State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Hicking v. State of Connecticut/Department of Correction

CASE NO. 4825 CRB-2-04-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 14, 2005

SUSANNE HICKING

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPARTMENT OF CORRECTION

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB ROBINS NORTH AMERICA INC.

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Ralph A. Russo, Esq., Law Offices of Ralph A. Russo, 49 Welles Street, Suite 212, Glastonbury, CT 06033.

The respondent was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm Street, 5th Floor, P.O. Box 120, Hartford, CT 06141-0120.

Anthem Blue Cross/Blue Shield was represented by Jason Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the May 6, 2004 Finding and Award and June 22, 2004 Ruling on Motion to Reopen Finding and Award of the Commissioner acting for the Second District was heard December 17, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Charles E. Senich.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondent, State of Connecticut/Department of Correction has appealed from the May 6, 2004 Finding and Award and June 22, 2004 Ruling on Motion to Reopen Finding and Award of the Commissioner acting for the Second District.1 We affirm the trial commissioner’s decision.

Initially we will address the claimant’s Motion to Dismiss this appeal on the ground that the respondent’s Petition for Review was not filed within the statutory time period. The claimant filed a Motion to Dismiss the appeal which was received by this office on July 6, 2004. Pursuant to § 31-301(a) C.G.S. a party must file a petition for review within twenty days of the date of notice of a trial commissioner’s determination. When a petitioner does not file an appeal within the statutorily prescribed time period the board loses subject matter jurisdiction of the matter and the appeal must be dismissed. Freeman v. Hull Dye & Print, Inc., 39 Conn. App. 717, 720 (1995); Orciari v. Labor Ready, Inc., 4702 CRB-5-03-8 (May 25, 2005). In this case the trial commissioner issued the Finding and Award and sent notice to the parties of his decision on May 6, 2004. The respondent filed a Petition for Review with the Second District Workers’ Compensation Commission office on June 24, 2004, which is more than twenty days after the trial commissioner’s notice of his determination.

However, the respondent correctly notes that it filed a Motion to Reopen the Finding and Award on May 21, 2004, within twenty days of the date the parties were sent notice of the decision. That Motion to Reopen was denied by the trial commissioner on June 22, 2004 and thereafter the respondent filed a Petition for Review on June 24, 2004, which was within the twenty days of the denial of that motion. Connecticut Practice Book § 63-1(a) through (c) explains that a new appeal period is created when a party files a motion that, if was granted, would render the judgment or decision appealed ineffective. Practice Book § 63-1(c)(1) specifically includes a Motion to Open Judgment in this category. In Prioli v. State/Connecticut State Library/Arts Commission, 3955 CRB-6-98-12 (January 13, 2000), aff’d, 64 Conn. App. 301 (2001), cert. denied, 258 Conn. 917 (2001), this board discussed the practice book rule in a case where a Motion to Reopen was filed within the § 31-301 time period, however, the Petition for Review was filed after the time period but within the prescribed 31-301(a) from the denial of that motion.2 The board rationalized, “The policy behind this [practice book] rule is sound. It prevents a party who has failed to file a timely appeal from circumventing the statutory appeal period by simply filing a motion to open, while at the same time recognizing the redundancy of requiring a party that seeks to reopen a decision to also file an appeal from the initial ruling before the motion to open has been decided.” Id. In Prioli, supra, we allowed the appeal to proceed. Our reasoning in Prioli, supra, is applicable in the instant case, therefore, the claimant’s Motion to Dismiss the respondent’s appeal is denied.3

We now reach the merits of the respondent’s appeal. The pertinent facts are as follows. The claimant worked for the respondent-employer as a correction officer from February 1990 through July 13, 2002. On July 13, 2002, the claimant was inspecting her area when she noticed a shower stall that was full of water. She opened the shower curtain and stepped inside the shower. She hyper-extended her left knee, which resulted in immediate pain to that knee. When the pain would not subside the claimant requested medical attention and was sent to the Hartford Medical Group where she was diagnosed with a left knee strain. At that time, the claimant was given a light duty restriction. She was told by her employer that no light duty work was available.

