State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Testone v. C.R. Gibson Company

CASE NO. 5045 CRB-5-06-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 30, 2007

IDA TESTONE

CLAIMANT-APPELLANT

v.

C.R. GIBSON COMPANY

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Daniel D. Skuret III, Esq., Law Office of Daniel D. Skuret, P.C., 215 Division Street, P.O. Box 158, Ansonia, CT 06401.

The respondents were represented by Matthias J. DeAngelo, Esq., Law Office of Scott B. Clendaniel, 300 Windsor Street, P.O. Box 2138, Hartford, CT 06145-2138.

This Petition for Review1 from the January 5, 2006 Finding of the Commissioner acting for the Fifth District was heard October 20, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and James J. Metro.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant herein presents no less than sixteen reasons for appeal from the decision of the Commissioner acting for the Fifth District. That decision denied her request to reopen a Form 36, denied to award temporary partial disability benefits or temporary total disability benefits, and did not assess penalties against the respondents for unreasonable contest and unreasonable delay. We have examined the record of these proceedings and conclude that the trial commissioner’s Finding was supported by competent evidence and involved decisions which were within her discretion to reach. Accordingly, we affirm the trial commissioner and dismiss this appeal.

The genesis of this situation is essentially uncontested. The claimant has suffered two compensable injuries while employed by the respondent; a shoulder injury in 1999 which is not the subject of this appeal and an injury to her right master hand suffered on June 12, 2000. The respondents accepted the hand injury and were paying benefits to the claimant pursuant to § 31-307 C.G.S. as of early 2002. On January 17, 2002 the claimant’s treating physician, Dr. Robert Nolan, opined that she had reached maximum medical improvement and issued a 5% rating of permanent partial impairment for the hand. On February 13, 2002 the respondents then filed a Form 36 to terminate the § 31-307 benefits.

At this point the parties diverge on what occurred. The claimant asserts the Form 36 was deficient and did not provide sufficient notice. Nonetheless, a timely objection to the Form 36 was filed. Prior to the hearing on the Form 36 the respondents had the claimant undergo an examination by Dr. Balazs Somogyi. A report on this examination was not submitted in support of the Form 36. The claimant’s attorney argues that the report from the respondents’ examination was withheld from them prior to the hearing. Following an informal hearing on March 26, 2002 Commissioner Belkin approved the Form 36.

From 2002 to 2005 the claimant underwent a number of medical examinations including a commissioner’s examination. Additionally, a number of informal hearings on her claim were held. In 2005 the claimant’s attorney sought a formal hearing to reopen the Form 36 effective as of March 2002, to award the claimant benefits from the period between 2002 and 2005, and to penalize the respondents’ for unreasonably contesting the claim for benefits. The respondents objected to belatedly reopening the issue of the Form 36 and denied that they had acted unreasonably in their handling of the claim. A formal hearing before the commissioner acting for the Fifth District was held on April 26, 2005.

The trial commissioner reached these findings following the April 26, 2005 formal hearing. She determined since the Form 36 was originally approved there had been eight informal hearings and three pre-formal hearings held. She found only one occasion, on June 3, 2004, in which the Form 36 issue was raised and the commissioner who originally approved the Form 36 deemed the issue moot. Findings, ¶¶ 6 and 7, April 26, 2005 Finding. She determined that while the respondents had failed to comply with their statutory obligation to turn over Dr. Somogyi’s report, no evidence was presented that the failure was anything more than oversight by the carrier and/or its attorney. She also determined the claimant’s attorney had not made an effort to obtain Dr. Somogyi’s report. Findings, ¶¶ 12-13. She determined the first time the issue of whether Dr. Somogyi’s report was improperly omitted from consideration was raised was at the April 26, 2005 formal hearing. Finding, ¶ 17.

On the issue of temporary total disability the trial commissioner found that the claimant’s treating physician had determined in January 2002 the claimant had reached maximum medical improvement for her wrist and had a 5% permanent partial disability. Finding, ¶ 18.2 The examination of Dr. Somogyi performed on February 25, 2002 also concluded the claimant had reached maximum medical improvement and that her “present symptoms and functional limitations are out of proportion to the injury reported.” Finding, ¶ 22. Further examinations by Dr. Christopher Lena on July 23, 2002, Dr. Nolan on November 21, 2002 and Dr. Ira Spar on December 16, 2003 all concluded the claimant had reached maximum medical improvement; as did a commissioner’s examination performed by Dr. Michael Kaplan on March 9, 2004. Findings, ¶¶ 23, 24, 26 and 27. One doctor, Dr. Marvin Arons, was unwilling to opine that the claimant was at MMI without a further examination by a shoulder specialist. Finding, ¶ 25. Dr. Arons later determined the claimant had “chronic upper extremity pain syndrome” and recommended surgery, which was performed on the claimant on March 31, 2005. Findings, ¶¶ 29-31.

