CASE NO. 5152 CRB-3-06-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 3, 2007
The claimant was represented by Paul S. Ranando, Esq., Law office of Paul S. Ranando, 195 South Main Street, Cheshire, CT 06410.
The respondents were represented by Lawrence R. Pellett, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the October 24, 2006 Finding and Award of the Commissioner acting for the Third District was heard June 15, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Peter C. Mlynarczyk.
JOHN A MASTROPIETRO, CHAIRMAN. The instant appeal herein concerns a Finding and Award granted to the claimant, who persuaded the trial commissioner he suffered a compensable back injury while in the employ of the respondent. Respondents argue that the relief ordered by the trial commissioner does not conform to the relief permitted under our statutes and precedents. Our review of the Finding and Award demonstrates that the relief authorized by the trial commissioner is substantively proper, and the respondents’ arguments amount to a dispute as to the wording of the decision. Therefore, we affirm the trial commissioner and dismiss this appeal.
The trial commissioner held an extensive formal hearing on this claim, which is based on an incident that occurred May 3, 2005 when the claimant was removing a heavy box from a shelf at the respondent’s store in Hamden. The causation of the claimant’s current back ailments were contested, with both parties submitting evidence as to whether the 2005 work related incident was responsible for the claimant’s current disability and disc herniation. The trial commissioner considered the issue of what effect a motor vehicle accident predating the compensable injury had on the claimant’s present condition. One of the claimant’s treating physicians, Dr. John Beiner, has recommended a microdiskectomy. The respondents’ expert, Dr. Edward Spellman, recommended epidural block therapy and possible lumbosacral spine decompression and discectomy. The medical experts concurred the claimant was totally disabled, with Dr. Spellman opining the claimant would remain disabled until he received further medical treatment.
On October 24, 2006 the trial commissioner issued the following orders based on the aforementioned subordinate facts in the record:
“The Respondents are ordered to accept liability for the May 3, 2005 lower back injury and pay all related workers’ compensation benefits due as a result of the injury.
The Respondent are ordered to pay the Claimant temporary total disability benefits from May 4, 2005 forward with the exception of two weeks in June of 2005, for as long as the Claimant continues to be temporary totally disabled.
The Respondents are ordered to pay temporary partial disability benefits for two weeks in June of 2005 when the Claimant returned to work for the Respondent.
As a further result of the compensable injury to the Claimant’s back, the Respondents are ordered to pay all reasonable and necessary medical, diagnostic, hospital, surgical, physical therapy and pharmaceutical bills incurred as a result thereof.
The Respondent’s are further ordered to authorize and pay for a neurosurgical evaluation. The Claimant can choose a Connecticut neurosurgeon for this evaluation.
The Claimant may seek Attorney’s fees, fines and penalties for undue delay of benefits at a future hearing as the request was not made prior to the formal hearing or noticed for the formal hearing.”
The respondents filed a Motion to Correct asserting the trial commissioner should correct his Finding and Award to specifically identify the workers’ compensation benefits due under the Finding and Award; to restate the award of temporary total disability benefits to place a terminal date of August 15, 2006 on the award; to specifically identify the dates in 2005 the claimant is entitled to a partial disability award; to restate the award of benefits for medical treatment to specifically identify the medical treatment authorized for payment; and to amend the order permitting the claimant to seek attorney’s fees and penalties to clarify whether the trial commissioner had already found an issue of unreasonable delay. The trial commissioner denied these corrections. Three of these issues constitute the respondents’ issues on appeal.
On appeal the respondents argue the Finding and Award is legally deficient by not specifically identifying the benefits due the claimant; by awarding the claimant temporary total disability benefits for “as long as the claimant remains disabled,” and by stating that the claimant may seek an award of attorney’s fees at a later date. We believe these arguments are best addressed through clarification of the effect of the trial commissioner’s order, similar to our opinion in Serluca v. Stone & Webster Engineering, 5118 CRB-8-06-8 (July 13, 2007), and do not warrant a reversal or remand.
