State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Audi v. Blakeslee Arpaia Chapman

CASE NO. 4234 CRB-3-00-5

CASE NO. 4151 CRB-3-99-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 26, 2001

VINCENZO AUDI

CLAIMANT-APPELLEE

v.

BLAKESLEE ARPAIA CHAPMAN

EMPLOYER

RESPONDENT-APPELLANT

and

LIBERTY MUTUAL INSURANCE GROUP

INSURER

RESPONDENT-APPELLEE

and

HELMSMAN MANAGEMENT SERVS.

INSURER

RESPONDENT-APPELLEE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Charles Tiernan, Esq., Lynch, Traub, Keefe & Errante, 52 Trumbull Street, P.O. Box 1612, New Haven, CT 06506.

The respondent employer was represented by Neil J. Ambrose, Esq., Letizia, Ambrose & Cohen, P.C., One Church Street, New Haven, CT 06510.

The respondent Liberty Mutual Ins. Group was not represented at oral argument. Notice sent to James Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

The respondent Helmsman Management Servs., Inc. was not represented at oral argument. Notice sent to Robert Enright, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The Second Injury Fund was not represented at oral argument. Notice sent to Richard Hine, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

These Petitions for Review from the November 15, 1999 Ruling and the April 27, 2000 Finding and Award of the Commissioner acting for the Third District were heard January 12, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Jesse M. Frankl.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent employer Blakeslee Arpaia Chapman (Blakeslee) has petitioned for review from the November 15, 1999 Ruling of the Commissioner acting for the Third District, in which he denied the respondent’s Motion to Submit Additional Evidence, and the April 27, 2000 Finding and Award of that same commissioner. Blakeslee contends on appeal that the trier improperly reopened a voluntary agreement and a Form 36 that were both approved in 1995, and that he erred by addressing the issue of the claimant’s continuing total disability after the respondent had been led to believe that this subject was not yet at issue. We affirm the trial commissioner’s decision to reopen the agreement and the Form 36, but we sustain the respondent’s appeal regarding temporary total disability, and remand to a different trial commissioner for further proceedings.

The claimant suffered a right knee sprain on April 8, 1993, as per a voluntary agreement approved on February 24, 1994. He was totally disabled from April 12, 1993 through February 19, 1995. The claimant reached maximum medical improvement on February 20, 1995 with a 39% permanent partial disability of the right knee, as per a voluntary agreement approved on April 19, 1995. A Form 36 seeking to discontinue temporary total disability benefits in favor of specific indemnity benefits was likewise approved on March 31, 1995. Attached to that Form 36 was a medical report by Dr. Glass stating that the claimant had reached maximum medical improvement, but could not return to work due to his current physical limitations.

During the next two years, proceedings were held concerning the respondents’ request to transfer liability for the claimant’s injury to the Second Injury Fund. The transfer request was initially denied due to untimely notice, but in Audi v. Blakeslee Arpaia Chapman, 3418 CRB-3-96-9 (Aug. 4, 1997), we reversed and remanded this case to the trial commissioner for further findings. Four months later, on December 8, 1997, the claimant requested an emergency hearing, wherein he sought to reopen the voluntary agreement and Form 36 so that he might collect temporary total incapacity benefits.

The 69-year-old claimant testified through an interpreter that he was born in Italy, had a fifth-grade education, and had come to the United States in 1974 to work as a laborer in factory and construction work (as he had in Italy). Neither he nor his wife reads or writes English, and the claimant speaks only a few English words. He testified that he did not understand the meaning of the Form 36 when it was sent to him, and that he signed the April 19, 1995 voluntary agreement because Liberty Mutual’s nurse—whom he trusted—told him to do so without explaining that permanent partial disability benefits are of a finite duration. Dr. Reznik, the claimant’s treating physician, thought him to be totally disabled based upon his movement restrictions, his age, and his lack of English skills or formal education. Dr. Reznik also testified that the claimant’s son had acted as an interpreter; however, the doctor was under the impression that the claimant had not understood many of the things he had tried to tell him.

