Downer v. Mark IV Construction Inc.

The respondents were represented by Nancy Berdon, Esq., Sizemore Law Offices, 6 Devine Street/1^st Floor, North Haven, CT 06473.

This Petition for Review from the October 22, 2001 Finding and Award of the Commissioner acting for the Third District was heard June 21, 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.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the October 22, 2001 Finding and Award of the Commissioner acting for the Third District. He argues on appeal that the trial commissioner erred by denying his claim for temporary total disability. The respondents have also moved to dismiss this appeal on the ground that the claimant failed to file his petition for review in a timely manner. We grant the motion to dismiss, and we also explain for the benefit of the pro se claimant that there was evidence in the record to support the trial commissioner’s decision.

The trial commissioner found that the claimant was working for the respondent Mark IV Construction Company on June 18, 1997, when he suffered a compensable back injury. He received 37.4 weeks of permanent partial disability benefits due to a 10% impairment rating of his lumbar spine, with a compensation rate of $362.93. In February 1998, the claimant was examined by Dr. Shear, a neurosurgeon, who referred him to Dr. Brennan for further treatment. Dr. Brennan began conducting physical therapy sessions with the claimant in March 1998, and thought that the claimant was totally disabled. The claimant has continued to treat with Dr. Brennan, who indicated in July 2001 that he suffers from persistent chronic pain due to his work-related injury, though he indicated that the nature of this pain was unclear save for a perceptible musculoskeletal component. Dr. Brennan has prescribed Vicodin for the claimant, and has also recommended further physical therapy to improve strength, endurance and flexibility. The respondents contested that treatment, claiming it would be palliative, unreasonable and unnecessary. They stopped physical therapy on or about April 3, 2000.

Meanwhile, the claimant saw Dr. Girasole in July 1999, who recommended a discogram to determine the cause of the claimant’s pain symptoms. The claimant did not want that procedure performed. In December 1999, Dr. Sella performed a § 31-294f commissioner’s exam, and rated the claimant with a 10% permanent partial disability of the back. He did not think that the claimant needed surgery, and believed that he was capable of light duty work. Based on all of these factual findings, the trial commissioner concluded that the claimant should be authorized to have an evaluation performed by Dr. Brennan, and should have a course of physical therapy established to help improve his functioning. However, the commissioner did not find that the claimant was totally disabled, and denied his claim for temporary total disability benefits. The claimant then appealed that decision to this board.

The first issue that we must address in our opinion is the respondents’ Motion to Dismiss the claimant’s appeal due to his failure to file a timely petition for review. The trial commissioner’s Finding and Award was issued on October 22, 2001, and was sent to the parties that same day. A certified mail receipt in our records shows that the claimant signed for the envelope containing the commissioner’s decision on October 25, 2001. Under the law of the State of Connecticut, a party to a workers’ compensation case may appeal the award of a trial commissioner at any time within twenty days after the award is sent to the parties. Section 31-301(a) C.G.S.; Kulig v. Crown Supermarket, 250 Conn. 603, 610 (1999); Conaci v. Hartford Hospital, 36 Conn. App. 298, 303 (1994). In this case, the twentieth day after October 22, 2001 was November 11, 2001. As that day was a Sunday, and the following Monday was a holiday, the claimant’s petition for review was due on Tuesday, November 13, 2001. This board lacks jurisdiction to consider any appeal that is filed after the expiration of the statutory appeal period, even if it is only a few days late. Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720 (1995); Duntz v. Ales Roofing & Caulking Co., 3771 CRB-6-98-2 (Dec. 22, 1998).

The claimant did not file a traditional petition for review in this matter. Instead, he sent a handwritten letter to the commissioner stating, “I thank you for awarding me the physical therapy and medication. You . . . denied my claim for temporary total disability and I do not understand why. Please could you explain in a letter why you denied my claim.” As the claimant is unrepresented by counsel, we have construed this document as a request for this board to review the trial commissioner’s decision. However, the letter was not received by the Third District office until November 14, 2001, which was one day after the expiration of the claimant’s statutory appeal period. We do not have the discretion to extend the appeal period beyond the twenty days regardless of whether or not a claimant is represented by counsel, so we must grant the respondents’ Motion to Dismiss.

Even if the claimant’s appeal had been filed in a timely manner, however, this board would have upheld the Finding and Award on review. When a person files a workers’ compensation claim, and a commissioner holds a formal hearing on the matter, it is the job of the commissioner to try the facts the same way a trial judge does in Superior Court. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). Both parties are allowed to present medical evidence and testimony for consideration by the trier. Once they have presented their cases, the commissioner must evaluate all of the evidence and decide which is the most believable. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). He does not have to rely on the opinion of any particular doctor, even if there is no evidence in the record that explicitly contradicts that opinion. Id.; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). On appeal, this board does not have the right to retry the case by second-guessing the commissioner’s decisions to credit or reject any portion of the evidence. Warren, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). When we review the findings of a trial commissioner, we may alter them only if they contain facts found without any supporting evidence in the record, or if they leave out material facts that are truly beyond dispute. Phaiah, supra; Warren, supra.

In the proceedings below, the claimant was trying to prove to the trial commissioner that he was totally disabled from employment, thereby entitling him to benefits under § 31-307. In support of his claim, he offered the reports of Dr. Brennan into evidence. Dr. Brennan stated on July 24, 2001, “Without getting him into an active exercise program, I do not see him returning to any type of gainful employment . . . .” Claimant’s Exhibit A, Sept. 20, 2001 formal hearing. On May 16, 2001, he diagnosed the claimant with “chronic, ongoing, unrelenting back pain” that left him unable to return to work. Id. Dr. Brennan had been of the opinion that the claimant was totally disabled from work since November 25, 1998. See Claimant’s Exhibit A, Nov. 16, 2000 formal hearing.

However, all of the evidence did not favor the claimant. The respondents offered contrary evidence in the form of Dr. Sella’s report of December 10, 1999, which stated that the claimant “should be able to work in a modified light duty capacity. He has a work limitation of no more than 30 pounds and he should do so mainly at waist level or table top level, not from the floor.” Respondents’ Exhibit 2, Sept. 20, 2001 formal hearing. Also, Dr. Girasole gave the claimant the following work restrictions on August 24, 1999: “No lifting over 25 pounds. No prolonged standing or sitting for more than four hours.” Claimant’s Exhibit A, Nov. 16, 2000 formal hearing. We note that the claimant did not request that a transcript be made available of the September 20, 2001 formal hearing, so we are unable to review any of the testimony that the claimant gave at the hearing, and we cannot tell whether the parties incorporated the exhibits from the previous formal hearing into the record. Because this portion of our opinion is essentially dicta, however, we address the full record that has been made available to us.

Ultimately, the trial commissioner was not persuaded that the opinions of Dr. Brennan were sufficient to establish that the claimant was totally disabled. We do not have the authority on review to say that the trier should have believed the reports of Dr. Brennan rather than those of Drs. Sella and Girasole. Therefore, even if the claimant had filed a timely petition for review, we would affirm the trial commissioner’s decision, as the existence of total disability is a question of fact for the commissioner. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 454 (2001); D’Amico v. State/Dept. of Correction, 4287 CRB-5-00-9 (August 3, 2001).