State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Morris v. A & A Acoustics

CASE NO. 3429 CRB-7-96-9

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 8, 1997

JOHN MORRIS

CLAIMANT-APPELLANT

v.

A & A ACOUSTICS

EMPLOYER

and

WAUSAU INSURANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Rd., Woodbridge, CT 06525.

The respondent employer and Wausau Insurance were represented by Robert J. Enright, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.

This Petition for Review from the September 6, 1996 Ruling on Respondents’ Motion to Correct of the Commissioner acting for the Seventh District was heard May 9, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners John A. Mastropietro and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the September 6, 1996 ruling by the trial commissioner acting for the Seventh District which granted the respondents’ Motion to Correct. Initially, the trial commissioner issued a Finding and Award on August 27, 1996 in which the trial commissioner found that the claimant was temporarily totally disabled, and awarded ongoing benefits pursuant to § 31-307. Subsequently, pursuant to the September 6, 1996 granting of the Motion to Correct filed by the respondents, the trial commissioner limited his award of temporary total benefits to the date of the last formal hearing. The claimant contends on appeal that the trial commissioner erroneously granted the Motion to Correct, thereby limiting the award of temporary total disability benefits.

In the August 27, 1996 Finding and Award, the trial commissioner found that the claimant sustained a compensable injury to his left ankle and to his lumbar spine on September 26, 1988. The claimant’s treating physician, Dr. Gray, issued numerous reports subsequent to June 4, 1992 which indicated that the claimant was temporarily totally disabled. (Finding No. 13 and 14). Dr. Gray opined that there were no surgical indications for the claimant’s ankle or low back condition. (Finding No. 31). Furthermore, Dr. Gray opined that the claimant suffers from constant back pain and left leg sciatica pain, and is totally disabled because of the “intractable” pain. (Finding No. 34). The claimant was examined by Dr. Rubenstein, a psychiatrist, who was of the opinion that “by virtue of the chronicity of (the claimant’s) pain syndrome; by virtue of its intractability; by virtue of the fact that he has undergone almost every modality of treatment available; and by virtue of what clearly appeared to be a variety of undetermined psychiatric/psychologic conflicts, needs, issues, etc., it is my strong feeling that (his) prognosis for a return to any work venue is probably quite poor.” (Finding No. 40).

The trial commissioner concluded that the claimant was temporarily totally disabled and awarded temporary total disability benefits “until such time as a Form 36- Discontinuance of Benefits is filed by the Respondents and approved in writing by a Commissioner.” (Finding D). The respondents filed a Motion to Correct seeking the deletion of Finding D. Specifically, the respondents contended in the Motion to Correct that Finding D must be deleted because a trial commissioner does not have the authority to award benefits for temporary total disability beyond the date of the last evidentiary hearing, citing Cummings v. Twin Tool Manufacturing Company, Inc., 40 Conn. App. 36 (1996). The trial commissioner’s granting of the Motion to Correct is the subject of the present appeal.

In Cummings, supra, the Appellate Court stated that a trial commissioner “cannot make a finding of temporary total incapacity beyond the date of the most recent evidentiary hearing.” Id. at 39, (citing Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 725 CRD-6-88-4 (Oct. 20, 1989)). The trial commissioner in the instant case granted the respondents’ Motion to Correct which cited Cummings, supra, thereby limiting the award of temporary total benefits to the date of the last evidentiary hearing. For the reasons set forth below, we conclude that the Appellate Court’s decision in Cummings did not take away the discretion of a trial commissioner to award continuing temporary total disability benefits, which discretion has long been utilized by trial commissioners in Connecticut.

Our Supreme Court has repeatedly recognized that the trial commissioner has the discretion to award ongoing benefits for temporary total disability beyond the date of the last evidentiary hearing. For instance, in Morisi v. Ansonia Mfg. Co., 108 Conn. 31 (1928) the court reviewed an award of benefits which was ordered “to be paid until it should appear that his incapacity by reason of the injury had increased, decreased or ceased....” Id. at 32; See also Reilley v. Carroll, 110 Conn. 282 (1929).1 The court in Morisi explained that the claimant’s right to receive the compensation awarded is “conditioned by the power conferred upon the commissioner to modify the award in a proper case.” Morisi, supra, at 36. After an award is made, “as soon as practicable after an employer or insurer has ascertained that incapacity has ceased, an application should be made for modification of the award....” Id. at 37. More recently, our Supreme Court has affirmed an award of temporary total disability benefits which was ordered by the trial commissioner to be paid “from January 9, 1974, until such time as it is shown that his incapacity has decreased or ceased.” English v. Manchester, 175 Conn. 392 (1978).

The Appellate Court in Cummings, supra, cited Platt v. UTC/Pratt & Whitney Aircraft Division, 3 Conn. Workers’ Comp. Rev. Op. 3, 164 CRD-6-82 (Aug. 16, 1985). In that case, the compensation review division explained the policy behind the use of the Form 36 (Notice of Intention to Discontinue or Reduce Payments). The review division explained that the “law requires that the employer will be monitoring the status of the case concerning the employee’s incapacity status, and it is presumed that the employer would know when the employee will be returning to work.” Id. at 9. Moreover, attending physicians in workers’ compensation cases have an ongoing obligation to assess the claimant’s ability to return to work and to report such information to the employer or its insurer. Platt, supra, at 9, fn. 8, citing § 31-279-9.

