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Zizic v. Sikorsky Aircraft Division et al.

CASE NO. 3732 CRB-04-97-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 7, 1999

PETAR ZIZIC

CLAIMANT-APPELLANT

v.

SIKORSKY AIRCRAFT DIVISION

EMPLOYER

and

ESIS

INSURER

and

FUSCO-AMATRUDA

EMPLOYER

and

SECOND INJURY FUND

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Robert J. Nicola, Esq., Owens, Schine & Nicola, P.O. Box 753, Trumbull, CT 06611-0753.

The respondents Sikorsky Aircraft and ESIS were represented by Richard L. Aiken, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033, who did not appear at oral argument.

The Second Injury Fund was represented by Richard Hine, Esq., Assistant Attorney General, Office of the Attorney General, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review, together with a Motion to Submit Additional Evidence, from the November 21, 1997 Finding and Award of the Commissioner acting for the Fourth District was heard August 21, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Michael S. Miles and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the November 21, 1997 Finding and Award of the Commissioner acting for the Fourth District. In that decision the trial commissioner denied the claimant’s request for temporary total disability benefits from April 11, 1996 through the date of the formal hearing. The claimant disputes the trial commissioner’s conclusion that he was not temporarily totally disabled. In support of his appeal, the claimant contends that the trial commissioner erred by failing to admit into evidence medical reports by two treating physicians. In addition, the claimant filed a Motion to Submit Additional Evidence in which he seeks to present a Social Security award.

The trial commissioner found the following relevant facts. The claimant sustained compensable injuries to his low back during the course of his employment with the respondent employer Sikorsky Aircraft on August 1, 1991 and May 25, 1994. As a result of these injuries, the claimant underwent surgery on September 7, 1995. The Fund accepted transfer pursuant to § 31-325 and § 31-349 effective September 7, 1995. The trial commissioner found that the claimant was temporarily totally disabled from September 7, 1995 until April 10, 1996, and that as of April 11, 1996 the claimant has been capable of light duty work. The trial commissioner concluded that the claimant has a seventeen and one-half percent permanent partial disability of the back1 with a maximum improvement date of July 8, 1996. The trial commissioner further found the claimant’s authorized treating physicians to be Dr. Axline and Dr. Nijensohn, and that treatment by Dr. Strugar and Dr. Katz was not authorized and therefore is not compensable.

We begin by addressing the claimant’s argument that the commissioner erred by excluding from evidence the medical reports of Dr. Strugar and Dr. Katz. The trial commissioner concluded that their treatment was not authorized, as the claimant was not referred to either of them by an authorized treating physician. In order to be compensable, a claimant has the burden of proving that medical treatment was either provided by the initial authorized treating physician under § 31-294d, or obtained pursuant to a valid referral from an authorized physician. A claimant may also seek retroactive authorization of treatment which was not properly obtained through a referral from an authorized treater. See Mahoney v. Bill Mann Tree Service, 16 Conn. Workers’ Comp. Rev. Op. 17, 3025 CRB-4-95-3 (Oct. 4, 1996); McVety v. Sidetex Corp., 14 Conn. Workers’ Comp. Rev. Op. 340, 342, 2050 CRB-3-94-5 (Sept. 20, 1995), aff’d., 43 Conn. App. 912 (1996) (per curiam). Under § 31-294d, it is the trial commissioner who has the power to authorize a change of physician at the request of one of the parties. In the instant case, the claimant was not sent to Dr. Strugar or Dr. Katz by an authorized treater, nor did the claimant request authorization from the trial commissioner to treat with either of these doctors. Thus, the commissioner clearly had discretion to rule that Dr. Strugar’s and Dr. Katz’s treatment was unauthorized. See McVety, supra.

The claimant argues on appeal that even though treatment by Dr. Strugar and Dr. Katz was not authorized, nevertheless they were treating physicians and as such their medical reports were admissible pursuant to § 52-174. Section 52-174(b) provides in relevant part:

In all actions for the recovery of damages for personal injuries or death, pending on October 1, 1977, or brought thereafter, any party offering in evidence a signed report and bill for treatment of any treating physician...may have the report and bill admitted into evidence as a business entry and it shall be presumed that the signature on the report is that of the treating physician....

In Struckman v. Burns, 205 Conn. 542 (1987) the Supreme Court explained that this section applies in “all actions” and to “any treating physician.” Id. at 545. The court further explained that courts “may not ‘read into clearly expressed legislation provisions which do not find expression in its words.’” Id. at 546 (quotations omitted). Thus, a signed medical report by a treating physician may be introduced into evidence pursuant to § 52-174(b) without the treating physician being an authorized treating physician under the Workers’ Compensation Act.

