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Gilbert v. City of Ansonia

CASE NO. 5342 CRB-4-08-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 14, 2009

KEVIN GILBERT

CLAIMANT-APPELLEE

v.

CITY OF ANSONIA

EMPLOYER

and

CIRMA

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Michael E. Passero, Esq., Law Firm of John M. Creane, 92 Cherry Street, P.O. Box 170, Milford, CT 06460.

The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824-0550.

Also in attendance on behalf of the City of Ansonia as Corporation Counsel was Kevin Blake, Esq., Shepro & Blake, 2051 Main Street, Stratford, CT 06615.

This Petition for Review from the May 2, 2008 Finding and Order of the Commissioner acting for the Fourth District was heard on November 21, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners and Ernie R. Walker and Amado J. Vargas.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the May 2, 2008 Finding and Order of the Commissioner acting for the Fourth District. We find no error, and affirm the decision of the trial commissioner.

The following factual background is pertinent to our review of this appeal. The claimant, a volunteer firefighter for the City of Ansonia, sustained multiple injuries on June 16, 1995 after falling from a ladder while fighting a fire. A Voluntary Agreement approved on September 8, 1997 described the claimant’s injuries as follows: “T12-L1 fracture, paraplegia, Rt. tibial fx, hairline fx of pelvis, Rt. ulnar fx, right radial fx, left elbow fx, collapsed Rt. lung.” Claimant’s Exhibit C (March 9, 2004). In an Order Pursuant to C.G.S. 31-278 issued on June 22, 2004, the trial commissioner presiding over the matter at that time determined the respondents had accepted compensability for a T12-L1 fracture, paraplegia, a right tibia fracture, a pelvis fracture, a right ulnar fracture, a right radial fracture, a left elbow fracture and a collapsed right lung.1 The trial commissioner also found that the claimant had been receiving total incapacity benefits pursuant to § 31-307(c) C.G.S. because of his paraplegia.2 In addition, the trial commissioner determined that the claimant, who was actively employed as an owner/operator of a trucking company at the time of the decision, was permitted to continue working inasmuch as the class of total disability benefits to which he was entitled accorded him the status of a “permanent and total disabled person pursuant to C.G.S. 31-307(c).” Findings, ¶ E. Finally, the trial commissioner authorized the deposition of Matthew Raymond, M.D., in order to “obtain an update on the status of the spinal cord injury.” Findings, ¶ H. Dr. Raymond, the claimant’s treating physician, had previously diagnosed the claimant with an ASIA-A spinal cord injury, which is defined by the American Spinal Injury Association as, “a complete injury with no motor or sensory function preserved in the sacral segments, S4S5.” Respondents’ Exhibit 1, p. 5 (March 9, 2004).

Following the deposition of Dr. Raymond, the respondents then sought to have the claimant undergo a respondents’ medical examination, to which the claimant objected.3 This dispute proceeded to a formal hearing, and the Finding and Order of May 2, 2008 is the subject of the instant appeal.

In this Finding and Order, the trial commissioner adopted and incorporated the voluntary agreement of September 8, 1997 and the Finding and Order of June 22, 2004, and concluded “[t]he law of this case establishes that the claimant has been receiving total incapacity payments to date pursuant to C.G.S. Section 31-307(c).” Findings, ¶ C. The trial commissioner further determined, “[g]iven the history of this case, the voluntary agreement, the prior Finding and Order dated June 22, 2004, and pursuant to C.G.S. 31-294f, I hereby find the respondents’ request for an examination of the claimant unreasonable and therefore deny their request.”4 Findings, ¶ B. The trial commissioner “[found] the respondents’ attempt to relitigate this matter several years after the date of injury to be unreasonable and against the humanitarian purpose of the Workers’ Compensation Act.” Findings, ¶ E.

