CASE NO. 4406 CRB-8-01-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 30, 2002
AETNA US HEALTHCARE
SPECIALTY RISK SERVICES, INC.
The claimant was represented by Lisa Kolb, Esq., Gillis & Gillis, Two Whitney Avenue, #502, New Haven, CT 06510.
The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
This Petition for Review from the May 23, 2001 Finding and Award of the Commissioner acting for the Eighth District was heard December 14, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the May 23, 2001 Finding and Award of the Commissioner acting for the Eighth District. She argues on appeal that the trier erred by granting a Form 36 on the basis of a medical report that was not provided to the claimant until the eve of trial. We find no error, and affirm the trial commissioner’s decision.
The claimant suffered a compensable injury to her left hip as the result of a trip and fall on May 3, 2000, which was accepted by voluntary agreement. Dr. Matza, the claimant’s treating physician, had also treated her in the past for a congenital hip condition that necessitated surgeries in 1980, 1984 and 1997. He opined that the claimant was totally disabled through June 4, 2001. Meanwhile, the claimant was evaluated by Dr. Schutzer, an orthopedic surgeon, on December 12, 2000. He was of the opinion that she could perform light work, though he sought a blood work-up to ensure that she had no other disorders. The results came back negative, and in an April 3, 2001 report he opined that she was ready for light duty work. The respondent had already filed a Form 36 as of February 20, 2001; a hearing was held on March 7, 2001, and said form was approved on March 19, 2001. In the formal proceeding below, the trier found Dr. Schutzer’s opinion more credible than that of Dr. Matza, and approved the Form 36 effective as of April 3, 2001. The claimant has appealed that decision to this board.
The argument on appeal before us does not challenge the trier’s authority to credit the report of Dr. Schutzer over that of Dr. Matza, as was his prerogative as the factfinder. See Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The claimant instead argues that the report of Dr. Schutzer dated April 3, 2001 was not provided to her within 30 days of its completion as required by § 31-294f(b) C.G.S. In fact, it was not provided to her until May 18, 2001, the Friday before the May 21, 2001 formal hearing. She contends that she was prejudiced as a result of this apparent failure to provide a copy of the report, as she had no time to submit the letter to Dr. Matza in order to prepare a response, or to take action by attempting to negotiate a back-to-work date with the respondent. Thus, she requested in her Motion to Correct (which the trier denied) that this report be ignored and that the report of Dr. Matza be credited instead. She continues to maintain that claim here on appeal.
Section 31-294f(b) provides, “All medical reports concerning any injury of an employee sustained in the course of his employment 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.” The statute provides no particular sanction for failure to comply with this statute, nor have we had occasion to fashion a remedy by caselaw. In accordance with the mandate of § 31-298 that the commissioner protect the substantial rights of the parties while exercising his broad, equitable powers to take evidence and carry out the provisions of Chapter 568, we believe that this 30-day requirement gives the trier discretion to disregard a report that has not been provided as per the statute insofar as he finds that a claimant has been prejudiced. See Bailey v. State, 65 Conn. App. 592, 604 (2001). Of course, it is up to the trier to decide whether § 31-294f(b) has been violated, and if so, to what degree a given claimant has been accordingly disadvantaged. Thus, we clarify our position as follows: because no specific penalty is prescribed by § 31-294f(b), we hold that a trial commissioner must determine on a case-by-case basis whether a claimant has been prejudiced by the late delivery of an independent medical examiner’s report, and make allowances based on the extent of that prejudice.
In determining whether a violation of the terms of § 31-294f(b) occurred here, we note that it is unclear from the April 3, 2001 report (Respondent’s Exhibit 1) whether it was actually sent to the respondent Specialty Risk Services on that date, or whether it was sent at some later time. There are two different machine-generated dates on the copy of the report in evidence—April 16, 2001 and May 2, 2001—that indicate some sort of transmission of that copy was made within the thirty-day period. To whom those transmissions were made, it is not clear. Regardless, it does appear that the claimant did not receive this report “at the same time and in the same manner” as the respondent insurer, as no one is disputing that the claimant’s counsel first received the report on May 18, 2001. In that respect, it seems apparent that the statute was not honored.
However, as to the extent of prejudice that was experienced by the claimant because of this statutory violation, there is a great deal of room for interpretation. The April 3, 2001 report itself shows that the claimant’s blood tests were normal, and thus recommends that she return to work full-time at a light duty capacity. This is basically a confirmation of the opinion that Dr. Schutzer provided in December 2000, when he stated that if an occult infection were ruled out, he would recommend that the claimant return to light office work. The claimant was certainly aware that Dr. Schutzer and Dr. Matza held differing opinions as to her employability, and barring negative test results, she knew that Dr. Schutzer’s final opinion would likely reflect a work capacity.
Moreover, when the claimant objected to the respondents’ effort to offer this report into evidence, the trial commissioner and the respondents both gave the claimant an opportunity to cross-examine Dr. Schutzer on June 4, 2001, for which the record would be held open. May 21, 2001 Transcript, pp. 15-16. The claimant’s counsel turned down this opportunity, stating that he had no reason to question Dr. Schutzer on the contents of his report. Rather, his objection was that the claimant did not know of the existence of this report for several weeks, and therefore did not have a chance to act in response to the report by perhaps negotiating an earlier return to work. Id, 17.
Both parties concede that the claimant’s temporary total disability benefits were discontinued by the respondent on April 3, 2001, which the trier was aware of when he made his decision. The claimant explains in her brief, “For reasons unknown to the claimant as well as claimant’s counsel, her Temporary Total Disability benefits were paid by the respondent beyond March 19, 2001, until April 3, 2001 when they ceased.” Brief, p. 5. The claimant was also aware that a Form 36 had been approved on March 19, 2001, over her objection, pending receipt of the updated report from Dr. Schutzer. She then made a new claim for total disability benefits, requesting that the Form 36 be set aside. In this situation, where benefits had been discontinued not as of March 19, 2001, but as of April 3, 2001, the trier could reasonably have inferred that the claimant was on notice that she should take further action sooner rather than later to investigate the cause of that discontinuation.
Accordingly, we affirm the trial commissioner’s decision.
Commissioners George A. Waldron and Ernie R. Walker concur.