State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Duffy v. Town of Greenwich Board of Education

CASE NO. 4930 CRB-7-05-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 15, 2006

BRENDAN DUFFY

CLAIMANT-APPELLEE

v.

TOWN OF GREENWICH BOARD OF EDUCATION

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Clayton J. Quinn, Esq., The Quinn Law Firm, LLC, 204 S. Broad Street, Milford, CT 06460.

The respondents were represented by Douglas L. Drayton, Esq., and Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, CT 06033.

This Petition for Review from the March 18, 20051 Finding and Award of the Commissioner acting for the Seventh District was heard September 23, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.

OPINION

JOHN A MASTROPIETRO, CHAIRMAN. The respondent-employer herein appeals from the March 18, 2005 Finding and Award of the Commissioner acting for the Seventh District. The respondents do not appeal the finding that the claimant, Brendan Duffy, suffered a compensable injury at his workplace on January 3, 2003; they do vigorously challenge the trial commissioner’s finding of an unreasonable contest pursuant to § 31-300 C.G.S. and his finding regarding receipt of evidence on the issue of § 31-307 C.G.S. and § 31-308a C.G.S. benefits. While the underlying claim here involves the familiar scenario of a slip and fall incident, this board must also consider significant issues regarding the procedural rights of both the claimant and the respondents.

Mr. Duffy was employed by the respondent-employer as a fifth grade teacher at North Street School on January 3, 2003. Findings, ¶ 1. A major winter storm impacted the Northeast that afternoon which necessitated the early dismissal of students from the Greenwich school district. Findings, ¶ 2. In leaving his classroom, the claimant testified that he exited his classroom from a door that led directly to the outdoors, slipped and hit his head, neck and back on the ground. Findings, ¶¶ 3-4. There were no witnesses to the incident. The claimant did not seek immediate medical attention, rather he drove himself home and self-medicated with over-the-counter painkillers. Findings, ¶ 5. The next day he was examined by a primary care physician, Dr. Adam Whitehead, who prescribed Vioxx and Vicodin and told the claimant to rest for a few days. Findings, ¶ 6 and November 20, 2003 Transcript, pp. 18-19. On January 5, the claimant obtained a substitute teacher for his class and told a colleague, Mary Ann Jagodzinski, to inform the school principal of the incident. Ms. Jagodzinski advised the principal, Ms. Elisabeth Burfeind, on January 6. Findings, ¶¶ 2-9.

There were additional repercussions from the slip and fall incident. On January 8, the claimant had a dizzy spell at home and injured his thumb. Findings, ¶ 10. He was examined by an orthopedic surgeon, Ira Kirschenbaum, M.D. on January 10 and by a neurologist Jeffrey Berman, M.D. on January 12. Dr. Berman diagnosed the claimant with posttraumatic headache and post concussive syndrome. Findings, ¶¶ 11-12. An MRI was performed on the claimant on January 13, indicating mild diffuse disc bulging at L 4-5, a small left sided disc herniation at L5-S1, with a mild compression of the S1 nerve root. Findings, ¶ 13. The claimant did not immediately file a Form 30C for the incident.2 However, his principal sent the parents of his students a letter dated January 17, 2003 stating, “Mr. Duffy sustained a back injury leaving North Street on January 3rd.” Claimant’s Exhibit D. Notwithstanding this public statement on official letterhead, the respondents issued a Form 43 contesting liability for the claim on January 29. Findings, ¶ 15. The trial commissioner found no evidence that the respondents took any steps to investigate the accident during the period prior to the formal hearings, which commenced November 20, 2003 and was continued to May 6, 2004. Findings, ¶ 22.

The claimant continued to treat his injuries, and was referred by Dr. Kirschenbaum to Dr. Seth Neubardt, who prescribed physical therapy. Findings, ¶ 14. He was also referred by Dr. Kirschenbaum to Riverton Orthopedic Associates for treatment by Dr. Francis Camillo and Dr. Nicholas Bavaro. Findings, ¶ 17. On February 4, 2003 Dr. Bavaro advised that the claimant was still unable to work, and did not clear him to return until April 7, 2003. Claimant’s Exhibit P. He returned to the classroom on April 8, 2003. Findings, ¶ 24. During this period, (the exact date is disputed) respondent advised the claimant he was unlikely to be rehired for the next school year. The claimant was asked during this period to tender his resignation at the end of the school year, which he did.

