CASE NO. 2008 CRB-1-94-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 12, 1995
TWIN TOOL MANUFACTURING
ROLLINS HUDIG HALL OF CONNECTICUT, INC.
SECOND INJURY FUND
The claimant was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 101 Buckland Center, 1127 Tolland Turnpike Manchester, CT 06040.
The respondent employer was represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.
The respondent Second Injury Fund was represented by Brewster Blackall, Esq., Assistant Attorney General, P. O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.
This Petition for Review from the March 29, 1994 Finding and Award of the Commissioner acting for the First District was heard December 16, 1994 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Amado J. Vargas, and Michael S. Miles.
ANGELO L. dos SANTOS, COMMISSIONER. The respondents have petitioned for review from the First District Commissioner’s March 29, 1994 Finding and Award. The commissioner found that the claimant was temporarily totally disabled as of August 14, 1992 due to a compensable injury which had occurred on December 7, 1984, and awarded medical benefits and further reasonable treatment. On appeal, the respondents make three main arguments. First, they contend that the trial commissioner exhibited bias in favor of the claimant and thus should have recused himself. Second, the respondents contend that the trial commissioner improperly ruled on the issue of temporary total disability because he had advised the parties that the issue of temporary total disability would not be covered at the formal hearings. Finally, they contend that the medical treatment provided to the claimant was not reasonable. We will address each contention separately.
The respondents assert that the trial commissioner should have recused himself because he exhibited bias in favor of the claimant both by “acting as an attorney” for the claimant during the formal hearings, and by having ex parte communication with the claimant. We disagree. The Connecticut Appellate Court has stated that a trier of fact “must not exhibit an apparent position of advocacy in the case before him or her.” Labow v. Labow, 13 Conn. App. 330, 335 (1988). However, in Labow, the appellate court found that the trial judge’s conduct of assisting a pro se plaintiff in introducing exhibits, questioning witnesses, making objections, and instructing the plaintiff on how to proceed with the case, did not constitute bias. Id. 336. Similarly, in the case at hand, we note that the trial commissioner sometimes assisted the claimant, who was not represented by legal counsel at all of the formal hearings, in the presentation of evidence and the questioning of witnesses. Having carefully reviewed the entire record in this matter, we find no evidence of bias on the part of the trial commissioner. Under the circumstances of this case, which include a claimant who did not have legal counsel to represent him at all of the hearings, and respondents who did have the benefit of legal counsel at all hearings, we conclude that the commissioner acted in a fair and impartial manner.
The respondents further submit as evidence of the commissioner’s bias, his continuation of the formal hearing process after he had issued a bench ruling on December 7, 1992. The trial commissioner conducted formal hearings on August 14, 1992, October 27, 1992, December 7, 1992, January 4, 1993, and August 11, 1993. The commissioner issued a bench ruling in favor of the claimant on December 7, 1992, but did not formally close the formal hearing at that time, and subsequently decided to vacate that decision and continue the formal hearing process in order to obtain more evidence, including the report by Dr. Grayson, an independent medical examiner. Under Administrative Regulations Sec. 31-279-3 and 31-279-4, a commissioner’s decision to continue a formal hearing is discretionary. Maylott v. Williams Engineering, 11 Conn. Workers’ Comp. Rev. Op. 320, 1353 CRD-6-91-12 (1993). We find that the commissioner did not abuse his discretion by continuing the formal hearing. Moreover, the commissioner properly disclosed to the respondents that the claimant had notified the commissioner that he wished to present the balance of his testimony. The commissioner assured the respondents at the formal hearing on January 4, 1993 that he “had no private conversations on substantive matters dealing with Mr. Cumming’s case.” (Transcript, p. 8). The respondents make no allegation that the commissioner discussed with the claimant anything beyond the claimant’s request to present further testimony. We conclude that there were no improper ex parte communications between the commissioner and the claimant.1
We next turn to the issue of whether the parties received sufficient notice that the issue of temporary total disability would be the subject of the formal hearings which were held on August 14, 1992, October 27, 1992, December 7, 1992, January 4, 1993, and August 11, 1993. This Board has stated that “(i)t is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” Connolly v. Connolly, 191 Conn. 468, 475-76 (1983) (quoting Osterlund v. State, 129 Conn. 591, 596 (1943)); see also Fusco v. TRW Geometric Tool, 4 Conn. Workers’ Comp. Rev. Op. 132, 134, 472 CRD-3-86 (1987). In the instant case, the commissioner repeatedly advised the parties that the issue of temporary total disability would not be addressed and that he would not decide the issue. (Transcript of 8/14/92 at 14; Transcript of 10/27/92 at 96). We conclude that the parties were not afforded sufficient notice that the issue of temporary total disability would be covered during the hearings, and therefore we set aside the commissioner’s award of temporary total compensation and remand that issue to be heard and decided by a commissioner.
