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Love v. William W. Backus Hospital

CASE NO. 5255 CRB-2-07-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 24, 2008

DEBORAH LOVE

CLAIMANT-APPELLEE

v.

WILLIAM W. BACKUS HOSPITAL

EMPLOYER

and

SENTRY INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Randall A. Ortega, Esq., 60 Chelsea Harbor Drive, Norwich, CT 06360.

The respondents were represented by Peter D. Quay, Esq., P.O. Box 70, Taftville, CT 06380.

This Petition for Review from the July 18, 2007 Finding and Award of the Commissioner acting for the Second District was heard February 29, 2008 before a Compensation Review Board panel consisting of Commissioners Ernie R. Walker, Charles F. Senich and Amado J. Vargas.

OPINION

ERNIE R. WALKER, COMMISSIONER. The respondents have petitioned for review from the July 18, 2007 Finding and Award of the Commissioner acting for the Second District. On appeal, the respondents contend the medical reports contained in the record are insufficient to support the trial commissioner’s various findings with regard to the extent of the claimant’s disability and resulting eligibility for workers’ compensation benefits. The respondents also assert the trial commissioner committed reversible error by failing to allow the respondents to offer the report of their medical examiner after the record had closed. We find no error, and affirm the trial commissioner’s decision.1

The claimant, an operating room nurse for William Backus Hospital, sustained a compensable injury to her back on July 11, 2006 while in the course of her employment. On November 9, 2006, she underwent a 360° fusion at L5S1 performed by her treating physician, C.G. Salame, M.D. Following a period of total disability, Dr. Salame released the claimant to full duty on January 2, 2007 and she began looking for work.

On February 5, 2007, at the claimant’s request, Dr. Salame completed a Day Kimball Hospital Employee Work Capability Evaluation form on which he indicated the claimant could return to work subject to certain restrictions. Claimant’s Exhibit A. On February 9, 2007, Dr. Salame completed a second Day Kimball Hospital Employee Work Capability Evaluation form on which he indicated the claimant was released to work “as tolerated for up to 8 hours.” Claimant’s Exhibit A. The claimant began her employment as an operating room nurse for Day Kimball Hospital on February 26, 2007. However, she continued to experience ongoing difficulties with her back, and by April 6, 2007 felt she could no longer continue to perform the duties entailed by her position at the hospital. She left Day Kimball Hospital and began looking for a new job. On May 23, 2007, she spoke with Dr. Salame about the symptoms she was experiencing and Dr. Salame totally disabled her. On June 18, 2007, Dr. Salame once again released the claimant to work with restrictions, at which point the claimant resumed looking for new employment.

On March 5, 2007, the respondents filed a Form 36 with the Workers’ Compensation Commission for the Second District wherein, on the basis of Dr. Salame’s report of February 9, 2007, they sought to convert what they assumed was the claimant’s ongoing eligibility for temporary total disability benefits to temporary partial disability benefits based on job searches. On March 29, 2007, the commissioner for the Second District approved the Form 36 effective March 5, 2007, with a notation that the claimant had actually been working since February 26, 2007. The respondents paid the claimant at her base compensation rate of $786.00 until February 26, 2007.

At the formal hearing held in this matter on July 18, 2007, the trial commissioner determined that with regard to the position of operating room nurse at Day Kimball Hospital, the claimant was “earning less than what an employee in a comparable position to that held by the claimant prior to her injury would be earning.” Findings, ¶ F. Consequently, the commissioner found the claimant was eligible for temporary partial (differential) benefits during the period of February 26, 2007 to April 6, 2007 in the total amount of $2,419.11 at the following weeks and rates:

02/26/07-03/03/07 = $1,179.00=BCR2 $708.79=§31-308(a) differential $259.00
03/04/07-03/10/07 = $899.00=BCR $538.01=§31-308(a) differential $430.68
03/11/07-03/17/07 = $1,056.00=BCR $646.13=§31-308(a) differential $322.56
03/18/07-03/24/07 = $795.00=BCR $508.13=§31-308(a) differential $460.56
03/25/07-03/31/07 = $684.00=BCR $446.48=§31-308(a) differential $522.21
04/01/07-04/07/07 = $861.00=BCR $544.59=§31-308(a) differential $424.10

Findings, ¶ H.

