State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Mosman v. Sikorsky Aircraft Corp.

CASE NO. 4180 CRB-4-00-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 1, 2001

TAMBRIA MOSMAN

CLAIMANT-APPELLANT

v.

SIKORSKY AIRCRAFT CORP.

EMPLOYER

and

AIG CLAIM SERVICES, INC.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Eric L. Reinken, Esq., 1200 Summer Street, Suite 103, Stamford, CT 06905.

The respondents were represented by David Schoolcraft, Esq., Duhamel & Schoolcraft, L.L.C., 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.

This Petition for Review from the January 24, 2000 Finding and Award of the Commissioner acting for the Fourth District was heard September 15, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 24, 2000 Finding and Award of the Commissioner acting for the Fourth District. She contends on appeal that the trial commissioner erred by entering an order regarding her permanency rating, by failing to authorize her discectomy, and by failing to award sufficient benefits for temporary total and temporary partial disability. We affirm the main portion of the trier’s decision, and reverse on the issue of the claimant’s permanency rating with direction that this matter be remanded for further proceedings on that limited issue.

The trial commissioner found that the claimant, an electrical installer at the respondent Sikorsky Aircraft, sustained repetitive trauma to her arms and hands as a result of her employment. Her claimed date of injury is March 25, 1998, when her foreman sent her to the plant medical facility because she was experiencing problems with her arms and with moving her head. The parties signed a voluntary agreement stating that the claimant has a permanent disability of 5% to both upper extremities with a maximum medical improvement date of April 28, 1999. This settlement entitled her to 20.1 weeks of benefits for her injury. Despite her pain, the claimant continued to work for the employer until September 7, 1999, when she testified that she was no longer able to return. She sought temporary total disability benefits from that date forward, along with authorization for cervical spine surgery at level C5-C6 (a discectomy, bone graft fusion and anterior plate fixation). The respondents, meanwhile, contended that the claimant’s neck pain was unrelated to her accepted bilateral arm injuries, and challenged both the compensability of her cervical condition and her need for spinal surgery.

The trial commissioner cited the reports of two doctors in her findings. One was Dr. Girasole, a practitioner with the Orthopedic and Sports Medicine Group, who saw the claimant several times between June and November 1999 while she was complaining of pain across her neck and at its base. An MRI of her cervical spine showed that she had degenerative disc disease with apparent bulging at C5-C6 and C6-C7. Surgery was necessary in Dr. Girasole’s opinion, and he ascribed the claimant’s neck pain to her repetitive injuries at work within a degree of medical certainty. Claimant’s Exhibit D. The other diagnosis mentioned by the trier of fact was that of Dr. Becker, who performed an examination at her request on November 8, 1999. He opined that the claimant had a chronic neck sprain and aggravation of underlying degenerative disc disease as a result of her workplace repetitive trauma, along with possible thoracic outlet syndrome. He deemed her “neurologically intact,” however, and did not think that she was an appropriate candidate for surgery. Findings, ¶ 20, citing Respondents’ Exhibit 3. He recommended conservative treatment such as therapeutic exercise and anti-inflammatory medication, and advised that she could perform work with overhead lifting restrictions. He also thought that she had reached maximum medical improvement, with a five percent permanency of the cervical-thoracic spine.

After evaluating the evidence, the commissioner determined that Dr. Becker’s medical opinion was the more compelling of the two diagnoses that she had discussed in the text of her decision. She declared that the claimant had a five percent permanency rating to both her upper extremities, and that she had reached maximum medical improvement for her cervical spine injury on November 8, 1999 with a five percent permanent partial disability. The trier ruled that the claimant’s entitlement to permanent partial disability for her upper extremity injuries ended on September 15, 1999, with entitlement to temporary partial disability benefits between that date and November 8, 1999. She also specified that a cervical spine discectomy and interbody fusion were not reasonable and necessary treatments, and authorized only the conservative treatment recommended by Dr. Becker. The claimant has appealed that ruling, along with the subsequent denial of her Motion to Correct the findings.

A useful starting point in our analysis of this appeal is a clarification of the standard of deference that we apply to a commissioner’s factual findings and legal conclusions upon review. Within the confines of the Workers’ Compensation Act, the presiding trial commissioner at a formal hearing functions similarly to a trial judge in Superior Court. It is her duty to resolve all issues that concern the weight and credibility of the evidence, including the records and testimony of lay and expert witnesses. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Kish v. Nursing Home & Care, Inc., 47 Conn. App. 620, 627 (1998), aff’d, 248 Conn. 379 (1999). This is so even if portions of this evidence superficially appear to be uncontradicted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This general factfinding discretion also extends to disputes surrounding evidentiary submissions, as a commissioner has broad discretion to determine the admissibility of evidence under § 31-298 C.G.S. Capra v. State/Department of Correction, 3791 CRB-4-98-4 (April 27, 1999); Leary v. Stamford, 3280 CRB-7-96-3 (Sept. 17, 1997).