The respondents have appealed this decision, asserting they have a “statutory right” to such an examination, Appellant’s Brief, p. 6, and “[t]here has never been an independent medical examination in this case although such a request has been outstanding since 2002 and multiple attempts have been made to schedule such an examination.” Id. The respondents concede that Dr. Raymond, in his report of December 13, 2002, states that the claimant had sustained a T-11 ASIA A spinal cord injury. However, the respondents point out that Dr. Raymond also indicated in the same report that the claimant “does have a small zone of partial preservation, greater on the left than on the right.” Id., at 7. See also Respondents’ Exhibit 1, p. 5 (March 9, 2004). The respondents contend that Finding, ¶ H, in the decision of June 22, 2004, wherein the trial commissioner authorized the respondents to take the deposition of Dr. Raymond, “infers that the Commission believed that the Respondents had the right to obtain an update regarding the status of the claimant’s leg paralysis and whether it comports to §31-307(c).” Id.

The respondents also assert the trial commissioner’s determination that the law of the case established the claimant was receiving benefits pursuant to § 31-307(c) C.G.S. was erroneous. “There was no order or written agreement between the parties after the date of injury indicating that the Claimant’s total disability benefits were pursuant to §31-307(c). The Voluntary Agreement only puts forth that the Claimant was receiving temporary total disability benefits pursuant to §31-307.” Id., at 8. The respondents further dispute the inference drawn by the instant trial commissioner relative to Finding, ¶ C of the June 22, 2004 Order wherein that trial commissioner found “the claimant has been receiving total incapacity benefits from the date of injury pursuant to C.G.S. 31-307(c) due to his paraplegia.” The respondents argue that because “[t]he only issue at that time before the Commissioner was the discovery issue regarding whether the Respondents would be allowed to schedule the treating physician’s deposition,” Appellants’ Brief, p. 8,

any ‘findings’ set forth in the June 22, 2004 Order regarding the characterization of the temporary total disability benefits being paid must not influence the decision in this case as to whether an Independent Medical Examination is reasonable on the issue of the Claimant’s current leg paralysis and should not bar the Respondents from investigating whether the Claimant has lost complete use of his legs or whether he has had a change in his condition.

Id., at 9.

The respondents contend that the trial commissioner’s decision to deny the respondents’ medical examination represents a violation of due process. However, the respondents also assert that even if “the Claimant has been adjudicated to be permanently and totally disabled pursuant to §31-307(c), there exists alternative statutory authority for ordering the requested examination.” Id., at 10. The respondents rely for this contention on § 31-315 C.G.S., which provides for the modification of a voluntary agreement whenever the incapacity of the claimant appears to have changed.5 It is the respondents’ position that the videotaped surveillance of the claimant introduced at trial, which purportedly “demonstrates that the Claimant can walk and ambulate,” id., provides the “statutory criteria” for modifying the original voluntary agreement. The respondents point out that although the voluntary agreement does mention paraplegia, it “does not comment regarding extent of the paralysis or whether it would include total loss of use of both legs as required under § 31-307(c).” Id. Finally, the respondents suggest that the language of § 31-307(c) C.G.S. does not expressly prohibit a finding that the claimant’s condition has changed.6 “Advances in medical treatment and unexpected improvements in medical conditions can occur and what might at one point in time be thought of as a permanent loss of function of a body part may be proven inaccurate at a later time period due to a change in incapacity.” Id., at 10-11. In support of their allegation that just such a change in the claimant’s incapacity has occurred, the respondents rely on the report of December 6, 2004 issued by Michael Weintraub, M.D., following his review of the claimant’s medical records. See Respondents’ Exhibit 1 (October 22, 2007). In this report, Dr. Weintraub opines that the claimant’s “injury with fracture and spinal cord damage has improved to the point where he is not in ASIA A classification but rather in the B or C classification.” Id., at 3. Dr. Weintraub concludes that “based on [§ 31-307(c) C.G.S.] there is no ‘permanent and complete paralysis of the legs’” because “[t]here is still residual motor control in the proximal portions whereas the distal portions do appear to have permanent and complete paralysis of the legs.” Id. In light of these findings by Dr. Weintraub, the respondents assert that the trial commissioner’s determination that their request for a respondents’ medical examination is unreasonable “cannot stand given the evidence in this case,” Appellants’ Brief, p. 11, and “a good faith issue has been raised as to whether the Claimant has, pursuant to the provisions of §31-307(c), permanent and complete paralysis of the legs.” Id.

