CASE NO. 4853 CRB-3-04-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 22, 2004
CITY OF BRIDGEPORT
The claimant was represented by Daniel H. Kryzanski, Esq., and Mark Carron, Esq., Carron & Fink, 1698-A Post Road East, Peppermill Office Building, Westport, CT 06880.
The respondents, City of Bridgeport and Berkley Administrators, were represented by Michael Buonopane, Esq. and Marie E. Gallo-Hall, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.
This Petition for Review from the August 23, 2004 Finding of the Commissioner acting for the Fourth District was decided by a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Stephen B. Delaney.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, City of Bridgeport and Berkley Administrators, have appealed from the August 23, 2004 Finding of the Commissioner acting for the Fourth District. We affirm the decision of the trial commissioner.
The pertinent facts are as follows. On January 19, 2000, the claimant sustained a compensable injury to his left leg when he fell off a ladder in the course of his employment. The claimant alleged he sustained a head injury as a result of the same fall on that date. The respondents maintained the claimant did not sustain a head injury at that time. The respondent-employer terminated the claimant’s health insurance and gave him the appropriate COBRA notice. The claimant alleged he could not afford to purchase the COBRA insurance and he was thereafter left uninsured.
The respondents did not provide health insurance to the claimant pursuant to § 31-284b C.G.S. The respondents claimed there was no duty to reinstate the claimant’s health insurance or any other fringe benefits because the payment of the claimant’s permanency benefits took place subsequent to the scheduled expiration of those benefits. The claimant sought reinstatement of his health insurance for some period of time on a prospective basis based on the respondents’ termination of the insurance for a period he should have retained such under § 31-284b.
In a February 7, 2003 Finding and Award the trial commissioner dismissed the claimant’s claim for a head/traumatic brain injury pursuant to § 31-294c C.G.S. The trial commissioner found that the claimant did not establish sufficient evidence necessary to satisfy the exemption for notice pursuant to §§ 31-294c and 31-294d and dismissed the claim as untimely. The trial commissioner found the claimant was entitled to permanent partial disability benefits and that the claimant was also entitled to health insurance benefits for that period pursuant to § 31-284b C.G.S. The trial commissioner ordered the respondents to pay any out of pocket medical expenses the claimant had incurred from January 28, 2002 to June 8, 2002.
The claimant appealed the February 2, 2003 Finding and this tribunal issued its opinion in Scott v. Bridgeport, 4637 CRB-4-03-2 (February 24, 2004) [hereinafter “Scott I”]. The two issues in that appeal were whether the trial commissioner improperly dismissed the claimant’s claim for a head/traumatic brain injury as untimely pursuant to § 31-294(c) and whether the trial commissioner’s order regarding paying out of pocket medical expenses for the period the claimant should have been provided medical insurance under § 31-284b was inadequate.
In Scott I, this panel found that because the claimant’s January 19, 2000 left leg injury was compensable the claimant should have been permitted an opportunity to pursue his head/traumatic brain injury that he alleged occurred as a result of that same incident without the need for an additional notice of claim. Therefore, the board determined the claim should not have been dismissed as untimely. This board stated,
The claimant should have the opportunity to demonstrate the causal link between a compensable accident and the head/traumatic brain injury. The fact the claimant later filed a notice of claim specifically for the head/traumatic brain injury is of no consequence as the prior notice of claim was already timely filed. We remand the case to the trial commissioner in order for the claimant to have the opportunity to present evidence that the January 19, 2000 fall was the cause of his head/traumatic brain injury. Id.
The panel also determined that the claimant was entitled to insurance coverage under § 31-284b which the respondent had wrongfully terminated. Therefore, the case was further remanded “in order for the claimant to have the opportunity to present evidence regarding his request for an order granting a period of health insurance under § 31-284b.” Id.
Subsequent to that appeal and remand the respondents submitted an Objection to New Evidence and supporting memorandum to the trial commissioner on June 22, 2004. In response the claimant filed a Memorandum in Support of Claimant’s Introduction of Evidence on July 2, 2004.1 The trial commissioner’s decision to grant the claimant’s request to introduce further evidence on August 23, 2004 is the subject of this appeal.
In claiming error to this board, the respondents contend that the trial commissioner was not free to consider new evidence on remand from this board’s February 24, 2004 decision. The respondents assert that decision did not specifically order the presentation of new evidence, therefore, the trial commissioner could not allow new evidence to be submitted as part of the proceedings below.
The respondents argue this case should be treated as though the claimant was attempting to submit new evidence via a Motion to Submit Additional evidence pursuant to Admin. Reg. 31-301-9. The respondents contend that because the claimant has failed to present a good reason that this evidence was not presented in the prior proceeding before the trial commissioner the evidence should not be allowed to be admitted at this time. Here, the claimant did present a reason that this evidence was not previously submitted. In the prior appeal we stated, “The claimant was entitled to insurance coverage under § 31-284b.” Scott I, supra. The claimant has alleged that one of the ways he could have obtained supporting medical evidence regarding the compensability of the head injury would have been to see a medical professional and obtain relevant medical documentation via his § 31-284b insurance coverage. However, the respondents wrongfully terminated the claimant’s medical insurance therefore, the claimant missed the opportunity to obtain necessary medical evidence in a timely fashion.
The language of the remand order suggests that the claimant should have the opportunity to present additional evidence. In Scott I, supra, this board stated the claimant should have the opportunity to “present evidence.” The Webster’s School New College Dictionary (1995) defines the word “present” in this context as “to offer to a legislature or court for consideration.” If we merely intended for the trial commissioner to review the evidence already submitted in the case the remand order would have stated that the trial commissioner should examine the evidence already in the record. In using the word “present” it was our intent that the claimant would have the opportunity to offer new evidence.
Furthermore, compensability of the head injury was not an issue addressed in the proceedings below because the claim was found to be untimely. The issues listed in the February 7, 2002 Finding and Award were whether the claimant provided timely notice of his claim pursuant to § 31-294c and whether the claimant met any of the statutory exceptions to providing a timely notice of claim pursuant to § 31-294c (c) and/or § 31-294d and whether the claimant was entitled to benefits pursuant to § 31-284b. Findings, ¶¶ 1, 2 and 3. The claim for the head injury was dismissed for lack of jurisdiction. Therefore, it does not appear that compensability was necessarily addressed as part of the initial formal hearing. Compensability is now at issue, therefore, due process dictates that the claimant should have the opportunity to present any relevant evidence regarding that matter on remand.
Additionally, the decision of whether to allow further evidence on remand to some extent lies in the trial commissioner’s discretion. Recently, in Kelly v. Dunkin’ Donuts, 4621 CRB-4-03-2 (April 5, 2004) this board addressed the subject of a trial commissioner’s obligations when carrying out a remand order. We explained that although a trier is limited to the direction of the specific commands of the remand order, “remand orders need not be construed so narrowly as to prohibit the trier of fact from considering matters relevant to the issues upon which further proceedings have been ordered, even if those matters were not envisioned at the time of remand.” Id. citing Higgins v. Karp, 243 Conn. 495, 503; Halpern v. Board of Education, 231 Conn. 308, 313 (1994). Here, the trial commissioner ordered that the claimant should be allowed to submit the additional evidence. This seems reasonable in light of the issues before the trial commissioner. We see no reason to disturb this determination.
Therefore, for these reasons, we affirm the decision of the trial commissioner.
Commissioners James J. Metro and Stephen B. Delaney concur.
1 It should be noted that the claimant in this case never made a formal request to submit new evidence. The claimant only responded to the respondents’ Memorandum in Objection to New Evidence. BACK TO TEXT