CASE NO. 4070 CRB-6-99-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 1, 2001
GENERAL MOTORS CORPORATION
INTEGRATED DISABILITY ACTIVITY
GM NATIONAL BENEFIT CENTER
The claimant was represented by Thomas F. McDermott,, Esq., Feeley, Nichols, Chase, McDermott & Pellett P.C., 37 Leavenworth Street, P.O. Box 2300, Waterbury, CT 06722-2300.
The respondent was represented by Richard Bartlett, Esq., McGann, Bartlett, & Brown, LLC, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.
This Petition for Review from the June 17, 1999 Finding and Dismissal of the Commissioner acting for the Sixth District was heard June 16, 2000 before a Compensation Review Board panel consisting of Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 17, 1999 Finding and Dismissal of the Commissioner acting for the Sixth District. In that decision, the trial commissioner granted the respondent’s Form 36 dated March 6, 1989, and denied the Form 36 dated November 15, 1985. The trial commissioner ordered as follows: “The claim the claimant has been totally disabled from 1985 to the present is Dismissed.” Subsequently, pursuant to the respondent’s Motion for Rectification, the trial commissioner corrected his findings and approved the November 15, 1985 Form 36. In support of her appeal, the claimant argues that the trial commissioner erred by granting the 1985 Form 36 and by granting the 1989 Form 36.
The respondent has filed a Motion to Dismiss the claimant’s appeal due to the claimant’s late filing of Reasons of Appeal and late brief. Generally, this board has the discretion to dismiss an appeal when the appellant fails to file documents in a timely fashion. Norton v. James Fleming Trucking, Inc., 15 Conn. Workers’ Comp. Rev. Op. 472, 474, 2119 CRB-1-94-8 (Sept. 16, 1996). In the instant case, the claimant filed several motions requesting extensions of time to file Reasons of Appeal, and these motions were granted. The claimant filed her brief on April 24, 2000, only one week after the due date of April 17, 2000 and well before oral argument on June 16, 2000. As a dismissal under these circumstances is discretionary, and as there appears to have been no prejudice, we deny the Motion to Dismiss.
We now turn to the merits of this case. The June 17, 1999 Finding and Dismissal sets forth numerous findings of fact. We note that extensive evidence, including testimony from the claimant and from expert witnesses, was presented at seven formal hearings. The trial commissioner found that the claimant injured her low back while working for the respondent employer on February 12, 1984. The compensability of the injury was accepted pursuant to an approved voluntary agreement dated March 13, 1984. The claimant’s treating physician was Dr. Taylor, who performed surgery on the claimant’s back on June 14, 1984. On May 9, 1985 and September 10, 1985, Dr. Taylor opined that the claimant had reached maximum medical improvement and was capable of performing sedentary work, and rated the claimant with a ten percent permanent partial disability of her back. Subsequently, on February 11, 1986, Dr. Taylor opined that the claimant was totally disabled from any type of employment for an indefinite period.
On November 13, 1985, Dr. Basile conducted an independent examination of the claimant at the request of the respondent, and issued a report indicating that the claimant had a work capacity with restrictions. The trial commissioner took administrative notice that a Form 36 was filed on November 15, 1986 in which the respondent contended that the claimant was “no longer disabled.” Finding ¶ 34. In fact, the Form 36 is dated November 15, 1985 and was filed with the Sixth District on December 23, 1985 according to a date stamp. The year 1986 appears to be a typographical error, as the Form 36 in the record is dated November 15, 1985 and the commissioner used the correct date of November 15, 1985 in his Ruling on Respondent’s Motion for Rectification dated December 6, 1999.
On February 17, 1989, Dr. Taylor examined the claimant and opined that she was “capable of gainful employment although she still thinks she cannot work. She is so incapacitated by pain on a day to day basis. Clearly, there is psychologic overlay in that her subjective complaints are out of proportion to her clinical findings.” Finding ¶ 40. The trial commissioner took administrative notice of a Form 36 filed by the respondent which was approved by a trial commissioner on March 9, 1989, terminating temporary total disability payments. Regarding the termination of temporary total disability benefits effective March 9, 1989, the parties presented extensive evidence, including testimony from the claimant and other witnesses, medical evidence, vocational expert testimony, and video surveillance of the claimant.
We will first address the claimant’s contention on appeal that the trial commissioner erred by granting the 1989 Form 36. Specifically, the claimant contends that the trier erred by relying upon Dr. Cohen’s opinion in determining that the claimant was not totally disabled. “Whenever a claimant asserts that he is totally incapacitated, the burden of proving such a disability falls upon him.” Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998), citing Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996); Curtiss v. State/Department of Mental Retardation Region 2, 3220 CRB-6-95-11 (Aug. 20, 1997). We have repeatedly held that whether a claimant is totally disabled 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).