We begin our analysis with the observation that “[t]he determination of whether a Respondent’s request for examination is reasonable and should be compelled under Sec. 31-305 C.G.S. [now § 31-294f C.G.S.] is a matter for the trial commissioner to decide.” Straub v. Bolt Technology Corporation, 9 Conn. Workers’ Comp. Rev. Op. 212, 213, 1130 CRD-3-90-11 (September 12, 1991). See also Applebee v. State/Southbury Training School, 8 Conn. Workers’ Comp. Rev. Op. 142, 841 CRD-5-89-4 (August 20, 1990). Naturally, we are mindful of the well-settled principle of workers’ compensation law that a trial commissioner is charged with protecting the “‘substantial rights of the parties’ [which] include the right of the employer … independently to examine the claimant, to notice his deposition, and to insist on hearing his personal testimony at a formal hearing.” Pietraroia v. Northeast Utilities, 254 Conn. 60, 72 (2000). “Protecting such ‘substantial rights’ is part and parcel of ensuring that each party in a compensation proceeding receives a fair hearing.” Bailey v. State, 65 Conn. App. 592, 604 (2001). Thus, “[a]n employer’s right to obtain an independent medical examination under § 31-294f is part of an employer’s right to a fair hearing and, specifically, part of its right to be heard.” Id., at 604-605.

We are also cognizant that a “plaintiff is entitled to total disability benefits under General Statutes § 31-307 (a) only if he can prove that he has a ‘total incapacity to work.’”7 D’Amico v. Dept of Correction, 73 Conn. App. 718, 724 (2002), cert. denied, 262 Conn. 933 (2003). “The plaintiff [bears] the burden of proving an incapacity to work, and ‘total incapacity becomes a matter of continuing proof for the period claimed.’” Dengler v. Special Attention Health Svcs, Inc., 62 Conn. App. 440, 454 (2001), quoting Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 42 (1996). However, from its inception, the Workers’ Compensation Act “carved out” certain injuries from the general rule governing total incapacity and indicated that such injuries “shall be considered as causing total incapacity and compensation shall be paid accordingly”.8 (Emphasis added) Notably, prior to the version of the statute adopted during the legislative session in 1953, the provisions for total incapacity (then codified at § 2287c) contained a limitation on the number of weeks for which a claimant could collect total incapacity benefits. “At that legislative session, as indicated, an increase in the weekly compensation was adopted and the limitation of 780 weeks for total incapacity was removed from the former statute.” Bahre v. Hogbloom, 162 Conn. 549, 552 (1972). In fact, the removal of the limitation on the number of weeks for which a claimant could be considered eligible for total incapacity benefits represented the culmination of an historical trend during which the legislature had gradually been increasing the number of weeks of eligibility.

Pursuant to 7430, Rev. 1949, the limitation for payment for total disability at that time was set at 520 weeks. At the January session of the General Assembly in 1949 this had been increased to 624 weeks, 617a, 1949 Sup.; and it was in 1951, 1313b, 1951 Cum. Sup., that it was increased to 780 weeks.

Id.

The Bahre court stated,
The history of the statute, 2287c, Cum. Sup. 1953, demonstrates a clear intention by the legislature to upgrade and liberalize workmen’s compensation payments through the years and to extend systematically the duration of payments, finally resulting in a complete removal of the ceiling on total incapacity in the session of 1953. The language of the statute is plain and unequivocal so that there is no need for statutory construction; the intention, however, clearly expressed in the statute is, nevertheless, corroborated by its history, discussed above, the objects sought to be accomplished and the purpose it is designed to serve.

Id., at 552-553.

Noting that “[t]he application of 2287c providing compensation for total disability is not limited solely to those persons who are permanently and totally disabled,” id., at 557, the Bahre court concluded, “[d]uring the period of total incapacity, whether the injury is permanent or temporary, the disabled employee is entitled to compensation for the prescribed period.” Id., at 558. “The real and essential purpose of 2287c, clearly expressed in the enactment, was to remove any limitation on payments for total incapacity.” Id.