Upon review of a commissioner’s findings, this board may not override her assessment of evidentiary credibility or otherwise undertake to retry the facts of the case. Pallotto, supra. Instead, we are empowered to disturb the trier’s findings only if they are without support in the evidence or if they happen to omit material facts that are truly admitted or undisputed. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). In a similar vein, we may not disturb the legal conclusions of a trial commissioner unless they are the product of an incorrect application of the law to the facts found, or of an inference unreasonably or illegally drawn from those facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

Because the trier relied heavily upon Dr. Becker’s medical opinion, we must first address the claimant’s challenge to its admissibility as a § 31-294f commissioner’s examination1 before we begin to consider the impact of its substance. The appellant contends that the circumstances of the challenged report’s issuance contain indicia that Dr. Becker mistakenly adopted the role of an advocate for the respondents’ position rather than the role of an unbiased, Commission-appointed medical examiner. She contends that the trier should have questioned the impartiality of the examination and the circumstances under which it took place. The respondents, meanwhile, have outlined in their brief the events that occasioned the choice of Dr. Becker as an examiner. They note that the claimant both encouraged his selection and later failed to raise any objection to Dr. Becker’s report on the ground that the intended impartiality of his opinion had been compromised by the actions of the respondents. See Respondents’ Brief, p. 7-8.

The transcripts reveal that the parties had initially agreed to seek an independent medical opinion regarding cervical surgery from Dr. Becker. October 29, 1999 Transcript, pp. 10-11. When the doctor cancelled his IME with the claimant, the respondent rescheduled the appointment for November 8, 1999. Meanwhile, the claimant submitted to an earlier IME with Dr. Lipow that would be completed by the date of the formal hearing. The respondent did not cancel Dr. Becker’s appointment, though, and when the trier indicated that she was inclined to schedule a commissioner’s examination for another opinion regarding surgery, the claimant’s counsel stated that both he and his client were satisfied with her suggestion that the physician be Dr. Becker. Id., 17-19. The commissioner then sent a letter to Dr. Becker informing him that, pursuant to § 31-294f, she was ordering the claimant to submit to an examination by him for the purpose of determining the necessity of surgery and her work capacity and restrictions, with the cost of the exam to be borne by the insurer.

The claimant’s visit took place as scheduled, and the doctor then issued a report recommending that the claimant not be subjected to surgery “in the absence of truly radicular symptoms.” Respondents’ Exhibit 3. This report was entitled “Independent Medical Evaluation,” and was sent to the attention of a claims adjuster at the respondent insurer. Among the doctor’s written remarks to the adjuster is the referential statement, “Your correspondence indicates a work injury date of 03/25/1998.” Id. At the next formal hearing on November 30, 1999, the trier noted that both parties had received Dr. Becker’s report, of which she was willing to take administrative notice. November 30, 1999 Transcript, p. 2. Though the claimant alluded to the fact that the report was entitled “Independent Medical Evaluation” while attempting to demonstrate an unrelated evidentiary point; Id., pp. 3-4; she did not object to the admission of that report into evidence, nor did she assert to the trier that Dr. Becker had mistakenly viewed himself as something other than a statutory appointee of this Commission. It was in her trial brief that the claimant first portrayed these details as important. There, she contended that the report’s use of the heading “Independent Medical Examination,” its reference to correspondence by the claims adjuster, and the identity of its addressee should collectively lead the trier to question its author’s impartiality. Claimant’s Brief, p. 2. The trier was apparently unpersuaded by these arguments, as she did not mention the issue in her Finding and Award. These same concerns are now being reiterated by the claimant here on appeal.

Though the spotlighted characteristics of Dr. Becker’s report hardly strike us as blatant evidence that he was predisposed to provide a diagnosis favoring the respondents, that is not really the issue here. Our resolution of this matter rests more on the fact that an allegation of partisanship or prejudice on the part of a medical examiner creates a factual issue that concerns the credibility of his opinion. Matters of this sort ought to be considered by the trier of fact at the time she takes administrative notice of the report from a § 31-294f exam, or otherwise accepts it into evidence. At the very least, they should be raised before the close of the formal hearing process, in order to allow a discussion of the issue.

However, the claimant did not begin to question the integrity of Dr. Becker’s report qua a § 31-294f exam until its trial brief was filed on January 20, 2000. The trier chose not to heed the claimant’s newly-made arguments in making her decision, which implies that she found them unpersuasive. We will not now commence an exploration of the intricacies of Dr. Becker’s motives on appeal, thereby reviving the factfinding stage of the evidentiary process that legally begins and ends with the trial commissioner. If the claimant believed that the issue of Dr. Becker’s loyalty was important, she should have requested that it be addressed during the hearing stage. At this stage of the process, there is little relief we can afford her on that count. See Tanzi v. New Britain, 3420 CRB-6-96-9 (April 28, 1998) (CRB cannot reverse trier’s evidentiary ruling absent abuse of discretion). Therefore, we will not question the trier’s characterization of Dr. Becker’s opinion as a § 31-294f commissioner’s examination report.

