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Krol v. A. V. Tuchy, Inc.

CASE NO. 4613 CRB-4-03-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 29, 2004

RUSSELL KROL

CLAIMANT-APPELLANT

v.

A. V. TUCHY, INC.

EMPLOYER

and

ROYAL & SUNALLIANCE

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Laurence Parnoff, Esq., 1566 Park Avenue, Bridgeport, CT 06604.

The respondents were represented by James Sullivan, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the January 13, 2003 Finding and Award of the Commissioner acting for the Fourth District was heard July 18, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 13, 2003 Finding and Award of the Commissioner acting for the Fourth District. He asserts on appeal that the trier erred by granting a Form 36 filed by the respondents in August 1999, challenging both the manner in which notice was served and the substance of the ruling itself. He also objects to the date of maximum medical improvement. We find no error on review, and affirm the trial commissioner’s decision.

The trier found that the claimant sustained a compensable injury to his back on April 9, 1998. He began treating with Dr. Lipow, and underwent back surgery two months later. On April 14, 1999, the respondents obtained a report from Dr. Opalak, their medical examiner. In that report, Dr. Opalak explained that the claimant “requires treatment with a TLSO brace—this of course means that he can be braced at any time but obviously sooner would be better than later. Prior to having the brace, however, I do not feel he has a work capacity.” Claimant’s Exhibit B. On May 14, 1999, a workers’ compensation commissioner denied a Form 36, citing Dr. Opalak’s report.

Dr. Lipow then completed a Form 42 on July 28, 1999, in which he indicated that the claimant had reached maximum medical improvement as of February 18, 1999 with a 12% permanent partial impairment of the back. He explained that the claimant was “capable of performing light duty work with a 30 pound weight lifting restriction with avoidance of repetitive bending. He should also utilize a lumbar corset.” Claimant’s Exhibit E. The claimant acknowledged receiving and using that lumbar corset (which is not identical to the TLSO brace earlier mentioned by Dr. Opalak). The respondents then filed a second Form 36 on August 16, 1999 seeking to remove the claimant from total disability status. Because the claimant was on vacation at the time, he did not immediately receive his certified mail notification of the Form 36 and did not file an objection to it until August 27, 1999, slightly beyond the ten-day objection period provided by § 31-296 C.G.S. This resulted in administrative approval of the Form 36 effective as of the August 16, 1999 receipt date.

Five informal hearings were subsequently held to address the Form 36, none of which resulted in the overturning of its administrative approval. On February 28, 2000, Dr. Bindelglass, to whom Dr. Lipow had referred the claimant, opined that problems that the claimant had been experiencing with his right knee were causally related to his compensable back injury. The respondents initially contested compensability of this claim, but accepted it after Dr. Margolis, a respondent’s examiner, corroborated Dr. Bindelglass’ findings. Dr. Bindelglass was of the opinion that the claimant had reached maximum medical improvement for the knee injury as of the February 28, 2000 examination date. Dr. Lipow, meanwhile, first prescribed the use of a TLSO brace on June 27, 2000.

The trier of fact found that the respondents had provided sufficient notice to the claimant of the August 16, 1999 Form 36, and found credible Dr. Lipow’s opinions and reports regarding the claimant’s light duty work capacity (with the use of a lumbar corset) and his maximum medical improvement date of July 27, 1999. The trier thus confirmed the August 16, 1999 approval of the Form 36. He also found that the right knee injury was compensable, and that it did not reach maximum medical improvement until February 28, 2000, at which time the claimant became eligible for permanent partial disability benefits for both the back and right knee. See Rayhall v. Akim Co., 263 Conn. 328, 357 (2003)(claimant may elect to postpone permanency award until all injured members have reached maximum medical improvement). The claimant has filed a petition for review from that ruling.

The claimant first alleges on appeal that reversal of the trial commissioner’s decision is warranted because the correct legal procedure was not followed in approving the August 16, 1999 Form 36. In the claimant’s view, he was entitled to ten days following the actual receipt (i.e., the act of opening and reading) of notice of the Form 36 before it could be administratively approved. The record in this case contains a Form 36 date-stamped August 16, 1999 by the Fourth District office of this Commission. As found by the trial commissioner, it was approved on August 27, 1999 effective as of the date of its filing. Also on August 27, 1999, the claimant filed a request for a hearing on the Form 36, among other issues.