The respondents’ argument that they did not receive sufficient notice that the issue of the claimant’s reimbursement for mileage would be a subject of the hearing is without merit. Specifically, at the hearing on January 4, 1993, the commissioner allowed the claimant to present his claim for mileage, and the respondents’ attorney did not object to the issue of mileage being addressed at the hearing. Moreover, the respondents’ attorney conducted extensive cross-examination of the claimant regarding his request for mileage reimbursement during the hearing on January 4, 1993. The respondents thus cannot now contend that they had insufficient notice of the issue. Germe v. Conway Eastern Express, 10 Conn. Workers’ Comp. Rev. Op. 148, 1180 CRD-3-91-2 (1992).
The final issue which we will address is the respondents’ contention that the treatment rendered by Dr. Russakov, a physiatrist, and Dr. Stanwood, Ph.D., a psychologist, was not reasonable. A determination of whether medical care is reasonable and necessary, including whether the medical care is palliative care or a curative remedy, is a factual issue to be decided by the trial commissioner. Burgos v. United Technologies, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994). This Board has explained that:
Reasonable or necessary medical care is that which is curative or remedial. Curative or remedial care is that which seeks to repair the damage to health caused by the job even if not enough health is restored to enable the employee to return to work. Any therapy designed to keep the employee at work or to return him to work is curative.
Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (1984).
In the instant case, the claimant suffered a compensable traumatic brain injury. Conflicting medical evidence was presented by the parties regarding whether the claimant’s medical treatment was reasonable, including whether it was palliative. When there are conflicting medical opinions in the record, the commissioner as trier of fact may make a conclusion based on the weight and credibility which he affords the evidence before him. Miller v. Kirshner, 225 Conn. 185, 198-99 (1993). We will not disturb such a conclusion when there is sufficient evidence in the record to support it. Fair v. People’s Savings Bank, 207 Conn. 535, 538-42 (1988). There was medical evidence presented that in order for the claimant to do any kind of work, he “needed a structured environment” and “also needed help in his social behavior and anger control.” (Finding No. 11) We conclude that there was sufficient evidence presented to support the commissioner’s determination that the claimant’s medical treatment was reasonable.
The respondents argue that under § 31-294 C.G.S. (now § 31-294d(c)), a treating physician must be a physician, and may not be a psychologist. The respondents apparently misconstrue the commissioner’s decision. Specifically, the commissioner authorized Dr. Saffir, M.D. to act as the claimant’s treating physician, to treat the claimant with the assistance of Dr. Stanwood. (Finding Nos. 7 and 14) We find no error in the commissioner’s authorization of Dr. Stanwood, Ph.D., a psychologist, to assist with the medical treatment to the claimant. See Kiley v. Executone of Fairfield, Inc., 2 Conn. Workers’ Comp. Rev. Op. 103, 107 CRD-7-81 (1984).
In conclusion, the commissioner’s award of temporary total compensation is set aside and the issue of the claimant’s disability status is remanded in order to conduct a further hearing allowing the claimant and the respondents to present their respective case and to issue a decision. In all other respects, the decision of the trial commissioner is affirmed.
Commissioners Michael S. Miles and Amado J. Vargas concur.
1 The Code of Ethics for Workers’ Compensation Commissioners provides in §12 that a commissioner “should not permit improper ex parte communications. However, ex parte communications may be appropriate in relation to purely procedural matters....” BACK TO TEXT