CASE NO. 4527 CRB-3-02-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 14, 2003
The claimant was represented by Angelo Sevarino, Esq., 110 Day Hill Road, Windsor, CT 06095-1794.
The respondent was represented by Neil Ambrose, Esq., Letizia, Ambrose & Falls, P.C., One Church Street, New Haven, CT 06510.
This Petition for Review from the May 1, 2002 Finding and Award of the Commissioner acting for the Third District was heard November 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 respondent has petitioned for review from the May 1, 2002 Finding and Award of the Commissioner acting for the Third District. On appeal, it contends that the trier erred by finding that it unreasonably contested liability and unduly delayed the payment of benefits, and by awarding total disability benefits from September 1, 2000 through October 9, 2000. We affirm the trial commissioner’s decision in part, and remand for further proceedings on the issue of sanctions pursuant to § 31-300 C.G.S.
The commissioner found that the claimant was employed by Yale University as an equipment mechanic on July 13, 2000, working a shift that extended from 4:00 p.m. to midnight. At approximately 7:20 p.m., he left the lunchroom on the employer’s premises intending to return to the rooftop, where he was in the process of servicing fans. After retrieving some fan belts and winch drive motors, he started up a flight of stairs. While climbing, he dropped some of the fan belts, lost his balance as he attempted to pick them up, and fell down the stairs, striking his side, left forearm, and back. He immediately attempted to find his supervisor, Duane Harrison, who was not in his office. The claimant then used a two-way radio to contact Harrison, who told the claimant that he was currently busy, but would return in about five minutes. The claimant went to the shop area to await his supervisor, who did not return. He then walked to the loading dock area, where he encountered Guy Staffa, a friend of his who occasionally drove him to work, and who had stopped by to get paid. At the claimant’s request, Staffa drove him to the nearby Yale-New Haven Hospital Emergency Room, whereupon he was admitted to the hospital with a left arm fracture.
The claimant was discharged from the hospital the next morning, unable to use his left arm, which would be in a cast for eight weeks. He could not perform the essential functions of his job while in the cast. Dr. Moran, the doctor who repaired his broken arm, acted as his treating physician following discharge from the hospital. He released the claimant to return to work on October 9, 2000, and opined that the claimant retained a 5% permanent partial disability of the left arm. The trial commissioner found that the claimant’s injury was compensable, and that he was totally disabled from employment between July 14, 2000 and October 9, 2000, with no available light duty having been offered prior to that date. He ordered the respondents to pay the claimant for a 5% permanency of the master arm, total disability benefits through October 9, 2000, and § 31-308a benefits through January 5, 2001, along with reimbursement for medical expenses. He further found that the respondent had an inadequate basis for denying this claim, and that it had unduly delayed the progress of the formal hearings. He therefore ordered a subsequent hearing to determine attorney’s fees and interest that may be due the claimant under § 31-300. The respondent has appealed that decision.
Regarding the award of total disability benefits, the respondent argues that the only medical evidence was Dr. Moran’s opinion stating that the claimant was able to return to restricted work as of September 1, 2000. Thus, it maintains that § 31-308(a) C.G.S. was applicable beyond that date, rather than § 31-307. Section 31-308(a) allows the payment of wage differential benefits between pre-injury and post-injury earnings, except that full weekly compensation is awarded when a claimant is ready, willing and able to perform other work, but no such work is available. Because the claimant offered no proof that he met the conditions of § 31-308(a), the respondent contends that he did not establish entitlement to temporary partial disability benefits after September 1, 2000, thereby requiring reversal of the trier’s award by this board.
Respondent’s Exhibit 4 is a June 20, 2001 letter from Dr. Moran to the respondent’s counsel stating, “In response to your letter of March 15, 2001, in medical probability, Mr. Milliot could have performed one arm restricted duty on September 1, 2000.” Contrary to the respondent’s assertion in its brief, however, this is not the only medical evidence. Claimant’s Exhibit B is a note from Dr. Moran dated August 16, 2000, that reads, “Patient remains out of work for three weeks and has appt. to be rechecked on 9/15/00.” Claimant’s Exhibit A contains a follow-up office note dated September 15, 2000, directing the claimant to return in three weeks “with the hope of returning him back to work at that time.” On October 9, 2000, Dr. Moran released him to regular work as had been anticipated. Id. The claimant testified that he went back to work when Dr. Moran told him he could do so. February 27, 2001 Transcript, pp. 33-34.