Despite the claimant’s allegations, we need not delve into the extenuating circumstances of the claimant’s receipt of the Form 36 at this stage of the proceedings. The subsequent completion of a full evidentiary formal hearing on the subject of the August 16, 1999 Form 36 has rendered moot any alleged procedural inconsistencies regarding the prior administrative approval of that Form 36. Such a formal hearing is in essence a de novo review of the administrative ruling, at which full due process is accorded, and no legal weight is given to the previous ruling. Covaleski v. Casual Corner, 4419 CRB-1-01-7 (June 27, 2002). The trial commissioner considers the parties’ evidence anew, and makes an independent decision as to whether the Form 36 should be granted or denied. Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (Nov. 1, 2001), citing Anguish v. TLM, Inc., 3437 CRB-7-96-9 (Jan. 20, 1998), aff’d, 53 Conn. App. 241 (1999)(per curiam), cert. denied, 250 Conn. 910 (1999). That ruling, of course, may be reviewed on its own merits to ensure that it is adequately supported by the evidence in the record. The prior interlocutory rulings are no longer an appropriate subject for review, however, as they have been superseded, with any procedural defects having been cured in the process.1

The claimant’s substantive objection to the granting of the Form 36 focuses on his allegation that all of the involved physicians ultimately recommended the TLSO back brace, including Dr. Lipow (who wrote a prescription for a TLSO brace on June 27, 2000, with no additional discussion). As always, it was the trial commissioner’s prerogative to rely on whichever set of medical opinions he found most persuasive. 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). The trier here explicitly credited Dr. Lipow’s opinions regarding work capacity, including a July 27, 1999 report which placed the claimant at maximum medical improvement with a 12% permanent partial impairment of the lower back, and released him for light duty work with the use of a lumbar corset that was provided to him at that time. Although the claimant argues that he needed to have a TLSO back brace as a prerequisite to any work capacity, Dr. Lipow’s August 1999 opinion need not be discounted on the basis of his subsequent TLSO prescription. Nowhere does Dr. Lipow state that the claimant was without a work capacity absent the TLSO brace. See Claimant’s Exhibits C, E, F. The only opinion of his that directly addresses work capacity is the one cited in the commissioner’s findings. Thus, the trier’s express reliance on Dr. Lipow’s opinions regarding work capacity is consistent with his finding that the claimant had a work capacity at the time the August 16, 1999 Form 36 was filed.

We acknowledge that the claimant testified the lumbar corset was “not very effective” in providing him with the kind of support he needed to work, but the trial commissioner was not required to rely on that testimony, or to interpret it as definitively negating any work capacity. December 13, 2001 Transcript, p. 32; Duddy, supra. Likewise, the trier was not required to place greater weight on Dr. Opalak’s opinion regarding the TLSO brace than he was on the opinions of the other doctors. Tartaglino, supra. We note also that Dr. Margolis described the claimant as being capable of performing light carpentry work in his August 8, 2000 report, without mention of the use of any particular brace. Claimant’s Exhibit L. In fact, the only doctor whose reports discuss the necessity of the TLSO brace is Dr. Opalak. The claimant’s assertion in his brief that “all physicians ultimately recommended the TLSO back brace for the claimant to have a work capacity” is not established by the documents in the formal hearing record, and we cannot make assumptions as to the truth of that statement based on external information that is not properly before us on review.

The claimant also challenges the trier’s finding regarding the February 28, 2000 maximum medical improvement date for both his back and his knee conditions. The claimant argues that, according to the evidence, he could not have reached maximum medical improvement until November 15, 2001 (the date the last series of Synvisc injections for his knees was completed), due to his need for the TLSO brace and for Synvisc injections. See Claimant’s Exhibits N, O. He reasons that, because Dr. Margolis and Dr. Abidor both opined that the claimant’s knee injury and back injury were resulting in a combined deficit greater than either body part would have produced individually, the claimant did not reach maximum medical improvement until both conditions were operable. Claimant’s Exhibits L, O.

The trial commissioner had that evidence before him. However, he chose to rely instead upon the opinion of Dr. Bindelglass, who issued a letter on February 28, 2000 stating that the claimant would continue to have knee weakness on a persistent basis, and that he had reached maximum improvement for that injury. Further, Dr. Margolis was of the opinion that maximum medical improvement had already been reached in the right knee when he performed his independent medical examination of August 8, 2000. Claimant’s Exhibit L. He also stated that the claimant “has made an excellent recovery from disc rupture with its associated quadriceps weakening secondary to L-4 radiculopathy.” Id. As for the conjoined knee and back deficits, Dr. Margolis opined that they prevented the claimant from returning to heavy construction work. He did not state, however, that the condition of either the back or the knee would continue to improve; indeed, his opinion reflected the opposite viewpoint. Given this evidence, we find ample support in the record for the trier’s assignment of a February 28, 2000 maximum medical improvement date for the pair of conditions (recognizing that the trier identified an earlier July 27, 1999 maximum improvement date for the back alone).

The trial commissioner’s decision is accordingly affirmed. Insofar as any benefits due the claimant may have remained unpaid pending appeal, interest is awarded pursuant to the mandate of § 31-301c(b).

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

1 We note also that the trial commissioner did not impermissibly “overrule” the earlier administrative ruling on the May 13, 1999 Form 36, as suggested by the claimant in his brief. The issue before the trial commissioner was a subsequent Form 36 that was based on new medical evidence, i.e., the July 27, 1999 report of Dr. Lipow. span class="back">BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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