Based on those subordinate findings of fact, the trial commissioner issued her Findings on January 5, 2006 and denied the claimant’s motion to reopen the Form 36. She found the weight of the evidence was that the claimant was not entitled to temporary partial disability benefits from March 25, 2002 to August 1, 2004. She did not find the respondents had unreasonably contested the claim or engaged in unreasonable delay; therefore she denied the claim for attorney’s fees, interest and penalties. The claimant filed a Motion to Correct which was denied by the trial commissioner on the grounds it was “an attempt to reargue the case.” The claimant has pursued this appeal.

In reviewing this instant decision, our standard of review is deferential to the finder of fact. “As with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Daniels v. Alander, 268 Conn. 320, 330 (2004). The dispute herein, while involved, is to a great extent a dispute over the factual record presented to the trial commissioner. This further limits our scope of review, as explained in Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007),

The scope of review of a trial court’s factual decision on appeal is limited to a determination of whether it is clearly erroneous in view of the evidence and pleadings. . . . Conclusions are not erroneous unless they violate law, logic or reason or are inconsistent with the subordinate facts. . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. (Citations omitted; internal quotation marks omitted.) citing Moutinho v. Planning and Zoning Commission, 278 Conn. 660, 665-666 (2006).

We commence our review with an examination of the trial commissioner’s analysis and conclusions in regards to the issue of the Form 36. We note that her reaction to the long delay in consideration of this issue is consistent with our holding in Kalinowski v. Meriden, 5028 CRB-8-05-11 (January 24, 2007) citing Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 28 (1996), in which we reiterated the principle that unjustified delay in raising an issue “was contrary ‘to the public interest in the prompt and comprehensive resolution of workers’ compensation claims.’”

The trial commissioner in her Findings addressing the Form 36, included a discussion of the various IME’s performed following the March 26, 2002 informal hearing approving the Form 36. We believe this was a digression from the issue at hand.3 At the April 26, 2005 hearing the trial commissioner indicated these matters would not be relevant to her consideration of whether the Form 36 was properly issued.

“ . . . we’re supposed to make a decision on what’s available to us at that time, and that’s the only—those are the parameters that I’m going to use at the time I look at the 36 because it isn’t fair to go back and say that Commissioner Belkin was wrong, you know, because of something that happened two years later. That could be; but the state of the medical information in March of 2002 is what’s relevant. That’s how we’re going to look at it.
So we’re going to look and see what Somogyi had to say and whether that would have affected his decision.” April 26, 2005 Transcript, p. 88.

It has long been settled law that a trial commissioner’s conclusions must stand “unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Tovish v. Gerber Electronics, 32 Conn. App. 595, 602 (1993). In this instance we must evaluate the ultimate conclusion of the trial commissioner based solely on the facts she found in Finding, ¶ 22, as the other findings cited are irrelevant to the issue at hand. If this finding is supported by the evidence cited we cannot substitute our evaluation of the evidence for that of the trial commissioner.

Our inquiry therefore focuses on whether Dr. Somogyi’s report, dated February 25, 2002, which was not considered by Commissioner Belkin in 2002, would have compelled a different result had it been considered. The trial commissioner concluded it would not have compelled a different result and the substance of the report is consistent with that finding, which upheld approval of the Form 36. In his report Dr. Somogyi concluded “the examinee has at least a light work capacity” and “based on the treatment provided thus far, the examinee has achieved maximum medical improvement.” We find this consistent with the January 17, 2002 medical report presented to Commissioner Belkin from the claimant’s treating physician, Dr. Nolan, which placed her on restricted work capacity and determined she had reached maximum medical improvement. Claimant’s Exhibit D. Finding, ¶22 therefore provided adequate justification for the trial commissioner’s determination of the Form 36 issue.

The claimant focuses on two points. She argues that Dr. Somogyi also recommended the claimant be evaluated by a specialist in pain medicine. We are not persuaded this recommendation is germane to the issue of whether the IME report concurs with the approval of a Form 36. Dr. Somogyi did not condition his opinions regarding employability of the claimant on the results of further treatment or examination. As we pointed out in Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007) “[w]e have consistently held it is the claimant’s burden to establish total disability and entitlement to benefits under our statute.” The evidence provided did not compel the trial commissioner to reverse the issuance of the Form 36.4

The claimant also argues that the alleged procedural deficiencies regarding the Form 36 should have compelled the trial commissioner to reopen and vacate the issuance of the form. We are persuaded that the precedent in Krol v. A.V. Tuchy, Inc., 4613 CRB-4-03-1 (January 29, 2004), aff’d, 90 Conn. App. 346 (2005) renders this a moot issue “[t]he subsequent completion of a full evidentiary formal hearing on the subject of the August 16, 1999 Form 36 has rendered moot any alleged procedural inconsistencies involving the prior administrative approval of the Form 36.” We are also persuaded that the claimant’s failure to immediately seek a formal hearing to challenge the alleged deficiencies in the February 13, 2002 Form 36, following its approval at an informal hearing, renders subsequent relief improvident as per our precedents in Johndrow v. General Motors Corporation, 4070 CRB 6-99-6 (March 1, 2001); Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (November 1, 2001), aff’d, 77 Conn. App. 319 (2003) and Kalinowski, supra.

