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Fiorillo v. City of Bridgeport

CASE NO. 4585 CRB-4-02-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 17, 2003

DEBORAH FIORILLO

CLAIMANT-APPELLEE

v.

CITY OF BRIDGEPORT

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Stephen B. Alderman, Esq., 201 Center Street, West Haven, CT 06516.

The respondent was represented by Frank A. May, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

The Second Injury Fund was not represented at oral argument. Notice sent to Richard R. Hine, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120. /p>

This Petition for Review from the October 25, 2002 Finding and Award of the Commissioner acting for the Fourth District was heard June 20, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard M. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent City of Bridgeport has petitioned for review from the October 25, 2002 Finding and Award of the Commissioner acting for the Fourth District. It alleges that the trier erred by spontaneously taking administrative notice of certain transcripts and exhibits from a prior proceeding, by denying its Form 36, by finding that the claimant was permanently totally disabled by virtue of her five years of total disability under § 31-307a(c), and by awarding the claimant certain testimonial fees and attorney’s fees for unreasonable contest. We affirm in part and reverse in part, and also remand this case to the trial commissioner with direction for clarification.

Our discussion of the underlying facts begins with a decision that was issued by Commissioner George A. Waldron on December 28, 2000. That ruling, captioned Finding Re: C.G.S. 31-307a(c), encompassed a set of stipulated facts. Included among these facts were a finding that the claimant had sustained a compensable injury on January 13, 1995 during the course of her employment as a speech pathologist, and a finding that, as a result of that injury, the claimant received total disability benefits from May 8, 1995 until the present. Pursuant to § 31-307a(c), the claimant had been paid retroactive cost-of-living adjustments (COLAs) through May 7, 2000; the issue before the commissioner was whether the respondent Second Injury Fund was liable for COLAs that accrued beyond that date. Though that legal question has since been settled by our Supreme Court’s decision in Hasselt v. Lufthansa German Airlines, 262 Conn. 416 (2003)(§ 31-307a(c) imposes on Fund reimbursement obligations for all COLAs payable to qualified employees injured on or after July 1, 1993 and before October 1, 1997), at the time, it was still a legitimate matter of dispute. Commissioner Waldron’s December 28, 2000 order instructed the Fund to pay all COLAs, including those payable subsequent to May 7, 2000.

That decision was subsequently appealed to this board, which affirmed Commissioner Waldron’s ruling in a decision dated November 19, 2001. The Fund then sought review before the State of Connecticut Appellate Court. The case was transferred to the Supreme Court, which issued an order on December 16, 2002 vacating both Commissioner Waldron’s finding and award and the stipulation of facts on which it was based. The parties had discovered that a “key factual assumption upon which the award was based was incorrect,” insofar as the claimant had not yet reached the threshold requirement of five years of total disability benefits necessary to make her eligible for COLAs under § 31-307a(c). Fiorillo v. Bridgeport, S.C. 16756 (Dec. 16, 2002). The December 28, 2000 decision was accordingly vacated.

In the meantime, a series of formal hearings had been held before a different trial commissioner1 on two issues, as listed in the hearing notices: total incapacity benefits and the discontinuance of benefits via Form 36. At the initial formal hearing, the trial commissioner also mentioned a claim for “permanent total benefits as pursuant to § 31-307a(c).” August 21, 2001 Transcript, p. 3. Claimant’s counsel acknowledged that he would be pursuing a claim on behalf of his client for either or both temporary total disability and a permanent total disability designation, and respondents’ counsel agreed that this description was sufficient to clarify the issue in dispute. Transcript, p. 4. Over the course of five formal hearings and nine months, a great deal of testimony about the claimant’s physical condition and work capabilities was offered by the claimant, her husband, the pastor at the parish where the claimant volunteers, a vocational consultant, a vocational rehabilitation specialist, and three private surveillance investigators. In addition, a host of medical reports, depositions, investigative reports and videotapes were taken into evidence.