This board has recognized the distinction between total incapacity benefits generally and the benefits paid for the relatively small class of injuries that confer permanent total disability status. In Donaldson v. Duhaime, 4213 CRB-6-00-3 (April 30, 2001), for example, we upheld the decision of the trial commissioner to deny permanent total incapacity benefits to a claimant who had asserted she was “[suffering] from ‘incurable mental illness’ that would prevent her from ever working again.” Id. Noting that “[g]iven the conflicting medical evidence in this case, the insertion of a permanent disability finding would have been fairly dramatic,” id., we remarked, “[t]otal disability, other than that statutorily mandated by § 31-307, is normally a matter of continuing proof.” Id. Similarly, in Devanney v. Woodcock Refrigeration Co., 4403 CRB-8-01-6 (July 29, 2002), we reversed a trial commissioner who had awarded total disability benefits pursuant to § 31-307(c)(2) C.G.S. to a claimant who was not deemed, according to the medical reports in the file, to have “permanently lost the full use of his feet at or above the ankle.” Id. Although we recognized that “[p]ursuant to § 31-307(c), certain enumerated injuries are automatically considered as causing total incapacity regardless of their actual effect on an injured employee’s vocational possibilities, and total disability benefits are paid accordingly,” id., we also stated, “[i]t is clear from the statute that compensation is only paid when the loss of the listed body part is both total and permanent….”9 Id. Finally, in Russell v. State/Dept. of Developmental Services/ Southbury Training School, 5212 CRB-5-07-3 (March 18, 2008), we upheld the decision of the trial commissioner declining to extrapolate the automatic creation of permanent total disability status from the language in § 31-307a C.G.S. dealing with COLA provisions. Citing our decision in Fiorillo v. Bridgeport, 4585 CRB-4-02-11 (December 17, 2003), appeal dismissed for lack of final judgment, A.C. 24991 (May 5, 2004), we remarked, relative to this language, that

[t]here is no indication whether the trier understood this language as vesting the claimant with an irrevocable permanent total disability status akin to that of someone who has actually been adjudicated permanently totally incapacitated (e.g., as permanently totally disabled by virtue of § 31-307(c) C.G.S., which lists particular injuries that are presumptively considered to cause total incapacity, such as total loss of sight in both eyes, loss of both feet, or loss of both hands).

Russell, supra. (emphasis added)

Applying the foregoing legal analysis to the factual circumstances of this matter, we believe the trial commissioner’s decision to deny the respondents’ medical examination was well within his discretion. First, we find the documentary submissions in the file more than sufficient to support the trial commissioner’s inference that the claimant had been adjudicated a “statutory permanent total.” The voluntary agreement submitted by the parties and approved on September 8, 1997 clearly states that one of the injuries governed by the agreement was “paraplegia.” Claimant’s Exhibit C (March 9, 2004). The respondents have rightfully argued that the mere use of the term “paraplegia” in the voluntary agreement is insufficient on its own to implicate the operation of § 31-307(c) C.G.S. or provide an evidentiary basis for a finding of permanent total incapacity, and the trial commissioner recognized the merits of this argument at trial.10 However, of even greater evidentiary significance in our estimation is the Form 36 filed by the respondents on October 23, 2002 indicating the “[c]laimant’s medical condition does not meet the criteria to quality [sic] as a statutory permanent total. Claimant is working as an owner/operator of a trucking company.” Respondents’ Exhibit 3 (March 9, 2004). The respondents’ assertions to the contrary notwithstanding, the wording of the Form 36 strongly suggests that the respondents, at least at the point when the Form 36 was filed, were operating under the assumption that they had been paying the claimant his ongoing benefits in accordance with the provisions of § 31-307(c) C.G.S.

