State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Rurak v. Sweet Life Inc.

CASE NO. 4630 CRB-1-03-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

FEBRUARY 6, 2004

EDWARD M. RURAK

CLAIMANT-APPELLANT

v.

SWEET LIFE INC.

EMPLOYER

and

KEMPER NATIONAL INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant appeared pro se at oral argument.

The respondents were represented by Attorney James D. Moran, Jr., Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.

This Petition for Review from the February 10, 2003 Finding and Approval of the Commissioner acting for the First District was heard August 29, 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, Edward M. Rurak, has appealed from the February 10, 2003 Finding and Approval of the Commissioner acting for the First District. We dismiss this appeal for failure to prosecute.

The pertinent facts are as follows. On March 5, 1987 the claimant sustained a compensable low back injury which arose out of and during the course of his employment with the respondent, Sweet Life Foods, Inc. The trial commissioner took administrative notice of a Voluntary Agreement approved on December 6, 1995 which acknowledges a 22 percent permanent partial impairment to the claimant’s back. Following the approval of the Voluntary Agreement, the claimant underwent an authorized lumbar spinal fusion surgery performed by his treating physicians, Dr. Gerald Becker and Dr. William P. Druckemiller. After the operation, the respondents paid the claimant roughly three years of temporary total disability benefits. The claimant was eventually placed on a light-duty work capacity by Dr. Becker and the respondents continued to pay temporary partial benefits pursuant to § 31-308(a). The trial commissioner took administrative notice of a Form 36 received at the First District Workers’ Compensation Commission offices on September 18, 2001 which was approved administratively. The Form 36 was attached to a letter/report dated April 6, 2001 from Dr. Becker that stated the claimant had reached maximum medical improvement status from the October 1997 surgery with a permanency rating of 25 percent of the back.

In a report dated October 1, 2001 Dr. Becker again opined that the claimant had reached maximum medical improvement. The respondent-carrier paid the additional three percent permanent partial disability rating to the claimant. The trial commissioner found that there was undisputed, credible, persuasive evidence the claimant has reached maximum medical improvement with a 25 percent rating. Therefore, the trial commissioner approved the Form 36 with an effective date of September 18, 2001 based on the record before him at the formal hearing. The claimant failed to file a Motion to Correct the commissioner’s findings. The claimant filed a timely Petition for Review on February 24, 2003, but failed to file any documents in support of this appeal.

Although we afford pro se litigants some flexibility in the documents they file in furtherance on their appeal, a claimant must file some document that puts all parties on notice as to the issues for which review is sought. Generally, an appellant’s reasons for appeal serve that function. In the instant matter, no documents were filed by which the appellant would apprise the opposing party as to the grounds for appeal. Accordingly, we dismiss the claimant’s appeal for failure to prosecute with proper diligence pursuant to Practice Book § 85-1. See Simpson v. Mediplex of Wethersfield, 4210 CRB-6-00-3 (May 4, 2001); Thomas v. Cash Oil, 15 Conn. Workers’ Comp. Rev. Op. 410, 2272 CRB-3-95-1 (August 28, 1996); Divita v. Thames Valley Steel, 12 Conn. Workers’ Comp. Rev. Op. 50, 1541 CRB-2-92-10 (January 26, 1994); Milardo v. Shuck Petroleum, 11 Conn. Workers’ Comp. Rev. Op. 279, 1559 CRB-8-92-11 (November 22, 1993).

Even if we were to consider the merits of the claimant’s appeal, we would necessarily affirm the trial commissioner’s decision. First, we note the claimant did not file a Motion to Correct with the trial commissioner. As the trier’s findings are unchallenged they must stand. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (January 17, 1996); Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995); Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (February 28, 1994); Administrative Regulation § 31-301-4. We are then left to determine whether the trial commissioner applied the law correctly to the facts and did not draw any illegal inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). We see no legal error.

At oral argument the claimant presented two possible legal errors. Firstly, the claimant alleged the approval of the Form 36 was improper because he never received a copy of it via certified mail as required by § 31-321 C.G.S. If a claimant receives a Form 36 and wants to contest its validity, it is incumbent upon the claimant to request a hearing within ten days per § 31-296 C.G.S. Despite the fact the claimant missed the ten-day period to contest the Form 36 and it was administratively granted, on August 12, 2002 the claimant was given a formal hearing on the matter. Therefore, even if there was a flaw in the service of the Form 36, the claimant was still afforded the opportunity to present his case against the approval of the Form 36 as he would have if he received notice consistent with § 31-321. Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319 (2003). The record does not reveal the claimant presented any evidence to rebut Dr. Becker’s opinion that he had reached maximum medical improvement. Therefore, we would have affirmed the trial commissioner’s approval of the Form 36 based on the evidence before him.

Secondly, the claimant argues that evidence was suppressed and/or the evidence Dr. Becker relied on was not accurate. The claimant alleges the respondent insurer improperly denied coverage for a SPECT study that Dr. Becker recommended in a medical report dated February 23, 2001, and that the study was necessary for Dr. Becker to form an opinion as to whether the claimant had reached maximum medical improvement. However, the trial commissioner based the approval of the Form 36 on later medical reports of Dr. Becker. In a letter/report dated April 6, 2001 Dr. Becker stated the claimant has reached maximum medical improvement status and again so stated in a report dated October 1, 2001. Presumably, if Dr. Becker believed the SPECT study was needed to form this opinion, he would not have reached his conclusion prior to the scan being completed. The claimant needed to present some credible medical evidence that the SPECT study was the only means of determining whether he reached maximum medical improvement in order to prove Dr. Becker’s opinion was unreliable. No such evidence was presented; therefore, we would have affirmed the trial commissioner’s decision based on his reliance of Dr. Becker’s opinion.

The claimant also challenges the legal competency of Dr. Becker’s April 6, 2001 letter. He claims the letter was unreliable evidence because under Dr. Becker’s signature it was noted “dictated but not read.” The claimant argued that this meant that the letter was written by Dr. Becker without reviewing the medical records or using the necessary tests prior to making his evaluation. As we explained to the claimant at oral argument, the phrase “dictated but not read” is commonly used to refer to the fact that the author of the letter dictated it to an administrative staff person who typed the letter; however, it was not reviewed again by the author thereafter. Therefore, we find no error in the trial commissioner’s reliance on Dr. Becker’s April 6, 2001 report and would have affirmed the trial commissioner’s findings had we not dismissed this appeal.

We also note the claimant filed several medical reports with the Compensation Review Board after the oral argument on this case was completed. If the claimant’s purpose in filing these medical reports was to present further evidence in support of his appeal, we cannot review them as part of the record. The claimant could have submitted this evidence prior to the oral argument via a Motion to Submit Additional Evidence if he was able to meet the standards of Admin. Reg. § 31-301-9 and prove these records were unavailable at the time of the formal hearing. However, as this evidence was submitted after the oral argument and there is no indication copies were provided to the opposing party, it will not be considered as part of the record.1 The claimant should note that materials submitted to the Compensation Review Board are not forwarded to the trial commissioner for the purpose of opening the claim for further proceedings. If the claimant wishes to further pursue any aspect of the claim, he should file appropriate materials directly with the trial commissioner’s office.

We hereby dismiss this appeal for failure to prosecute.

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

1 We note that one of the reports the claimant submitted was a letter/report from Dr. Becker dated April 28, 2003 which states after obtaining the SPECT study, he still opined the claimant had reached maximum medical improvement which is consistent with his earlier reports prior to the scan. span class="back">BACK TO TEXT

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