The power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
In concluding that the claimant was not totally disabled, the trial commissioner considered conflicting evidence. Although the claimant in her appeal contends that the trial commissioner should not have relied upon the opinion of Dr. Cohen, a vocational placement expert, it was within the discretion of the trial commissioner to decide the weight to accord his opinion. Moreover, the trial commissioner’s decision is amply supported by the record, including the medical opinion of Dr. Roberts, who opined on April 29, 1986 that the claimant was capable of returning to work with restrictions. As the trial commissioner’s decision is amply supported by the evidence and by his findings, and was neither based on impermissible or unreasonable factual inferences nor contrary to law, it must stand. Fair, supra.
Finally, we will address the central issue in the claimant’s appeal, which is the claimant’s entitlement to temporary total disability benefits between November 15, 1985 and March 9, 1989. In his original Finding and Dismissal, the trial commissioner dismissed the claimant’s claim for temporary total disability benefits from 1985 to the present, and denied the Form 36 dated November 15, 1985, although he subsequently approved said Form 36 in his Ruling on Respondent’s Motion for Rectification dated December 6, 1999. In that ruling, the trial commissioner corrected his Finding ¶ 34 to state as follows:
Administrative notice is taken of a Form 36 filed on November 15, 1985 contending the claimant was “no longer disabled.” Claimant’s counsel filed an objection. Administrative notice is taken of the fact that the Form 36 was approved unless contested on January 14, 1986 by Commissioner Andrew P. Denuzze.
The trial commissioner further corrected his Finding ¶ X as follows:
The Form 36 filed on November 15, 1986 [sic] is Approved. Claimant’s treating physician, Dr. Taylor, was of the opinion that the claimant was capable of gainful employment and recommended a sedentary type job as of that date. Furthermore, Dr. John Basile was of the opinion that as of November 13, 1985, the claimant had a work capacity with restriction.
In support of her appeal, the claimant contends that the trial commissioner erred in granting the November 15, 1985 Form 36. The claimant contends that the respondent filed two similar Form 36’s, one which was filed on January 13, 1986, signed by the respondent and stamped “Approved Unless Contested JAN 14 1986 Andrew P. Denuzze Commissioner” and one which was not signed by the respondent or stamped “Approved Unless Contested.” The claimant contends that the latter one was the subject of the formal hearings, and that the former one was not part of the record in the instant case. To the contrary, we note that the only Form 36 in the record is the Form 36 signed by the respondent and stamped “Approved Unless Contested” by Commissioner Denuzze; and an unstamped Form 36 was appended to the claimant’s trial brief which was not stamped as received by the Workers’ Compensation Commission.
The claimant argues that during the formal hearing process, both the claimant and the respondent referred to the unstamped Form 36, and that the respondent improperly introduced evidence which had not been submitted at the formal hearing by appending the stamped Form 36 to its Motion for Rectification. We disagree. Several times during the formal hearing, the parties referred to a Form 36 in the file dated November 15, 1985. See March 16, 1998 Transcript p. 4; May 19, 1998 Transcript p. 3; and October 7, 1998 Transcript p. 3. As stated above, there is only one Form 36 from 1985 in the record, and the trial commissioner thus properly took administrative notice of this form. Moreover, the Form 36 attached to the Respondent’s Motion for Rectification appears to be a partial copy (missing the top two inches) of the Form 36 in the record.
In support of her appeal, the claimant argues that the Form 36 dated November 15, 1985 was not legally sufficient to support termination of temporary total disability benefits because it was not certified by a licensed physician. The claimant thus contends that she is entitled to temporary total disability benefits between November 15, 1985 and March 9, 1989 (the date of the second Form 36). At the formal hearing in the instant case, extensive evidence was presented regarding the claimant’s condition during this period. The trial commissioner found that after her surgery on June 14, 1984, the claimant continued to treat with Dr. Taylor, who had nothing more to offer her orthopedically and referred her to a pain clinic. For the next six months, the claimant testified that she experienced pain whether she sat, stood, or laid down. The claimant attended the pain clinic from May 6, 1985 until August 5, 1985, and her discharge note by Dr. Gottlieb concluded that the claimant had “little motivation” and that the claimant “indicated that she did not find her current condition to be at all distressing.” The doctor further noted that “it is clear that [the claimant] has no expectation to ever return to work ” Finding ¶ 27, citing Claimant’s Exh. C.
On May 9, 1985, the claimant’s treater, Dr. Taylor, opined that the claimant reached maximum medical improvement with a ten percent permanent partial disability. On September 10, 1985, Dr. Taylor opined that despite continued subjective complaints, the claimant was capable of sedentary work. On November 13, 1985, an independent medical examination was performed at the request of the respondent by Dr. Basile, who opined that the claimant had a work capacity with restrictions. On April 29, 1986, an independent medical examination was performed at the request of the respondent by Dr. Roberts, who concluded that the claimant should return to work.
