State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Papa v. Jeffrey Norton Publishers, Inc.

CASE NO. 4486 CRB-3-02-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 25, 2003

SHIRLEY PAPA

CLAIMANT-APPELLEE

v.

JEFFREY NORTON PUBLISHERS, INC.

EMPLOYER

and

PATRIOT GENERAL INSURANCE CO./SENTRY INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Timothy P. Gunning, Esq., Kinney & Secola, LLC, 685 State Street, Second Floor, P.O. Box 1814, New Haven, CT 06508.

The respondents were represented by Lynn Raccio, Esq., Law Offices of Murphy & Raccio, 1062 Barnes Road, Suite 110, P.O. Box 865, Wallingford, CT 06492.

This Petition for Review from the January 11, 2002 Finding and Award of the Commissioner acting for the Third District was heard July 19, 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 respondents have petitioned for review from the January 11, 2002 Finding and Award of the Commissioner acting for the Third District. They contend on appeal that the trial commissioner erred by concluding that the claimant has been totally disabled since March 11, 1999. We find no error, and affirm the trial commissioner’s decision.

Contained in the trier’s Finding and Award are the following relevant findings. On December 19, 1995, while in the employ of the respondent Jeffrey Norton Publishers, Inc., the claimant slipped and fell on ice, sustaining compensable neck, lower back, hip and left arm injuries. She began treating with Dr. Miller, who referred her to Dr. Sumner, an orthopedic surgeon, in March 1996. He diagnosed her with musculoligamentous injuries to her cervical and lumbar spine, declared her totally disabled from work, and sent her to physical therapy. A May 1996 MRI revealed a disc protrusion at L5/S1, and a follow-up MRI in June 1996 indicated mild disc protrusion at C5/C6 with an associated radial tear. Meanwhile, Dr. Sella had examined the claimant on the respondents’ behalf in February 1996. He felt that the claimant was capable of working, though when he examined her again in June 1996, he agreed that she was totally disabled.

In August 1996, the claimant was diagnosed with breast cancer, and began chemotherapy treatments, which were apparently successful in driving the disease into remission. See Claimant’s Exhibit A, § H (reports of Dr. Silber). The claimant then began treating for her back and neck injuries with Dr. Dickey, a neurosurgeon, in October 1997. He performed lumbar spine surgery on January 8, 1998. On November 2, 1998, he indicated that the claimant had reached maximum medical improvement for her lumbar spine injury as of June 24, 1998, with an 18% permanent partial impairment. He again examined the claimant on March 11, 1999, and stated that she had also reached maximum improvement for her neck injury on June 24, 1998, with a 12% permanency of the cervical spine. He did not comment on the claimant’s work capacity. However, he issued a report on March 23, 2000 stating that the claimant had continued to be disabled from work, and probably would remain that way permanently. Dr. Dickey did not examine the claimant at that time. He did see her on July 19, 2000, when he indicated that she had been unable to work for years due to her neurological problems and disc surgery. The trial commissioner found that these opinions were persuasive and credible, and found the claimant to be totally disabled from March 11, 1999 through the date of the award. The respondents have appealed that decision to this board, along with the commissioner’s subsequent denial of their Motion to Correct.

A claimant has the burden of proving every factual element of her claim, including the existence of total disability, to the satisfaction of a trial commissioner. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Wlodyka v. First National Stores, 4025 CRB-2-99-4 (March 15, 2000). There is a well-documented principle of deference that this board applies when a party appeals the factual findings of the trier. See, e.g., Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This standard of review is based upon it being the trier’s exclusive province to evaluate all of the testimonial and documentary evidence that is produced by the parties, and to decide which, if any, of that evidence is credible. Tartaglino, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001).

On review, this board is not empowered to effectively retry a case by second-guessing the inferences that the trier has drawn regarding the credibility of the medical reports, testimony, etc. Duddy, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Rather, we review the commissioner’s findings of fact to determine whether there is sufficient evidence in the record to support them, taking into account the discretion he has to make determinations of credibility. Phaiah, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). We may also review the findings to ensure that undisputed material facts have not been incorrectly omitted. Duddy, supra; Warren, supra. As for the trial commissioner’s legal conclusions, we may disturb them only if they result from an incorrect application of the law to the facts found, or from an inference illegally or unreasonably drawn from those facts. Fair, supra; Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002).

