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Dichello v. Holgrath Corporation

CASE NO. 2249 CRB-5-94-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 5, 1996

ESTERINA DICHELLO

CLAIMANT-APPELLANT

v.

HOLGRATH CORPORATION

EMPLOYER

and

ROLLINS HUDIG HALL

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by John Hanks, Esq., Law Offices of Angelo Cicchiello, 364 Franklin Ave., Hartford, CT 06114.

The respondents were represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the December 19, 1994 Finding and Award of the Commissioner acting for the Fifth District was heard November 17, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith Tracy and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 19, 1994 Finding and Award of the Commissioner acting for the Fifth District. She argues on appeal that the commissioner improperly failed to issue his decision within 120 days of the last formal hearing, that he erroneously found that Dr. Scialla was not the claimant’s treating physician, and that he erroneously concluded that the claimant was not totally disabled. We affirm the trial commissioner’s decision.

A May 7, 1984 voluntary agreement establishes that the claimant lost 30 percent of the use of her right hand from a compensable injury that occurred on September 6, 1983. Payments under that agreement would have run through September 4, 1985, unless interrupted. While the claimant alleges that she has been totally disabled since April 1984, the respondents sought approval of a Form 36 that would terminate payment of temporary total disability benefits and authorize reimbursement of payments made since April 29, 1986.

The claimant was initially treated by Dr. Spar, who thought she was suffering from carpal tunnel syndrome and tendonitis in her right hand. She stopped seeing Dr. Spar, and undertook treatment instead with Dr. Scialla, who was recommended by a family member. Although she continued seeing Dr. Scialla through February 1992, he referred her to Dr. Sabshin, a neurosurgeon, who first saw the claimant in December 1983. The voluntary agreement lists Dr. Sabshin as the treating physician. Although Dr. Sabshin performed surgical procedures on both the claimant’s right and left wrists over the next year or so, he approved of her returning to restricted work on January 7, 1985. When the claimant complained of neck, shoulder, elbow, wrist and hand pain a few months later, the doctor could find no basis for her complaints, and refused her request for a letter stating that she was totally disabled.

Dr. Sabshin referred the claimant to Dr. Werdiger, who had also diagnosed right carpal tunnel syndrome in past examinations. He was skeptical of the degree of pain that the claimant was now describing, i.e. pain in her shoulders, arms, neck, legs, and thighs, as well as extreme pain upon the slightest movement of her fingers, or even sticking out her tongue. When the claimant maintained her complaints of pain, Dr. Werdiger opined that she had chronic pain syndrome, for which he could not find a cause. He stated that her bilateral carpal tunnel syndrome is compensable, and the only neurological condition attributable to her employment. The trial commissioner noted that a later review of reports from nine other doctors confirmed Dr. Werdiger’s conclusion.

One of those doctors was Dr. Arons, who examined the claimant at the respondents’ request. The claimant complained of pain in her upper extremities, neck, and upper back, along with numbness in her fingers. She sat motionless at the exam, and her husband wiped her tears when she cried. She complained of pain at the slightest touch or movement, thus limiting the examination. She demonstrated difficulty walking at two subsequent examinations, and reported that she needed help to eat and use the bathroom at home. Dr. Arons diagnosed the same bilateral carpal tunnel problems as the other doctors, but added that the claimant had developed a cycle of physiologic and emotional disability that led to bilateral chronic pain disability. He described her prognosis as grim in a December 8, 1987 report.

At the deposition of Dr. Arons, the respondents showed him a videotape and still photographs of the claimant walking, driving her car, and running errands without any apparent difficulty on numerous occasions in the fall of 1989 and in January 1992. Workers’ compensation benefits were being paid during that period. The doctor described himself as astounded by the videotapes, as the patient he examined 19 months before that video could not have done what the tape showed absent an occurrence of great significance. In his opinion, she had either been faking her condition, had received successful psychiatric or rehabilitation therapy, or had been the beneficiary of a miraculous intervention. The commissioner noted that no evidence had been offered to support either of the latter two possibilities.

The commissioner reached several factual conclusions: that the claimant suffered compensable bilateral carpal tunnel syndrome, that the claimant’s temporary total disability ended on January 7, 1985, thus resuming the permanent partial disability payments required by the voluntary agreement on that date, and that the respondent was entitled to reimbursement of all payments in excess of the permanent partial disability payments. He also concluded that Dr. Scialla was not in the chain of authorization, and that his charges were not the respondents’ responsibility. The claimant appealed that decision; her subsequent Motion to Correct was denied by the commissioner.

Before we reach the claimant’s arguments regarding the substance of the Finding and Award, we must address the claimant’s contention that the award is invalid because of its tardiness. The last formal hearing in this case was held on July 13, 1993. The record was then left open until August 13, 1993, so that the claimant could submit depositions. (Transcript of July 13, 1993 hearing, p. 20.) Section 31-300 C.G.S. states that “[a]s soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award.” The 120th day after the closing of the record in this case was December 11, 1993. However, the commissioner’s decision was dated December 19, 1994, almost 500 days after the record closed.

“The general rule is that, absent a violation of a specific statutory provision, delay in civil proceedings does not necessitate a new trial without a showing of prejudice.” Besade v. Interstate Security Services, 212 Conn. 441, 450 (1989). In the past, this board had required an appellant to demonstrate prejudice before vacating a decision for lateness. Weglarz v. State of Connecticut/Department of Corrections, 13 Conn. Workers’ Comp. Rev. Op. 35, 36, 1648 CRB-4-93-2 (Nov. 8, 1994); Fletcher v. UTC/Pratt & Whitney, 11 Conn. Workers’ Comp. Rev. Op. 182, 183, 1322 CRD-8-91-10 (Sept. 13, 1993). However, our supreme court has recently decided that the 120-day time period in § 31-300 is mandatory. Stewart v. Tunxis Service Center, 237 Conn. 71 (1996). Thus, prejudice is no longer a prerequisite to the invalidation of a late decision.