Respondents first issue of appeal, concerns the order to “pay all related workers’ compensation benefits due as a result of the injury.” Respondents present no case law or statutory authority explaining how the trial commissioner erred in this respect. “Absent the execution and approval of a full and final settlement, an accepted workers’ compensation claim theoretically remains open for the duration of a claimant’s lifetime,” Schenkel v. Richard Chevrolet, Inc., 4639 CRB-8-03-3 (March 12, 2004). Therefore, the totality of what benefits the claimant may be entitled to is not ascertainable at this time. For this reason we find no error in this order. To the extent the claimant and the respondent dispute whether a specific treatment or bill is due to the compensable injury they may hold further proceedings before the trial commissioner.
The respondents do present case law which they believe challenges the trial commissioner’s order that the respondent shall pay temporary total disability benefits “for as long as the Claimant continues to be temporary totally disabled.” They argue our opinions in Cerrito v. Logistec USA, Inc., 5022 CRB-3-05-11 (November 15, 2006), Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB-3-02-1 (February 25, 2003), and Brown v. State/Dept. of Mental Health and Addiction, 4053 CRB-2-99-5 (July 27, 2000), aff’d, 66 Conn. App. 282 (2001)(per curiam), cert. denied, 259 Conn. 913 (2002) are inconsistent with the order in this case. We agree the respondents have appropriately cited our legal standard, that it is the claimant’s continual obligation to prove entitlement to a total disability award, but do not believe the trial commissioner’s order is inconsistent with this precedent.
The evidence before the trial commissioner was that the claimant was totally disabled as of the date of the hearing and would remain totally disabled until he received treatment. The trial commissioner has great latitude in weighing the evidence presented before him. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). We agree with the claimant that the Papa case is in harmony with this case. In Papa, supra, we cited Morris v. A&A Acoustics, 3429 CRB-7-96-9 (August 8, 1997), for the proposition “ it has long been the accepted practice for a trial commissioner, under appropriate factual circumstances, to award ongoing temporary total disability benefits, and for the respondent to pay such benefits until it receives information from a physician that the claimant is medically able to return to work.”
To the extent the respondents believe the trial commissioner’s order in this case had “the legally impermissible result of shifting the burden of proof” (Appellant’s Brief, p. 4) we reprise our role in Serluca, supra, to clarify the legal effect of the order. Consistent with Cerrito, supra, “the continued involvement of an evaluating physician will be necessary for the claimant to establish ongoing entitlement to total disability benefits, as the issue remains a matter of continuing proof.” It is the respondents’ obligation to monitor the claimant’s condition, Morris, supra, and we will anticipate that when the respondent has medical documentation that the claimant can return to work a Form 36 will be filed. Should the commissioner accept the Form 36, at that point, the claimant will have the burden of proof before the trial commissioner that he is still totally disabled. See Brown, supra.
The respondents finally challenge the trial commissioner’s decision to defer rulings on the issue of attorney’s fees and unreasonable delay to a future hearing. We note that the trial commissioner did not rule on an issue in which he concluded the respondents had not had adequate notice. See Bennett v. Wal-Mart Stores, 4939 CRB-7-05-5 (May 15, 2006). We do note that the respondents are concerned that the trial commissioner may have reached an implied conclusion that undue delay of benefits have occurred. Our review of the subordinate facts found by the trial commissioner finds no basis to conclude he has reached a conclusion that the respondents’ defense was either dilatory in nature or meritorious.1 We believe a finding of liability for statutory sanctions requires a specific finding of fact and cannot be implied from a decision to permit the claimant to advance a claim for such relief in the future.
The trial commissioner in this matter appropriately bifurcated the issue of potential sanctions to a future hearing, where additional evidence must be submitted. Martinez-McCord v. State/Judicial Branch, 5055 CRB-7-06-2 (February 1, 2007). Such a hearing will address the respondents’ due process concerns consistent with the precedent in Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974).
Accordingly, we find no error and dismiss this appeal.
Commissioners Amado J. Vargas and Peter C. Mlynarczyk concur in this opinion.
1 In contrast, the trial commissioner in Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006) determined that the respondents’ defense was “incredulous.” BACK TO TEXT