CASE NO. 4053 CRB-02-99-05
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 27, 2000
STATE OF CONNECTICUT/DEPT. OF MENTAL HEALTH AND ADDICTION
The claimant was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 212 Talcottville Road, Rte. 83, Vernon, CT 06066.
The respondent was represented by Philip Schulz, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the May 19, 1999 Finding and Award of the Commissioner acting for the Second District was heard January 21, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent State of Connecticut has filed an appeal from the May 19, 1999 Finding and Award of the Commissioner acting for the Second District. Pursuant to its petition for review, the state argues that the trial commissioner erred by (1) failing to schedule an informal or pre-formal hearing prior to the commencement of the formal hearing process, (2) finding that the claimant was temporarily totally disabled, and (3) assigning dates of disability prior to December 8, 1994. We affirm a portion of the claimant’s disability award, and set aside the remainder.
The claimant sustained compensable injuries to her head, neck and right shoulder while working for the state on July 16, 1987. She received temporary total disability benefits through October 23, 1992, when the state submitted a Form 36 along with a copy of a report by Dr. Derby estimating that the claimant had reached maximum medical improvement with a 10-20% permanent partial disability. A formal hearing was held on December 8, 1994 concerning the approval of this Form 36. There, Dr. Derby’s deposition was introduced, in which he had testified that the claimant had a light duty work capacity, and that her left-sided symptoms (such as carpal tunnel syndrome in her left wrist) were not caused by her compensable injury. The trial commissioner issued a June 6, 1995 decision ruling that the claimant had not proven total disability, and approved the Form 36 effective as of October 26, 1992.1 This board affirmed that decision on appeal, holding that there was sufficient evidence to support the stoppage of total disability benefits. Brown v. State of Connecticut/Norwich State Hospital, 3100 CRB-2-95-6 (Dec. 23, 1996).
The claimant subsequently requested another formal hearing regarding entitlement to temporary total disability benefits. On April 2, 1998, this Commission sent the parties notification that a formal hearing would be held on the fourth of June, before a different trial commissioner. On the third of June, the state faxed a letter to the presiding commissioner requesting that the next day’s proceeding be converted to a pre-formal hearing. The state asserted that it was without any knowledge of a deterioration in the claimant’s health since the 1995 award, and wrote, “If there are changes in the claimant’s condition the State should have the opportunity to get an independent medical examination of the claimant and be allowed an opportunity to defend this claim.” At the hearing on the following day, the commissioner denied the state’s request for an impromptu pre-formal, declaring instead that the state would be allowed to obtain its own evidence afterward. Transcript, pp. 17, 56. Notably, the state availed itself of this opportunity by introducing into evidence a medical examination by Dr. Selden at a brief formal proceeding on December 3, 1998. See Respondent’s Exhibit 5.
In his decision, the trier took notice of the previous Finding and Award, as well as the CRB opinion affirming the earlier ruling. He thought it clear that the previous commissioner “did not consider whether the Claimant was totally disabled after October 26, 1992, and that the focus of his decision was on the compensation due the claimant until the filing of the Form 36.” Findings, ¶ 7. The claimant introduced numerous office notes and medical reports into the record, virtually all of which were prepared prior to the December 8, 1994 formal hearing. The lone exception was Dr. Browning’s brief January 23, 1998 office note, which stated that the claimant’s neck was “holding its own,” and characterized her as “getting along fair” with no mention of disability. Claimant’s Exhibit B.
Though neither Dr. Alessi, Dr. Raycroft nor Dr. Roberts reported that the claimant was totally disabled, Dr. Browning—with whom the claimant had treated over 40 times between 1987 and 1994—recommended that she apply for a disability retirement, and opined that she was indeed unfit for employment in a February 3, 1994 office note. The trial commissioner chose to rely heavily upon this opinion. He also gave credence to the report of the independent medical examiner, Dr. Selden, who had said that the claimant was capable of light duty employment following his September 29, 1998 examination. The state argued that the claimant could not entertain a claim for benefits prior to December 8, 1994 without establishing a substantial change in her physical condition, as such an action was tantamount to moving to open the previous decision under § 31-315. However, the trier rejected this argument, and stated, “Having reviewed the medical reports and office notes of Drs. Browning, Raycroft, Roberts and Alessi, I conclude that the claimant has established by a preponderance of the evidence that she was temporarily totally disabled from February 3, 1994, per Dr. Browning, to September 29, 1998 when Dr. Selden indicated that the Claimant had a light sedentary work capacity with restrictions.” Findings, ¶ E. The state has appealed that determination to this board.