Marret Dorfee, a registered nurse who works for the respondent Liberty Mutual, testified that she works as a managed care nurse. She was familiar with the claimant’s case, having first visited his home in 1993. Dorfee’s job is to oversee the recovery and rehabilitation of injured workers, rather than to address the legal aspects of their claims. She testified that she had seen voluntary agreements and Forms 36 in the past, but had not seen such documents in this case. She denied discussing the voluntary agreement with the claimant or encouraging him to sign one, as she explained that she would have directed him to contact Liberty Mutual’s claims department if he had posed a question about the compensation aspect of his claim. On cross-examination, she reiterated that she could not recall ever discussing an issue of a non-medical nature with the claimant.

The trial commissioner found, however, that Dorfee’s notes indicated that she had visited the claimant several times in 1994, and had written to Dr. Reznik for an update on maximum medical improvement. Her September 12, 1994 notes reflect that she discussed the case with a representative of the employer, and expressed her desire to see the claimant receive a permanency rating. Her October 5, 1994 notes reveal a similar discussion, as do two other notes that also record complaints of extreme pain by the claimant. Her note for October 28, 1994 states, “Audi will never be able to do construction work again, and I doubt that he will be able to work.” Claimant’s Exhibit C. The note concludes, “will get info from Dr. Reznik, hopefully max and rating.” Id.; Findings, ¶ 33. Her January 20, 1995 entry goes even further, stating that “Dr. Reznik is dragging his feet and says another six to eight months of disability. . . . This man has been receiving PT forever and should have reached a point of max.” Id., ¶ 35. Identical sentiments are expressed in office notes dated February 20, 1995 and April 13, 1995, when she opined that the respondent ought to start paying specific indemnity benefits following the claimant’s April 20, 1995 appointment with Dr. Reznik.

After considering the testimony, the trial commissioner concluded that the respondents were aware of the claimant’s virtual illiteracy in English and his lack of representation by counsel. They had also been seeking relief from the Second Injury Fund at the same time they were administering his case. The trier found that the claimant did not understand the Form 36 when he received it, and noted Dr. Glass’ opinion that the claimant was both at maximum medical improvement and still unable to return to work. Dr. Reznik did not believe that he had reached maximum medical improvement. The trier held that Marret Dorfee’s testimony was inconsistent with her notes regarding her role in the claimant’s case, and deemed her testimony less reliable than that of the claimant, whose story remained consistent throughout the formal hearings. He then ruled that the Form 36 should be reopened, as it was based on a medical report that plainly described the claimant as totally disabled. Likewise, he held that the voluntary agreement was approved in error, as Dr. Reznik’s report had been omitted as an attachment. The trier concluded that the claimant remained totally disabled from his compensable injury, and ordered the respondents to pay total disability benefits from March 31, 1995 forward (with credit for amounts already paid), along with 6% interest. Blakeslee has appealed that decision, along with the trier’s denial of its Motion to Submit Additional Evidence.

Certain general principles apply to our review. A trial commissioner has plenary factfinding authority in a workers’ compensation case, which vests him with a great deal of latitude in evaluating the credibility of evidence. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000). He has the sole authority to decide whether the documents and testimony offered by the parties are persuasive, even if something appears to be uncontradicted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). The act of determining evidentiary credibility intrinsically requires a commissioner to exercise some discretion, which this board must respect on review. We may not disturb a trier’s factual findings unless they are without support in the evidence, or unless they omit undisputed material facts. Kisson v. Shawmut National Bank, 4188 CRB-5-00-2 (March 16, 2001); Palandro v. Bernie’s Audio-Video T.V. & Appliances, 3876 CRB-3-98-8 (Sept. 2, 1999). It is not the job of this board to retry a case on appeal and substitute its own findings for those of the trier. Tartaglino v. Department of Correction, 55 Conn. App. 190, 196 (1999).

We first discuss the voluntary agreement. An award or approved voluntary agreement may be modified under § 31-315 when “it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased, or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter.” The statute also grants a commissioner the power to open and modify an award in the same manner as a judge of the superior court, i.e., in cases of accident, fraud, or mistake of fact. Marone v. Waterbury, 244 Conn. 1, 16-17 (1998). The decision to open and modify a voluntary agreement or award falls within the discretion of the trial commissioner, and will not be disturbed by this board unless the commissioner has arbitrarily reached an unreasonable result. Riedel v. F&F Concrete Corp., 3529 CRB-8-97-2 (July 24, 1998); Courtright v. State/Connecticut Valley Hospital, 3573 CRB-6-97-4 (June 5, 1998).