In his Finding and Award of October 25, 2002, the trial commissioner began by taking administrative notice of the formal hearing that was held before Commissioner Waldron on November 2, 2000, along with the entirety of the December 28, 2000 Finding and Award and the stipulations that were embodied within (which had not yet been vacated by our Supreme Court). Neither party was notified in advance that the trier intended to take notice of those proceedings. Among the findings that the trier noticed were ¶ 4 of the original decision, stating that the claimant had received total disability benefits from May 8, 1995 to “the present,” and ¶ 5, stating that the claimant had been paid retroactive COLAs between May 8, 1995 and May 7, 2000. With regard to the petition for review that had been filed from the December 28, 2000 award, the commissioner noted that “no appeal has been filed . . . in regards to the claimant having received a period of five years total disability benefits; as is one of the requirements for the claimant to be found to be a permanent total [under § 31-307a(c)].” Findings, ¶ 18. The trier also took administrative notice of a Form 36 that had been filed on August 10, 2000, the denial of which had been raised as an issue by the respondent.

The trier then made reference to elements of the claimant’s testimony at the 2001 and 2002 formal hearings. This included findings that the claimant was born in 1950, was graduated from Southern Connecticut State College (now “University”) in 1972 with a degree in communication disorders, completed further schooling in that field in 1980, and was both a licensed speech pathologist and a certified teacher. She worked as a speech therapist in the Bridgeport school system through 1995, the year of her compensable injury. The claimant explained the duties of a speech therapist, including the traveling needs and physical requirements of the job. She reported having had several surgeries on her back, and went on to discuss her present medical condition, including the effects of the numerous medications she uses, and her pains and complaints on a typical day. She also discussed the limited volunteer work that she performs at the “New Life Evangelical Church,” along with her daily household activities and the care and oversight she had been providing to her six- and ten-year-old grandchildren.

The trier also noted the testimony of David Soja, who had performed a vocational assessment of the claimant at the respondents’ request. It was his opinion that the claimant had a functional capacity that fell between sedentary and light duty work. He also noted that the claimant’s interests seemed to focus heavily on Christianity, such as searching the internet for religious materials, and participation in Bible study groups and church activities. Soja testified that the claimant was not putting forth full effort during his testing, and thought her employable in jobs as a part-time speech pathologist or a speech therapy assistant, along with lesser-paying jobs such as telemarketer, recreation aide, companion, parking lot cashier, and security monitor. The trier also made note of Dr. Cohen’s opinion that the claimant was capable of sedentary work, Dr. Mintz’ opinion that she was capable of no work at all, and Dr. Sella’s opinion that, if the claimant’s symptoms as related are indeed accurate, she would certainly be unemployable.

The trial commissioner then went on to set forth his ultimate conclusions. He determined that the claimant met the requirements of § 31-307a(c) “as to her claim of being a permanent total,” and noted the respondent’s stipulation that the claimant had received total disability benefits from May 8, 1995 until the formal hearing date of November 2, 2000, a period of more than five years. “As I find that the respondents were properly apprised of the claim and the arguments of the claimant and that she was indeed a permanent total under § 31-307a(c), I find the respondent has presented before this Commissioner an unreasonable contest in regards to the same.” Conclusions, ¶ 5. Likewise, the respondent’s stipulation that the claimant had received five years of total disability benefits was also cast as grounds for unreasonable contest.

The trial commissioner went on to find the claimant’s testimony credible with regard to her injury, the extent of her disability and pain, and her restrictions. He also found the opinions of Dr. Mintz and Dr. Sella credible regarding the claimant’s inability to work. He determined that the respondent’s Form 36 had been properly denied, and added that “the claimant is entitled to be designated as a permanent total pursuant to 31-307a(c).” Finally, the trier ordered the respondent to assume responsibility for the testimonial costs of the claimant’s vocational specialist and the cost of deposing Jennifer Ryan, a speech therapist who testified regarding the work requirements of her profession. The respondent has filed an appeal from the trier’s decision, and from the denial of its Motion to Correct, in which it had challenged the trier’s taking administrative notice of the prior proceedings.

A good deal of the trier’s award has been shaped, at least in part, by the facts that were administratively noticed. Plainly, our Supreme Court’s December 2002 order vacating the parties’ stipulation of facts and the December 28, 2000 Finding and Award complicates the status of the trier’s decision. The Court’s order has reopened the factual history surrounding the claimant’s total disability status, rendering it a legitimate matter of dispute. The legal analysis in the trier’s Finding and Award is therefore premised upon an unstable foundation, as the stipulated facts are no longer valid. Even if we were to find no error regarding the manner in which the trier took administrative notice, the trier’s decision would need to be revised to account for the ruling of our Supreme Court.

