CASE NO. 3749 CRB-01-97-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
AUGUST 25, 1999
STATE OF CONNECTICUT/WORKERS’ COMPENSATION COMMISSION
The claimant appeared pro se at oral argument.
The respondent was represented by Matthew I. Levine, Esq., Office of the Attorney General, P. O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.
This Petition for Review from the December 16, 1997 Finding and Dismissal by the Commissioner acting for the First District was heard November 6, 1998 before a Compensation Review Board panel consisting of Commissioners Donald H. Doyle, Jr., Michael S. Miles and John A. Mastropietro.
DONALD H. DOYLE, JR., COMMISSIONER. The claimant has petitioned for review from the December 16, 1997 Finding and Dismissal of the Commissioner acting for the First District. In that decision the trial commissioner denied the claimant’s request for temporary total disability benefits for the period from July 23, 1996 through August 29, 1996. In addition, the trial commissioner found that Dr. Berman was not an authorized treater, and appointed Dr. Sella as the claimant’s treating physician. In support of her appeal, the claimant contends that the trial commissioner erred in denying her request for temporary total disability benefits and that the trial commissioner erred in finding that Dr. Berman was not an authorized treater.
We will first address the respondent’s Motion to Dismiss. The respondent contends that the claimant failed to file reasons of appeal, a motion to correct or a brief. In the instant case, the claimant filed her Reasons of Appeal on January 5, 1998 and the claimant filed a timely brief on September 15, 1998. As the claimant has actively pursued her appeal, we deny the respondent’s Motion to Dismiss the appeal for failure to prosecute with proper diligence pursuant to Practice Book § 85-1. See Cooper v. Sisters of Mercy, 3218 CRB-6-95-11 (decided Dec. 10, 1996).
The trial commissioner found the following relevant facts. We note that as the claimant has not filed a Motion to Correct we are therefore limited to the facts as found by the trial commissioner. McVety v. Sidetex Corporation, 14 Conn. Workers’ Comp. Rev. Op. 340, 343, 2050 CRB-3-94-5 (Sept. 20, 1995), aff’d. 43 Conn. App. 912 (1996) (per curiam). The claimant sustained compensable injuries to her upper extremities on June 16, 1988. A voluntary agreement was approved on September 7, 1993 which provides for a seven percent permanent partial disability of both upper extremities, and also lists Dr. Stern as the authorized treating physician. Pursuant to a request by the respondent employer in January of 1996 regarding the claimant’s work restrictions, the claimant was examined by Dr. Ponn, a member of the medical group of the then retired Dr. Stern. (Finding No. 11). Dr. Ponn issued a report dated January 17, 1996 which indicated restrictions including “avoiding filing, lifting more than 30 pounds at a time, and work that involves raising her arms above shoulder level.” (Finding No. 12). Dr. Ponn recommended that the claimant be seen by a “psychiatrist, neurologist, or other practitioner who specializes in the chronic follow-up, assessment and treatment of other problems.” (Finding No. 13). In March of 1996, the claimant treated with Dr. Berman, a neurologist and psychiatrist. The respondent has refused to pay the $300.00 cost of that treatment.
We will first address the claimant’s contention that Dr. Berman’s treatment was authorized. Based upon the trial commissioner’s findings that the claimant was seen by Dr. Ponn at the request of the respondent employer, and that Dr. Ponn directed the claimant to see a neurologist, it appears that Dr. Berman was in fact authorized.1 See Mahoney v. Bill Mann Tree Service, 16 Conn. Workers’ Comp. Rev. Op. 17, 3025 CRB-4-95-3 (Oct. 4, 1996); see also Davis v. New London Board of Education, 11 Conn. Workers’ Comp. Rev. Op. 245, 1346 CRD-2-91-11 (Nov. 10, 1993) (general referral is sufficient to support authorization). Moreover, at the formal hearing the respondent employer did not dispute the claimant’s testimony that she chose Dr. Berman from the list of network physicians included in the employer’s medical care plan. See 3/17/97 TR. at p. 36; see also § 31-279 and § 31-279-1 et. seq. As there is no legal basis for denying the authorization of Dr. Berman’s treatment, we thus reverse the trial commissioner’s denial of that treatment.