The existence of total disability in a workers’ compensation case is a question of fact, with the burden of proof allocated to the claimant. Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 41-42 (1996). It is the primary duty of the trial commissioner to make such factual determinations by assessing the weight of the evidentiary exhibits and the credibility of the testimony offered in his presence. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). There is a significant amount of discretion inherent in the trier’s role as factfinder, which requires deference by this board on review. We will not alter his or her findings unless they are unsupported by the evidence or unless they omit undisputed material facts. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The legal conclusions drawn by the commissioner from the subordinate factual findings will also remain intact provided that they do not result from an incorrect interpretation of the law, or from the drawing of an unreasonable inference. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Garcia v. Legare Plumbing & Heat, 3856 CRB-2-98-7 (Sept. 23, 1999).
The substance of the record itself offers moderate but sufficient support for the proposition that the claimant was totally disabled, at least at the outset of the benefit period. Dr. Browning’s sizable set of office notes establish the existence of a chronic neck and right shoulder problem that bothered the claimant for at least several years following her 1987 injury. Although, in terms of pain, the claimant’s noncompensable2 left shoulder and carpal tunnel symptoms began to overshadow her right side difficulties in approximately 1991, Dr. Browning continued to ascribe a significant portion of the claimant’s restrictions to the effects of the accepted injury, particularly the movement limitations in her right master arm. See Sept. 27, 1993 report, Claimant’s Exhibit B. His recommendation that the claimant retire, and his description of her as “totally disabled” on February 3, 1994, are visibly linked to the claimant’s compensable injury. As the trier is entitled to choose among the various medical experts in a workers’ compensation case, he was within his rights to rely upon Dr. Browning’s diagnosis here. See Garcia, supra.
We must stress, however, the trial commissioner explicitly based his finding of disability on the reports and office notes of the claimant’s doctors, rather than on the testimony of the claimant or any other evidence. Findings, ¶ E. In that light, the February 1994 diagnosis by Dr. Browning could not alone sustain an award of total disability spanning fifty-five months into the future. Further medical evidence was necessary to demonstrate that the claimant remained unable to resume any sort of employment as succeeding years passed, for total incapacity is a matter of continuing proof. Fusciello v. Ronnie Demeo, Inc., 15 Conn. Workers’ Comp. Rev. Op. 283, 286, 1535 CRB-6-92-10 (June 7, 1994); see also, Coates v. Turbine Components, 11 Conn. Workers’ Comp. Rev. Op. 264, 1365 CRD-3-92-1 (Nov. 18, 1993) (claimant’s suspension of active medical treatment resulted in interruption of total disability benefits). Generally, a claimant wishing to firmly document a four-and-one-half-year period of total disability via her medical records would need to introduce a series of periodically updated reports to reliably establish the persistence of her incapacitated status over time. This is particularly important where, as here, the trial commissioner based his decision on medical reports as opposed to any other criteria.
At the formal hearing, the claimant testified that the pain in her neck and right shoulder had worsened since 1992, limiting her activities. June 4, 1998 Transcript, 34-37. She also testified that she had continued to treat with Dr. Browning, having seen him at least ten times since 1995. Id., 39. Such testimony would have been useful in corroborating the records of those visits; the problem is, no such records were introduced into evidence. There are only two office notes that follow up Dr. Browning’s February 1994 description of the claimant as “totally disabled.” The first was made on September 15, 1994, and does not mention total disability. Instead, it says that the claimant’s neck and shoulder had continued to bother her, and reiterates the doctor’s belief that the claimant was incapable of returning to her old job with the state. The second was entered on January 23, 1998, and does not insinuate anything regarding the claimant’s work capability. The brief note merely indicates that the patient’s neck is “holding its own,” and describes her as “getting along fair.” Claimant’s Exhibit B.
