State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Richardson v. BIC Corporation

CASE NO. 4953 CRB-3-05-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 7, 2006

PHYLLIS RICHARDSON

CLAIMANT-APPELLEE

v.

BIC CORPORATION

EMPLOYER

and

LIBERTY MUTUAL INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by John D’Elia, Esq., Kennedy, Johnson, D’Elia & Gillooly, 555 Long Wharf Drive, New Haven, CT 06511.

The respondents were represented by Frank A. May, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the May 27, 2005 Ruling on Motion by the Commissioner acting for the Third District was heard January 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the May 27, 2005 Ruling on Respondent’s Objection to New Evidence by the Commissioner acting for the Third District. Their appeal concerns the proper scope of a prior remand order by this board. The claimant in this case has suffered three separate compensable injuries to her right elbow and right shoulder as a result of repetitive-motion workplace trauma, and has had several surgeries as a result. In our prior decision in Richardson v. Bic Corp., 4413 CRB-3-01-7 (August 5, 2002), we affirmed an award of § 31-308a benefits from December 30, 1996 to July 1, 1999, while remanding on two other issues.

First, we sent the case back to the trial commissioner “for further findings on the subject of the claimant’s light duty earning capacity between 1992 and 1995 and on her possible entitlement to full compensation, assuming that it can be shown that no suitable work was available in her locality.” The trier had found temporary partial disability from November 19, 1992 through March 1996. He awarded the claimant benefits at the base compensation rate through August 1, 1995, when she returned to light duty work. The claimant had not looked for suitable work prior to her March 1995 surgery, as no one had advised her to do so. Her physician, Dr. Kaplan, had been advocating shoulder surgery throughout that period, having stated on November 2, 1992 and again on May 4, 1993, that she was totally disabled and could return to light work two or three months after surgery. In June of 1994, Dr. Kaplan indicated that she in fact could have started light duty work as of November 19, 1992, with significant lifting, vibration and repetitive motion restrictions. Yet, in a report from August 1994, he stated that the claimant’s continuing pain and movement limitations curtailed even daily activities like driving, brushing her teeth and lifting a gallon of milk.

Noting that chapter 568 does not specifically require work searches, we inferred from the trier’s findings that the claimant had sincerely attempted to recover from her injuries and return to work. For example, she had done volunteer work as a language tutor and delivering meals while waiting for her employer to authorize the surgery. Although her job search inaction may have been explicable under the circumstances, the trier had in fact found that she was partially disabled, not totally disabled, which obliged him to address the “ready and willing to work” component of § 31-308(a) before awarding full compensation under the statute. The claimant had not shown that light duty work was unavailable. Also, no finding had been made regarding the extent of her light duty earning capacity, which would be necessary to calculate an alternative benefit based on wage differential. We thus remanded on both points.

Second, we requested that the trier find “whether the claimant is capable of working more than 16 hours per week and if so, what her earning capacity would be for a full week, or whatever hours she is capable of working,” with respect to the trier’s wage differential award from July 1999 to September 1999. During that period, the claimant had been doing part-time work as a clerical assistant for the town of Woodbridge. The claimant had not been restricted from performing full-time light duty work, and had not shown any attempts to supplement her income. We explained that, should no other evidence of earning capacity be available, the trier could consider extrapolating her earning capacity from her hourly pay rate at the clerical assistant’s job, should she be capable of working more than 16 hours per week. At the close of our decision, we said that we were reversing the trier’s decision in part “with instructions to consider further issues on remand.”

After a formal hearing was convened on January 14, 2003 to address these findings, an issue arose as to whether new evidence should be permitted. The parties filed memoranda on that point, and the trial commissioner granted the claimant’s motion to submit additional evidence in the form of a vocational expert’s report on May 27, 2005. The respondents appealed that ruling. This board stayed the appeal on the ground that it was interlocutory, indicating that the stay would be lifted once the trier had been able to determine the substantive issues presented. The respondents then moved that we reconsider that stay on the ground that their rights would be prejudiced if the matter were decided using new evidence, and that afterward it would be impossible to return to the “status quo,” potentially necessitating a new trial should this board later decide that no new evidence should have been admitted. They also contend that § 31-301(a) allows appeals from rulings on motions, and that such a right cannot be stayed on the ground that it is interlocutory. After reconsidering, this board agreed to hear the instant appeal.

