CASE NO. 4419 CRB-1-01-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 27, 2002
ROBERT A. COVALESKI
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Joseph P. Quinn, Esq., Furniss & Quinn, P.C., Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.
The respondents were represented by Maureen E. Driscoll, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.
This Petition for Review from the July 10, 2001 Finding and Award of the Commissioner acting for the First District was heard February 22, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the July 10, 2001 Finding and Award of the Commissioner acting for the First District. They contend on appeal that the trier erred by finding the claimant to be totally disabled, by overturning an earlier ruling on a Form 36, and by ordering the respondents to reimburse the claimant for the cost of handrails and a wheelchair. We find error insofar as the trier’s total disability award was made permanent, but affirm the rest of the trial commissioner’s decision.
The trial commissioner found that the claimant was born on December 20, 1959, and that he suffers from cerebral palsy that limits his use of the right side of his body. He also suffers from epilepsy, and is slightly mentally retarded. He was employed by the respondent Casual Corner as a maintenance man on or about February 29, 1996, when he fell and suffered compensable injuries to his left side, shoulder and neck, and a left hip fracture. He underwent an internal fixation of the left hip in October 1996, and shortly thereafter underwent a valgus osteotomy that was performed by Dr. Green, who assessed a 20% permanent partial impairment of the left lower extremity due to the injury.
Since his release from a rehabilitative hospital on October 27, 1997, the claimant has been treating with Frances Phelps, a physical therapist. She testified that the progress that he had made had recently slowed, and that he was now regressing, and required two sessions per week of continued physical therapy to again improve his gait and confidence. The respondents filed a Form 36 on October 29, 1998, which was approved that same day, terminating the claimant’s temporary total disability benefits in favor of permanent partial disability benefits. The claimant’s sister and limited guardian, Kimberly Covaleski, wrote a letter to the commissioner that was construed as an objection to the approval of the Form 36. The Form 36 was then overturned on February 2, 1999, though a second Form 36 was approved on June 23, 1999.
Meanwhile, in 1998, the claimant began attending the Allied Rehabilitation Center, a structured workshop for people with mental disabilities, for five days a week. He performed piece work, socialized with other clients, and was taught job skills. He was placed at an Aetna Enclave work program for a brief period in which he worked a three-day week with the supervision of job coaches, but returned to Allied due to concerns over his ambulation. An Allied counselor, Kathleen Walbridge, conducted a vocational assessment of the claimant and concluded that he was unable to return to an independent working environment because of difficulties with his gait and his balance. In 1999, a functional capacity evaluation showed that he had an extremely sedentary work capacity that permanently prevented him from returning to his former occupation. He became depressed and sullen because of his medical problems and the impact they have had on his daily life and his ability to work, and his sister testified that he has become timid and reclusive because of his insecurity. An August 15, 2000 vocational assessment by Allied described him as “not capable of independently obtaining and maintaining a job in a competitive work environment.”
The trier concluded that the claimant was entitled to permanent and total disability benefits pursuant to Osterlund v. State, 135 Conn. 498 (1949). He awarded such benefits retroactive to June 23, 1999, and found that the appropriate weekly benefit amount was $189.34. (See July 16, 2001 Motion to Correct, ¶ XIV). He also ordered the respondents to reimburse the claimant’s estate for the $500 cost of handrail installation at his home, and ordered the respondents to provide for the use of a wheelchair when the claimant is taken to Allied Rehabilitation Centers or on vacation. The respondents have appealed that decision to this board, along with the denial of their Motion to Correct.
First, we address the respondents’ contention that the trier erred in awarding total disability benefits, and even more particularly, permanent total disability benefits as per § 31-307(c).1 Pursuant to Osterlund, supra, a trial commissioner may find a claimant to be totally disabled if he cannot reasonably pursue any occupation, thereby rendering his labor unmarketable. “If, though he can do [some type of] work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Id., 506-507. In their brief, the respondents argue that the trier erred by relying on Osterlund because the claimant is able to work in environments such as the one at the Allied Rehabilitation Center, for which he earns money, and none of the doctors have stated that the claimant either completely or permanently lacks a work capacity. They assert that the commissioner’s finding “is one that he reached without the benefit of an opinion from a vocational expert or any authorized treating medical expert upon which he could support his conclusion.” Brief, p. 19. The claimant opposes that contention, arguing that the trier reasonably identified total and permanent disability from the whole of the evidence, including the testimony of Ms. Walbridge, Ms. Phelps, the claimant and his sister Kimberly, the vocational assessments and functional capacity evaluation, and the reports of Dr. Chagnon and Dr. Selden.