Finally, we note that in Findings, ¶ 5.E. of the May 2, 2008 Finding and Order, the trial commissioner incorporated the exact language of Findings, ¶ C of the Order of June 22, 2004, which stated, “[t]he claimant is allowed to receive temporary total disability benefits and to work because he is considered to be a permanent and total disabled person pursuant to C.G.S. 31-307(c).” This finding was never challenged or appealed by the respondents. We may infer that the trial commissioner presiding over the formal hearing of July 31, 2006 did not find persuasive the respondents’ attempts to discount the evidentiary worth of this factual finding on the basis that it was not “germane” to the issue that was before the trial commissioner who presided over the formal hearing of March 9, 2004.11 In fact, the latter trial commissioner instructed the respondents that “your [sic] going to have to give me some basis or argument to find as I see it something other than this gentleman receiving 31-307(c) benefits …. But given Commissioner’s Waldron’s finding in June of 2004, I’m putting you on notice that that’s an issue I want to hear from you on.” July 31, 2006 Transcript, p. 15.

Given that the trial commissioner ultimately determined, “[t]he law of this case establishes that the claimant has been receiving total incapacity payments to date pursuant to C.G.S. Section 31-307(c ),” Findings, ¶ C, it would appear that a convincing argument to the contrary was never propounded. The “law of the case” doctrine stands for the proposition that “[w]here a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.” Breen v. Phelps, 186 Conn. 86, 99 (1982). “In essence [the doctrine] expresses the practice of judges generally to refuse to reopen what (already) has been decided…. New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored….” Id. In the instant matter, we therefore conclude it was well within the trial commissioner’s discretion to uphold the previous trial commissioner’s factual finding absent an appeal by the respondents or the submission of evidence which would have lent support to a contradictory finding.

We are likewise unpersuaded by the respondents’ arguments in support of their alternative theory of relief – namely, the extent of the claimant’s incapacity has changed such that a modification of his award is mandated by the provisions of § 31-315 C.G.S.12 As previously discussed herein, the respondents’ rely on the records review performed by Dr. Weintraub and the video surveillance of the claimant to support their claim that the claimant no longer suffers from the “complete” paralysis required by the statute. However, our review of the other medical submissions in the file does not support this contention. For instance, Dr. Raymond, in his report of December 13, 2002, diagnosed the claimant as having suffered a T-11 ASIA A spinal cord injury, which, as previously stated herein, is defined by the American Spinal Injury Association as “a complete injury with no motor or sensory function preserved in the sacral segments, S4-S5….” Respondents’ Exhibit 1, p. 5 (March 9, 2004). In his report of February 10, 2004, Dr. Raymond again describes the claimant as “a pleasant 34-year-old gentleman status post T-11 ASIA-A spinal cord injury on June 16, 1995.” Claimant’s Exhibit A, p. 4 (March 9, 2004). Finally, in his report of March 5, 2007, Dr. Raymond once more indicates that his assessment of the claimant was “status post T11 ASIA-A spinal cord injury occurring on January 16, 1995.” Claimant’s Exhibit A, p. 2 (October 22, 2007). Nowhere in the evidentiary record does Dr. Raymond ever suggest that there has been a change in the claimant’s diagnosis. As such, the trial commissioner was under no compunction to accept the opinion of Dr. Weintraub, who performed a records review and evaluated the video surveillance, over that of the claimant’s treating physician. “It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert.” (internal citations omitted) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999).

The evidentiary record also contains testimony which serves to weaken the probity of the video surveillance taken of the claimant at a jobsite by a private investigator hired by the respondents. Although the respondents maintain that the surveillance ostensibly showed the claimant “can walk and ambulate,” Appellants’ Brief, p. 10, in fact, when cross-examined at the formal hearing of March 9, 2004, the private investigator testified he was unaware whether the claimant wore any sort of brace or supports beneath his clothing, and conceded what he saw may have been the claimant’s “weight bearing on a bracing structure supporting his legs….” Transcript, p. 54. The investigator also admitted he knew the correct name for the “canes” used by the claimant was actually “Lofstrum crutches,” which is a medical device that assists a paraplegic in supporting his weight through the use of his arms. Id., at 54-55. This description of the claimant’s orthotics is consistent with Dr. Raymond’s report of December 13, 2002 in which the doctor states that the claimant “does have a full leg brace on the right and an ankle-foot orthosis on the left he is using to take several steps and help him move from his chair into his vehicle and other transfers as well.” Respondents’ Exhibit 1, p. 1 (March 9, 2004).