On November 18, 2003, Dr. Camillo rendered a definitive opinion that the claimant’s disc injuries, head injury and thumb injury were all causally related to his January 3, 2003 fall at work. Claimant’s Exhibit L.3 The respondents had the claimant examined by their own physician, Dr. Henry Rubinstein on November 19, 2003, more than nine months after they filed their Form 43. Dr. Rubinstein’s deposition testimony was unequivocal. He found that the claimant’s present lumbar strain and disc herniation were causally related to the January 3, 2003 fall. Respondents’ Exhibit 1.

The claimant engaged in a job search for available teaching jobs near his place of residence in New York State, which as of the completion of the formal hearing had not yielded a new job. He also reports continued back pain, tingling, and occasional dizzy spells. There is no finding in the record that he has reached maximum medical improvement from his injury.4

In his Finding and Award, the trial commissioner found that the claimant suffered a compensable injury on January 3, 2003, and awarded him temporary total disability from January 3, 2003 to April 7, 2003, and made respondents responsible for reimbursement of previous medical treatment and responsible for all future medical treatment. He also found the respondents owed the claimant attorney’s fees and interest pursuant to § 31-300 C.G.S. for unreasonably contesting liability for this claim. Finally, he permitted the claimant to submit additional evidence regarding his entitlement to temporary total and/or temporary partial disability payments for the period after April 8, 2003.

The respondents have appealed from this decision. Their appeal centers on two issues. First, the trial commissioner should have granted those portions of the Motion to Correct that would have removed the grounds for the finding of unreasonable contest. Second, the trial commissioner should have granted those portions of the Motion to Correct that would have precluded the commissioner from receiving additional evidence regarding the claimant’s partial and/or total disability after April 7, 2003.

The respondents have not appealed the underlying finding of compensability for the January 3, 2003 accident. A recapitulation of the events supporting the finding of compensability is necessary to place the trial commissioner’s Finding and Award in perspective.

The claimant fell down with no witnesses, but it is uncontroverted that the school was closing early that afternoon and he sought medical treatment within 24 hours of the time of accident. While he did not provide immediate formal notice of injury, he contacted a coworker prior to the next business day who advised his supervisor of the circumstances. This provided the respondents with ample opportunity to investigate the situation had they entertained doubts as to the claimant’s account of his injury. In fact, the respondents appeared to have been sufficiently certain of the veracity of the claimant’s narrative that they adopted it in toto on official letterhead in correspondence to North Street School parents.

Had the respondents wanted to ascertain the claimant’s medical condition, they could have scheduled a respondents’ medical examination at any time, but instead waited nearly ten months. Their expert agreed with Dr. Camillo that a compensable injury had occurred. The respondents chose to continue to contest the claim instead of accepting the opinion of their own expert and executing a voluntary agreement acknowledging responsibility for a compensable injury.

In their brief, respondents argue their due process rights were somehow impaired by the finding of unreasonable contest. However, a review of the record and our legal precedents does not support this legal theory, as the record demonstrates the trial commissioner was protecting the claimant’s right to a timely adjudication of his claim, which he believed was obstructed by the respondents.

“The Workers’ Compensation Act ‘compromise[s] an employee’s right to a common law tort action in return for . . . relatively quick and certain compensation.’” Dowling v. Slotnik, 244 Conn. 781, 799 (1998). Additionally, “[t]he Workers’ Compensation Act is liberally construed in favor of the employee . . . .” Infante v. Mansfield Const. Co., 47 Conn. App. 530, 536 (1998).