An examination of the various medical reports in the record reveals that many of the doctors and vocational experts felt that the claimant had some work capacity, albeit a limited one. Ms. Walbridge opined on August 25, 1999, that the claimant’s handicaps were primarily physical and medical, with no motivational component. She stated, “Accommodations and modifications can reduce Bob’s limits as ‘barriers to employment.’ Assignment to the Aetna Mailroom Enclave and continued vocational support in conjunction with independent vocational exploration on Bob’s behalf best fulfills his vocational goals at this time.” Claimant’s Exhibit E. Later, she would testify that the claimant’s ability to do work had probably not progressed since he returned to Allied in February 1998, but that he remained capable of doing work at supervised workshop programs like the ones at Allied and at Aetna. February 24, 2000 Transcript, 92, 94. Edward Palmer, a physical therapist who performed an FCE on October 29, 1999, found that the claimant was functioning at a sedentary level of work. He thought that the claimant could be employed on a full-time basis as long as he could find a job that would allow him to avoid long periods of standing, as well as all squatting, kneeling, bending and stair climbing, that would not entail lifting or carrying anything that would require the use of his right hand, and that did not necessitate fine motor coordination of the right hand. Claimant’s Exhibit P.
As for Dr. Chagnon, in an October 25, 1999 report, he predicted that the claimant would not achieve further functional improvement, and that he would be able to resume working with permanent restrictions similar to those recommended by Palmer. He explained that the claimant “is permanently and totally disabled from his own job but he can go to a sedentary job function on a full-time basis with training.” Claimant’s Exhibit U. Dr. Selden had been deposed on October 13, 1999, and had also declared the claimant capable of light sedentary work with considerable restrictions, based solely on his orthopedic condition following his compensable hip injury. Respondents’ Exhibit 5. A vocational assessment dated August 15, 2000 stated that the claimant had enjoyed “a successful year working at Allied and at Aetna” in which he improved his productivity level by 30%, and his average bi-weekly income to $82.83. Claimant’s Exhibit V. However, the case services coordinator stated that the claimant was not yet capable of independently obtaining and maintaining a job in a competitive work environment. Dr. O’Brien opined on October 19, 2000, that the claimant’s gait might improve if he underwent a hamstring- and tibia-lengthening operation on his left leg, but thought that the claimant already had some work capacity as long as he was not placed in a job where he had to be continually standing and walking. Claimant’s Exhibit X. Dr. Selden agreed with these recommendations, and reiterated that the claimant was capable of light sedentary work as of December 14, 2000, though the claimant had exhibited an increased difficulty in walking at the exam. Respondent’s Exhibit 6.
Another dimension was added to the evidence by the testimony of Kimberly Covaleski and Frances Phelps. Ms. Phelps testified that she had initially seen the claimant three times per week beginning on March 3, 1998 (immediately after his surgery), and then twice per week thereafter. During that period of time, he made slow but steady progress. When the frequency of his treatments was cut back, however, he stopped improving, and Phelps observed that his morale began to suffer, as he became less forthcoming and enthusiastic about therapy. She stated that he began having more pain in his left knee and started twisting his left leg sometime around October 1999, and his gait became more compromised at that point. February 24, 2000 Transcript, p. 68.
The claimant’s sister Kimberly then took the stand, and testified that the claimant had been working since January 1998 for Allied, in a setting that was essentially a workshop for mentally retarded people. His placement in the Aetna enclave was part of the Allied program. She testified that he is paid piecemeal based on productivity, and that he works about four and one-half hours per day. June 27, 2000 Transcript, pp. 88-89. She also said that Allied had recently determined that the claimant should be removed from the Aetna enclave, because he was not safe in that environment. Id., 92. When asked for her impressions of her brother’s progress, Kimberly reported that he had become very depressed and withdrawn since early 1999, and that his walking pace had slowed down drastically. She stated that he had done better when he was more active in physical therapy, and that he now tended to forget the ambulatory techniques that his therapist had taught him. Id., 103-104. On September 28, 2000, she testified that the claimant’s gait had continued to regress, and that he was losing his balance and falling more frequently. She discussed a recent incident in which he had been unable to bend his left leg (the one with the fracture) to get it back on his tricycle pedal, requiring the neighbors to summon both the police and an ambulance in order to get him and his adult tricycle home. Id., 15. She also discussed an incident that past Saturday, when the claimant had fallen down the stairs into the cellar of their house. Id., 41. She described him as having grown progressively more antisocial as his ambulatory difficulties have worsened, making it harder for others to manage him physically. Id., 29-31; see also January 29, 2001 Transcript, pp. 6-7.
