CASE NO. 4538 CRB-4-02-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JUNE 13, 2003
CAROLTON CHRONIC & CONVALESCENT HOSPITAL, INC.
ROYAL & SUNALLIANCE INSURANCE CO.
formerly EBI COMPANIES
The claimant was represented by George W. Ganim, Esq., The Ganim Law Firm P.C., 4666 Main Street, Bridgeport, CT 06606.
The respondents were represented by James D. Moran, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.
This Petition for Review from the June 14, 2002 Finding and Award in Part and Dismissal in Part of the Commissioner acting for the Fourth District was heard December 20, 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 claimant in the instant matter appeals from the June 14, 2002 Finding and Award in Part and Dismissal in Part [hereafter Finding and Award] issued by the Commissioner acting for the Fourth District. In the Finding and Award the trier ordered the respondents to pay all benefits to which the claimant was entitled as a result of an injury to her lower back and left shoulder suffered on or about March 6, 2000 while in the course of her employment. However, the trier denied and dismissed the claimant’s Motion to Preclude and the claimant’s claim for benefits relating to an injury to her cervical spine.
The pertinent facts in this matter are as follows. On or about March 6, 20001 the claimant was employed by the respondent employer as a licensed practical nurse. While in the course of making her rounds the claimant found an elderly patient who had soiled herself. The claimant proceeded to clean the patient and in the course of tending to the patient she pulled the patient up from the bed. As a result of lifting the patient, the claimant experienced pain in her lower back. The claimant treated with Dr. Patrick Carolan and underwent a number of physical therapy sessions. The claimant was also seen by Dr. Scott Herman. In the course of her treatment with Dr. Carolan the claimant complained of pain in her lower back as well as pain in her left shoulder and neck. In the Fall of 2000 the claimant began to complain of a “burning” in her right arm.
On October 3, 2000 an MRI was taken of the claimant’s cervical spine. The MRI reflected, inter alia, a herniated disc at the C5-6 level. Dr. Dante Brittis performed an Independent Medical Examination of the claimant and opined that the claimant sustained a low back strain and left shoulder impingement as a result of the March 6, 2000 work related lifting incident.
There was no significant disagreement between the parties that the claimant suffered a low back strain and left shoulder injury as a result of the March 6, 2000 lifting incident. The parties do disagree as to whether the claimant’s cervical injury is causally related to the March 6, 2000 work incident.
The trier concluded that the claimant’s lower back and left shoulder problems were related to the March 6, 2000 work incident. However, the trier also concluded that the claimant’s cervical problem was not related to that work incident. In the course of the proceedings before the trial commissioner, the claimant filed a Motion to Preclude.
The trial commissioner denied the claimant’s Motion to Preclude and thereafter, awarded the claimant benefits related to her lower back and left shoulder problems but denied the compensability of the claimant’s cervical spine problems. Following the trier’s Finding and Award, the claimant filed this appeal and presents the following issues; (1) whether the trial commissioner erred in denying the claimant’s Motion to Preclude and (2) whether the trial commissioner erred in failing to conclude that the claimant’s cervical spine problems were causally related to the March 6, 2000 work incident.
We first consider whether the trial commissioner erred in denying the claimant’s Motion to Preclude. Sec. 31-294c(b) provides in pertinent part
Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim . . ., but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim, provided the employer shall not be required to commence payment of compensation when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that (1) the employer, if he has commenced payment for the alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim, shall be precluded from contesting liability unless a notice contesting liability is filed within one year from the receipt of the written notice of claim, . . . (Emphasis ours)
Thus, a prerequisite to precluding an employer or its insurance carrier from asserting defenses to a claim commences with a written notice of claim and the service of the notice upon the employer consistent with § 31-321. See Timothy v. Upjohn, 2 Conn. Workers’ Comp. Rev. Op. 1, 150 CRD-3-82 (February 25, 1983), dismissed for lack of final judgment, 3 Conn. App. 162 (1985). See also, Morgan v. Hot Tomato’s, Inc. DIP, 4377 CRB-3-01-3 (January 30, 2002); O’Neill v. New King, Inc., 3 Conn. Workers’ Comp. Rev. Op. 86, 190 CRD-6-82 (November 13, 1986). In the instant case the trier concluded that none of the legal prerequisites permitting a Motion to Preclude to lie were satisfied, i.e. that a written notice of claim was filed consistent with § 31-321. Findings ¶ I. The appellant in this matter argues that as the respondents furnished medical care, they should be precluded from asserting a defense to the claim related to the claimant’s cervical spine.