In fact, the only post-1994 medical report that mentions the claimant’s disability status is the 1998 independent medical examination of Dr. Selden, who stated that the claimant was capable of light-duty, sedentary work, and was not totally disabled. He characterized her physical limitations as “mild decreased mobility of the cervical area,” with “full range of motion of upper extremities.” Respondent’s Exhibit 5. This sparse body of recent medical evidence did not provide a sufficient basis for the trier to conclude that the claimant was totally disabled beyond September, 1994. See Bailey v. State of Connecticut/GHCC, 15 Conn. Workers’ Comp. Rev. Op. 433, 436, 3152 CRB-5-95-8 (Sept. 3, 1996), appeal dismissed, A.C. 16397 (Dec. 5, 1996). The claimant would have had to submit as part of her proof a medical evaluation of her condition and work capacity from 1995 onward in order to create a consistent medical documentation of her disability status.
Having determined that the record contains adequate support for the trier’s award of total disability, albeit only through the date of Dr. Browning’s aforementioned September 15, 1994 office note, we now reach the procedural and jurisdictional elements of this appeal. Regarding the issue of notice, we find no error in the trial commissioner’s denial of the state’s request to convert the formal hearing into a pre-formal hearing. The state was notified of the formal hearing two months before that proceeding, but made its conversion request on the day prior. This indeed suggests that the state began preparing for the case at the last minute, and discovered it had insufficient information on which to contest the claim. Nonetheless, the trier allowed the state to introduce an independent medical examination into evidence six months later. This accommodation was certainly sufficient to allow the state to defend this claim—a defense which, if compromised at all, was jeopardized chiefly by the respondent’s delay in preparing its case. Furthermore, there is no statutory entitlement to a pre-formal hearing; rather, it is a practice that this Commission often uses to facilitate the settlement of claims. Anglero v. State of Connecticut/Dept. of Administrative Services, 3457 CRB-8-96-11 (March 5, 1998). The trier had full discretion as to whether or not he wished to schedule such a proceeding here. He did not err by saying “no.”
As noted above, the trier determined that the previous commissioner neither considered nor addressed the claimant’s entitlement to total disability benefits beyond the October 26, 1992 filing date of the Form 36. Thus, the trier awarded total disability benefits commencing on February 3, 1994, despite the fact that the formal hearing in the prior action was actually held on December 8, 1994. The transcript of that hearing shows that there is indeed a solid basis upon which to infer that the scope of the proceedings did not include the claimant’s current disability status. See Respondent’s Exhibit 4. The claimant’s counsel indicated to the commissioner that he was appearing on behalf of his client solely to challenge the propriety of the granting of the Form 36 at a January 1993 emergency informal hearing. Transcript, pp. 15-18. The commissioner did not dispute this characterization of the proceedings. Although the compensability of the claimant’s left side symptoms was later held to have been adjudicated as well; May 19, 1999 Findings, ¶ F; it does not appear from the transcript that either the claimant, the state or the previous commissioner contemplated that the claimant was seeking adjudication of the issue of total disability through the date of the December 1994 hearing instead of the Form 36 filed on October 26, 1992.
Accordingly, the present commissioner in his role as trier of fact reasonably determined that his predecessor had not resolved the entire total disability issue. Although we have stated that a commissioner is entitled to consider a broader range of issues during a formal proceeding to challenge a prior Form 36 ruling; Ryba v. West-Con, 3196 CRB-2-95-10 (Feb. 26, 1997); he is not required to expand the scope of the hearing to include the existence of total incapacity through the present date. It is certainly not violative of due process for the parties to agree to limit the issues to a certain time period, as was apparently done at the 1994 formal hearing. We hold that the trier did not overstep his jurisdiction or violate the principles of collateral estoppel or res judicata by awarding the claimant benefits commencing on February 3, 1994.
We hereby affirm the trier’s award of disability benefits through the date of Dr. Browning’s September 15, 1994 office note. The remainder of the award is reversed, as the commissioner stated that his decision was based on medical reports, but no such reports exist between September 15, 1994 and September 29, 1998.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
1 The three-day discrepancy in the approval dates is likely attributable to the fact that the state filled out the Form 36 on October 23, 1992, dating it accordingly, and then sent it, leading to its receipt at the Second District office on October 26, 1992. The date of receipt is considered the filing date in this instance. BACK TO TEXT
2 The trial commissioner found that the previous commissioner considered the claimant’s carpal tunnel, left trapezius muscle and left shoulder conditions in his 1995 Finding and Award, and determined that none of them were compensable. Accordingly, he held that res judicata prohibited the further adjudication of the compensability of the claimant’s bilateral carpal tunnel syndrome. Findings, ¶ F. BACK TO TEXT