However, the administrative notice process that the trier followed in this case was not ideal, despite the existence of precedent that allows a trial court to take notice of court files without notifying the parties of its intent to do so. This case illustrates how a problem may unexpectedly arise when neither party is given the opportunity to contest ostensibly “indisputable” facts. We begin by noting § 4-178 C.G.S., which is part of the Uniform Administrative Procedure Act. The statute allows a factfinder in a contested case to take notice of judicially cognizable facts and of generally recognized technical or scientific facts within the agency’s specialized knowledge, provided that parties are notified in a timely manner of any material noticed, including any agency memoranda or date, so that they may be afforded an opportunity to contest the material so noticed. We also note Connecticut Practice Book § 2-2(b), which states that a court may of its own volition take judicial notice of a fact not subject to reasonable dispute, with this proviso: “Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned.” See also P.B. § 2-1(c).

As for case law, our Supreme Court has confirmed that a trial court may take judicial notice of all papers forming a part of the file of a Superior Court case, even if it is not the case at bar. Karp v. Urban Redevelopment Co., 162 Conn. 525, 527 (1972); Nichols v. Nichols, 126 Conn. 614, 621 (1940). “Although we clearly possess this power, we do not overlook the preferred practice allowing to counsel a full opportunity to be heard on the matter.” Karp, supra, 527-28; see also, In re Mark C., 28 Conn. App. 247, 253 (1992). There is also authority discussing situations in which notice to the parties is not required prior to the taking of judicial notice, specifically, “matters of established fact, the accuracy of which cannot be questioned, such as court files, which may be judicially noticed without affording a hearing.” Moore v. Moore, 173 Conn. 120, 122 (1977); Derderian v. Derderian, 3 Conn. App. 522, 524 n.4 (1985). On the subject of taking notice of files from different cases, the Court has had occasion to explain, “It is true that it would have been preferable for the court to have told counsel . . . of its intention to take judicial notice of the file in the other case and thus to have given counsel a full opportunity to be heard on the matter, in accordance with the rule of Nichols v. Nichols [supra]. . . . There is no question, however, as to the court’s power, in a proper case, to take judicial notice of the file in another case in the same court, whether or not between the same parties.” Guerriero v. Galasso, 144 Conn. 600, 605 (1957). The effect given administratively noticed documents need not be the same as that given to the evidence that has been presented by the parties, however. In re Mark C., supra.

In adjudicating workers’ compensation claims, it is common practice for trial commissioners to take notice of previous Findings and Awards in the same case. Indeed, inconsistent decisions would frequently result if such notice were not taken. In this case, we see the opposite: a rare instance in which it was ultimately misleading to consult prior findings because of the factual errors they incorporated, as evinced by the Supreme Court’s subsequent ruling vacating the award. The trier’s reliance on the facts stipulated in the 2000 Finding and Award has resulted in a partial replication of those errors in the decision below. Because no notice was given to the parties of the trier’s intent to use the prior decision as a basis for his own findings, no opportunity existed for either party to address the validity of the stipulation on which that decision was based. Here, hindsight reveals that the wiser approach would have been to provide the parties with advance notice. As it stands now, the trier’s findings regarding the claimant’s receipt of five years of continuous temporary total disability benefits and the respondent’s unreasonable contest of liability must be reversed, as they expressly rely on superseded information. Further proceedings will be necessary in order for the trier to reconsider the evidence without the influence of the now-vacated stipulation of facts.

There is also an ambiguity within the trier’s award insofar as he categorizes the claimant as a “permanent total” under § 31-307a(c). In ¶ 19 of the Finding and Award, he noted that, in light of the administratively-noticed five-year total disability period, the claimant was “a permanent total as is stated by the statutory provisions of Connecticut General Statute 31-307a(c).” In ¶ 12 of his conclusions, he states that the claimant “is entitled to be designated as a permanent total pursuant to 31-307a(c).” On appeal, the respondent contends not only that the claimant had not yet received five years of total disability benefits, but also that the trial commissioner misread the statute as designating the claimant permanently totally disabled.

The language of § 31-307a(c) is specifically directed at the restoration of cost-of-living adjustments for permanently totally incapacitated individuals injured on or after July 1, 1993. For such individuals whose injuries occurred prior to the October 1, 1997 effective date of the statute, retroactive COLAs are required to be paid to any such employee whose injury “totally incapacitates the employee permanently,” and to “any employee who was adjudicated to be totally incapacitated permanently subsequent to the date of his injury or is totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years or more.”

