State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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McFarland v. State of Connecticut Dept. of Developmental Services

CASE NO. 5176 CRB-5-06-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 21, 2007

KENNETH McFARLAND

CLAIMANT-APPELLEE

v.

STATE OF CONNECTICUT/DEPT. OF DEVELOPMENTAL SERVICES

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLANT

and

GAB ROBINS OF NORTH AMERICA

ADMINISTRATOR

APPEARANCES:

The claimant was represented by Edward T. Dodd, Esq., Dodd, Lessack, Dalton & Dodd, LLC, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

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

This Petition for Review from the Finding and Award of the Commissioner acting for the Fifth District was heard July 13, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Barton and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant herein is an employee with the state Department of Developmental Services and has had a number of compensable injuries during his career. This appeal relates to his latest period of disability attributed to his shoulder injuries. The claimant sought temporary total disability benefits during a period in 2004 and 2005 in which time the respondent had initiated disciplinary proceedings against him. The respondent denied the claim, and at the formal hearing the trial commissioner concluded the claimant had a meritorious case and the respondent did not; thus awarding the claimant benefits under § 31-307 C.G.S. as well as attorney’s fees and interest pursuant to § 31-300 C.G.S. The respondent has appealed but we conclude the trial commissioner reached a reasonable decision based on the record. We affirm his Finding and Award and dismiss this appeal.

The trial commissioner found the following facts after a formal hearing held on May 8, 2006 and continued to August 25, 2006. The claimant suffered his first compensable injury, a right shoulder injury, on May 10, 1987. He suffered a second right shoulder injury May 5, 1996 and required surgery. While he returned to work after each injury, he became progressively more symptomatic and on June 16, 2004 the claimant’s treating physician, Dr. Kaplan, declared him totally disabled due to post-traumatic arthrosis. Findings, ¶¶ 1-9.

The respondent had the claimant examined by its examiner, Dr. Craig Foster, on August 19, 2004. The trial commissioner found Dr. Foster opined that the claimant had “early arthritis of his shoulder with some residual stiffness” and “. . . I do believe he has some underlying pathology which is also contributory.” Findings, ¶ 10.

Dr. Kaplan released the claimant back to full duty work on March 29, 2005. Prior to that date the claimant had been paid for only twelve weeks of temporary total benefits on a “without prejudice” basis. He had been suspended without pay for disciplinary reasons during this period and therefore, received no payment from the respondent. On or about June 1, 2005 the claimant was exonerated of misconduct and the respondent at that point paid wages to the claimant. Findings, ¶¶ 12-16.

Based on those subordinate facts on December 15, 2006 the trial commissioner awarded the claimant § 31-307 C.G.S benefits for the period in which his treating physician kept him out of work, concluding that Dr. Kaplan was more persuasive than Dr. Foster; whom he deemed “equivocal” on his assertion the claimant had a sedentary work capacity. Findings, ¶ A. The trial commissioner believed the respondent did not pay the claimant more than twelve weeks of benefits since they “sincerely believed that Claimant was going to be responsible to repay benefits as a result of the departmental hearing in which he was involved.” As the trial commissioner found this delay unreasonable given the claimant’s ongoing financial obligations, and legally unwarranted pursuant to the Laliberte v. United Security, Inc., 261 Conn. 181 (2002) case; he awarded the claimant interest on the award and attorney’s fees. Findings, ¶ B. The respondent filed a Motion to Correct the Finding and Award, which was denied in its entirety. The respondent then pursued this appeal.

The respondent’s appeal is based on a number of alleged errors. They claim the Motion to Correct should have been granted. They assert the claimant failed to prove entitlement to § 31-307 C.G.S benefits due to inadequate medical evidence and his unreliable testimony. They challenge the award of benefits when the claimant was later paid wages. Finally, they appeal the award of attorney’s fees. We are not persuaded by these claims of error.

As an initial matter, we note that the claimant has filed a Motion to Dismiss claiming that the Reasons of Appeal amount to “no more than a Motion to Correct.” We deny this motion as we cannot find any prejudice to the claimant from the manner in which the respondent has framed its appeal. Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006).