Blakeslee argues that none of the statutorily enumerated justifications for opening a voluntary agreement offer a remedy under the facts of this case. There is no allegation that the claimant’s situation has changed significantly since 1995, and the respondent does not believe that the claimant has satisfied the legal criteria necessary to establish a mistake of fact. It cites language from our Supreme Court’s venerable opinion in Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 180 (1923), explaining that a new trial cannot be granted unless a judgment was obtained through fraud, accident or mistake, unconnected with any negligence or inattention on the part of the judgment debtor . . . .” Id., 123, quoting Day v. Welles, 31 Conn. 344, 348 (1863) (emphasis added). Blakeslee reminds us that the claimant had admittedly been aware of his right to hire an attorney to represent him in his case, and that he acknowledged his family members read and understood English and were involved in assisting him with his workers’ compensation claim. Brief, p. 14. Insofar as he was “mistaken” in signing the voluntary agreement, and, for that matter, in failing to object to the Form 36, Blakeslee would have us attribute the error to his own negligence or inattention.

The trial commissioner’s findings indicate that the claimant’s acquiescence to the voluntary agreement and Form 36 were not simply the product of carelessness or unsound tactical strategy. Rather, his lack of English-speaking skills and formal education left him unable to read the documents he was signing, and prevented him from readily grasping the distinction between total disability benefits and permanency benefits. Compare Scalora v. Dattco Bus Company, 16 Conn. Workers’ Comp. Rev. Op. 28, 2059 CRB-1-94-5 (Oct. 9, 1996) (claimant, an Italian immigrant who spoke poor English, executed stipulated agreement after speaking with a commissioner who was fluent in Italian, who explained to him the ramifications of the stipulation prior to his signing it, and who obtained affidavits to ensure that claimant understood the stipulation), appeal dismissed, A.C. 16522 (Dec. 31, 1996). The claimant’s testimony directly bears this out.

Though the claimant was able to say “a few words” in English, and had often mixed his Italian with English in order to communicate with co-workers, he could not read English, and was unable to “explain himself” in English. July 13, 1998 Transcript, p. 23. These limitations were plainly illustrated at the formal hearing by his need for an interpreter, and his difficulty understanding certain questions. Id., 21-22. He was able to recognize his address on documents, and read the numbers, but could not understand the rest of the voluntary agreement or the Form 36. Id., 27. He explained that he signed the voluntary agreement because Marret Dorfee asked him to, without her having explained to him the difference between permanent partial disability benefits and temporary total disability benefits. Id., 29.

According to the claimant, Dorfee could speak a few words of Italian, but was not fluent enough to communicate anything other than simple ideas to him. Id., 33. “The nurse, when those documents she told me you have to sign them, you have to sign them, you have to send them because I thought this is something that’s required by the government and I have to sign it and send it.” Id., 35. He said that his son had spoken to Liberty Mutual about his case, but never about any specific documents. Id., 33-34. He also did not think it was necessary to hire an attorney, since he was already receiving checks every week. Id., 52, 54. Essentially, he assumed that the nurse from the insurance company who would occasionally visit his home to see how he was doing was also connected to the weekly receipt of his checks. When she told him to sign a piece of paper, he perceived no reason to mistrust her, so he signed it. Id., 50-51. Likewise, he did not object to the Form 36 because he did not understand it. As long as he kept receiving checks, he assumed that everything was in order. When payment had ceased for a few months, he became worried, and consulted an attorney. Id., 30.

The trial commissioner was within his authority in finding that the claimant never understood the nature of the voluntary agreement that he had signed, and that the respondents took advantage of his lack of sophistication to obtain his signature. See April 27, 2000 Memorandum of Decision. No precautions were taken by the respondents to ensure that the claimant knew what he was signing. See Mulligan v. N.C.H. Corp. Chemsearch Division, 3653 CRB-4-97-7 (Sept. 17, 1998) (where canvassing procedure used for stipulations is not followed, and confusion subsequently ensues to detriment of either party, trier may determine that grounds exist for reopening agreement). When the claimant encountered an insurance company representative (Dorfee) who wanted to shift him from total disability to permanency benefits, he simply signed the forms she told him to sign, as he knew of no reason to question her instructions.1 We believe that the instant case can reasonably be held to fall under the rubric of “mistake” for the purpose of § 31-315, and therefore affirm the reopening of the voluntary agreement.