The trial commissioner also found that as a result of the claimant’s compensable injury of July 11, 2006, she was unable to continue working at Day Kimball Hospital as of April 7, 2007. However, the claimant continued to look for another job until May 23, 2007, at which point Dr. Salame once again totally disabled her. On the basis of those findings, the commissioner awarded the claimant temporary partial benefits at the weekly rate of $786.00 for the period of April 7, 2007 to May 22, 2007, and total disability benefits at the weekly rate of $968.89 for the period of May 23, 2007 to June 18, 2007, when Dr. Salame released the claimant back to work with restrictions. Finally, the commissioner ordered the respondents pay to the claimant ongoing temporary partial disability benefits at the weekly rate of $786.00 from June 18, 2007 until such time as she found a new job, reached maximum medical improvement, or was totally disabled.3

Following the trial commissioner’s issuance of his Finding and Award, the respondents filed a Motion to Correct and Motion to Introduce New Evidence. The trial commissioner denied both motions in their entirety, and this appeal followed.4

It is helpful to begin our analysis by reciting the standard of deference we apply to a trial commissioner’s findings and legal conclusions. As this board recently articulated in Heilweil v. Montville-Board of Education, 5161 CRB-8-06-11 (October 24, 2007), quoting McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 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).

We now turn our analysis to an examination of the issues raised by the respondents in their appeal, beginning with the respondents’ contention that the medical reports contained in the file are legally insufficient, per the court’s analysis as enunciated in McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104 (1987), to support the trial commissioner’s conclusion that the claimant’s injury of July 11, 2006 is a substantial contributing factor in her claim for benefits after January 2, 2007. The respondents also assert that the claimant failed to “establish causation with expert medical opinion which is based on reasonable probabilities rather than on mere speculation.” Appellant’s Brief, p. 7, quoting O’Reilly v. General Dynamic Corp./Electric Boat Div., 52 Conn. App. 813 (1999).

We disagree. It is well settled that the responsibility rests with the trial commissioner to determine whether the facts admitted into a trial record establish causation. “Before he can make a valid award the trier must determine that there is a direct causal connection between the injury, whether it be the result of accident or disease, and the employment. The question he must answer is, was the employment a proximate cause of the disablement, or was the injured condition merely contemporaneous or coincident with the employment?” McDonough, supra, 117, quoting Madore v. New Departure Mfg. Co., 104 Conn. 709, 713 (1926). Thus, “[W]hen the board reviews a commissioner’s determination of causation, it may not substitute its own findings for those of the commissioner.” Dengler, supra, 451, quoting O’Reilly, supra, 819. “A commissioner’s conclusion regarding causation is conclusive, provided it is supported by competent evidence and is otherwise consistent with the law. Id., 451, quoting Funaioli v. New London, 61 Conn. App. 131, 136 (2000). The trial commissioner is charged with assessing the credibility of the evidence before him, and his “findings of basic facts and his finding as to whether those facts support an inference that the plaintiff’s injury arose from his employment are subject to a highly deferential standard of review.” Blakeslee v. Platt Bros. & Co., 279 Conn. 239, 253-254 (2006) (emphasis in the original.) Here, the trial commissioner had ample opportunity to assess the claimant’s medical reports and testimony, and we will not overturn the trial commissioner’s conclusions with regard to the threshold issue of causation.

In a similar vein, the respondents also contend that the medical records were legally insufficient to warrant the commissioner’s various disability awards commencing on February 9, 2007 and continuing through the date of the formal hearing. The respondents assert that apart from the reports contained in the record from Dr. Salame, several of which they maintain are confusing and contradictory, there is only the claimant’s “self-serving testimony” to support the trial commissioner’s findings of temporary partial and temporary total disability. Appellants’ Brief, page 3.