There are facets of this medical and testimonial evidence that reasonably support a finding of total disability by a trial commissioner, given the claimant’s limitations and his deteriorating condition. As per Osterlund, supra, we have explained in prior cases that it is a factual question as to whether or not a claimant has a residual light duty work capability following a serious injury, and have noted that a claimant may possess certain skills and abilities that would normally indicate a work capacity, yet be totally disabled due to additional factors. Bailey v. State of Connecticut/GHCC, 3922 CRB-2-98-10 (Nov. 30, 1999), rev’d on other grounds, 65 Conn. App. 592 (2001); Monaco v. Metal Masters, Inc., 15 Conn. Workers’ Comp. Rev. Op. 415, 417, 2245 CRB-3-94-12 (Aug. 29, 1996). The issue of permanent and total disability was broached by the trial commissioner at the January 29, 2001 formal hearing, in response to which the claimant’s attorney stated that he hoped that the recently-authorized soft tissue release surgery would restore the claimant enough that he would be physically able to work again. Transcript, p. 31. The trier clearly framed the parties’ dispute at that hearing: the claimant’s counsel maintained that his client had been totally disabled since his injury, while the respondents argued that his efforts at the Allied Rehabilitation Center showed that he was not totally disabled. Transcript, p. 48. The issue of total disability had been mentioned at various stages throughout the proceeding. See, e.g., June 27, 2000 Transcript, p. 77.
Normally, if a claimant is engaged in gainful employment, it would be incorrect to describe him as totally disabled, even if the income earned from his efforts is too small to amount to a living wage. However, there is a qualitative distinction between being able to perform a job for a private or public employer that is subject to the federal minimum wage law and the state minimum wage law in § 31-58 C.G.S., and attending a rehabilitative workshop that offers social and counseling opportunities to mentally retarded clients, while also giving clients the opportunity to do piece work for a fraction of the minimum wage as permitted by § 31-67 (allowing employment at wages less than the minimum fair wage for people with impaired earning capacities). See Sept. 28, 2000 Transcript, pp. 65, 82 (testimony of Kimberly Covaleski that claimant had been placed in sheltered workshop mainly to “get him out with people again” rather than to earn money). Prior to his injury, the claimant earned an average weekly wage of $304.38 for a 40-hour week while working for Casual Corner. Claimant’s Exhibit Z; Findings, ¶ D. The pay stubs in evidence from the Rehabilitation Center show him working between 30 and 40 hours per week during four separate weeks in 1999, with earnings ranging from $52.73 to $98.00. Claimant’s Exhibits A, B. At that time, the minimum wage in Connecticut was $5.65 per hour, as per § 31-58(j).
Rather than classifying the Allied Rehabilitation Center as part of the job marketplace, the trier justifiably viewed their program as a more developmental endeavor, geared toward preparing participants to someday reenter the competitive job marketplace. The trial commissioner could reasonably have concluded that this claimant did not have a true earning capacity while he was at Allied, and that he was incapable of obtaining gainful employment in the job marketplace because of the consequences of his compensable hip injury. Therefore, we affirm his finding of total disability. We do note that the claimant has never contended that he is permanently totally disabled, and the evidence in this record does not support a finding that his current work capacity status is irremediable. Also, he would not qualify as permanently totally disabled as a matter of law pursuant to § 31-307(c). Insofar as the trier made a finding of permanent total disability, we would reverse that portion of the decision.
The respondents next contend that the trier failed to rule on the Form 36 that they filed in October 1998, to which the claimant failed to file a timely objection. They also call our attention to a second Form 36 that was filed on June 23, 1999. They object to the trial commissioner’s reversal of a prior commissioner’s initial ruling granting that Form 36. The respondents assert that the claimant was obligated to request a separate hearing on that notice to discontinue benefits, but did not do so.
With respect to the first Form 36, it was received on October 29, 1998 by the First District office. Respondent’s Exhibit 1. Attached to that Form 36 was an October 5, 1998 report from Dr. Green stating that the claimant had reached maximum medical improvement with a 20% permanent partial impairment of the left lower extremity. Kimberly Covaleski, acting pro se as the claimant’s Limited Legal Guardian, then sent a letter to the Commissioner dated November 5, 1998 that questioned the 20% rating, and asked that an informal hearing be scheduled to discuss the matter. Claimant’s Exhibit J. The Form 36 was initially approved on November 9, 1998, effective on the date of its receipt, but was subsequently denied following a hearing by the same commissioner on February 2, 1999. Joint Exhibit 1. Ms. Covaleski’s letter was construed as an objection to the Form 36, which, given her pro se status, was appropriate under the circumstances.