Indeed, it has long been the accepted practice for a trial commissioner, under appropriate factual circumstances, to award ongoing temporary total disability benefits, and for the respondent to pay such benefits until it receives information from a physician2 that the claimant is medically able to return to work. Platt, supra; Stryczek v. State of Conn., Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 33, 1765 CRB-2-93-6 (May 4, 1995); Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997). At that point, it becomes incumbent upon the respondent to file a Form 36. Torres, supra.

This policy has been both an effective and an efficient means of providing a claimant with continued benefits for temporary total disability without burdening the administrative resources of the workers’ compensation system by requiring unnecessary hearings. Furthermore, this practice clearly supports the humanitarian purpose of the Workers’ Compensation Act by allowing trial commissioners to award ongoing benefits where the medical evidence indicates that a claimant will continue to be temporarily totally disabled after the close of the last evidentiary hearing. In such cases, ongoing benefits may be awarded until there is evidence that the claimant’s condition has improved, without requiring the claimant to repeatedly return for hearings. See Platt, supra; Stryczek, supra; Torres, supra.

We will next examine the decisions relied upon in Cummings. The Appellate Court in Cummings, supra, cites Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (Jan. 13, 1989), aff’d., 212 Conn. 441 (1989) and Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 725 CRD-6-88-4 (Oct. 20, 1989). These cases were based upon factual circumstances which made it improper to award ongoing temporary total disability benefits.

In Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (Jan. 13, 1989), aff’d., 212 Conn. 441 (1989), the trial commissioner’s decision specifically stated that there was a necessity for “further hearings ... to determine the present status of disability.” Besade, supra, 6 Conn. Workers’ Comp. Rev. Op. at 86. The compensation review division stated, “So that there may be no confusion as to our holding, we rule that the April 29, 1987, Finding and Award only spoke to the situation prior to and up to September 19, 1983 (the date of the last evidentiary hearing)”. Id. (emphasis added). The review division’s holding was based upon the unique circumstances of that case, including the fact that the last evidentiary hearing had been held over three years prior to the trial commissioner’s decision. More importantly, the trial commissioner specifically found that there was a need for further hearings to determine the “present status of disability.” Id. Accordingly, the circumstances in Besade compelled a determination that the award of temporary total benefits did not extend beyond the date of the last formal hearing.

Similarly, compelling circumstances existed in Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 725 CRD-6-88-4 (Oct. 20, 1989). In that case, the formal hearing was held on May 15, 1987, at which the claimant’s physician testified that he had not examined the claimant since September of 1985, almost two years earlier. Regarding the claimant’s disability, the physician merely testified that he “assume(d)” the claimant’s condition remained the same. Neurath, supra, at 100. The compensation review division stated that the trial commissioner’s award of temporary total disability benefits should not have gone beyond the date of the last evidentiary hearing “without any further testimony....” Id. (citing Besade, supra) (emphasis added).

We have carefully reviewed the Appellate Court’s decision in Cummings, supra. In that case, the claimant argued that the respondents were required to file a Form 36 even though the trial commissioner’s award of temporary total disability benefits had been for a specific time period. Specifically, the trial commissioner “found temporary total incapacity only to the date of the evidentiary hearing, and made no finding of total incapacity beyond that date.” Cummings, supra, at 39. “It is a general rule that a case resolves only the issues explicitly decided in the case.” Civardi v. Norwich, 231 Conn. 287, 300 (1994), quoting State v. Ouellette, 190 Conn. 84, 91 (1983). The traditional doctrine is that the precedential value of a decision should be limited to the four corners of the factual setting in that decision. State v. Ouellette, supra, at 91 (citation omitted). We conclude that the Appellate Court’s decision in Cummings, supra, did not dismantle the trial commissioner’s discretion to award ongoing temporary total disability benefits under appropriate circumstances, which discretion has been sanctioned by our Supreme Court. See English, supra; Morisi, supra; Reiley, supra.

The trial commissioner’s ruling on the Motion to Correct is reversed in accordance with the above.

Commissioners John A. Mastropietro and Stephen B. Delaney concur.

1 In Reilley v. Carroll, 110 Conn. 282 (1929), the Supreme Court reviewed a trial commissioner’s award of temporary total disability benefits which extended beyond the date of the last evidentiary hearing. The court recognized that an award of temporary total disability requires “safeguards against abuse.” Id. at 286. The court explained that it is “at all times within the power of the defendant-employer, or his insurer, to terminate the period of total incapacity and end or reduce liability for compensation” by making a light duty position available to the claimant within his medical restrictions. Id. at 287. BACK TO TEXT

2 In addition to being provided medical reports by the claimant’s treating physician, the respondent may also investigate the claimant’s ability to return to work through other means, such as requesting an independent medical examination. BACK TO TEXT

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