The purpose of Chapter 568 is to provide a “prompt, efficient, simple and inexpensive procedure for obtaining benefits related to employment.” Pietraroia v. Northeast Utilities, 254 Conn. 60, 74 (2000). Among the concerns of the legislature in drafting the Act was its desire that employers bear the burden of investigating claims promptly, and that they timely apprise claimants of the specific reasons for the denial of their claims. These duties are codified in § 31-294c. Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 611 (2000). The means to enforce this right is § 31-300 C.G.S. The General Assembly adopted this provision for the self-evident purpose of encouraging employers to expedite the processing of meritorious claims.

Under the law, Mr. Duffy was entitled to have his claim either accepted or in the alternative, a cogent defense presented based on disputing his factual allegations, medical evidence or his legal theories of recovery.5 Instead, the respondents delayed matters by acting at odds with statements made by the claimant’s supervisor and their own medical expert. While respondents correctly point out this case hinged on issues of the claimant’s credibility, the trial commissioner also made an affirmative finding of “incredulity” on the part of the respondents. Findings, ¶ B.

The relevant statutory language of § 31-300 C.G.S. is as follows:

In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in the award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee . . . . In cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee.

Our previous decisions where we have upheld an award of attorney’s fees on the issue of unreasonable contest (as defined above) fall squarely within the fact pattern herein. An attorney’s fee award for unreasonable contest is made when, after hearing the parties’ arguments and reviewing the evidence, the trier decides that the employer or insurer lacked a reasonable basis upon which to contest the claimant’s request for benefits. Bailey v. State/GHCC, 3922 CRB-2-98-10 (November 30, 1999), aff’d in part, rev’d in part on other grounds, 65 Conn. App. 592 (2001).

“We have repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner.” McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (November 12, 1998). This board’s scope of review is limited to whether the trial commissioner’s decision constituted an abuse of discretion. “An abuse of discretion exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001).

The trial commissioner’s decision regarding statutory sanctions herein was logical, based on proper grounds and relevant to the statutory intent of § 31-300 C.G.S. There was no error from his denial of those portions of the Motion to Correct regarding unreasonable contest.6

The respondents also appeal Findings, ¶ D of the trial commissioner regarding benefits due the claimant for the period after April 8, 2003. The commissioner determined as well as awarding temporary total disability benefits from January 3, 2003 to April 7, 2003 that “Additional evidence is necessary to determine whether Claimant is entitled to temporary total disability or to temporary partial disability payments in addition to this period.” Respondents claim this finding contravenes the holding of Hines v. Naugatuck Glass, 4816 CRB-5-04-6 (May 16, 2005).

The facts herein are distinguishable from Hines. In that case, the claimant had obtained a rating of maximum medical improvement for one injury, suffered a second injury, and for some reason evidently within their control neglected to present evidence as to the disability suffered in the second injury. The CRB barred additional evidence concerning the second injury. In this matter, the claimant’s counsel presents a persuasive argument that the failure to provide the evidence required to establish the level of disability and the length of total disability is because the claimant was unreasonably denied medical coverage for his compensation claim and due to unemployment and the cessation of his health benefits, unable to pay for the medical examinations required. See Findings, ¶¶ 16, 20 and November 20, 2003 Transcript, pp. 40-43.

Since unlike Hines, id., the record herein includes a finding of unreasonable contest, to preclude the claimant from proffering the evidence required to determine his claim to § 31-307 and § 31-308a benefits would amount to rewarding the respondents for their undue delay. It appears the respondents believe the record should be closed as of the final formal hearing. This posture is inconsistent with Connecticut Supreme Court precedent. Our Supreme Court has emphatically stated “[w]e have long held that an injured worker has a right to a permanent partial disability award once he or she reaches maximum medical improvement.” McCurdy v. State, 227 Conn. 261, 268 (1993) (Emphasis added). In this case, there has not been a finding the claimant has reached maximum medical improvement and the respondents’ own expert, Dr. Rubinstein, testified an additional examination was needed. Respondents’ Exhibit 1.

