriving at Dr. Kelly’s office at approximately 8:30 a.m. on May 8. Upon his arrival, the claimant checked in with the office staff and was asked for information about his group union insurance, notwithstanding that the examination was established and authorized for payment by the adjuster and the respondent. The claimant refused to sign any group medical insurance forms when requested to do so by office staff. While the claimant was patiently waiting in the doctor’s office, a number of patients with later appointment times came and went after seeing Dr. Kelly. During this time, the claimant continued to check with the receptionist about being seen by Dr. Kelly. Shortly after 10:15 a.m., the claimant was directed to an examining room in Dr. Kelly’s office. After waiting twenty-five minutes without seeing Dr. Kelly and with no medical examination having been conducted, the claimant noted an onset of minor stomach pains and left the doctor’s office to return home.

Thereafter, a medical appointment with Dr. Kelly was rescheduled for May 20, 1991 at 11:30 a.m. On May 20, the claimant was seen by Dr. Kelly for approximately three minutes.

The claimant’s treating physician determined that the claimant was totally disabled from May 1 to May 20, 1991, when the claimant returned to light duty work from May 21 to June 17, 1991 and thereafter returned to his regular work. On May 10, 1991, the respondent filed a Form 36 stating that the claimant’s failure to attend an independent medical examination under Section 31-305 justified the termination of benefits from May 8 to May 20. The respondent then refused to pay temporary total benefits to the claimant for that period in May, 1991.

After hearing testimony from the parties, the trial commissioner found that the claimant “did not act unreasonably in leaving Dr. Kelly’s office on May 8, 1991.” The commissioner rejected the respondent’s position that the claimant’s failure to remain at Dr. Kelly’s office for an independent medical exam on May 8 permitted the termination of benefits. Instead, the commissioner ordered the respondent to pay to the claimant his temporary total disability payments halted by the respondent for the period May 8 to May 20, 1991. This appeal followed.

General Statutes (Rev. to 1991) Sec. 31-305 establishes an employer’s right to request that a claimant submit to a medical examination for the purpose of determining the nature of the injury and the resulting incapacity. The statute also provides: “The refusal of an injured employee thus to submit to a reasonable examination shall suspend his right to compensation during such refusal.” (Emphasis added.)1

Before addressing the respondent’s arguments regarding the proper application of Sec. 31-305 to the facts of this case, we note that “Sec. 31-305 cannot be interpreted to permit an employer to suspend or discontinue benefits unilaterally without commission approval. It is not the employer who adjudicates rights in the system. That is the commissioner’s prerogative.” Applebee v. State of Connecticut, 8 Conn. Workers’ Comp. Rev. Op. 142, 143, 841 CRD-5-89-4 (1990). Thus, the commissioner’s approval of a Form 36 is required before benefits may be suspended pursuant to Sec. 31-305. Id.

We now turn to the respondent’s claims under Sec. 31-305. The respondent argues that the trial commissioner improperly created a “reasonable effort” exception to the statute when none is expressly set forth therein and that the evidence does not support a conclusion that the claimant acted reasonably in leaving the doctor’s office. We do not agree.

The respondent’s challenge to the commissioner’s finding that the claimant justifiably left Dr. Kelly’s office on May 8 requires little discussion. This factual finding is amply supported by the evidence and must therefore stand. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The respondent’s contention regarding the interpretation and application of Sec. 31-305 to the facts of this case, however, requires additional discussion. There are no appellate decisions interpreting or applying Sec. 31-305. The respondent, however, relies heavily on Pagliarulo v. Bridgeport Machines Inc., 20 Conn. App. 154 (1989), which involved the sanction for refusal to accept reasonable medical treatment under General Statutes Sec. 31-294 (now Sec. 31-294e(b)).

The Pagliarulo court concluded that the statute there is concerned not with the reasonableness of the claimant’s refusal to accept treatment but with the reasonableness of the medical treatment which has been refused. Id., 158. The court then reversed the decision of the review division because “it was based upon a finding that the plaintiff’s refusal to accept further treatment was reasonable, with no reference to the reasonableness of the treatment itself.” Id. While we recognize Pagliarulo’s applicability to the present case, we do not agree with the respondent’s contention that the trial commissioner here did what was prohibited in Pagliarulo.

Notwithstanding Pagliarulo’s requirement that the reasonableness inquiry focus on the medical procedure which has been refused, Pagliarulo itself makes clear the question of whether such a procedure is reasonable “is not necessarily a medical matter only . . . but may also be affected by a consideration of the surrounding circumstances as the trier of fact finds them.” Id., 159. Moreover, such surrounding circumstances “must be considered from the standpoint not only of the employer but of the employee.” Acguarulo v. Botwinik Bros., Inc., 139 Conn. 684, 689 (1953) (Baldwin, J., concurring). Consistent with this interpretation of Sec. 31-294, in Garfitt v. Pfizer, Inc., 7 Conn. Workers’ Comp. Rev. Op. 62, 742 CRD-3-88-6 (1989), we determined that a refusal to attend an independent medical examination far away from the claimant’s home was not a refusal of a “reasonable” medical examination for purposes of Sec. 31-305.

Similarly, in this case, the independent medical examination, while reasonable and appropriate at its inception, became unreasonable in light of the surrounding circumstances as found by the trier. The fact that the claimant was available and awaiting examination for two hours without being seen and was justified in his leaving supports the commissioner’s ultimate conclusion that a reasonable independent medical examination had become unreasonable by the time the claimant decided to leave Dr. Kelly’s office because of the way the exam was being conducted. That no one should have to wait that long to be seen after appearing promptly for a scheduled appointment without some appropriate explanation for the delay cannot be seriously disputed. The commissioner’s finding that the claimant did not act unreasonably in leaving the doctor’s office did not focus impermissibly or exclusively on the claimant’s conduct, as urged by the respondent and determined in Pagliarulo; rather, that finding provided the requisite support for the commissioner’s ultimate conclusion that the sanction of Sec. 31-305 was not available to the respondent because the long wait and lack of assistance given the claimant while in the doctor’s office had made the independent medical examination itself, which was reasonable at the time the claimant arrived for his appointment, unreasonable by the time he left. Because the conclusion drawn by the trial commissioner did not result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from the facts found, the commissioner’s conclusion must stand. Fair v. People’s Savings Bank, supra.

We, therefore, affirm the trial commissioner and deny the appeal.

Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.

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

1 General Statutes Sec. 31-305 has since been repealed. Its pertinent provisions are now found in General Statutes Sec. 31-294f(a). BACK TO TEXT

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