The claimant’s medical records indicated on July 30, 2002 she had increased left knee pain as a result of twisting her knee while she was walking downstairs in her house. She testified that while she was walking down the stairs her knee gave out. On August 12, 2002 the claimant underwent an MRI of the knee which revealed a complex tear involving the posterior horn and body of the medial meniscus with significant osteoarthritic changes. On August 28, 2002 Dr. Peter Barnett evaluated the claimant and diagnosed her with degenerative arthritis of the left knee. Dr. Edward Collins examined the claimant on October 14, 2002 and opined that the claimant’s work related injury had an accelerating effect upon her pre-existing arthritis and rendered her considerably symptomatic relative to her left knee.

Despite the fact that the claimant had been diagnosed and treated for rheumatoid arthritis in 1992, prior to the July 13, 2002 work-related incident the claimant was capable of performing her job as a correction officer. However, after that incident the claimant was no longer able to perform her job duties due to her knee injury. Since the date of the incident the claimant has sought other employment with a variety of employers.

The trial commissioner found that the claimant sustained a left knee injury which arose out of and during the course of her employment with the respondent-employer. He found that the July 30, 2002 incident at home was not a new identifiable injury, but rather a result of the weakened condition of her knee which was causally related to the July 13, 2002 injury. In making his determination the trial commissioner relied on Dr. Collins’ opinion. The trier found that the claimant is able, ready and willing to perform other work in the same locality, however, no other work has been available. Therefore, the trial commissioner ordered the respondent-employer to pay the claimant temporary partial disability benefits from July 13, 2002 through the date of the formal hearing. Additionally, the trier ordered that these benefits continue until the claimant reaches maximum medical improvement predicated on the claimant’s presenting proof of her continued efforts to find suitable employment within her physical work restrictions.

Additionally, Anthem Blue Cross/Blue Shield filed a lien in the amount of $2,471.83 for medical bills it paid as a result of the July 13, 2002 left knee injury. The trier ordered reimbursement of that lien.

The respondent has appealed the Finding and Award. The respondent alleges the trier erred by ordering temporary partial benefits through November 6, 2003 without any medical reports after October 14, 2002. This board has previously established that a commissioner has the right to award continuing temporary benefits beyond the last day of the evidentiary hearing. Dzamko v. Danbury, 4588 CRB-7-02-11 (November 26, 2003); Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319 (2003); Hidvegi v. Nidec Corp., 3607 CRB-5-97-5 (June 15, 1998); Morris v. A & A Acoustics, 3429 CRB-7-96-9 (August 8, 1997). In Hidvegi, supra, we explained:

‘[The] law requires that the employer will be monitoring the status of the case concerning the employee’s incapacity status, and it is presumed that the employer would know when the employee will be returning to work.’ Morris v. A & A Acoustics, 3429 CRB-7-96-9 (August 8, 1997), citing Platt v. UTC/Pratt & Whitney Aircraft Division, 3 Conn. Workers’ Comp. Rev. Op. 3, 9, 164 CRD-6-82 (August 16, 1985). At that point, it becomes incumbent upon the respondent to file a Form 36. Indeed, attending physicians in workers’ compensation cases have an ongoing obligation to assess the claimant’s ability to return to work and to report such information to the employer or its insurer. Platt, supra, 9, fn. 8, citing § 31-279-9. This practice clearly supports the humanitarian purpose of the Workers’ Compensation Act by allowing trial commissioners to award ongoing benefits where the medical evidence indicates that a claimant will continue to be temporarily totally disabled after the close of the last evidentiary hearing.