The award of the trial commissioner in this case closely reflects this statutory language, which creates categories of claimants who are to be construed as “totally incapacitated permanently” for the purpose of entitlement to COLAs. There is no indication whether the trier understood this language as vesting the claimant with an irrevocable permanent total disability status akin to that of someone who has actually been adjudicated permanently totally incapacitated (e.g., as permanently totally disabled by virtue of § 31-307(c) C.G.S., which lists particular injuries that are presumptively considered to cause total incapacity, such as total loss of sight in both eyes, loss of both feet, or loss of both hands). However, as the issue is now before us, we take this opportunity to clarify that a claimant who is deemed “totally incapacitated permanently” under § 31-307a(c) by virtue of having been totally incapacitated for five years or more only maintains that designation as long as she is in fact entitled to total disability benefits pursuant to § 31-307 C.G.S. The five-year provision has no bearing on such a disability status. Thus, a claimant who ceases to be totally disabled by virtue of having a meaningful work capacity is no longer entitled to total disability benefits and the COLAs that attach to them. The terminology used in § 31-307a(c) should not be construed as having the power to redefine a claimant’s medical disability status for purposes of § 31-307; rather, it should be construed as creating categories that exist solely to determine entitlement to COLAs.

The respondent also contends that the trier erred by not making certain findings based upon the testimony of the claimant, two of her physicians, her vocational expert, and the contents of the surveillance tapes that were introduced into evidence. It argues that their proposed findings were “of obvious materiality to the work/earning capacity issue,” and that all of those facts are undisputed and relevant in light of the claimant’s pursuit of a total disability claim in the vein of Osterlund v. State, 135 Conn. 498, 506-07 (1949). Brief, p. 42. “The combination of a masters level education, 16 years of work as a speech therapist, and a sedentary work capacity belies any conclusion of total disability, and the respondents are entitled to have the appropriate findings of undisputed fact included in the finding for appeal.” Id., p. 43.

In resolving questions of fact that arise in workers’ compensation proceedings, the trial commissioner is charged with determining the credibility of lay and expert witnesses, as well as documentary or other evidence that is introduced into the record. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). The trier’s factfinding discretion empowers him to rely on all, part or none of a witness’ testimony, and the trier is not required to regard any statement as probative, even if it appears to be uncontradicted on its surface. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000); Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 1592 CRB-5-92-12 (April 27, 1995). This board may not second-guess such determinations of credibility on appeal. If there is evidence in the record to support a factual finding, we must honor that finding on review. Gagliardi v. Eagle Group Inc., 4496 CRB-2-02-2 (Feb. 27, 2003); Duddy, supra. As for our evaluation of the thoroughness of the findings, a trial commissioner is expected to include “only the ultimate relevant and material facts” in his findings, and should not add merely evidential facts, nor the reasons for his conclusions. Connecticut Administrative Regulation § 31-301-3. Gagliardi, supra; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002)(trier may omit facts that would not affect outcome of case given trier’s assessments of credibility).

Whether or not a claimant is totally disabled is such a question of fact for the trier, and is dependent on a claimant’s ability to meet her burden of proof. Figueiredo v. Barridon Corp., 4442 CRB-1-01-9 (Aug. 16, 2002); D’Amico v. State/Dept. of Correction, 4287 CRB-5-00-9 (Aug. 3, 2001), aff’d, 73 Conn. App. 718 (2002), cert. denied, 262 Conn. 933 (2003). Pursuant to the aforementioned Osterlund decision, a claimant who is theoretically capable of some work may nonetheless establish total disability by demonstrating that her labor is unmarketable as a practical matter. Murray v. Mass Mutual Life Ins. Co., 4590 CRB-1-02-11 (Nov. 20, 2003), citing Osterlund, supra; Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002). The respondent’s Form 36 of August 10, 2000 stated that the claimant had a light duty work capacity as per a report of Dr. Sella, and sought to discontinue her total disability benefits as of that date. The claimant, meanwhile, has continued to allege that her cumulative restrictions are so significant that no employer would seek her services.

In finding the claimant to be totally disabled, the trier noted that her testimony was credible and persuasive as to “the injury she sustained, the extent of disability that she suffers, the amount of pain that she endures, and the type of restrictions she has in regards to her injury and subsequent surgery.” Findings, ¶ 6. He also deemed Dr. Mintz credible “in regards to his position that the claimant is medically unable to work due to her back injury and subsequent surgeries therefrom;” Findings, ¶ 7; and he was persuaded by Dr. Sella’s opinion “in that if the claimant’s symptoms are as stated then she would not be able to work.” Findings, ¶ 8. The evidence contains support for these findings.