We concede that several of Dr. Salame’s notations in the medical reports regarding the extent and duration of the claimant’s incapacity do appear to be contradictory, and we sympathize with the apparent frustration which prompted the trial commissioner to remark that the medical reports were “clear as mud.” June 26, 2007 Transcript, p. 14. In fact, Dr. Salame’s office notes of December 1, 2006 (Claimant’s Exhibit A) and January 13, 2007 (Claimant’s Exhibit A) seem to be completely at odds with each other, and it is no doubt safe to presume that it was to at least some degree this lack of evidentiary clarity which led the trial commissioner to conclude the claimant was not entitled to compensation benefits for the period from January 2, 2007 to February 8, 2007. Findings, ¶ 1. However, a trial commissioner does not weigh specific evidence in isolation. It is within the trier’s authority to resolve inconsistencies or contradictions in the evidence. Gibson v. Keebler Co., 37 Conn. App. 392, 395-396 (1995).

One example of a seeming contradiction is illustrated by the following. On February 5, 2007, Dr. Salame completed a Day Kimball Hospital Employee Work Capability Evaluation on behalf of the claimant wherein he indicated she should avoid squatting, bending and twisting, and limit certain other activities such as sitting, standing, walking and climbing to four or six hours per day. Claimant’s Exhibit A. Then, on February 9, 2007 (four days later), Dr. Salame completed a second Day Kimball Hospital Employee Work Capability Evaluation wherein he indicated the claimant could perform all activities listed “as tolerated for up to 8 hours.” Claimant’s Exhibit A. The respondents contend the overt contradictions in these two reports, along with the accompanying office note of February 9, 2007, are such that the reports cannot legally support the trier’s conclusions of disability entitlement for the period between February 9, 2007 and May 23, 2007. See Claimant’s Exhibit A and Claimant’s Exhibit E.

We find the respondents’ argument unpersuasive. A close examination of the February 9, 2007 office note hints at the reason for the seemingly contradictory evaluation forms of February 5, 2007 and February 9, 2007 provided by Dr. Salame, because Dr. Salame states in the note that the claimant “wants to return back to work.” Claimant’s Exhibit E. Clarification of the underlying circumstances giving rise to these evaluation forms can be found in the claimant’s testimony at the formal hearing. The claimant testified that during the time period in which Dr. Salame prepared these reports, she was trying to obtain new employment at Day Kimball Hospital as a circulating operating room nurse (essentially the same position she had held at William Backus Hospital). Transcript, p. 23. She stated that the hospital’s “employee physician wanted Dr. Saleme [sic] to sign off since he had released me with no restrictions, they wanted their paperwork from him that said no restrictions as pertained to my job title, my job duties, job requirements. So we sent Dr. Saleme [sic] a copy of the job requirements along with the form that Day Kimball wanted, and at that point Dr. Saleme [sic] sent me back a form that restricted me less than what the job requirements were.” Transcript, p. 22.

Unfortunately, according to the claimant, the hospital refused to hire her subject to the restrictions enumerated in the original February 5, 2007 evaluation form, prompting a phone call from the claimant to Dr. Salame in which she said, “sir, you’ve released me with no restrictions, you want me to go back to work, I want to go back to work, but I send you this and you submarined me.” Transcript, pp. 22-23. It would not be improper for the trial commissioner to infer that as a result of this phone call, Dr. Salame provided the second evaluation form of February 9, 2005, and the claimant was subsequently hired by the hospital and began working on February 26, 2007.

The claimant also testified at the formal hearing that she worked at the hospital until April 6, 2007, by which time she was physically unable to continue her efforts to perform the duties of the job. “I could not independently function as an OR nurse. I was constantly having to ask for help. So I sat down with the director of the department and we agreed that it was not in anybody’s best interest that I keep trying. I could not do the job.” Transcript, p. 24. The claimant also testified she spoke with Dr. Salame about the difficulties she was having, and “he said, well, let’s put you back on disability. And he sent me another disability notice at that time. I took that notice, gave it to the director of the OR and at that point in time I was terminated from Day Kimball.” Transcript, p. 25. The claimant began looking for another job and submitting job search forms, but by the date of the formal hearing still had not found new employment. Transcript, pp. 25-26.

We believe the record demonstrates the claimant’s motivation to return to work. The record further demonstrates that Dr. Salame accommodated the claimant’s return-to-work objective by providing a medical report which would allow her to try out the position available at Day Kimball Hospital. Based on the testimony offered by the claimant, the trial commissioner concluded that despite the claimant’s best intentions, she simply was not able to perform the duties required by the position. It would serve no useful purpose within the workers’ compensation scheme for a trial commissioner to penalize a well-intentioned claimant for attempting to return to work by refusing to award additional benefits when the original compensable injury prevents the claimant from maintaining the new position.