We begin by considering the claimant’s argument that this board should dismiss the respondents’ petition for review. Their appeal is from the trier’s written denial of their objection to the claimant’s new evidence. Pursuant to § 31-301(a) C.G.S., this board’s jurisdiction includes appeals from “an award by the commissioner, after a decision of the commissioner upon a motion or after an order by the commissioner according to the provisions of section 31-299b.” See Figueroa v. C&S Ball Bearing, 237 Conn. 1, 10-11 (1996); Melendez v. Valley Metallurgical Processing Co., 86 Conn. App. 880, 884-85 (2004). The claimant does not contend that this board lacks subject matter jurisdiction over the appeal, as § 31-301(c) allows us to consider appeals from certain interlocutory rulings prior to the adjudication of the merits of a case. Bailey v. Stripling Auto Sales, Inc., 4516 CRB-2-02-4 (May 8, 2003). The claimant instead seeks a ruling that this appeal conflicts with a standard of judicial economy articulated in Kuba v. Michael’s Landscaping & Lawn Service, 4266 CRB-4-00-7 (August 29, 2001), in which we stated, “Unless the immediate actualization of an interlocutory ruling may result in some form of irreparable harm, such as the disclosure of sensitive and confidential information to opposing counsel; see Vetre v. State/Dept. of Children and Youth Services, 3948 CRB-6-98-12 (February 14, 2000); this board discourages parties from filing appeals before the commissioner has had a chance to rule on the merits of a case.”

This board has given voice to that principle in order to provide guidance to parties inclined to appeal interlocutory rulings. “The efficient and timely resolution of cases is of prime importance given the urgent need for remedial relief that many injured claimants experience. Maintaining the integrity of final judgments is crucial to the stability of our legal system, but this concern should not overshadow the fundamental need for speedy decisionmaking in the workers' compensation arena.” Bailey, supra. Appeals create delay, and participants in this system should strive to keep in mind the need for deliverance of timely decisions. Unfortunately, this Commission works with limited resources, and it takes time to process cases and appeals. Thus, it helps to expedite decisionmaking if parties refrain from immediately appealing evidentiary rulings and other interlocutory rulings.

At this point, the claimant’s interest in resolving this case must take precedence. Id. As we cannot turn back the clock and undo the delays that have already occurred both here and at the trial level, dismissing the petition for review will not be of further help. If the problem is uncertainty regarding the scope of this board’s prior remand, the quickest solution at this point is for us to articulate the meaning of our decision. Thus, we decline to dismiss the respondents’ appeal.

The language of a remand order should mandate a specific direction for the trial commissioner, with which it is the trier’s duty to comply “according to [the board’s] true intent and meaning.” Bailey v. State, 65 Conn. App. 592, 598 (2001). Remand orders should not be construed so narrowly as to prohibit the consideration of matters relevant to the issues upon which further proceedings have been ordered, as long as such matters are not extraneous to the issues and purpose of the remand. Halpern v. Board of Education, 231 Conn. 308, 313 (1994)(where parties never sought clarification of Court mandate, board and trial court were required to construe mandate in light of actual circumstances at time remand was to be implemented); see also, TDS Painting & Restoration, Inc. v. Copper Beech Farm, Inc., 73 Conn. App. 492, 516 (2002)(where issue of postjudgment attorney’s fees and costs could not have been resolved by Appellate Court at time of remand, trial court erred by not considering that matter when it arose following rendering of judgment). Instead, the trial court should look at the mandate and opinion of the reviewing court, and proceed in conformity with the views expressed by that court. Halpern, supra, 311.

Here, the trial commissioner had made a finding of temporary partial disability and awarded the claimant benefits at her base compensation rate. There were no subordinate findings that she had met § 31-308(a)’s prerequisites for full compensation, which require a work-capable claimant to show that she is ready and willing for work, and that no suitable work is available. There was also no finding regarding the claimant’s earning capacity, either for that period or for a later period in which she had worked part-time as a clerical assistant. At least one of these findings must exist in order to support an award, whether it be for full compensation or wage differential benefits (comparing pre-injury earning capacity with post-injury earning capacity).

In our previous decision, we did not specifically address the introduction of new evidence on remand. We instead gave “instructions to consider further issues,” with discretion implicitly left to the trier to determine the best way for those issues to be considered under the controlling law. Within our opinion, reference was made to the claimant’s “possible entitlement to full compensation, assuming it can be shown that no suitable work was available in her locality.” Reference was also made to the trier being able to extrapolate earning capacity from the claimant’s hourly pay rate at the clerical job, “should no other credible evidence of earning capacity be available.” These phrases anticipated that new evidence might be factored in, though we did not foreclose the possibility that existing evidence could play a determining factor.1 Our role on review was to identify the issues that were affected by legal errors, and return the case to the trier so that the errors could be corrected. Even where this board has clearly authorized the introduction of new evidence on remand, we have stated that “the decision of whether to allow further evidence on remand to some extent lies in the trial commissioner’s discretion.” Scott v. Bridgeport, 4853 CRB-3-04-8 (December 22, 2004).