There are three primary themes in this appeal. The first argument is that the facts before the trial commissioner did not justify the award of benefits. A respondent faces a difficult burden in advancing this argument on appeal before the Commission, as we recently described in Heilweil v. Montville-Board of Education, 5161 CRB-8-06-11 (October 24, 2007),

We begin by stating that the role of this board on appeal is not to substitute its own findings for those of the trier of fact. Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 451 (2001). The trial commissioner’s role as factfinder encompasses the authority to determine the credibility of the evidence, including the testimony of witnesses and the documents introduced into the record as exhibits. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). If there is evidence in the record to support the factual findings of the trial commissioner, the findings will be upheld on appeal. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). This board may disturb only those findings that are found without evidence, and may also intervene where material facts that are admitted and undisputed have been omitted from the findings. Burse, supra; Duddy, supra. We will also overturn a trier’s legal conclusions when they result from an incorrect application of the law to the subordinate facts, or where they are the product of an inference illegally or unreasonably drawn from the facts. Burse, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); citing McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

A review of the reports submitted by the treating physician, Dr. Kaplan, indicates that during all periods relevant to this inquiry he had attributed the claimant’s pain and inability to work to the previous compensable right shoulder injury. At the point Dr. Kaplan authorized his return to work (March 29, 2005) he noted the claimant at that point related greater left shoulder pain than right shoulder pain. Claimant’s Exhibit A.1 A reasonable inference was that the compensable right shoulder injury had healed sufficiently to permit the claimant to return to work, and we are puzzled at the respondent’s interpretation that somehow the doctor had changed his opinion as to the cause of the claimant’s disability. We find the reports of Dr. Kaplan probative evidence of disability on which the trial commissioner was entitled to rely.

The respondent terms the claimant’s testimony “unreliable.” The relevant point herein is: “[t]he trial commissioner herein believed the claimant. It was his prerogative to do so.” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007). “Where the veracity of a witness’ factual representations is at issue, the trier’s credibility assessment is virtually inviolable on appeal.” Canevari v. C.R. Gibson Co., 4231 CRB-7-00-5 (May 14, 2001).

The respondent also argues it was error for the trial commissioner to discount Dr. Foster’s opinions. Dr. Foster clearly identified shoulder pain as limiting the claimant’s ability to work, although opining to a sedentary work capacity. Respondent’s Exhibit 3, p.13. He also attributed the compensable injury to the need for shoulder replacement. Respondent’s Exhibit 3, p. 15. However, it did appear there was some confusion as to what shoulder he had previously examined. Respondent’s Exhibit 3, p. 23. We have indicated a trial commissioner can err by relying on vague or confusing medical testimony. Risola v. Hoffman Fuel Company of Danbury, 5120 CRB-7-06-8 (July 20, 2007), dismissed for lack of final judgment, A.C. 29056 (October 18, 2007); Green v. General Motors Corporation New Departure, 5111 CRB-6-06-7 (August 21, 2007). Since “[w]e must defer to the factual findings of the trial commissioner in such ‘dueling expert’ cases” Dellacamera v. Waterbury, 4966 CRB-5-05-6 (June 29, 2006); we must uphold the trial commissioner’s determination that Dr. Kaplan offered the superior evidence on whether the claimant could work.

Having resolved the substantive questions in favor of the claimant, we must determine if the procedural issues raised by the respondent are meritorious. They challenge the trial commissioner’s reliance on Laliberte v. United Security, Inc., 261 Conn. 181 (2002) to award disability benefits when they assert the claimant was paid wages at a later date. They assert precedent in Sweeney v. Waterbury, 10 Conn. Workers’ Comp. Rev. Op. 240, 1225 CRD 5-91-5 (January 7, 1993) and Boulay v. Waterbury, 27 Conn. App. 481 (1992) bars the relief awarded in this case. The respondent advances this argument by making the intemperate charge that the Commissioner’s finding in paragraph 15 of the Finding and Award “comes across as nonsense.”2 We have reviewed the factual and legal basis of the cases cited by the respondent and cannot ascertain how in any legal or factual sense they contravene the precedent in Laliberte, supra.

Both Sweeney and Boulay were cases involving Waterbury schoolteachers where the issue was how to allocate the disability award when the claimants were scheduled to take a long summer vacation and did not seek employment during this period. In Boulay the issue of whether the claimant had received any salary was not an issue, and she was directed to seek redress under her collective bargaining agreement to receive the 33.3% balance of her salary she would have earned had she not been disabled. In Sweeney the issue of concurrent payment was raised and we indicated that was again an issue to be determined under the collective bargaining agreement.3

Neither case deals with the circumstance where one who is facing disciplinary action at work is denied Chapter 568 benefits until the disciplinary process is adjudicated. We believe on the facts this case far more closely resembles Laliberte, where the respondents attempted to deny an incarcerated inmate temporary total disability benefits. Looking at the plain language of the statute (§ 31-307 C.G.S) the Supreme Court concluded, “It is evident that § 31-307(a) contains no provision permitting the discontinuance of the total disability benefits of an injured employee based on his incarceration.” Id., 186. The respondent points to no provision in the language of that statute that bars an award for disability under the present circumstances. The court in Laliberte noted that the General Assembly had passed offset legislation dealing with social security benefits and concluded had they wanted to bar compensation benefits for prisoners they “easily could have done so.” Id., 187.