Likewise, the circumstances of this case justify the reopening of the Form 36, despite the five-year passage of time. The trier noted in his Memorandum of Decision that the claimant was complaining of ongoing symptoms, but the respondents chose not to explore alternative treatment. “Their response was to limit further financial obligation by ending Claimant’s temporary total compensation or avoiding it altogether by passing the liability to the second injury fund. . . . The only solution to righting the wrong, visited upon this unwary claimant, is to reopen the Form 36 and the voluntary agreement which were erroneously approved.” Id., 4. We agree that it would violate the remedial spirit of the Workers’ Compensation Act to punish the claimant for not objecting to the Form 36 by taking away his right to receive compensation, given the subordinate factual findings of the trial commissioner. The purpose of a Form 36 is to notify a claimant of a proposal to discontinue or reduce his benefits. Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997). If a claimant does not understand a notice, and the respondent has reason to believe that its comprehension is beyond his ken, this agency is not bound by law to figuratively shrug its shoulders and step aside.

Blakeslee also contends on appeal that the trial commissioner erred by finding that the claimant was entitled to total disability benefits from February 20, 1995 forward, as the respondent had not been given sufficient notice that this aspect of the claim was going to be ruled upon. We agree with Blakeslee on this point. Though workers’ compensation practice in Connecticut does not require formal pleadings, the hearing notices issued by this Commission should be sufficiently detailed to provide the parties with a useful synopsis of the issues scheduled for discussion, in order that they may make intelligent preparation for participation in the hearing. Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001), citing Hartford Electric Light Co. v. Water Resources Commission, 162 Conn. 89, 110 (1971). “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).” Mosman, supra. A party may also be apprised by other means that a given claim is at issue, such as the statements of the parties at trial, the nature of the evidence they have presented, or the papers they have filed. Id.; Vetre v. State/Dept. of Children and Families, 3443 CRB-6-98-12 (Nov. 28, 2000). Moreover, “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.” Mosman, supra.

When the claimant initially requested an emergency informal hearing on December 8, 1997, this Commission’s notices indicated that the issues for discussion would be § 31-307, § 31-308(a) and § 31-308(b) benefits. Nine additional hearings were scheduled from that date through the issuance of the trier’s decision on April 27, 2000, including the two formal hearings at which evidence and testimony were taken. Each of those hearing notices recited a single issue: “31-315 - Modification of award/VA.” Temporary total disability was no longer listed. At the formal hearing on July 13, 1998, the claimant’s counsel made it clear that his client was seeking to reopen the voluntary agreement so that he might be placed back on total disability. Transcript, p. 3. However, he clarified that the claimant had been deemed totally disabled by medical reports as late as 1996, while acknowledging that a recent report by the treating physician had suggested a sedentary work capacity. Id., pp. 3-5. “I think an argument can be made that based upon the totality of the circumstances involving this claim, that he is effectively, totally disabled and I don’t know that today’s hearing is meant for that, but I would be attempting to show that he does continue to be totally disabled.” Id., 5 (emphasis added).

It was evident that the parties were still unsure whether the total disability issue was open for discussion at the second formal hearing on October 4, 1999. The respondents’ counsel (at the time, he represented both Blakeslee and Liberty Mutual) objected to the admission of Dr. Reznik’s reports into evidence on the ground that it was irrelevant what his opinion was in regard to the claimant’s present disability status, as the sole issue for resolution was the reopening of the voluntary agreement. Transcript, pp. 16-17. The commissioner initially granted the respondents’ objection, but after hearing further argument, he withdrew his initial ruling, and stated that he would reserve decision on the matter. Id., 20. One month later, he ruled that the claimant’s formal hearing request was not limited to the reopening of the voluntary agreement and the Form 36, and observed that the claimant and respondent had already offered evidence on disability in the form of Dr. Reznik’s reports and deposition. He stated that “the parties should be prepared to address both the issue of reopening the voluntary agreement and the Claimant’s disability status after April 18, 1995” in their proposed findings. The respondents then moved for the introduction of further evidence such as the testimony of a vocational expert and testimony from an employee of Blakeslee regarding the claimant’s ability to communicate in English. That motion was denied, and the trier subsequently issued his ruling reinstating temporary total disability benefits from March 1995 to the present.