The supreme court also noted in Stewart that the parties may waive a trial commissioner’s noncompliance with § 31-300 either explicitly or implicitly by conduct. Id., 80-81. Although mere inaction by a party prior to the time a judge files his decision is not usually grounds for inferring waiver of a time requirement, Bogaert v. Zoning Board of Appeals, 162 Conn. 532, 538 (1972), the failure to object seasonably after a late judgment has been rendered may imply consent to the late judgment. Waterman v. United Caribbean, Inc., 215 Conn. 688, 692 (1990). “Even after the expiration of a time period within which the judge has the power to render a valid, binding judgment, a court continues to have jurisdiction over the parties until and unless they object.” Id., 693. This makes particular sense in workers’ compensation proceedings, where jurisdiction continues with the Workers’ Compensation Commission for the life of a claim. See Stevens v. City of Hartford, 8 Conn. Workers’ Comp. Rev. Op. 134, 136-37, 831 CRD-1-89-2 (Aug. 6, 1990).

Here, the claimant filed a “Motion to Open Record to Submit Additional Documentary Evidence” with the District Office on January 12, 1995, almost one month after the late decision was issued. This motion was denied by the commissioner. Several months later, the claimant filed her Reasons for Appeal without mentioning the tardiness of the commissioner’s decision. She did not raise an objection to the late decision until she filed an Amended Statement of Reasons for Appeal on September 22, 1995. Clearly, the claimant did not object to the commissioner’s continued exercise of jurisdiction until long after her appeal had been filed, and in fact sought to correct the record to reflect additional evidence. This hardly constitutes a prompt objection to the untimeliness of the Finding and Award. We hold that the claimant has waived the temporal limit contained in § 31-300 by her own conduct, and may not now have the decision vacated for lateness.

Turning to the substance of the decision itself, the claimant contends that the trial commissioner erroneously failed to find that Dr. Scialla was an authorized treating physician. According to the factual findings, Dr. Scialla was recommended to the claimant by a family member. He, in turn, referred the claimant to Dr. Sabshin. The voluntary agreement stipulated that Dr. Sabshin was the treating physician.

The claimant does not contest those facts. She argues, however, that Dr. Scialla must also be deemed an authorized treating physician because he referred her to physicians who were accepted as treaters, and continued to treat the claimant afterward. We disagree. The trial commissioner has the authority under § 31-294 to authorize a change of physician. His decisions to authorize or not to authorize treatment may not be disturbed unless those conclusions are so unreasonable as to justify our interference. Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 114, 1160 CRD-7-91-1 (May 8, 1992); see also Leiner v. Newmark & Lewis, 2202 CRB-8-94-10 (decided Jan. 18, 1996) (retroactive authorization is permissible, but the claimant must demonstrate a good reason for unilaterally changing providers).

Here, the chain of authorized treatment began with Dr. Sabshin, pursuant to the voluntary agreement. Dr. Scialla’s referral of the claimant to Dr. Sabshin did not place Dr. Scialla within the chain of authorized treating physicians. Unlike the situation in Besitko v. McDonald’s Restaurant, 12 Conn. Workers’ Comp. Rev. Op. 111, 1415 CRB-8-92-5 (Feb. 28, 1994), Dr. Scialla was never authorized to begin with. Thus, the fact that he later reexamined the claimant has no probative significance. The claimant also mentions in her Motion to Correct that Dr. Sabshin referred her back to Dr. Scialla in 1987. The deposition of Dr. Sabshin (Respondent’s Exhibit C) indicates, however, that he stopped treating the claimant in 1985. Thus, the commissioner could easily have found that, at the time of the alleged referral, Dr. Sabshin was no longer an authorized treating physician. Whatever his conclusion in that regard, we cannot say that the commissioner’s failure to authorize Dr. Scialla’s treatment was unreasonable.

Finally, the claimant argues that the respondents failed to meet their burden of proof with respect to the Form 36, and that the commissioner erred in crediting Dr. Arons’ testimony and rejecting the opinion of Dr. Scialla. It is beyond dispute that the trial commissioner is the person charged with determining the weight and credibility of the testimony and medical evidence, and that this board will not tamper with his findings if they have support in the record. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Although we agree that Dr. Scialla’s testimony, if believed, would support the claimant’s position, the commissioner was not required to give it credence over the testimony of any other doctor. There are also many factual findings in the decision that tend to support the conclusion that the claimant was not disabled after January 7, 1985, when Dr. Sabshin approved her return to work. These findings were not questioned in the claimant’s Motion to Correct.

The respondents correctly observe that there is a dearth of objective medical evidence in the file to establish a neurological or pathological basis for the claimant’s complaints of extreme pain. They also correctly observe that the claimant seeks to have this board rule that, as a matter of law, the commissioner should have believed one physician’s report over that of another. We simply do not do that on appellate review. There was more than enough evidence in the record to support the commissioner’s decision that the claimant’s temporary total disability ended on January 7, 1985. Therefore, we affirm the trial commissioner’s decision.

Commissioners Roberta Smith Tracy and Amado J. Vargas concur.

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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