Consequently, we find no error in the trial commissioner’s determination that the Form 36 was properly issued in this case, as the decision was consistent with the law and the evidence. We also believe her determination on the issue of a disability award for the period following the issuance of the Form 36 was supported by the law and the evidence.

The trial commissioner needed to make a factual determination as to whether the claimant’s evidence justified an award for temporary partial disability benefits. We delineated the test we apply in evaluating the commissioner’s decision in a 2006 CRB Opinion. ‘“Whether a claimant has satisfied these statutory criteria [of § 31-308(a) C.G.S.] is a factual determination for the trial commissioner. See Shimko v. Ferro Corp., 40 Conn. App. 409, 412-13 (1996).’ Ronzone v. Connecticut Fineblanking Corp., 3522 CRB-4-97-1 (May 15, 1998).” Bennett v. Wal-Mart Stores, 4939 CRB-7-05-5 (May 15, 2006).

We have also pointed out the claimant bears the burden of proof in a contest over § 31-308(a) C.G.S. benefits. See Thomas v. Greenwich, 4697 CRB-7-03-7 (August 10, 2004) and Baldino v. Corcoran & Son Landscaping & Paving, 4275 CRB-4-00-8 (July 23, 2001).

The claimant argues that she proffered sufficient evidence to justify an award for temporary partial disability from 2002 to 2004, including unsuccessful job searches and various medical reports. The respondents argue that other medical evidence was inconsistent with an award for § 31-308(a) C.G.S benefits, such as the evidence cited in Findings, ¶¶ 23, 24, 26 and 27. “The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). We must defer to the trial commissioner’s evaluation of contested evidence.5

The claimant finally asserts she should have been awarded attorney’s fees for unreasonable contest and awarded interest for unreasonable delay. As we have determined that the trial commissioner had sufficient grounds to uphold the respondents’ position we do not believe the requisite elements of § 31-300 C.G.S. exist. “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.” Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006) citing McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (November 12, 1998). Having reached a determination on the substantive issues adverse to the claimant, we cannot find error should the trial commissioner decide not to sanction the respondents.

For those reasons, we affirm the trial commissioner’s Finding and dismiss this appeal.

Commissioners George A. Waldron and James J. Metro concur in this opinion.

1 We note that a postponement and extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 Certain findings state the issue regarding benefits from March 25, 2002 to August 1, 2004 was a request for temporary total disability benefits. The actual order denies the claim for temporary partial disability benefits during this period. The hearing transcript indicates temporary partial disability benefits were the relief sought by the claimant and both parties have briefed the issue of temporary partial benefits. Therefore, we conclude the reference to temporary total benefits in Findings, ¶¶ 18-31 of the Finding is a scrivener’s error. See Hernandez v. American Truck Rental, 5083 CRB-7-06-4 (April 19, 2007). BACK TO TEXT

3 Respondents represent that the additional IME evidence was introduced at the formal hearing to contest the argument presented by the claimant asserting undue delay and unreasonable contest on the part of the respondents. The record indicates the trial commissioner originally understood that was their sole evidentiary purpose. As we held in Brown v. State/Dept. of Mental Health and Addiction Services, 4053 CRB-2-99-5 (July 27, 2000), aff’d, 66 Conn. App. 882 (2001)(per curiam), cert. denied, 259 Conn. 913 (2002), when a Form 36 is challenged, a trial commissioner is not required to consider issues beyond the date of the original Form 36. As we believe the record standing absent these reports is sufficient to uphold her findings on the issue of the Form 36, we deem their inclusion herein as harmless error. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006). BACK TO TEXT

4 Claimant argues that Dr. Arons later opined that Dr. Somogyi’s report was somehow equivocal since it recommended further treatment. See Claimant’s Brief, pp. 10-11 and Claimant’s Exhibit D. The claimant also argues the respondents willfully withheld this report as it failed to support their position regarding the Form 36. Claimant’s Brief, p. 11. To the extent a finder of fact could reach these conclusions, we must defer to the contrary conclusions arrived at by the trial commissioner. BACK TO TEXT

5 For that reason, we find no error in the trial commissioner’s denial of the Motion to Correct as we agree it was an effort to reargue the case. See Liano, supra. BACK TO TEXT

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