The claimant’s next challenge on appeal is to the finding that her cervical spine reached maximum medical improvement, and to the trier’s subsequent imposition of a permanent partial impairment rating. According to the claimant, those issues were beyond the scope of the formal hearings, as the parties were not notified that permanency and maximum medical improvement would be considered along with the claimant’s request for surgery. Neither party disputes that the scope of the instant case expanded to some degree during the course of the proceedings below. Each of the formal hearing notices sent by this commission to the counsel of record listed only one issue for discussion: “31-294d - Medical Treatment.” The claimant’s attorney then stated at the October 29, 1999 formal hearing that the claimant was seeking temporary total disability benefits as well. When the trial commissioner reminded him that this potentially contested issue was not listed in the notice for that day’s formal proceeding, the claimant’s attorney stated that he might as well ask for it “as a matter of course just in case it is contested.” October 29, 1999 Transcript, 5. After discussing his claim more specifically, counsel then clarified that he was asking for temporary partial disability benefits prior to September 7, 1999, and then temporary total benefits afterward. Id., 7. Although the speakers touched upon the issues of maximum medical improvement and permanency with respect to the claimant’s upper extremities, they did not specifically mention those issues as they might pertain to the cervical spine condition. Id., 8-10.

Because Dr. Girasole, the treating physician, favored surgery for the claimant’s clinical symptoms, it follows that he would not have discussed the issue of maximum medical improvement. He said that she “is incapacitated, unable to perform her activities at work, and is dysfunctional,” though he acknowledged that she could temporarily perform some work without overhead lifting. Claimant’s Exhibit G (report dated November 23, 1999). This opinion was disputed by the respondents, as we have seen. When the trial commissioner instructed Dr. Becker to perform a § 31-294f examination via a letter dated November 3, 1999, she attempted to guide his focus by placing an “x” next to several of the listed options: “Necessity of surgery,” “Work capacity and restrictions,” and “Other: suggested future treatment; effect of smoking.” Notably, she did not mark the blank line next to “Permanent partial disability/impairment rating.” Nevertheless, after stating in his report that the claimant should settle for more conservative treatment such as postural and strengthening exercises rather than surgical treatment, Dr. Becker concluded by saying that the claimant had reached maximum medical improvement with a 5% permanency of the cervical thoracic spine. Neither party commented upon this observation at the November 30, 1999 formal hearing, though both parties cited it in their trial briefs (the respondents urged the trier to adopt this diagnosis, while the claimant protested the doctor’s unsolicited issuance of a permanency rating). The trial commissioner implemented this permanency rating in her findings.

Workers’ compensation practice in Connecticut does not require formal pleadings, though the hearing notices issued by this Commission ought to be sufficiently detailed so as to provide the parties with a useful synopsis of the issues scheduled for discussion. See § 31-297 C.G.S. “[N]otice of a hearing is not required to contain an accurate forecast of the precise action which will be taken on the subject matter referred to in the notice. It is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.” Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 110 (1971) (citations omitted). Even in a relatively relaxed forum such as this Commission, fairness and due process require that parties know when they are supposed to appear before a commissioner, and the scope of the controversy to be addressed. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 588 (1999); Vetre v. State/Department of Children and Families, 3443 CRB-6-98-12 (Nov. 28, 2000).

However, since this Commission is not bound by strict pleading rules, we also recognize that a party may be apprised that a given claim is at issue by other means, such as the statements of parties at trial, the evidence they have introduced, or the papers they have filed. Id. Such flexibility is essential to an informal system that seeks to honor the requirements of due process while avoiding the presentation of cases in piecemeal fashion, where possible, and the undue prolongation of proceedings. Casertano v. Shelton, 3329 CRB-4-96-4 (Sept. 16, 1997). Still, freedom and flexibility need not be independent of some sort of structure. To that end, the parties involved in a formal hearing should recognize the importance of taking the time at the outset of the hearing to articulate the issues they wish to address during the proceedings. Such an eye for detail will better serve them, as confusion and uncertainty will be less likely to arise.

Here, the claimant placed the issues of temporary total disability and temporary partial disability before the trial commissioner by virtue of her counsel’s representations at the formal hearing. As these matters were submitted for discussion along with the claimant’s need for surgery, it hence became foreseeable that the commissioner might decide that the claimant did not need a discectomy, and in judging her disability status, the trier might incidentally conclude from the medical evidence that her condition had progressed to the point where it would no longer improve. Indeed, the issues of surgery and maximum medical improvement alone are often inseparably intertwined. Under the facts of this case, we cannot say that specific notice regarding a potential finding of maximum improvement was a prerequisite for making such a finding, for it followed naturally and ineluctably from other facts that were properly found by the commissioner.