When a claimant alleges that he is either totally or partially disabled and eligible for benefits under § 31-307 or § 31-308(a), the burden of proving that status falls upon his shoulders. LaPierre v. UTC/Pratt & Whitney, 4305 CRB-8-00-10 (Oct. 23, 2001); Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996). The trial commissioner must decide whether a claimant has met that burden as a factual matter, and possesses the sole authority to determine which, if any, of the medical, documentary or testimonial evidence is reliable. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). If there is evidence in the record to support the inferences drawn by the trier of fact, we cannot disturb those findings on review. Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002).
As noted, the exhibits include medical progress reports prepared during the claimant’s three-month period of disability that do not indicate any work capacity prior to October 9, 2000. The claimant promptly returned to work when Dr. Moran directed him to do so. There is no indication in the record that his employer ever offered him light duty work, or that he knew that such work might be available to him while he was recuperating from his injury. It was only a year later that Dr. Moran stated in hindsight that the claimant was theoretically able to perform light duty work as of September 1, 2000. Under these circumstances, we find no error in the trier’s decision to rely on Dr. Moran’s earlier, contemporaneous reports, which disabled the claimant from all work until October 9, 2000. See Findings, ¶ 18. We are unwilling to say that, as a matter of law, the claimant should be faulted for following the recommendations of his treating physician and staying out of work. Thus, we affirm the trier’s award of total disability benefits through October 9, 2000.
The appellant also challenges the propriety of the commissioner’s findings of unreasonable contest and undue delay under § 31-300. It objects that the claimant’s counsel indicated on the record that he would not pursue such a claim, and that it was improper for the trier to consider that issue in his decision. The formal hearing notices for February 27, 2001, June 21, 2001, and September 25, 2001 each list the issues as “31-294c - Form 43/Contest of Claim” and “31-300 - Award of Interest and Attorney’s Fees for Undue Delay,” as does the December 28, 2001 notice for a Pro Forma Formal Hearing. According to the February 27, 2001 formal hearing transcript, when the claimant’s attorney was asked whether he was asserting the § 31-300 claim listed on the hearing notice, he responded, “Not at this time, Commissioner.” Id., p. 3.
No further mention of a claim for unreasonable contest or undue delay was made until the claimant filed his proposed findings on December 27, 2001. There, the following finding was suggested:
8. That the Respondent had an inadequate basis for denial of the claim based upon the testimony of Mr. Harrison as to the reasons the Respondent denied the claim. I further find that the delay in the Formal hearing necessitated by Respondent’s representations to the Commission that Mr. Staffa was a “critical” witness and then failing to call Mr. Staffa, in spite of knowing that he was no longer incarcerated [and thus available to testify], constituted undue delay.
9. That a subsequent Formal hearing be held on the issue of C.G.S. § 31-300 undue delay and evidence be had as to attorney fees and interests that may be due the Claimant.
The respondent did not file its own set of proposed findings. In the Finding and Award, the trial commissioner adopted the claimant’s proposed findings regarding § 31-300 near-verbatim. Findings, ¶¶ H-I.
A finding of unreasonable contest is frequently unanticipated prior to the respondent’s presentation of its case, as the absence of substantive evidence or a reasonable legal argument in opposition to a contested claim may first become apparent during the course of the proceedings. “A trier normally awards attorney’s fees and interest . . . when, after hearing the parties’ arguments and reviewing the evidence, he concludes that there was insufficient evidence to support the respondents’ contest of a claim.” Colon v. CEI Bottling & Distribution Co., 4470 CRB-3-01-12 (Nov. 12, 2002). Our normal course of review is to examine the record to ensure that it supports the trier’s factual conclusion that the respondents lacked adequate reason to contest liability. Id.; Malafronte v. Med-Center Home Health Care, 3888 CRB-7-98-9 (Aug. 31, 1999).
