State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Ghazal v. Cumberland Farms

CASE NO. 5397 CRB-8-08-11

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 17, 2009

MUAYAD GHAZAL

CLAIMANT-APPELLEE

v.

CUMBERLAND FARMS

EMPLOYER

and

GALLAGHER BASSETT

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Seymour Rothenberg, Esq., Rothenberg & Cianciola, LLC, 239 Silas Deane Highway, P.O. Box 290767, Wethersfield, CT 06109.

The respondents were represented by Michael J. Finn, Esq., Montstream & May, LLP, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the October 29, 2008 Finding and Award of the Commissioner acting for the Eighth District was heard May 29, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from an October 29, 2008 Finding and Award. The respondents challenge the trial commissioner’s findings that they engaged in undue delay in this case, and challenge the trial commissioner’s decision to authorize medical treatment for the claimant in his home nation of Jordan. They also argue that the commissioner’s finding that the claimant had “permanent total disability” was insufficiently supported by the subordinate facts. We find the respondents’ arguments meritorious. We herein reverse the trial commissioner on the issue of sanctions for undue delay. On the issue of medical treatment in Jordan and permanent total disability, this matter is remanded to the trial commissioner for further proceedings.

At oral argument before this panel, counsel for the claimant said this was a simple case. We disagree. The record indicates this has been a lengthy matter that has eluded resolution despite the best efforts of this Commission to properly compensate the claimant for his work-related injuries.

There is no dispute that the claimant suffered a compensable back injury and associated psychological trauma while employed on August 7, 2000 by the respondent, Cumberland Farms, Inc. In a Finding and Award dated May 14, 2007 Commissioner Stephen B. Delaney discussed in detail the chronology of the claimant’s treatment following his injury. The trial commissioner approved the recommendation of Dr. Gerald Becker that back surgery for the claimant was reasonable and necessary medical treatment. Prior to the issuance of this Finding and Award the claimant voluntarily traveled to Jordan at the advice of his treating psychiatrist, Dr. Richard Lautenbach. The claimant did not undergo the approved surgery.

A formal hearing was held before this commission on January 15, 2008 on the issue of the claimant’s failure to undergo medical treatment and whether he should remain on temporary total disability benefits while he was in Jordan. The hearing was continued until July 11, 2008 and the record closed September 8, 2008. The claimant’s psychiatrist in Jordan, Dr. Falah Al Tamini, wrote to Dr. Lautenbach in August 2007 that the claimant was depressed and suffering flashbacks from the 2000 injury. The claimant was incarcerated for a period in Jordan for failing to pay his Jordanian psychiatrist bills. In March 2008 the claimant returned to the United States for a medical examination performed by Dr. Kenneth Selig, an examiner retained by the respondents regarding his psychiatric condition.

On June 2, 2008 the respondents filed a Form 36 to discontinue benefits to the claimant arguing that they had not received medical reports supporting the claim for continued disability. The claimant continued to receive temporary total disability benefits during the pendency of this action. Dr. Selig issued a report on July 8, 2008 which prompted the withdrawal of the Form 36. Dr. Selig’s report said the claimant would need ongoing psychiatric treatment, possibly for the rest of his life. This treatment would include anti-depressant, anti-anxiety and anti-psychotic medication and intensive psychotherapy.

Dr. Selig further opined that the claimant was not competent at this time to make a decision as to his back surgery, and recommended against the back surgery being performed. Dr. Selig opined that he was in favor of the claimant returning to Jordan and receiving treatment there. Dr. Selig offered an opinion that the claimant had a 40 to 50 percent permanent partial impairment to the brain; was at maximum medical improvement and had become permanently totally disabled.

At the July 11, 2008 hearing the respondents objected to consideration of the issue of medical treatment in Jordan, noting it was not part of the original hearing notice and there were a host of logistical issues to consider in determining the viability of this proposed treatment. The trial commissioner originally decided not to consider this issue at the July 11, 2008 but later in the hearing decided he would consider the issue. The claimant did not testify at this hearing, waiting outside the building with his mother during the hearing.

While the claimant had previously obtained authorization for back surgery, on September 8, 2008 counsel for the claimant advised that the claimant no longer wanted to have back surgery. As noted, the record closed on that date.

Based on these subordinate facts the trial commissioner found the claimant’s psychiatric condition prevented him from testifying at the July 11, 2008 hearing, and found the claimant’s father, brother and psychiatrist, Dr. Lautenbach, offered testimony on behalf of the claimant. He found Dr. Lautenbach’s testimony and the opinions of Dr. Selig and Dr. Al Tamini credible and persuasive. Accordingly, he adopted the conclusions of Dr. Selig and his opinions as to what would constitute the optimal treatment regimen for the claimant. The trial commissioner determined the respondents engaged in undue delay, and ordered a further hearing on the issue of sanctions. He found the respondents had notice of the medical treatment issue and this could be foreseen to include treatment in Jordan.