As for the 5% permanent partial impairment rating, however, we do find that a problem exists. No evidence aside from Dr. Becker’s report purports to establish a specific percentage of permanent disability for the claimant’s cervical spine, and the trial commissioner herself excluded “permanent partial disability/impairment rating” from the list of issues that she was directing the § 31-294f examiner to address in her letter of November 3, 1999. Both parties received copies of this letter, and hence would not have had any reason to suspect that Dr. Becker would provide a permanency rating for the claimant’s neck, or if he did, that the commissioner would consider it a viable subject for inclusion in her findings absent any other input on the matter. Indeed, the claimant raised an objection to the statement regarding permanency in her trial brief. We would assume, therefore, that she did not intend to acquiesce to a waiver of the general requirement that she be notified if such an issue was ripe for decision. Given that the claimant’s request for surgery has been denied, it would only seem fair that her treating physician be afforded an opportunity to give his opinion as to the degree of permanent impairment she has suffered to her cervical spine. See Palm v. Yale University, 3923 CRB-3-98-10 (Jan. 7, 2000). We therefore reverse the trier’s ruling with respect to that 5% disability rating.

The claimant also challenges the substance of the trial commissioner’s decision to decline her request for surgery approval, and her failure to award wage loss benefits beyond the temporary partial award spanning September 15, 1999 and November 8, 1999. These findings rest heavily on the trier’s impressions of the credibility of the competing medical opinions, of course, which limits the degree of scrutiny we can apply to those findings on review. Pallotto, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). We have already ruled that the trier did not err by admitting Dr. Becker’s report into evidence as a § 31-294f examination report. We likewise perceive no uncertainty in the doctor’s diagnosis that would render his opinion unfit to serve as an evidentiary foundation for the trier’s conclusions. See Costa v. Torrington Company, 4097 CRB-5-99-8 (July 28, 2000) (substance of expert opinion must be based on reasonable degree of medical probability). The fact that his physical examination of the claimant was cursory does not somehow legally invalidate his medical opinion; rather, it raises questions of credibility that must be answered by the trier of fact.

Absent Dr. Becker’s opinion, the trier would still not have been required to rely upon the diagnosis of Dr. Girasole or any other physician, as a commissioner is not bound to credit the testimony of any witness. Pallotto, supra. However, the trier here went beyond a mere rejection of the claimant’s evidence; she affirmatively chose to heed Dr. Becker’s recommendations as to treatment, even though Dr. Girasole stated, “I do not understand the last IME which stated that the patient needed to have postural and strengthening exercises of her neck and shoulder musculature for which the patient already has and she had already failed this.” Claimant’s Exhibit G. We must presume that the trial commissioner considered this viewpoint, which the claimant now raises as an argument against the implementation of Dr. Becker’s advice, and rejected it in favor of the latter opinion. That is not a decision we can overturn on review. As for continuing total or partial disability benefits, the trier was not bound to grant such compensation beyond the date of the closing of the last formal hearing, particularly where she found that the claimant reached maximum medical improvement shortly beforehand. See, e.g., Coates v. Turbine Components, 11 Conn. Workers’ Comp. Rev. Op. 264, 1365 CRD-3-92-1 (Nov. 18, 1993). We find no error regarding her resolution of those issues, either.2

The trial commissioner’s decision is therefore affirmed, with the exception of her holding as to the claimant’s permanent partial impairment rating for her cervical spine injury. Further proceedings will be necessary on that issue alone, and thus we remand this case for a resolution of that matter.

Commissioners Robin L. Wilson and Leonard S. Paoletta concur.

1 Section 31-294f(a) C.G.S. requires an injured employee who is claiming or receiving compensation to submit himself to examination by a reputable practicing physician or surgeon, either upon the reasonable request of the employer or at the trial commissionerís direction. Subsection (b) notes that medical reports concerning a work-related injury “shall be furnished within thirty days after the completion of the reports, at the same time and in the same manner, to the employer and the employee or his attorney.” BACK TO TEXT

2 In her Reasons for Appeal, the claimant asserted that the voluntary agreement received by the Commissioner on July 2, 1999 establishing a 5% permanency of her upper extremities was sent in error, and should not have been reflected in the trierís findings. This issue was not included in the claimantís appellate brief, however, nor was it addressed at oral argument. Hence, we deem this issue to be abandoned for the purpose of this appeal. Maio v. L.G. Defelice, Inc., 13 Conn. Workersí Comp. Rev. Op. 197, 198 n.1, 1734 CRB-5-93-5 (March 22, 1995). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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