In this case, the trier found that the respondent offered insufficient testimony to justify denial of the claim, and that it extended the length of the trial by indicating that it wished to procure a crucial witness who was ultimately not summoned to the subsequent formal hearing. Neither the claimant nor the commissioner could have known prior to trial that these particular grounds for unreasonable contest would arise. Thus, once the hearings were over, the trier apparently considered the proposed findings and decided that this case warranted sanctions under § 31-300. See Bailey v. State, 3922 CRB-2-98-10 (Nov. 30, 1999)(trier may raise issue of unreasonable contest sua sponte following closure of record), rev’d on other grounds, 65 Conn. App. 592 (2001).
However, we do not formally reach the issue of whether there was sufficient substantive basis for the trier’s § 31-300 award. Where a party specifically states on the record that a particular issue is not being pursued, an opposing party is entitled to rely on that representation. “[F]airness and due process require that the parties know when they are supposed to appear before a commissioner, and the scope of the controversy to be addressed.” Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001), citing Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581, 588 (1999). “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.” Audi v. Blakeslee Arpaia Chapman, 4234 CRB-3-00-5 (June 26, 2001), citing Kudlacz, supra. Just as the parties involved in a formal hearing should take the time at the outset of the hearing to articulate the issues they wish to address, where a party indicates that a particular issue is not going to be addressed, that declaration relieves the opposition from having to prepare itself to address that matter. See Audi, supra (total disability issue was not in dispute given statement of claimant’s counsel at outset of formal hearing); compare Mosman, supra (temporary total and temporary partial disability were ripe for determination by virtue of counsel’s representations at formal hearing). Due process would be inconsistent with an opposite result.
Counsel’s affirmative statement that a § 31-300 claim was not being asserted at the February 27, 2001 formal hearing did not merely negate the naming of § 31-300 as a listed issue on the hearing notice, leaving it within the trial commissioner’s authority to raise it sua sponte in his findings. By making this statement, and then failing to revive the issue during the formal hearings, the claimant gave the respondent good reason to believe that the subject of § 31-300 sanctions would not be broached in the trier’s decision. Thus, any chance that the respondent might have anticipated the need to justify its manner of defense in order to avoid such sanctions was vitiated by an assurance that said sanctions were not at issue.
Before we declare that due process was not given to the respondent, however, we have a concern regarding the respondent’s failure to reply to the claimant’s proposed findings. Raising an issue in proposed findings is not the equivalent of raising it at the formal hearing, as the evidentiary record has already been closed. Parties are not universally required to file proposed findings by the Workers’ Compensation Act or by the provision in Practice Book § 5-11 that addresses trial briefs, even though there is no question that commissioners often rely upon such proposed findings, which may provide important details and lend focus and clarity to a party’s legal argument in a workers’ compensation case. Fenn v. Hospital of St. Raphael, 3444 CRB-3-96-10 (Feb. 25, 1998). As a matter of due process, we question whether an issue that has been specifically postponed during trial can be revivified and incorporated into the formal decisionmaking process by bringing it up as a proposed finding of fact in a supplementary brief. The circumstances of the case would somehow have to justify that irregularity.
At oral argument in this appeal, the respondent’s counsel explained that he did not file his own set of proposed findings in response to the request for sanctions because, in his experience, such proposals often contain issues that have not been raised previously, and such issues are not usually addressed in the commissioner’s decision. Whether or not such an explanation is credible, and what bearing it should have given the totality of the circumstances, are factual questions that this board cannot decide on appeal. Because the trial commissioner’s findings leave room for doubt as to whether the respondent was properly notified that § 31-300 sanctions were at issue, thereby obligating it to respond, we cannot say with full certainty that the respondent was deprived of due process in this case. We hold, therefore, that the appropriate remedy in this setting is to remand this decision to the trier in order to determine whether the respondent had adequate notice that unreasonable contest and undue delay would be at issue, while affirming the award of disability benefits.
The trial commissioner’s decision is accordingly affirmed in part, and remanded for further proceedings on the issues of unreasonable contest and undue delay.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.
1 Practice Book § 5-1 states, “The parties may, as of right, or shall, if the judicial authority so orders, file, at such time as the judicial authority shall determine, written trial briefs discussing the issues in the case and the factual or legal basis upon which they ought to be resolved.” BACK TO TEXT