The investigator also agreed with claimant’s counsel that what the videotapes primarily showed “was [a] lot of just plain standing and not moving and a lot of sitting in these, in this construction vehicle.” Id., at 55. In addition, under direct questioning by the trial commissioner, the claimant testified that his personal vehicle has been modified for his use with a single lever hand control for the gas and the brake, and the excavating equipment which he was seen using is hand-operated. Id., at 62-63. In light of the foregoing testimony, we find it was well within the trial commissioner’s purview to draw his own conclusions relative to the activities shown in the video surveillance. Such findings will not be overturned on appeal.

Claimant’s counsel has asserted that the respondents essentially sought to discontinue the claimant’s total incapacity benefits once they discovered the claimant was once again employed. “… this belated contest of Mr. Gilbert’s entitlement to 31-307(c) benefits was plainly based on an incorrect legal premise that Claimant’s employment was inconsistent with his receipt of total incapacity benefits pursuant to C.G.S. 31-307(c).” Appellee’s Brief, pp. 4-5. This contention would appear to be supported by the language of the Form 36 filed by the respondents in October 2002. See Respondents’ Exhibit 3 (March 9, 2004). Be that as it may, it should be noted that this board had occasion to review this issue in Pelletier v. M & M Builders, Inc., 13 Conn. Workers’ Comp. Rev. Op. 266, 1740 CRB-5-93-5 (April 19, 1995), wherein we stated that the claimant’s “entitlement to benefits under § 31-307(e) [now § 31-307(c)] is unaffected by his future wage earning capacity.” Id. Similarly, in Corcoran v. Corcoran Moving and Storage, Inc., 9 Conn. Workers’ Comp. Rev. Op. 237, 1030 CRD-5-90-6 (October 31, 1991), this board disagreed with the argument propounded by the respondents that the presumption of permanency contained in the language of § 31-307(c) C.G.S. was rebutted by evidence that the claimant had “returned to work, and [had] reached a state of maximum medical improvement.” Id. Noting that the language of the statute directing that “[t]he following described injuries shall be considered as causing total incapacity and compensation shall be paid accordingly,” id., (emphasis added) was “clear and not ambiguous”, id., we stated, “[t]he legislature’s use of the verb ‘shall’ imposes a mandatory duty to find total incapacity when those disabling conditions occur.” Id.

In the instant matter, the evidentiary record more than adequately supports the inference by the trial commissioner that the respondents were paying the claimant total incapacity benefits pursuant to the provisions of § 31-307(c) C.G.S. If the agreement between the parties were indeed otherwise, the respondents were afforded an opportunity to clarify the record following the issuance of the June 22, 2004 Order which contained a finding clearly stating the respondents were paying the claimant pursuant to said statutory provision. The respondents failed to avail themselves of that opportunity. “A party to a compensation case 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.” Meadow v. Winchester Repeating Arms Co., 134 Conn. 269, 273-274 (1948).

Furthermore, the respondents failed to introduce evidence capable of persuading the trial commissioner that a genuine change of circumstances had occurred relative to the degree of the claimant’s disability which would thus provide an avenue for the potential modification of the agreement between the parties. We concede that there is merit in the respondents’ assertion that one can reasonably contemplate the occurrence of scientific breakthroughs and/or medical advances which would restore function or capacity to a claimant previously determined to be permanently and totally disabled. However, it is clear the trial commissioner felt that the evidence presented in this matter did not sustain the respondents’ burden of proof such that an assessment of the instant claimant’s condition vis-à-vis a respondents’ medical examination was warranted. Having carefully reviewed the evidentiary record, we are unwilling to overturn the trier’s conclusions in this regard on appeal. “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).

Having found no error, the May 2, 2008 Finding and Order of the Commissioner acting for the Fourth District is hereby affirmed.

Commissioners Ernie R. Walker and Amado J. Vargas concur in this opinion.