The deposition of Dr. Mintz reveals his strong belief that the claimant was physically not capable of meeting the consistent demands of holding down a regular job, even though she had shown an ability to handle tasks that could be managed at her own pace, such as running errands, volunteering at her church, and supervising her grandchildren. Joint Exhibit 1, pp.19-23. Dr. Sella’s opinion was more ambiguous, insofar as he stated that the claimant’s orthopedic status alone would not prevent her from performing a light-duty job. Joint Exhibit 2, pp. 11, 16. However, the claimant had also reported to him symptoms such as depression, stress, post-traumatic stress syndrome, and chronic benign pain syndrome. Dr. Sella thought that the presence of such symptoms would prevent the claimant from working, and personally had observed signs of depression, somatization (external manifestation of suppressed psychological problems), and intractable benign pain syndrome. Id., pp. 16-22.

As part of the respondent’s Motion to Correct, it sought to add seventy-six factual findings that were based on the evidence presented at the formal hearings. It characterizes these findings as undisputed material facts, “many [of which] were based on the testimony of the claimant herself, or her own expert witnesses.” Brief, p. 41. A material fact is one that would affect the outcome of a case. Where a requested correction would not have such an impact, we will uphold a commissioner’s denial of a Motion to Correct. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995).

The facts set forth in the respondent’s Motion to Correct largely concern the claimant’s daily activities, skills, interests, and volunteering duties, along with those comments by Dr. Mintz and Dr. Sella that were favorable to the notion that the claimant has a work capacity. The respondent also sought to highlight statements focusing on Jennifer Ryan’s unfamiliarity with the realities of doing speech therapy with older children, adults, and nursing home residents, and her description of the profession as being short-handed and conducive to part-time work. Though these statements and factual assertions may not have been specifically contradicted in the testimony, the trier was not required to find them probative. See Goldberg, supra. Indeed, we presume that he considered that testimony, but disagreed with the respondent’s contention that it should affect his decision regarding the claimant’s work capacity. Insofar as the commissioner relied on the claimant’s testimony as to her physical complaints and her medication status, and the portions of Dr. Mintz’ and Dr. Sella’s opinions that are skeptical of the claimant’s having a work capacity given her overall condition, the proposed findings in the Motion to Correct would have had no effect on the outcome of the case. Thus, we must affirm the trier’s denial of that motion, insofar as it sought to add findings related to the testimony at the formal hearings.

We do sustain the respondent’s challenge to the award of testimonial fees for Dr. Cohen and Jennifer Ryan. Vocational rehabilitation specialists and other non-physician expert witnesses who testify on behalf of a claimant are not included in § 31-298 as witnesses whose testimonial costs can be assigned to respondents in the event a claimant prevails on a contested claim. The statute only allows payment for costs associated with testimony by “a competent physician, surgeon or other medical provider.” As there is no other statutory basis for recovery of testimonial fees by a claimant, the trial commissioner was without authority to order the respondent to make such payment. Aguayo v. Franklin Mushroom Farms, Inc., 3697 CRB-2-97-1 (Jan. 28, 1999).

In conclusion, we find no error with regard to the trial commissioner’s decision to deny the Motion to Correct, insofar as it sought to add findings that would conflict with the commissioner’s conclusion that the claimant did not have a meaningful work capacity at the time that the Form 36 was filed. However, we do find error insofar as the trier ordered the respondent to pay for the costs of non-medical experts who testified on behalf of the claimant, and reverse that award. With regard to the trier’s reliance on the now-vacated December 28, 2000 Finding and Award as a basis for his findings (including unreasonable contest), we remand this matter so that the trier may issue a clarification of his decision without the influence of that ruling. Should the trier discover it necessary to take further evidence with regard to the continued existence of total disability from January 13, 1995 forward, further hearings may be scheduled on that matter.

Commissioners James J. Metro and Howard M. Belkin concur.

1 The trial commissioner who presided over these formal hearings was a member of the three-commissioner CRB panel that had decided the § 31-307a(c) COLA reimbursement question. Neither party had an objection to his presiding over the formal hearing, as it did not directly implicate the COLA issue. See August 21, 2001 Transcript, pp. 2-3. BACK TO TEXT

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