Failure to permit additional evidence in this proceeding would amount to a denial of the claimant’s rights, as he could not determine whether he had reached maximum medical improvement, and therefore could not establish eligibility for a permanent partial disability rating, or in the alternative, establish eligibility for continued temporary total disability or temporary partial disability benefits prior to achieving maximum medical improvement. This failure to permit additional evidence would contravene the Supreme Court’s holding in McCurdy, Id. For those reasons, this case more closely resembles Boccuzzi v. Norwalk Courtyard Marriott, 4123 CRB-7-99-9 (October 11, 2000) than Hines. In Boccuzzi, we held, “In the instant case, because the claimant had not yet reached maximum medical improvement, no determination of a permanent partial disability award could have been made.” Given the uncertain prognosis for the claimant, the trial commissioner was prudent to await additional evidence as held in Boccuzzi, Id. We have explained that where a claimant’s “future condition is unknown, . . . a commissioner is only empowered to decide how much compensation is appropriate given the condition of the claimant at the time of the proceedings.” Perri v. Mitchell Motors, 16 Conn. Workers’ Comp. Rev. Op. 242, 243, 3259 CRB-6-96-1 (June 24, 1997). Since additional evidence must be added to the record for a determination of whether the claimant has reached maximum medical improvement, there is no prejudice to the respondents to hold it open for similar evidence on temporary disability.

We also uphold the trial commissioner’s denial of the respondents’ Motion to Correct. The trial commissioner is the finder of fact, and is entitled to make assessments of credibility and weight with respect to documentary evidence and the testimony of witnesses, even that which appears to be uncontradicted. Statements that were admitted or undisputed may well have been afforded little or no weight by the trial commissioner. The trial commissioner’s overall conclusion that the respondents’ defense was unreasonable and incredulous indicates he placed no weight on those matters the respondents sought to add to the record.

We therefore uphold the trial commissioner’s decision on all issues. Insofar as any benefits due the claimant remain unpaid pending appeal, interest is awarded as required by § 31-301c(b) C.G.S.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

1 We note an extension of time was filed and granted during the pendency of this appeal. BACK TO TEXT

2 He filed his Form 30C (dated September 18, 2003) on October 1, 2003, well within the one-year period to file formal notice for an accidental injury claim under § 31-294c(a) C.G.S. BACK TO TEXT

3 Findings, ¶ 18 attributes this November 18, 2003 report to Dr. Camillo’s partner, Dr. Bavaro, who also treated the claimant. Respondents did not seek to correct this finding, and we consider this a harmless scrivener’s error. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 729 (2002)(scriveners errors normally should be overlooked on review), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

4 Respondents’ examiner, Dr. Rubinstein, estimated the claimant had a permanency rating of five to seven percent for the lower back, but another examination would be necessary to establish maximum medical improvement. Respondents’ Exhibit 1. BACK TO TEXT

5 Respondents claim that an award of sanctions in this instance would impair their due process rights as the case was a credibility contest which could not be resolved until the Formal Hearing. This concept is incompatible with black letter law in civil litigation that a party must have a good faith basis when it files a complaint or pleading, or face sanctions. The sanctions provisions of § 31-300 C.G.S. are not only integral to the remedial purpose of the overall Workers’ Compensation Act, they are akin to a host of similar sanction provisions in state and federal law. See Practice Book § 10-5; § 52-99 C.G.S.; Hatch v. Thompson, 67 Conn. 74 (1895); Rule 11 (b) and Rule 11 (c), F.R.C.P. The trial commissioner’s affirmative finding of “incredulity” on the part of the respondents, Findings, ¶ B is dispositive of the issue of good faith. BACK TO TEXT

6 Respondents’ reliance on Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974) is perplexing for two reasons. First, there is no record in this case that the trial commissioner took any action to impede the respondents from defending the claim, or admitted evidence on the record without an opportunity for cross-examination. His Finding was the defense the respondents did present lacked credibility. Secondly, the Balkus case upheld the discretion of the trial commissioner to decide when an award of attorney’s fees for unreasonable contest was warranted. “The commissioner was in a position to hear all the relevant testimony, and he could best decide whether the respondents’ contention found support in the evidence.” Balkus, supra, 179. BACK TO TEXT

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