1 Sec. 31-278 C.G.S. (Rev. to 1995) states, in pertinent part, “[e]ach commissioner shall, for the purposes of this chapter, have power to summon and examine under oath such witnesses, and may direct the production of, and examine or cause to be produced or examined, such books, records, vouchers, memoranda, documents, letters, contracts or other papers in relation to any matter at issue as he may find proper, and shall have the same powers in reference thereto as are vested in magistrates taking depositions and shall have the power to order depositions pursuant to section 52-148. BACK TO TEXT

2 Sec. 31-307(c) C.G.S. (Rev. to 1995) states, “[t]he following injuries of any person shall be considered as causing total incapacity and compensation shall be paid accordingly: (1) Total and permanent loss of sight of both eyes, or the reduction to one-tenth or less of normal vision; (2) the loss of both feet at or above the ankle; (3) the loss of both hands at or above the wrist; (4) the loss of one foot at or above the ankle and one hand at or above the wrist; (5) any injury resulting in permanent and complete paralysis of the legs or arms or of one leg and one arm; (6) any injury resulting in incurable imbecility or mental illness. BACK TO TEXT

3 The transcript of Dr. Raymond’s deposition was not made a part of the evidentiary record. However, testimony by respondents’ counsel at the formal hearing of July 31, 2006 indicates the deposition occurred and as a result, the respondents wished to proceed with an independent medical examination. Transcript, p. 4. BACK TO TEXT

4 Sec. 31-294f(a) C.G.S. (Rev. to 1995) states, in pertinent part, “[a]n injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at the direction of the commissioner. The examination shall be performed to determine the nature of the injury and the incapacity resulting from the injury. BACK TO TEXT

5 The full text of § 31-315 C.G.S. (Rev. to 1995) is as follows: [a]ny award of, or voluntary agreement concerning, compensation made under the provisions of this chapter shall be subject to modification, upon the request of either party and in accordance with the procedure for original determinations, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question. BACK TO TEXT

6 See footnote 2, supra. BACK TO TEXT

7 Sec. 31-307(a) C.G.S. (Rev. to 1995) states, “[i]f any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of his average weekly earnings as of the date of the injury, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to section 31-310; but the compensation shall not be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred. No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided the minimum payment shall not exceed seventy-five per cent of the employee’s average weekly wage, as determined under section 31-310, and the compensation shall not continue longer than the period of total incapacity.” BACK TO TEXT

8 Section 11 [Compensation for Total Incapacity] of the Workers’ Compensation Act (as amended in 1915) states, in addition to the language governing the method of calculation of total incapacity benefits generally, that “[t]he following injuries of any person shall be considered as causing total incapacity and compensation shall be paid accordingly: (a) Total and permanent loss of sight in both eyes, or the reduction to one-tenth or less of normal vision with glasses; (b) the loss of both feet at or above the ankle; (c) the loss of both hands at or above the wrist; (d) the loss of one foot at or above the ankle and one hand at or above the wrist; (e) any injury resulting in permanent and complete paralysis of the legs or arms or of one leg and one arm; (f) any injury resulting in incurable imbecility or insanity.” BACK TO TEXT

9 In Devanney, we did uphold a finding of total disability, stating, “the trier’s award of total disability benefits should remain ongoing unless and until a party is able to demonstrate that the claimant’s medical condition has improved to the point where he would be able to return to some form of gainful employment.” Id. BACK TO TEXT

10 At trial, the trial commissioner stated, “I understand that, Attorney Williams, your argument there and I understand, I understood your argument in regard to the voluntary agreement, but with all due respect, I don’t follow you subsequent to that Finding and Decision of June 22, 2004.” July 31, 2006 Transcript, p. 14. BACK TO TEXT

11 Commissioner Senich: So if that’s the decision in the case and that wasn’t appealed, Attorney Williams, how do you respond to page 3, paragraph 19, subparagraph C and E, where Commissioner Waldron found that the claimant was receiving benefits pursuant to 31-307(c)?

Mr. Williams: I – I don’t think it [sic] germane to the issue that we’re – that was being decided by the commissioner at that time. I think the issue was the commissioner’s exam – or rather the right to the deposition.

Commissioner Senich: Isn’t that the law of the case then? If it wasn’t appealed? That’s a findings [sic]. July 31, 2006 Transcript, p. 14. BACK TO TEXT

12 See footnote 4, supra. BACK TO TEXT

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