Here we find no error with the trial commissioner’s order of continuing temporary partial benefits in this case. The trier relied on Dr. Collins’ opinion that the claimant’s “July 13, 2002 left knee sprain lit up and/or accelerated a previously asymptomatic or mildly symptomatic underlying degenerative condition.” Findings, ¶ F. In a letter Dr. Collins indicates that “at some point in time Ms. Hicking is going to require a total knee replacement.” Claimant’s Exhibit E. We think that this opinion can reasonably be read to mean that the claimant’s condition will worsen and not improve. Furthermore, there is no evidence in the record to show that the claimant’s condition has improved.

The respondent argues that the trial commissioner erred in finding the claimant was credible. The respondent alleges because the claimant was a poor historian and did not recall certain information in her medical records until asked about it, her testimony is therefore unreliable. This board’s standard of review of a commissioner’s credibility findings regarding evidence and testimony is very deferential. Smith v. Federal Express Corp., 4242 CRB-7-00-5 (August 22, 2001) citing Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (December 19, 2000); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). “The quintessence of the trier’s factfinding prerogative is the authority to evaluate the weight of such evidence, and we may disturb the trier’s factual findings only if they lack any support in the evidence, or if they fail to include undisputed material facts.” Smith, supra, citing Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999); Goldberg, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). A trial commissioner is not required to find a witness unpersuasive even if their testimony contains some inconsistencies. Goldberg, supra. Given the extensiveness of the trier’s discretion in determining the appropriate weight to assign to the claimant’s testimony, it is well beyond this board’s authority on review to reverse the commissioner’s assessment of the claimant’s credibility.

The respondent asserts the trial commissioner erred in finding that the July 30, 2002 incident was not a new injury when medical reports indicated that there was a new injury. The respondent bases this assertion on Claimant’s Exhibit G which is a Physical Therapy report dated July 31, 2002. In that report it states, “p[a]t[ient] reinjured knee by twisting it walking downstairs at home.” The report indicates that this twisting incident occurred the day prior. There are no other indications in the claimant’s medical records of this incident. The claimant testified that her knee gave out while she was walking down the stairs because her knee was in a weakened condition. November 6, 2003 Transcript, pp. 22-23. The trial commissioner believed the claimant’s testimony. Findings, ¶ E.

We do not engage in de novo review. We will not disturb a trier’s factual finding unless it is without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004). Here, it is reasonable that the trier could infer by the medical report and the claimant’s testimony that the home incident was not a new injury but instead occurred as a result of her weakened condition caused by the July 13, 2002 injury. Therefore, we will not over turn this determination on appeal.

The respondent also contends that the trial commissioner erred by ordering the employer to reimburse Anthem Blue Cross/Blue Shield for its lien. The respondent contends that the lien was based on a bill that was not itemized, which was not put into evidence and represented a time period for which no medical reports were put into evidence. However, at the formal hearing the trial commissioner took administrative notice of the Blue Cross/Blue Shield lien letter which indicated a lien of $2, 471.83. November 6, 2003 Transcript, p. 2. The respondent did not object to the lien’s being administratively noticed. Furthermore, Attorney Lucas Strunk clearly stated for the record that he was appearing at the formal hearing pursuant to the lien under § 38a-470 C.G.S.4 Id., p. 1. The respondent was therefore aware that the lien was at issue at the hearing. If there was a question regarding the lien’s accuracy it could have been raised at that time. For this reason, we find no error in the trial commissioner ordering the lien’s reimbursement.

The respondent also alleges that the trial commissioner erred in denying the respondent’s Motion to Correct. One additional issue the respondent raises in its Motion to Correct is that Finding, ¶ 11 should be deleted because it is based on hearsay testimony. Finding, ¶ 11 states, “the claimant requested light duty and was told there was nothing available.” This finding was based on the claimant’s testimony at the formal hearing. November 6, 2003 Transcript, p. 14. The claimant testified that she spoke to the respondent’s human resource representative who told her that there was no light duty available. The respondent did not object to this testimony at trial, therefore, there is no reason to overrule the trier’s finding. See, Paige v. Hartford Insurance Co., 4594 CRB-2-02-12 (January 9, 2004). Furthermore, the commissioner’s findings are supported by the record apart from this evidence, therefore, we will not overturn this finding. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974).