The appellant’s contention is inconsistent with the case law that has developed concerning Motions to Preclude. We have previously noted “preclusion of an employer’s right to defend a claim is a harsh remedy.” McKenna v. Thorne & Cleaves, Inc., 3365 CRB-7-96-6 (July 29, 1997). Given its harshness we do not think it appropriate to permit preclusion to lie where a respondent has provided medical treatment and accepted a claim’s liability but merely disputes the resulting medical consequences. As our Supreme Court opined in Adzima v. UAC/Norden Division, 177 Conn. 107, 114-15 (1979).
The legislature’s object in amending 31-297(b);[the predecessor to § 31-294c(b)] see Menzies v. Fisher, [165 Conn. 338, 347, (1973),] supra, 342-43, quoting 12 H.R. Proc., Pt. 9, 1967 Sess., pp. 4035-4037; did not encompass a “preclusion of defense” situation where the only contest between the employer and the injured employee concerned the extent of the employee’s disability.
Extending Menzies to allocate to the employer the burden of contesting the extent of the employee’s disability, within twenty days of the receipt of the employee’s claim for compensation, would impose upon the employer the burden of developing medical evidence as to the extent of the employee’s disability or injury, which otherwise would develop only after a hearing at which the employee would have the burden of proving both a compensable injury and the extent of the disability. (citation omitted). In these circumstances, extending Menzies to apply to disability claims would place upon the employer the burden of investigating every subsequent claim of disability, as the medical consequences of an injury unfolded, and would force the employer to carry the burden of non-persuasion with respect to the existence and extent of those medical consequences. Such a result is neither compelled by General Statutes 31-297 (b), nor by our decision in Menzies v. Fisher, supra. (footnote omitted). (Emphasis ours)
For all of the above reasons, we conclude that the trier’s denial of the claimant’s Motion to Preclude was legally appropriate.
We next consider the issue as to whether the trier erred in failing to find that the claimant’s cervical injury was causally related to the March 6, 2000 work injury. In the instant case the trial commissioner relied on the medical opinion of Dr. Dante Brittis as well as the claimant’s own testimony. The claimant herself testified that at the time of the incident she did not experience any problems with her neck. Sept. 25, 2001 Transcript, p. 17.
Whether a particular medical condition is causally related to an injury is a factual determination to be made by the trial commissioner. On appeal we do not engage in de novo review. The trial commissioner’s conclusions on such an issue must stand unless they are contrary to law, without evidence or based on unreasonable or impermissible factual inferences. We conclude that the trier did not violate any of these tenets. Fair v People’s Savings Bank, 207 Conn. 535 (1988). See Ventresca v. Pathmark Supermarkets, 12 Conn. Workers’ Comp. Rev. Op. 328, 1655 CRB-4-93-2 (July 5, 1994) (CRB affirmed trier’s finding that the claimant’s cervical spine injury was not related to an earlier work injury).
Additionally, we note that the appellant did not file a Motion to Correct, “[w]hen a claimant fails to file such a motion, this board is very limited in its ability to scrutinize the facts found by the commissioner, as we do not have the power to substitute our own judgment regarding the weight of the evidence for the judgment of the trial commissioner. Mitchell v. J.B. Retail Inventory Specialists, 3458 CRB-2-96-10 (March 31, 1998).” Sellers v. Sellers Garage, 4391 CRB-5-01-5 (April 26, 2002).
We therefore affirm the Commissioner acting for the Fourth District’s June 14, 2002 Finding and Award.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.
1 The trial commissioner’s Finding and Award contains conflicting dates as to the date of the claimant’s injury. In some paragraphs of the trier’s Finding and Award the date of claimant’s injury is given as March 5, 2000 and in other paragraphs the date of claimant’s injury is given as March 6, 2000. However, this discrepancy is without significance as the parties stipulated that the claimant suffered a work related injury on March 6, 2000. See Sept. 25, 2001 Transcript, pp. 2-3. BACK TO TEXT