The claimant contends that she was totally disabled from work from July 23, 1996 through August 29, 1996 due to symptoms of thoracic outlet syndrome. Regarding this issue, a medical certificate was issued by Dr. Beaulieu, who opined that the claimant was able to “return to work doing data entry with no heavy lifting.... may do light-duty filing less than 30 pounds.” (Finding No. 22). We have repeatedly held that whether a claimant is totally disabled from working is a question of fact for the trial commissioner to determine. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 1680 CRB-2-93-3 (April 12, 1995); Vuoso v. Custom Gunite Pools, 13 Conn. Workers’ Comp. Rev. Op. 50, 51, 1581 CRB-7-92-12 (Dec. 7, 1994). We will not disturb a trial commissioner’s factual determination unless the conclusions are contrary to law, or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
In the instant case, the trial commissioner’s denial of the claimant’s request for temporary total disability benefits is supported by the record, specifically the opinions of Dr. Gerratana who performed a trial commissioner’s examination and Dr. Dudek who performed an independent medical examination at the request of the respondent. (See Findings No. 25 and 27). We conclude that it was within the discretion of the commissioner to determine that the claimant was not totally disabled pursuant to § 31-307 from July 23, 1996 through August 29, 1996 based upon the medical opinions of Dr. Gerratana and Dr. Dudek. Furthermore, we find no error in the trial commissioner’s dismissal of the claimant’s claim that the respondent failed to accommodate her physical restrictions for filing duties, as this was a factual determination for the trial commissioner. The trial commissioner’s determination on this issue was based on two grounds, the first being that surgery would alleviate her symptoms, and the second being the medical evidence regarding the claimant’s ability to file. As the second ground is factual in nature and is fully supported by the medical evidence, including the medical opinions of Dr. Gerratana and Dr. Dudek, we therefore need not address the claimant’s contention that the trial commissioner erred in concluding that the claimant refused to undergo surgery which would alleviate her physical restrictions.
Finally, we will address the claimant’s contention that the examination by Dr. Gerratana was tainted as the result of an inappropriate letter from the employer’s Human Resource Specialist, Dorothy Sharillo. We agree with the claimant that said letter constituted ex parte communication and was clearly inappropriate. However, in his decision, the trial commissioner specifically addressed this issue and concluded that said letter did not compromise the opinion of Dr. Gerratana. While we recognize the inappropriateness of said letter, we will defer to the trial commissioner’s conclusion that Dr. Gerratana’s examination and opinions were “not tainted or influenced” by the letter.
The trial commissioner’s decision is reversed as to the authorization of treatment by Dr. Berman. In all other respects, the trial commissioner’s decision is affirmed.
Commissioner John A. Mastropietro concurs.
MICHAEL S. MILES, COMMISSIONER, CONCURRING. I concur with the majority’s decision in the instant case. I write separately, however, in order to emphasize the inappropriateness of the letter sent by the employer’s Human Resource Specialist to Dr. Gerratana.2 That letter states, in part, that the claimant had been examined by an orthopedic surgeon “who found she could file and that she did not work up to capacity when she was tested.” The letter further states:
However, Ms. Trimachi has continued to state that she cannot file . It is extremely important to us that we have a clear and final determination from you as to Ms. Trimachi’s real filing capability . Ms. Trimachi has two very young children. Could her symptoms be related to her lifting these children? . Sybel Muldar of CTComp is our liaison on this case but we are most anxious to receive your opinion regarding Ms. Trimachi’s ability to file. I would like to call you... to discuss your findings.
(Claimant’s Exh. A.).
We should not lose sight of the humanitarian purpose of the Workers’ Compensation Act, nor should we underestimate the importance of the fact that our system “encourages full disclosure and cooperation” among all parties in resolving compensation cases. See Pietraroia v. Northeast Utilities, 3597 CRB-8-97-4 (September 8, 1997). I agree with the claimant’s contention that the letter appeared to be a “serious attempt to bias the physician’s opinion.” (Claimant’s Brief at p. 3). Any attempt by a party to influence a medical opinion should not be tolerated, and a trial commissioner should not rely on a medical opinion which has been compromised due to such improper influence.
In my opinion, Dr. Gerratana’s opinion was tainted as the result of the inappropriate letter, despite his statements to the contrary. However, because I find that the trial commissioner’s decision is supported by evidence in the record other than the opinion of Dr. Gerratana, I agree with the majority that the trial commissioner’s decision should be affirmed.
1 We note the following exchange (3/17/97 TR. at p. 44):
ATTORNEY WEISS: Ponn didn’t make a specific referral.
COMMISSIONER: Well, I think I ruled on it that he did. He said neurologist. He didn’t say Dr. Berman, but he said neurologist. And, I think the facts are clear that Dr. Berman is a board certified neurologist BACK TO TEXT
2 I further note that the employer’s human resource personnel should not have requested in the letter to speak with the physician to “discuss” his “findings” as such a conversation constiututes further improper ex parte communication. BACK TO TEXT