Thus, having made the determination that the claimant was unable to continue on in her employment at Day Kimball Hospital, the trial commissioner found her eligible for temporary partial benefits pursuant to § 31-308(a) C.G.S. The respondents contest this award, although they rightfully recognize that “the question of whether the Claimant was entitled to benefits for temporary partial under Section 31-308(a) is a matter appropriate for the trial commissioner to decide.” Appellants’ Brief, p. 8.

To receive full compensation for partial disability under § 31308(a), a plaintiff must satisfy the following three-pronged test: “(1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available. . . .” General Statutes § 31-308(a).

Mikula v. First National Supermarkets, Inc., 60 Conn. App. 592 (2000).

With regard to § 31-308(a) differential benefits, the commissioner is also charged with determining the claimant’s earning capacity. In the instant matter, the trial commissioner had the benefit of Dr. Salame’s medical reports and the claimant’s live testimony on which to rely in evaluating the claimant’s eligibility for these benefits, and we are satisfied that his conclusions as to her eligibility were permissible. Such factual determinations are far more easily subject to investigation and analysis at the trial level than on appeal, and it is not the province of this board to second-guess a trial commissioner’s findings with regard to those determinations, even when some of the evidence presented seems to be contradictory. “It is . . . immaterial that the facts permit the drawing of diverse inferences. 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.” Fair v. People’s Savings Bank, 207 Conn. 535, 540 (1988), quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).

In fact, on prior occasions, this board has asserted that, “[A] trial commissioner is allowed to accept an opinion unless it is so unreasonable that no rational person could believe it.” Carney-Bastrzycki v. Hospital for Special Care, 4722 CRB-6-03-9 (September 3, 2004), quoting Desrosier v. Newington, 3091 CRB-6-95-6 (December 16, 1996), aff’d, 47 Conn. App. 920 (1997) (per curiam). Having had the opportunity to examine the medical reports and review the claimant’s testimony as presented at the formal hearing, we believe the trial commissioner’s conclusions with regard to the claimant’s eligibility for § 31308(a) benefits were eminently “rational” and we do not elect to disturb the commissioner’s findings on appeal.

Finally, we turn our analysis to the trial commissioner’s denial of the respondents’ Motion to Correct and Motion to Introduce New Evidence submitted on July 31, 2007. With regard to the former, we think that the numerous corrections submitted by the respondents, aside from a few housekeeping items, primarily sought to establish that the trial commissioner’s findings with regard to the claimant’s eligibility for § 31-308(a) benefits were without support in the medical records. As this board has noted in prior decisions, when “a Motion to Correct involves requested factual findings which were disputed by the parties, which involved the credibility of the evidence, or which would not affect the outcome of the case, we would not find any error in the denial of such a Motion to Correct.” Robare v. Robert Baker Companies, 4328 CRB-1-00-12 (January 2, 2002). Here, the corrections sought by the respondents were nothing more than an attempt to substitute factual determinations they deemed preferable. On the basis of our review of the respondents’ proposed alterations to the trial commissioner’s findings, we conclude, “[T]he corrections sought [by the respondents] were not merely facts that were admitted or undisputed and thus no alteration to the factual findings is necessary.” Fratino v. Harry Grodsky & Co., Inc., 5087 CRB-7-06-5 (May 8, 2007), quoting Chesler v. Derby, 96 Conn. App. 207 (2006), cert. denied, 280 Conn. 909 (2006).

With regard to their Motion to Introduce New Evidence, the respondents assert the trial commissioner erred in failing to allow the respondents to offer the June 27, 2007 report of their medical examiner, Dr. Yannopoulos, contending that the report, which was obtained nine days after the formal hearing and indicated the claimant had reached maximum medical improvement as of June 27, 2007, should have been admitted as it was relevant to the nature of the claimant’s ongoing disability. It should be noted that the formal hearing held on June 26, 2007 had been scheduled on an emergency basis; while the respondents concede it was within the trial commissioner’s discretion to accelerate the commission’s administration of the file, they also argue that “the fact that this matter was expedited cannot deprive the Employer/Carrier of its ability to have an opportunity to defend the concept of the ongoing disability suffered by the Claimant. Dr. Yannopoulos’ report had clear relevance to this issue and should have been admitted.” Appellants’ Brief, p. 12.5 The respondents also contend that in light of the fact that Dr. Yannopoulos in his June 27, 2007 report establishes the claimant was at maximum medical improvement, the trial commissioner erred in finding that the claimant was temporarily totally disabled at the time of the formal hearing.