In the instant case, the trial commissioner clearly denied the introduction of the medical reports of Dr. Strugar and Dr. Katz on the basis that they were not authorized treating physicians pursuant to § 31-294d. (2/4/97 TR. at p. 34, 35, 39; 6/17/97 TR. at p. 12-13). We conclude that the trial commissioner misinterpreted § 52-174(b), which does not require the physician to be an authorized treater under our Act. However, we recognize that a commissioner is not bound by the ordinary common law or statutory rules of evidence at a hearing under § 31-298 and has broad discretion to determine the admissibility of evidence under that statute. While we think the better practice for the trier is to allow such medical reports into evidence and then decide the weight to be given to such evidence, nevertheless we do not find that the trier abused her discretion by disallowing these reports. See Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998). Although the reports at issue indicate the opinion that the claimant was temporarily totally disabled, the trial commissioner’s decision that he ceased being totally disabled as of April 11, 1996 is supported by the medical opinion of Dr. Robinson. (Finding No. 23).

Next, we will address the claimant’s contention that the trial commissioner limited the issues at the formal hearing to the claimant’s claim for temporary total disability and medical treatment, and therefore should not have made rulings regarding § 31-308(a) benefits, § 31-308a benefits, and permanent partial impairment benefits. (Claimant’s Brief at p. 22). We note that initially the question of transfer pursuant to § 31-325 and § 31-349 was at issue, but was settled by an agreement between the parties. (See Finding No. 2). The trial commissioner initially stated, “The issues before us today are total incapacity benefits, medical treatment and transfer to the Second Injury Fund pursuant to a claim under 31-325.” (2/4/97 at p. 3). At the next formal hearing, the trial commissioner stated, “I’m going to restate the issues. The issues today are total incapacity benefits, medical treatment, and transfer to the Second Injury Fund.” (3/20/97 TR. at p. 2). The trial commissioner repeated these limited issues at the third formal hearing held on June 17, 1997. (6/17/97 TR. at p. 3).

We have previously explained that it 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.” Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 228, 2008 CRB-1-94-4 (April 12, 1995), appeal dismissed June 29, 1995, A.C. 14747 (citations omitted). In the instant case, we agree with the claimant’s argument that he did not receive sufficient notice that § 31-308(a) benefits, § 31-308a benefits, or permanent partial impairment benefits would be considered at that time by the trial commissioner. Accordingly, we hereby vacate the trial commissioner’s rulings on those issues.

Finally, we will address the claimant’s Motion to Submit Additional Evidence. In support of that motion, the claimant seeks to present a Social Security Disability Award which was issued on June 20, 1997. The claimant contends that this award should be considered because it indicates that the claimant was disabled during the period he is seeking temporary total disability under the Workers’ Compensation Act. We have repeatedly held that the standards of the Social Security Administration in adjudicating total disability are not the same standards used by this Commission, and thus a trial commissioner may decline to admit them into evidence. See Krajewski v. Atlantic Aerospace Textron, 15 Conn. Workers’ Comp. Rev. Op. 44, 2120 CRB-6-94-8 (Nov. 28, 1995). The claimant’s Motion to Submit Additional Evidence is accordingly denied.

The trial commissioner’s award of § 31-308(a) benefits, denial of § 31-308a benefits, and award of two-and-one-half percent permanent partial impairment of the back are hereby vacated. In all other respects, the trial commissioner’s decision is affirmed.

Commissioner Stephen B. Delaney concurs.

MICHAEL S. MILES, COMMISSIONER, DISSENTING. I respectfully dissent. In the instant case, the trial commissioner clearly denied the introduction of the medical reports of Dr. Strugar and Dr. Katz on the sole basis that they were not authorized treating physicians pursuant to § 31-294d. (2/4/97 TR. at p. 34, 35, 39; 6/17/97 TR. at p. 12-13). Accordingly, the trial commissioner misinterpreted § 52-174(b), which does not require the physician to be an authorized treater under our Act. I recognize that a commissioner is not bound by the ordinary common law or statutory rules of evidence at a hearing under § 31-298 and has broad discretion to determine the admissibility of evidence under that statute. However, where, as here, the commissioner clearly denied the admission of material2 evidence solely on the basis of an error in law, we should remand the matter for further consideration.3

Accordingly, I dissent on the basis that this matter should be remanded in order that the claimant’s offer of medical reports by Dr. Strugar and Dr. Katz may be considered by the trial commissioner pursuant to § 52-174(b).

1 The trial commissioner found that a fifteen percent permanent partial disability of the back had previously been paid due to a prior work injury with a different employer, and therefore the claimant was due an additional two-and-one-half percent. BACK TO TEXT

2 The medical records at issue indicate the opinion that the claimant was temporarily totally disabled. BACK TO TEXT

3 We note that in Tanzi v. City of New Britain, 3420 CRB-6-96-9 (April 28, 1998) we held that a trial commissioner has the discretion under § 31-298 to exclude a deposition otherwise admissible pursuant to § 52-149a(a). Tanzi, supra, is distinguishable, however, because there the trial commissioner had “reasonable grounds” to exclude the deposition. Id. In contrast, in the instant case, the trial commissioner denied the evidence solely on the basis of § 31-294d without consideration that the evidence could be admitted pursuant to § 52-174(b). BACK TO TEXT

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