Therefore, the trial commissioner’s decision is affirmed.

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

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

2 At the time of Prioli, supra, § 31-301(a) allowed a party ten days after the date of notice of the ruling to file an appeal, however, § 31-301(a) has since been changed to extend that period to twenty days. BACK TO TEXT

3 The respondent filed subsequent Petitions for Review forms on July 2, 2004 and July 12, 2004 clarifying the dates of the trial commissioner’s ruling on the Motion to Reopen. The filing of these additional forms is of no consequence because all of the petitions were filed within twenty days of the trial commissioner’s denial of the respondent’s Motion to Reopen. Furthermore, all of the appeals were based on the same Reasons for Appeal. BACK TO TEXT

4 Section 38a-470 C.G.S. states, “(a) For purposes of this section, ‘controverted claim’ means any claim in which compensation is denied either in whole or in part by the workers’ compensation carrier or the employer, if self-insured. (b) Any insurer, hospital or medical service corporation, health care center or employee welfare benefit plan which furnished benefits or services under a health insurance policy or a self-insured employee welfare benefit plan to any person suffering an injury or illness covered by the Workers’ Compensation Act has a lien on the proceeds of any award or approval of any compromise made by a workers’ compensation commissioner less attorneys’ fees approved by the district commissioner and reasonable costs related to the proceeding, to the extent of benefits paid or services provided for the effects of the injury or illness arising out of and in the course of employment as a result of a controverted claim, provided such plan, policy or contract provides for reduction, exclusion, or coordination of benefits of the policy or plan on account of workers’ compensation benefits. (c) The lien shall arise at the time such benefits are paid or such services are rendered. The person or entity furnishing such benefits or services shall serve written notice upon the employee, the insurance company providing workers’ compensation benefits or the employer, if self-insured, and the workers’ compensation commissioner for the district in which the claim for workers’ compensation has been filed, setting forth the nature and extent of the lien allowable under subsection (b). The lien shall be effective against any workers’ compensation award made after the notice is received. (d) The written notice shall be served upon the employee at his last-known address, the insurance company at its principal place of business in this state or the employer, if self-insured, at its principal place of business, and the workers’ compensation commissioner, at the district office. Service shall be made to all parties by certified or registered mail. The notice shall be in duplicate and shall contain, in addition to the information set forth in subsection (c) of this section, the name of the injured or ill employee, the name of the company providing workers’ compensation benefits, the amount expended and an estimate of the amount to be expended for benefits or services provided to such injured or ill employee. (e) The insurance company providing workers’ compensation coverage or the employer, if self-insured, shall reimburse the insurance company, hospital or medical service corporation, health care center or employee welfare benefit plan providing benefits or service directly, to the extent of any such lien. The receipt of such reimbursement by such insurer, hospital or medical service corporation, health care center or employee welfare benefit plan shall fully discharge such lien. (f) The validity or amount of the lien may be contested by the workers’ compensation carrier, the employer, if self-insured or the employee by bringing an action in the superior court for the judicial district of Hartford or in the judicial district in which the plaintiff resides. Such cases shall have the same privilege with respect to their assignment for trial as appeals from the workers’ compensation review division but shall first be claimed for the short calendar unless the court shall order the matter placed on the trial list. An appeal may be taken from the decision of the Superior Court to the Appellate Court in the same manner as is provided in section 51-197b. In any appeal in which one of the parties is not represented by counsel and in which the party taking the appeal does not claim the case for the short calendar or trial within a reasonable time after the return day, the court may of its own motion dismiss the appeal, or the party ready to proceed may move for nonsuit or default as appropriate. During the pendency of the appeal any workers’ compensation benefits due shall be paid into the court in accordance with the rules relating to interpleader actions.” BACK TO TEXT

Workers’ Compensation Commission

Page last revised: July 25, 2005

Page URL: http://wcc.state.ct.us/crb/2005/4825crb.htm

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