We recently dealt with the issue of attorney’s fees for delaying payment of compensation benefits in Abrahamson v. State/Department of Public Works, 5054 CRB-2-06-1 (January 9, 2007). In Abrahamson we cited a test delineated in Cirrito v. Resource Group Ltd. of Conn., 4248 CRB-1-00-6 (June 19, 2001) for under what circumstances an award of attorney’s fees is warranted.

Pursuant to § 31-300, there are four separate circumstances in which the trial commissioner is empowered to penalize an employer or insurer. Where adjustments or payments of compensation have been unduly delayed due to the fault or neglect of the employer or insurer, the commissioner may award interest and a reasonable attorney’s fee. Where adjustments or payments of compensation have been delayed in the absence of fault by the employer or insurer, the commissioner may allow interest “as may be fair and reasonable.” Where the claimant prevails in an action and the trier finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee. Finally, where total or partial incapacity payments are discontinued without (1) the issuance of proper notice as required by § 31-296 and (2) a written approval of such cessation by the commissioner, the trier is required to award the claimant a reasonable attorney’s fee and interest on the prematurely halted or reduced payments.” (Emphasis in original) Id.

Findings, ¶ B clearly indicates that after hearing all the evidence in this case that the trial commissioner concluded the payment of compensation was contested or delayed due to the fault or neglect of the employer, and therefore, their conduct was unreasonable. The trial commissioner reached the factual determination that the actual reason the claimant was not paid for his disability, was that the employer believed he would be let go in the disciplinary process; which would pose an impediment to the respondent were they to seek reimbursement of payments from the claimant. Since refusing to pay benefits pursuant to such a rationale acts to the claimant’s detriment, we believe the case is akin to Collazo v. Microboard Processing, 4912 CRB-4-05-1 (January 19, 2006); where we upheld the award of attorney’s fees to the claimant when the respondent reneged on a settlement offer.4

The respondent argues that interest and attorney’s fees are unwarranted when they presented a substantive defense to the claimant’s medical evidence. We can infer, however, that the trial commissioner found this defense was essentially pretextual in nature. Given the totality of the circumstances, we conclude that the trial commissioner’s actions herein comport with the “abuse of discretion” standard outlined in In re Shaquanna M., 61 Conn. App. 592, 603 (2001). Given the juxtaposition of a disciplinary action concurrent with the denial of disability benefits, we cannot conclude on the issue of awarding attorney’s fees the trial commissioner “decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors.” Id.5

The Finding and Award is affirmed and the appeal is dismissed.

Commissioners and Scott A. Barton and Ernie R. Walker concur in this opinion.

1 The respondent’s assertion that “the claimant’s side [did] not produce a medical record after December 2004,” Respondent’s Brief, p. 7, is clearly erroneous. BACK TO TEXT

2 Findings paragraph 15 stated, “Respondent believed that it would prevail in said hearing and that Claimant would then be obligated to refund money to the department. Their failure to pay temporary total disability benefits would minimize the amount Claimant would have to refund the Respondent.” BACK TO TEXT

3 The claimant represents he is not seeking “double recovery” as he will be obligated to reimburse the state for his temporary total benefits, minus interest and attorney’s fees. Claimant’s Brief, p. 7. BACK TO TEXT

4 In Collazo, the respondents presented a substantive defense of the claim following an IME. Nonetheless, we upheld a finding that the circumstances in that case left the award of attorney’s fees within the discretion of the trial commissioner. In this case, the respondent paid twelve weeks of temporary total benefits on a “without prejudice” basis and then, during the claimant’s suspension from work, ceased making these payments. The trial commissioner could understandably find this course of conduct was unreasonable. BACK TO TEXT

5 Since the respondent’s Motion to Correct essentially seeks to retry the case, we find no error in its denial. See Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006), and D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002). BACK TO TEXT

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