Not all remand orders set out tight procedural boundaries for the subsequent proceedings. Halpern, supra, TDS Painting, supra, and Shimko, supra, n.1, all involved remand orders that did not specifically address the issue of new evidence. In Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 456 (2001), our Appellate Court upheld this board’s decision not to remand a case following reversal of a claimant’s award, explaining that the relevant test was whether a claimant who had failed to establish a right to workers’ compensation benefits might reasonably prove a case, or have a reasonable prospect of proving a case, upon remand. The court also cited the well-established standard that a party is not entitled to “try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing . . . . Where an issue has been fairly litigated . . . a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result.” Dengler, supra (citation omitted).

These principles remain relevant here. Temporary partial disability for the two time periods in question was clearly at issue throughout the proceedings, as these benefits were claimed by the claimant’s counsel at the outset of the initial formal hearing. September 2, 1999 Transcript, pp. 4-6. Proving earning capacity was unquestionably part of the claimant’s burden of proving wage loss, and an essential element of the claim. Christman v. State/Dept. of Correction, 4134 CRB-1-99-10 (October 16, 2000)(no evidence in record to establish absence of sedentary work during incapacity period; board remanded for articulation of evidentiary and legal bases of § 31-308(a) award); see also, Zipoli v. Watertown Board of Education, 6 Conn. Workers’ Comp. Rev. Op. 158, 679 CRD-5-88-1 (June 1, 1989)(remanded for trier to explain basis of earning capacity finding). However, the focus of the testimony at trial was on the nature of the claimant’s physical capabilities, the nature of the jobs that she was offered by her employer, and the sincerity of the various efforts that were made to get the claimant back to work. The trier was asked to determine, too, whether the claimant was totally or partially disabled during the 1992-1995 time period. This issue was preliminary to the establishment of a wage differential.

This is not a situation where a claimant seeks to introduce cumulative evidence on a disputed factual matter that was actually litigated and resolved during prior proceedings, which is the quintessential example of the proverbial “second bite at the apple.” See, e.g., Mahoney v. Bill Mann’s Tree Removal, Inc., 4776 CRB-4-04-1 (September 19, 2005); Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (March 7, 2003); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998)(claimant sought to introduce medical report consistent with treating physician’s testimony under Admin. Reg. § 31-301-9, not having anticipated need for it at formal hearing). This is also not an attempt to extend the scope of the proceedings beyond the noticed issues. Rather, the claimant’s earning capacity was an element of her temporary partial disability claim that was not directly discussed, due to pending preliminary factual determinations that were later decided in a manner that makes evidence of earning capacity necessary for a complete adjudication of this claim.

Ideally, evidence of the claimant’s earning capacity would have been brought in previously, in anticipation that it might be relevant. However, there are times when preliminary issues such as compensability and the existence of disability dominate the discussion, and the parties do not appear ready to move beyond those preliminary issues to essential but contingent elements of a claim such as light duty earning capacity. In such situations, the trier may choose to issue a decision on the preliminary issues—with best practice being to announce the bifurcation ahead of time. In those instances, the trial commissioner must retain the authority to determine what evidence is necessary to later resolve the essential contingent issues. As § 31-278 provides, the commissioner “shall make inquiry . . . in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” The trier here ruled that the claimant’s additional evidence should be admitted. We uphold his authority to make that ruling as being within the scope of our remand.

The respondents’ appeal is thereby dismissed.

Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.

1 To that end, we observed in our decision that evidentiary bases aside from work searches may be adopted to illustrate the unavailability of light duty employment, as was held in Shimko v. Ferro Corp., 40 Conn. App. 409, 414-15 (1996)(note also that trier had made no findings as to whether claimant was limited to outdoor work, so Appellate Court remanded “for further proceedings consistent with this opinion”). See also Vescovi v. Yale University, 4039 CRB-3-99-4 (July 26, 2000)(trier entitled to infer that claimant’s anticipated period of light duty was too brief to justify looking for alternate employment); Lennon v. Genest Subaru Motors, 13 Conn. Workers’ Comp. Rev. Op. 63, 1589 CRB-5-92-12 (December 28, 1994)(reliance on testimony of claimant that he looked for work despite no job search records being submitted). BACK TO TEXT

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