It is fairly clear that any notice that total disability was being included as a justiciable issue was at best ambiguous until after the second formal hearing. The proceedings at the first formal hearing and the limited issues listed in the hearing notices could reasonably be interpreted to state that the only issue currently before the commissioner was the opening of the voluntary agreement and the Form 36, with further total disability having been set aside as a matter for subsequent determination. A party is not required to present evidence regarding issues that “may or may not” be ripe for determination. Based on the discussion at the second formal hearing, it is evident that neither party knew that total disability was going to be ruled upon until the record had already been closed. Accordingly, the trial commissioner erred by not allowing the respondents to introduce evidence specifically pertaining to the claimant’s work capacity after he had issued his November 5, 1999 ruling stating that the claimant’s disability status was indeed in dispute. We remand this matter to a different trial commissioner for new proceedings regarding the claimant’s disability status from February 20, 1995 forward.

The trial commissioner’s decision is hereby affirmed in part, and reversed in part with direction that the matter be remanded to a new commissioner for further proceedings on the matter of total disability.

Commissioners Ernie R. Walker and Jesse M. Frankl concur.

1 At this juncture, we note that Blakeslee has filed a Motion to Submit Additional Evidence before this board, and that it filed a similar motion with the trial commissioner. The latter motion was denied, and Blakeslee has appealed that ruling. Most of the evidence that the respondent seeks to submit concerns the claimant’s current physical limitations and employability. As we have ruled in favor of the respondent’s contention that the trier should not have made any determination regarding total disability, those offers of evidence are now moot. Blakeslee will have an opportunity to introduce evidence regarding the claimant’s work capacity on remand. However, Blakeslee sought to introduce one item in its Motions to Submit Additional Evidence that does not concern the claimant’s total disability status: the further testimony of Marret Dorfee. According to both motions, the trial commissioner indicated that Blakeslee would be allowed to call Dorfee as a witness to testify as to the contents of her nursing notes, which were admitted into evidence on October 4, 1999 over the respondents’ objection. We find no error in the commissioner’s denial of this request for additional evidence, and also decline to grant it ourselves.

Patricia Boland, a claims representative from Liberty Mutual who had testified on July 13, 1998, had neglected to obtain Dorfee’s notes from the case file despite being ordered by subpoena to bring “the entire file” regarding Vincenzo Audi with her to the formal hearing. Transcript, pp. 11-12; Claimant’s Brief, Exhibit 2. The claimant’s attorney stated that he had requested that Dorfee bring these notes with her when she was deposed on September 24, 1998, but that she did not do so. October 4, 1999 Transcript, p. 21. At Dorfee’s deposition, Blakeslee’s counsel indicated that he would attempt to get those notes. Claimant’s Exhibit C, p. 32. This was not accomplished. The claimant’s counsel then subpoenaed another representative of Liberty Mutual, who faxed him Dorfee’s notes shortly before the second formal hearing. The trial commissioner ruled that the notes should be marked as a full exhibit, with one caveat: if Dorfee denied that the notes were actually hers, she would be allowed to return and testify in that regard. October 4, 1999 Transcript, p. 24. The commissioner never stated that she would be allowed to otherwise testify regarding the contents of her notes, and Blakeslee has not alleged that the notes are not authentic.

As discussed above and in the trier’s April 27, 2000 Memorandum of Decision, Dorfee’s testimony at the deposition conflicted significantly with the contents of her contemporaneous notes. We do not believe that the trier was required to allow her to come back for an opportunity to explain away these contradictions under § 31-298, as his discretion to conduct inquiry “in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of [Chapter 568]” may reasonably include the authority to limit the testimony of a particular witness. Bailey v. State/Greater Hartford Community College, 3694 CRB-1-97-9 (Jan .12, 1999). This is especially true where the parties have already rested their cases and agreed that a briefing schedule should be set. See Transcript, p. 29. As Dorfee was available to testify throughout these proceedings, we likewise decline the respondents’ request to admit her testimony as additional evidence pursuant to Admin. Reg. § 31-301-9. For us to rule otherwise would essentially constitute permission for Blakeslee to circumvent the trier’s evidentiary ruling. BACK TO TEXT

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