The admissibility of additional evidence subsequent to proceedings before the trial commissioner is governed by Admin. Reg. § 31-301-9, which allows for the admission of new evidence “if any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner.” As the court explained in Pantanella v. Enfield Ford, Inc., 65 Conn. App. 46, 57-58 (2001),

[T]he decision whether to open a compensation hearing and to admit additional evidence rests very largely within the discretion of the commissioner. (Internal quotation marks omitted.) Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 543, 612 A.2d 1222 (1992). The party seeking to have the record opened to introduce new evidence must demonstrate, by a preponderance of the evidence, that: “(1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” (Internal quotation marks omitted.) Id., 542.

In light of the foregoing, we do not consider the trial commissioner’s refusal to admit the respondents’ report of June 27, 2007 to be an abuse of discretion. While we would certainly concede that this report is relevant to the nature of the claimant’s ongoing eligibility and concomitant eligibility for workers’ compensation benefits, we do not think the report is germane with respect to the periods of disability under consideration in the proceedings below. As the claimant aptly observes in her brief, “such a report, even if timely, would not clarify the issues in dispute, which dealt with past due temporary total and temporary partial disability benefits.” Appellee’s Brief, p. 5. In addition, in his Finding and Award of July 18, 2007, the trial commissioner specifically states that the respondents were to pay the claimant temporary partial benefits “until the claimant either secures new employment, reaches maximum medical improvement, or is totally disabled.” Findings and Conclusion, ¶ 6. We agree with the claimant’s observation that this report should more appropriately be the subject of a Form 36 (Notice to Employer and Compensation Commissioner of Intention to Discontinue or Reduce Payments), which was indeed apparently filed by the respondents. Appellee’s Brief, p. 5.

We also note the respondents in their brief made substantial references to the case of Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733 (2001) in support of their position that the trial commissioner’s refusal to accept Dr. Yannopoulos’ report into the record could constitute a due process violation. “Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties involved have a right to produce relevant evidence, and an opportunity to know the facts on which the agency is asked to act, to cross-examine witnesses and to offer rebuttal evidence.” Bryan, supra, 740, quoting Huck v. Inland Wetlands & Watercourses Agency, 203 Conn. 525, 536 (1987). In our view, however, the facts of the instant matter are readily distinguishable from those in Bryan, given that the additional evidence which the Bryan defendants sought to introduce was a medical report from Dr. Selden in which he specifically disavowed information he had stated in a prior medical report. Here, the respondents were not seeking to clarify an already existing opinion of its expert. We therefore think Bryan is not applicable to the instant matter.

On the basis of the foregoing, and having found no error, we affirm the July 18, 2007 Finding and Award of the trial commissioner acting for the Second District.

Commissioners Charles F. Senich and Amado J. Vargas concur.

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

2 BCR represents the claimant’s base compensation rate. BACK TO TEXT

3 In light of some confusion in the underlying record regarding payments made by the respondents to the claimant between January 2, 2007 and February 8, 2007, the trial commissioner also determined the respondents were eligible for a credit for any benefits paid to the claimant during that time period. BACK TO TEXT

4 On August 14, 2007, the trial commissioner issued a second Finding and Award pursuant to § 31 301(f) ordering the respondents to pay the orders and assume all liabilities contained in the Finding and Award dated July 18, 2007 during the pendency of the appeal, and also ordering the claimant to reimburse the respondents for all monies expended should the respondents prevail on the issues on appeal. BACK TO TEXT

5 In their brief, the respondents also mention “parenthetically” that the claimant’s treating physician released the claimant back to work without restrictions on September 1, 2007. Appellants’ Brief, p. 13. BACK TO TEXT

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