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Donovan v. State of Connecticut/University of Connecticut Health Center

CASE NO. 4800 CRB-6-04-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 24, 2005

ANITA DONOVAN

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/UNIVERSITY OF CONNECTICUT HEALTH CENTER

EMPLOYER

and

GAB ROBINS NORTH AMERICA

ADMINISTRATOR

RESPONDENT-APPELLANT

APPEARANCES:

The claimant appeared pro se and was represented by her husband, Christopher Donovan.

The respondent State of Connecticut/University of Connecticut Health Center was represented by Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

The respondent GAB Robins North America was represented by Jennifer Owens, Esq., Brown, Paindiris & Scott, LLP, 2252 Main Street, Glastonbury, CT 06033.

This Petition for Review from the March 22, 2004 Finding and Award of the Commissioner acting for the Sixth District was heard November 19, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles F. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, State of Connecticut/University of Connecticut Health Center and GAB Robins North America, have appealed from the March 22, 2004 Finding and Award of the Commissioner acting for the Sixth District. The decision of the trial commissioner is affirmed.1

The pertinent facts are as follows. The claimant, Anita Donovan, was employed as a nurse for the respondent employer. On December 18, 2001 she was injured in the course of her employment when she was kicked in the right arm by a patient at the Cheshire Correctional Center. On April 1, 2003 the commission approved a voluntary agreement for her injuries. The claimant was authorized to treat with Dr. Russell Chiappetta.

On September 16, 2002 the respondent insurer sent the claimant to see Dr. Duffield Ashmead, an orthopedic surgeon and plastic surgeon. Dr. Ashmead recommended the claimant undergo a comprehensive neurological evaluation. “He also indicated the claimant was deemed capable of sedentary work at most and that she clearly could not return to her original work as yet.” Findings, ¶ 5, citing, Joint Exhibit 2. As a result of this report, a Form 36 was filed which was received by the Sixth District of the Workers’ Compensation Commission and administratively approved on September 24, 2002.

Christopher Donovan, the claimant’s husband, testified that he had a conversation with the insurer’s claims adjuster who told him that the claimant’s benefits would continue until the claimant returned to work. He alleged that he was never advised that those benefits would be reduced. In fact, the benefits were not reduced.

On September 6, 2002 the claimant returned to Dr. Chiappetta and at that time he diagnosed the claimant with carpal tunnel syndrome and cubital tunnel syndrome. Dr. Chiappetta stated that the claimant would not be able to return to work until at least October 5, 2002. The claimant returned to see Dr. Ashmead on March 10, 2003 and he indicated that the claimant had reached maximum medical improvement with a twelve per cent permanent partial disability of her master right hand.

During the formal hearing proceedings the respondent contended that payments made after September 24, 2002 should have been paid at the temporary partial benefit rate instead of the temporary total rate. In response the claimant asserted that she was unable to work until March 10, 2003 when Dr. Ashmead indicated that she had reached maximum medical improvement and she was entitled to total incapacity benefits through that date. The trial commissioner determined that the Form 36 should have been denied. He found the claimant was entitled to total incapacity benefits through March 10, 2003 and that she was not liable for any overpayment because none existed.

The respondent has appealed this finding and award claiming that the trier erred as a matter of law in finding that the Form 36 was erroneously approved. We disagree. Once the employer files a Form 36 § 31-296 C.G.S. states in relevant part, “the employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice. . . The commissioner shall not approve any such discontinuance or reduction prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later.” (emphasis added). In Santiago v. Metropolitan Insurance Co., 12 Conn. Workers’ Comp. Rev. Op. 388, 1631 CRB-6-93-1 (September 1, 1994), appeal dismissed, A.C. 14008 (February 3, 1995), this board determined that use of the word “may” in the statute indicates that the time period for contesting the Form 36 is “directory as opposed to mandatory.” Depending on the circumstances of an individual case we have allowed a claimant to challenge the Form 36 at a de novo formal hearing after the ten-day period has expired. Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB-3-02-1 (February 25, 2003) citing Santiago, supra.

Here, the trial commissioner determined that the circumstances of the case warranted that the administrative approval the Form 36 should be reversed. The trier’s decision whether to allow a contest after the ten-day period lies within their discretionary powers. Santiago, supra. In this case when the claimant received the Form 36 she had her husband, Chris Donovan, call the respondent’s claims adjuster, Jill Ference,2 regarding the notice. February 17, 2004 Transcript, p. 16. Mr. Donovan testified that he asked Ms. Ference what the status of the claim was because he was concerned about the period he had to contest the Form 36. Mr. Donovan stated, “she [Ms. Ference] told me that it [the form 36] was a formality based on the note that Dr. Ashmead had sent, that it was their way of requesting my wife to perform a job search and that it would in no way, shape or form reduce her work benefit as long as she performed the job search.” Id., p. 23. Ms. Ference testified that although Mr. Donovan specifically called her to ask how the Form 36 process worked she never advised him that the claimant’s benefits would be reduced, instead she told him that the claimant’s benefits would continue. Id. pp. 31-32. Ms. Ference could not recall if she advised Mr. Donovan to call the Commission for a further explanation of the form. Id. p. 31-32.

Although the Form 36 was administratively approved, the claimant’s benefits were not in fact reduced instead the benefits continued to be paid at the same rate. Id. p. 30. Ms. Ference explained that the reduction of benefits was never processed due to an oversight. Id. p. 33. Therefore, the claimant never noticed a change in benefits until a new adjuster was assigned to the case in February of 2003 and the respondent thereafter sought an overpayment order. Id. p. 8. Given the totality of circumstances here, we do not believe that the commissioner abused his discretionary powers in reversing the administrative approval of the Form 36.

Furthermore, although the respondent contends that there were insufficient facts in the record to support the trier’s findings, we disagree. Based on the evidence in the record the trial commissioner found that the Form 36 should not have been approved. Dr. Ashmead’s September 16, 2002 medical report indicated that the claimant “needed further comprehensive neurological evaluation and at most she was capable of sedentary work but she clearly could not return to her original work at that time.” Findings, ¶ 1, p. 3. Dr. Ashmead found that the claimant had not reached maximum medical improvement until March 10, 2003. Id.; Joint Exhibit 2. Dr. Chiappetta opined that the claimant could not return to work until after October 5, 2002. Id.; Claimant’s Exhibit A. We will not overturn the findings and conclusions of a trial commissioner unless they are without evidentiary support, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); DelConte v. State/Department of Correction, 4766 CRB-8-03-12 (December 8, 2004). Here, there is evidence in the record to support the trial commissioner’s finding, therefore, it will stand.

The decision of the trial commissioner is affirmed.

Commissioners A. Thomas White, Jr. and Charles F. Senich concur.

1 We note that an extension of time was granted during the course of the appellate process. BACK TO TEXT

2 The respondent’s claims adjuster formerly was called Jill Ference but at some point during the events in question changed her name to Jill Moulton. February 17, 2004 Transcript, pp. 25-26. BACK TO TEXT

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