He found the claimant was entitled to treat in Jordan, and directed the respondents to pay all medical expenses incurred in connection with the 2000 injury, whether in the United States or in Jordan. Finally, the trial commissioner ordered the claimant to remain on temporary total disability until a Form 36 was approved by the Commission.

The respondents filed a Motion to Correct and a Motion for Reconsideration. Both motions were denied. The respondents also filed a Motion to Submit Additional Evidence; which was a deposition of Dr. Selig dated January 8, 2009. That motion has not been acted upon by the trial commissioner; although counsel for the claimant offered no objection to it being entered into the record before the Compensation Review Board. Therefore, this matter comes before our panel on appeal.

We deal first with the issue of imposing sanctions against the respondents for undue delay. As we pointed out in Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008) the “plain language” of the statute (§ 31-288(b) C.G.S.) requires a trial commissioner to reach specific findings in support of an order for sanctions.

For a respondent to be penalized for undue delay under this statute, the trial commissioner must determine the action or inaction by the respondent “unduly delayed” benefits due the claimant. The trial commissioner must further find these delays were due to “fault or neglect.”

Id.

We note in Kuhar the issue involved the late payment of benefits, wherein in the present case the issue is whether the respondents “unreasonably, and without good cause, delayed the completion of the hearing.” We believe the same principle of law prevails. The subordinate facts found by the trial commissioner do not contain any specific finding as to an action or inaction on the part of the respondents that served to delay proceedings. Nor do we find any subordinate finding of fact that any specific action or inaction on the part of the respondents lacked “good cause.” While the black letter law governing the issue of sanctions is that such a decision is left to the discretion of the trial commissioner, Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006), such discretion is not unlimited and an appellate panel may reverse a judgment when it is inconsistent with the facts on the record. Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007).

We compare the Finding and Award in the present case with the Finding and Award in Duffy, supra, and note that in Duffy “the trial commissioner also made an affirmative finding of ‘incredulity’ on the part of the respondents.” Id. Such a justification for sanctions cannot be gleaned from the text of this Finding and Award.

Nor do we believe one can infer the respondents’ conduct was inherently unreasonable from the other subordinate facts in this case. While this matter certainly was not resolved after the May 14, 2007 Finding and Award, the proximate cause of these delays was the unilateral decision of the claimant not to obtain the approved back surgery and to relocate to Jordan. Without a specific explanation from the trial commissioner as to what he believed the respondents did wrong, we cannot find as a matter of law that the respondents’ decision to seek further hearings before the trial commissioner to address these unexpected developments was unreasonable.1 The medical evidence in this case has been contested and has evolved over time; as has the proposed modality of treatment for the claimant’s injuries. In our judgment, this evidence is akin to the contested medical evidence in Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-01-99-11 (December 19, 2000), appeal dismissed, A.C. 21533 (2001) “we do not believe that the compensability of the claimant’s partial complex seizure disorder was ever so clear as to be indisputable by a reasonable person.” Id.

This panel has previously reversed a trial commissioner’s award of sanctions when we found the subordinate facts did not support the award in Malafronte v. Med-Center Home Health Care, 3888 CRB-7-98-9 (August 31, 1999). We believe we must reverse the award granted in the present case.

We now consider the elements of relief granted by the trial commissioner. The respondents have argued that the manner in which this hearing was conducted did not allow them the ability to properly address the issues before the trial commissioner. We find this argument persuasive.

We note that the first session of the Formal Hearing of this claim was held on January 15, 2008. The issue of medical treatment in Jordan was not raised until the hearing of July 11, 2008. The hearing notice dated June 20, 2008 stated the issues for discussion were based on § 31-288(b); Penalties for Undue Delay; § 31-294d; Medical Treatment and § 31-296; Form 36/Discontinuance of Benefits.2 The respondents argue this notice insufficiently alerted them to the issue of whether the claimant should treat in Jordan; and that they were not able to properly address this issue at the formal hearing. The claimants argue that the respondents’ witness was the party that put this issue on the table, and that therefore, there was no prejudice.

At the hearing, counsel for the respondents pointed out that they had just received a copy of Dr. Selig’s report. July 11, 2008, Transcript, pp. 2-3. Counsel for the respondents specifically told the Commissioner they were not prepared to proceed on the matter of foreign medical treatment at the July 11, 2008 hearing. The trial commissioner agreed on the record not to consider this issue. July 11, 2008 Transcript, p. 7. The commissioner then changed his position later in the hearing. July 11, 2008 Transcript, p. 13. There were no witnesses presented in the interim to add to the record before the commissioner.

We believe the case of Palm v. Yale University, 3923 CRB-3-98-10 (January 7, 2000) is on point. In Palm, the claimant obtained an award of temporary partial disability benefits after a hearing noticed to consider a Form 36. We reversed the trial commissioner.