Before we begin our analysis of the facts found in this case, we must consider a Motion to Submit Additional Evidence that was raised by the respondents at oral argument. According to the respondents, said motion was dated January 25, 2002. Our files reveal no sign that such a motion was submitted. However, the remedy sought by the respondents is for this board to take administrative notice of a Form 36 that was filed on December 11, 1998, and approved several weeks later with a December 11th approval date. Attached to that Form 36 is Dr. Dickey’s note of November 2, 1998, stating that the claimant had reached maximum medical improvement as of June 24, 1998, and the form itself explains, “Treating physician evaluates employee at MMI as of 6/24/98.” Presumably, this Form 36 has the potential to establish that the claimant was taken off § 31-307 total disability benefits in favor of § 31-308(b) specific indemnity benefits as of its effective date. See Bennett v. Federal Express Corp., 4023 CRB-4-99-4 (May 22, 2000)(termination of benefits generally cannot occur earlier than filing date of Form 36).

Within the Uniform Administrative Procedure Act is § 4-178 C.G.S., subsection (6) of which empowers an agency member conducting a contested case to take notice of “judicially cognizable facts and of generally recognized technical or scientific facts within the agency’s specialized knowledge.” It is standard procedure for a trial commissioner to take administrative notice of the forms that have been filed with this Commission; see, e.g., Johndrow v. General Motors Corp., 4070 CRB-6-99-6 (March 1, 2001); Hyatt v. Milford, 3646 CRB-3-97-7 (August 28, 1998), aff’d, 57 Conn. App. 472 (2000), cert. denied, 254 Conn. 901 (2000), and this board has done likewise. See, e.g., Schiano v. Bliss Exterminating Co., 4104 CRB-4-99-8 (Feb. 21, 2001), rev’d on other grounds, 260 Conn. 21 (2002). Judicial notice is appropriate where a matter is one of established fact whose accuracy cannot be questioned, a category that generally includes court files. Moore v. Moore, 173 Conn. 120, 122 (1977). Here, in answer to the respondents’ request that notice be taken of the Forms 36 in the record and the rulings thereon, the trial commissioner indicated on the record that he would take administrative notice of the forms in his file. August 6, 2001 Transcript, p. 28. It was proper for the trier to take such notice, as the claimant did not challenge the validity of those documents. Therefore, for purposes of our review, we will likewise consider the Forms 36 that are contained in the official record.

Merely taking notice of an approved Form 36 does not automatically redefine the nature of the benefits subsequently paid, however. Though § 31-296 contemplates that a claimant may request a hearing on a Form 36 within ten days of its issuance, a trial commissioner may also allow a claimant to later challenge an approved Form 36 at a de novo formal hearing, depending on the circumstances of the case. Santiago v. Metropolitan Insurance Co., 12 Conn. Workers’ Comp. Rev. Op. 388, 1631 CRB-6-93-1 (Sept. 1, 1994); see also, Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002). Moreover, a trial commissioner is entitled to consider a broad range of issues at a subsequent formal hearing on a Form 36, including whether a claimant continues to be totally disabled. Ryba v. West-Con, 3196 CRB-2-95-10 (Feb. 27, 1997). He is not limited to the grounds stated in the Form 36 or the attached medical report, in contrast to the commissioner who presides over the initial informal hearing on the Form 36. Id.; see also, Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (Nov. 1, 2001).

In the file before us here on appeal, there is an approved voluntary agreement dated May 21, 1996 that sets the claimant’s average weekly wage for purposes of total incapacity payments at $287.39 per week. She would be entitled to the same amount as a specific indemnity benefit under § 31-308(b) (not considering possible future entitlement to COLAs under § 31-307a upon the passage of five years of total disability). Thus, approval of the December 11, 1998 Form 36 would have occasioned no immediate decrease in her weekly benefit amount had she been switched over from temporary total disability benefits to permanent partial impairment benefits, thereby making it less urgent for her attorney to contest the Form 36. Indeed, the claimant does not disagree with anything substantive in Dr. Dickey’s report. Further, there is no proof in the record that the claimant actually received the Form 36 at the same time it was received by this commission (December 11, 1998), as the only mention of the Form 36 in the transcript was counsel’s request that the commissioner take administrative notice of it. It was therefore understandable for the claimant not to request a hearing regarding the Form 36 within ten days of its issuance, and the commissioner acted well within his discretion in considering whether the claimant remained totally disabled despite having reached maximum medical improvement. See McCurdy v. State, 227 Conn. 261, 267-68 (1993)(person may have a permanent partial impairment and be temporarily totally disabled from working at the same time).

The respondents’ appellate brief focuses exclusively on their argument that the trier reached the wrong factual conclusions with respect to total disability. They cite Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 41-42 (1996), and Brown v. State/Dept. of Mental Health and Addiction, 4053 CRB-2-99-5 (July 27, 2000), aff’d, 66 Conn. App. 882 (2001)(per curiam), cert. denied, 259 Conn. 913 (2002), for the proposition that a claimant’s total disability status is a matter of continuing proof for the period of disability claimed, and contend that the claimant here failed to sufficiently document her continuing total disability status by introducing periodically updated reports that could reliably establish the persistence of that condition. As the claimant notes in her appellee’s brief, however, there is no bright-line rule as to the length of time that may elapse between physician’s reports in a case where a claimant seeks to establish total disability. See Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 725 CRD-6-88-4 (Oct. 20, 1989)(trier was allowed to rely on physician’s testimony that “based on probabilities,” claimant’s condition was presumably the same, even though physician had last seen claimant 20 months earlier); Brown, supra (claimant could not document four-and-one-half-year period of total disability without updated medical reports, where trier based his decision on that criteria alone). Much depends on the nature of the injury, and the surrounding circumstances of the case.