Clearly, the determination of whether the claimant was temporarily totally disabled between November 15, 1985 and March 9, 1989 was based upon both the medical evidence in the record and a credibility determination. In her testimony, the claimant described a typical day during this period. She described a severely limited physical ability, which necessitated resting, sitting, and laying down. Finding ¶ 43. She further testified that she used a cane to walk, would only drive ten to fifteen minutes, wore a back brace ninety percent of the time, walked slowly, and wore a cervical collar if she was in a car more than ten minutes. Evidence which starkly contrasted the claimant’s description of her lifestyle was presented by the respondent from a surveillance of the claimant from 1985 through August of 1989. Specifically, Mr. Barton was retained by the respondent to conduct the surveillance, and testified that on various specific dates in 1985, the claimant was walking at a good pace, bending and standing without apparent distress, and was bowling on a team for nine consecutive weeks. See Finding ¶ 63.
The trial commissioner concluded that the testimony of the claimant was less credible than the testimony of Mr. Barton regarding the claimant’s physical activities. Moreover, the medical evidence in the record, including the reports of Dr. Taylor and Dr. Roberts, amply support the trial commissioner’s determination that the claimant was not totally disabled between November 15, 1985 and March 9, 1989. As the trial commissioner’s conclusion that the claimant was not totally disabled during this period is fully supported by the record and by his findings, we may not disturb it. Fair, supra.
We have repeatedly held that a respondent must file a Form 36 before discontinuing or reducing either temporary total or temporary partial disability benefits, and that the earliest date that a termination of benefits may become effective is the date on which the Form 36 is filed. Hyde v. Stop & Shop Companies, 3728 CRB-4-97-11 (Feb. 18, 1999); Jones v. Maaco of Greater Bridgeport, 3634 CRB-4-97-4 (Aug. 5, 1998); Ryba v. West-Con, 3196 CRB-2-95-10 (Feb. 27, 1997); Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997); Herwerth v. Groton, 3105 CRB-2-95-6 (Dec. 24, 1996), affirmed, 45 Conn. App. 922 (1997) (per curiam); Crowe v. DBD, Inc., 14 Conn. Workers’ Comp. Rev. Op. 283, 285, 1941 CRB-7-93-12 (Sept. 11, 1995); Stryczek v. State/Mansfield Training Center, 14 Conn. Workers’ Comp. Rev. Op. 32, 34, 1765 CRB-2-93-6 (May 4, 1995).
In the instant case, we do not agree with the claimant’s argument that the trial commissioner erred in granting the November 15, 1985 Form 36. Certainly, as of December 23, 1985, the date the Form 36 was filed, the claimant was put on notice that her total disability benefits were being contested. See Ryba, supra. We have repeatedly explained that “in granting a Form 36, a trial commissioner should discontinue or reduce benefits effective on the date the Form 36 was filed, unless extenuating circumstances dictate that a later date is more appropriate.” Stryczek, supra, 34. This is because § 31-307 governs the payment of total disability benefits, and “[w]hen Form 36 procedure is considered in conjunction with § 31-307, it becomes evident that the legislature intended that a claimant should stop receiving total disability benefits as soon as possible after his or her incapacity ceases, effective on the date the incapacity ceases .” Stefenski v. C. Raimondo & Sons, 3081 CRB-2-95-6 (Jan. 8, 1997), citing Stryczek, supra, 34; see also Santala v. New Britain General Hospital, 3298 CRB-8-96-3 (Nov. 25, 1997).
Here, as the claimant was aware that her total disability benefits were being contested as of December 23, 1985, and the trial commissioner found that she was no longer totally disabled, we find no error in the granting of the Form 36. As found by the trial commissioner, the November 15, 1985 Form 36 was conditionally granted by a trial commissioner on January 14, 1986. Our records indicate that several informal hearings were held during this time; however, no formal hearing was held until the formal hearings in the instant case. We have stated that “allowing a Form 36 to become effective after the close of overly lengthy proceedings would only compound the injustice of such a delay by providing the claimant with an unwarranted windfall.” Stefenski, supra, citing Stryczek, supra, 34-35.
A party is entitled to challenge a Form 36 ruling at a formal hearing. Ryba, supra, citing Anguish v. TLM, Inc., 14 Conn. Workers’ Comp. Rev. Op. 195, 2286 CRB-7-95-1 (July 13, 1995), appeal dismissed for lack of final judgment, A.C. 15034 (10/26/95), cert. denied, 235 Conn. 934 (1995). “Once those formal proceedings begin, as they did here, the trial commissioner is entitled to consider a broader range of issues, including the key question of whether the claimant continued to be totally disabled.” Id. As explained above, the trial commissioner in the instant case determined that the claimant was not totally disabled during the period at issue, and that decision must stand as it is fully supported by the record.
The trial commissioner’s decision is affirmed.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.