This board has repeatedly held that “(i)t is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” Cummings v. Twin Tool Manufacturing, 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (April 12, 1995), appeal dismissed June 29, 1995, A.C. 14747, quoting Connolly v. Connolly, 191 Conn. 468, 475-76 (1983), (internal quotations omitted); see also Casertano v. Shelton, 3329 CRB-4-96-4 (Sept. 16, 1997); Fusco v. TRW Geometric Tool, 4 Conn. Workers’ Comp. Rev. Op. 132, 134, 472 CRD-3-86 (1987).

Id. See also Bennett v. Wal-Mart Stores, 4939 CRB-7-05-5 (May 15, 2006).

In the present case, although the issue of medical treatment was properly noticed, the respondents presented a timely objection to consideration of treatment outside the United States. The respondents argue that the consideration of Dr. Selig’s report without permitting them an opportunity to depose Dr. Selig was prejudicial; noting that the claimant was the moving party seeking to gain approval of foreign medical treatment. We are persuaded by this argument.

We recently have considered two cases in which the 11th hour expert testimony was sought to be added to the record. In both Keeney v. Laidlaw Transportation, 5199 CRB-2-07-2 (May 21, 2008) and LaMontagne v. F & F Concrete Corporation, 5198 CRB-4-07-2 (February 25, 2008), the trial commissioner decided not to allow this evidence to be admitted. We upheld the trial commissioner on these decisions, pointing out “[o]ur precedent also holds that both parties should be given an opportunity to cross-examine material evidence central to a commissioner’s ultimate factual findings, Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177 (1974);” LaMontagne, supra, citing Caraballo, supra. In the present matter, the trial commissioner has decided to rely on Dr. Selig’s report without giving the parties an opportunity to cross-examine the witness. We find this decision inconsistent with Keeney and LaMontagne. In the event a trial commissioner decides to accept and consider recently received evidence, the trial commissioner then must allow both parties an opportunity to elicit testimony from the witness prior to reaching a ruling that relies on such evidence.

This issue can be resolved if the additional evidence which was added to the record as a result of the respondents’ motion; i.e. the deposition of Dr. Selig dated January 8, 2009, is considered by the trial commissioner. We herein remand this matter for further proceedings to determine the merits of the claimant treating for his injury in Jordan.3

We finally conclude that further proceedings are necessary to determine if the claimant is “permanently totally” disabled. We note that that the trial commissioner’s conclusion on this issue was largely based on adopting the opinion of Dr. Selig. See Findings, ¶ 13, ¶ m and ¶ o. Since we have previously determined that respondents should have been given an opportunity to depose Dr. Selig prior to a determination as to the appropriate locus of medical treatment, we remand this issue as well for further consideration.

On the issue of sanctions for undue delay, the Finding and Award is herein reversed. On the issues of whether the claimant should be authorized to obtain medical treatment in Jordan and whether the claimant is permanently totally disabled, this matter is herein remanded for further proceedings.

Commissioners Peter C. Mlynarzyck and Randy L. Cohen concur in this opinion.

1 We note that this Commission, in reliance on the report of Dr. Becker, had approved a materially different treatment strategy for the claimant in 2007. Whether the new proposed treatment strategy was consistent with § 31-294d C.G.S. is a reasonable issue to present to a trial commissioner. In addition, whether the claimant’s decision to forego back surgery was reasonable was a relevant issue for the trial commissioner to consider as “. . . § 31-294e C.G.S. gives the trial commissioner the right to suspend payment of compensation if a claimant refuses to accept ‘reasonable’ medical aid.” O’Connor v. Med-Center Home Healthcare, Inc., 4954 CRB-5-05-6 (July 17, 2006). BACK TO TEXT

2 The Form 36 was withdrawn at this hearing and is no longer an issue under consideration. BACK TO TEXT

3 The respondents also suggest that there is a lack of clear precedent defining under what circumstances a trial commissioner may determine that medical treatment outside the United States is appropriate. We note that Melendez v. The Home Depot, 3835 CRB-4-98-6 (July 13, 1999), aff’d, 61 Conn. App. 653 (2001) governs the circumstances when a claimant relocates elsewhere within the United States and seeks treatment for a compensable injury suffered in Connecticut; but we have not ruled on whether this precedent governs treatment received in foreign nations. In Pietraroia v. Northeast Utilities, 254 Conn. 60 (2000) the Supreme Court permitted a claimant to pursue a claim against a Connecticut employer after he relocated to Australia without having to return to Connecticut for hearings and examinations. In their decision, the Supreme Court determined that the respondent could retain a local physician to examine the claimant (who asserted he could not travel) and the claimant could be deposed by local counsel. Prior to authorization of medical treatment in a foreign nation, we believe the trial commissioner should determine the subordinate facts necessary to ascertain if such treatment comports with precedent in Melendez or Pietraroia. BACK TO TEXT

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