The question raised here, in essence, is whether Dr. Dickey’s reports suffice to establish total disability from March 1999 forward, given the facts before us here. When the claimant first went to see Dr. Dickey, she had last been seen by Dr. Sumner, who opined that she was totally disabled as of June 3, 1996, and noted no subsequent change in her condition before referring her to Dr. Dickey on September 30, 1997. Claimant’s Exhibit A, § D. Dr. Dickey initially noted a large L5-S1 disc herniation, and noted that she had to that point not improved, which led him to recommend surgery. Claimant’s Exhibit A, § G, October 29, 1997 report. He performed the surgery late in 1997, and noted that she was improving steadily early in 1998. He gave the claimant exercises to perform. However, he felt that she had reached a plateau as of June 24, 1998, and limited her to “only moderate amounts of physical exertion.” In his note of November 2, 1998, he stated that the claimant had reached maximum medical improvement on or about June 24, 1998, and thought she would need “a few physical therapy treatments each year.” Id.

On March 11, 1999, he stated that the claimant had returned for evaluation of the cervical spine. His examination revealed marked restriction in motion, and reiterated that she had sustained a C5/C6 disc herniation. He explained on March 23, 2000, that he had seen the claimant several times post-operatively, and despite some improvement, she never reached the point where she would be able to return to work. Dr. Dickey was of the opinion that she appeared to be incapable of ever performing work activity again. He then conducted a follow-up exam on July 19, 2000, at which he stated that the claimant was complaining bitterly of low back and leg pain, and opined that she “has not been able to work for years now because of primarily neurologic problems related to her disc surgery.” Id. Dr. Dickey did not think the claimant was capable of any type of work.

Despite the respondents’ arguments, these reports directly and clearly support the trial commissioner’s decision to award the claimant total disability benefits from March 11, 1999 forward. His opinions express no ambiguity with regard to the severity of the claimant’s symptoms, and they are clearly expressed within a reasonable degree of medical probability. Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 447-48 (2001); Phaiah, supra. Further, there is no countervailing evidence that would establish a work capacity. Given the nature of her condition as described by Dr. Dickey, the trier was also justified in extending that award forward through the date of the formal hearing and beyond, with the claimant’s condition subject to further monitoring by the respondents and the claimant’s treating physician.1 Morris v. A&A Acoustics, 3429 CRB-7-96-9 (Aug. 8, 1997). We therefore find no error in the trier’s factual findings, his conclusions as drawn from those findings, or in his denial of the Motion to Correct.

The trial commissioner’s decision is accordingly affirmed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

1 In their brief, the respondents also take issue with the trier’s award of total disability benefits “from March 11, 1999 through the present . . . .” They maintain that it was impermissible for the trier to attempt to award benefits beyond the date of the formal hearing, i.e., August 6, 2001. However, as we explained in Morris v. A&A Acoustics, 3429 CRB-7-96-9 (Aug. 8, 1997), “it has long been the accepted practice for a trial commissioner, under appropriate factual circumstances, to award ongoing temporary total disability benefits, and for the respondent to pay such benefits until it receives information from a physician that the claimant is medically able to return to work.” (Citations and footnote omitted.) “At that point, it becomes incumbent upon the respondent to file a Form 36.” We further explained, “This policy has been both an effective and an efficient means of providing a claimant with continued benefits for temporary total disability without burdening the administrative resources of the workers’ compensation system by requiring unnecessary hearings. Furthermore, this practice clearly supports the humanitarian purpose of the Workers’ Compensation Act by allowing trial commissioners to award ongoing benefits where the medical evidence indicates that a claimant will continue to be temporarily totally disabled after the close of the last evidentiary hearing. In such cases, ongoing benefits may be awarded until there is evidence that the claimant’s condition has improved, without requiring the claimant to repeatedly return for hearings.” (Citations omitted.) See also, Carlson v. Bic Corp., 4364 CRB-3-01-2 (Jan. 29, 2002); Hidvegi v. Nidec Corp., 3607 CRB-5-97-5 (June 15, 1998). Of course, entitlement to any benefits paid beyond the date of the last formal hearing would be subject to challenge at a subsequent hearing, assuming the respondents had reasonable ground to contest the claim for ongoing disability. BACK TO TEXT

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