We have explained in past cases that, at a formal hearing, a trial commissioner may review the approval or denial of a Form 36 at an informal hearing, and make his decision regarding the discontinuance of benefits on the evidence currently before him. Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (Nov. 1, 2001); Anguish v. TLM, Inc., 3437 CRB-7-96-9 (Jan. 20, 1998), aff’d, 53 Conn. App. 241 (1999)(per curiam), cert. denied, 250 Conn. 910 (1999). The trier was not constrained from performing a similar de novo type of review here. Thus, whatever the initial rulings on the October 29, 1998 Form 36, the trier had the authority to consider the matter anew at the formal hearing and make his decision based upon the evidence before him.
As for the second Form 36, it was filed and later approved on June 23, 1999. Joint Exhibit 2. By then, the claimant was represented by counsel. Attached to that Form 36 was a copy of Dr. Green’s October 5, 1998 letter, and a copy of a May 11, 1999 report from Dr. Selden in which he agrees with Dr. Green’s 20% permanent partial impairment rating, and pronounces the claimant capable of light sedentary activities. No objection specific to this Form 36 was filed. The claimant argued at the June 27, 2000 formal hearing that no objection needed to be filed, as the second Form 36 addressed an issue that the parties were already debating via this Commission’s hearing process. Transcript, p. 78. The trial commissioner eventually accepted that reasoning in ¶ 14 of his findings, stating that no objection was required “since the issue of temporary total disability was already before the Workers’ Compensation Commission.”
The respondents urge that this board implement the language of § 31-296, which states, “The employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice. . . . The commissioner shall not approve any such discontinuance or reduction prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later.” In their view, the failure of the claimant’s attorney to object to the Form 36 within ten days required the trial commissioner to deem that Form 36 granted. We disagree.
It is well-established practice in this forum that, where a claimant alleges continuing incapacity, a respondent cannot discontinue the payment of benefits without filing a Form 36. Herwerth v. Groton, 3105 CRB-2-95-6 (Dec. 24, 1996), aff’d, 45 Conn. App. 922 (1997)(per curiam); Stryczek v. State/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 1765 CRB-2-93-6 (May 4, 1995). If a claimant objects to a Form 36 within the ten-day period, an informal hearing should be held as soon as possible. Normally, the failure to object to a Form 36 would lead a commissioner to grant that motion effective on the date of its filing. Herwerth, supra. However, a trier is not required to treat a Form 36 as if it has been filed in a vacuum, without taking into account the context of the events that have preceded it. If the circumstances of a case such as this one make it perfectly clear that a claimant is not in agreement with a Form 36, and is already in the process of preparing for formal proceedings concerning the issues raised by a subsequently-filed Form 36, a trial commissioner would be entitled to take those facts into account in determining whether the respondents were somehow prejudiced by a claimant’s failure to file a timely objection under § 31-296. Such was the case here, and we find no error in the trier’s resolution of this matter.
The respondents also contend on appeal that the trial commissioner erred by ordering them to pay $500 for the cost of installing handrails in the claimant’s home, and ordering them to provide for the use of a wheelchair in certain situations. The record is replete with testimony and medical reports that detail the claimant’s propensity for falling down due to the effects of his compensable injury, his inability to maneuver in busy settings, and his recent tendency to withdraw from society due to his difficulties in ambulating. See Jaworski v. A.B. Chance Co., 3006 CRB-3-95-2 (Jan. 6, 1997)(claimant needed motorized wheelchair to move about, and respondent had paid for modifications to his residence). The trier was entitled to honor the prescription from Dr. Cagna providing for a wheelchair; Claimant’s Exhibit O; and to conclude that the installation of handrails was a reasonable means of assisting the claimant as a precaution against further falls. Given the nature of this claimant’s problems and the imminent risk of injury from a fall, we do not believe that a specific medical authorization for handrail installation was needed here. Thus, we uphold the trier’s § 31-294d order.
The trial commissioner’s decision is accordingly affirmed, with the exception of his holding that the claimant’s total disability award should be permanent.
Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.
1 The relevant subsections of § 31-307 provide, “(a) If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of his average weekly earnings as of the date of the injury, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310; but the compensation shall not be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred. No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided the minimum payment shall not exceed seventy-five per cent of the employee’s average weekly wage, as determined under section 31-310, and the compensation shall not continue longer than the period of total incapacity. . . .
(c) The following injuries of any person shall be considered as causing total incapacity and compensation shall be paid accordingly: (1) Total and permanent loss of sight of both eyes, or the reduction to one-tenth or less of normal vision; (2) the loss of both feet at or above the ankle; (3) the loss of both hands at or above the wrist; (4) the loss of one foot at or above the ankle and one hand at or above the wrist; (5) any injury resulting in permanent and complete paralysis of the legs or arms or of one leg and one arm; (6) any injury resulting in incurable imbecility or mental illness. . . .” BACK TO TEXT