State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Sanchez v. Spec Personnel, LLC

CASE NO. 5487 CRB-1-09-8

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 18, 2010

EDWIN SANCHEZ

CLAIMANT-APPELLANT

v.

SPEC PERSONNEL, LLC

EMPLOYER

and

AIG CLAIM SERVICES, INCORPORATED

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Ralph A. Russo, Esq., Law Offices of Ralph A. Russo, 49 Welles Road, Suite 212, Glastonbury, CT 06033.

The respondents were represented by Lynn M. Raccio, Esq., Law Offices of Jack V. Genovese II, 200 Glastonbury Boulevard, Suite 301, Glastonbury, CT 06033.

This Petition for Review from the July 31, 2009 Finding and Dismissal of the Commissioner acting for the First District was heard on February 26, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Jack R. Goldberg.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the July 31, 2009 Finding and Dismissal of the Commissioner acting for the First District. We find error and accordingly reverse the decision of the trial commissioner and remand this matter for a trial de novo.1

The factual background of the claim, which is largely undisputed, is as follows. The claimant, a long-distance truck driver, sustained injuries to his left knee on December 11, 2005 while traveling in Lubbock, Texas. The claimant initially treated at the Covenant Medical Center in Texas where he was diagnosed with a contusion of the left knee and prescribed an ACE wrap and ibuprofen. The claimant did not receive any additional medical treatment until he consulted with Jeffrey Steckler, M.D., on December 19, 2006. The claimant saw Dr. Steckler again on May 9, 2007; on September 26, 2007, Dr. Steckler opined that the claimant had reached maximum medical improvement and assigned a seven (7%) percent permanent partial disability of the whole person due to atrophy of the quadriceps. Dr. Steckler translated that rating into a seventeen (17%) percent disability of the left lower extremity.

The respondents contested the disability rating and on November 6, 2007, the claimant underwent a Respondents’ Medical Examination (“RME”) with Peter Barnett, M.D. Dr. Barnett assigned the claimant a five (5%) percent permanent partial disability of the left lower extremity. On March 11, 2008, Commissioner Peter Mlynarczyk, pursuant to § 31-294f(a) C.G.S., ordered a Commissioner’s Examination with Kevin Shea, M.D., to assess medical treatment and permanent partial disability.2 Dr. Shea conducted an examination of the claimant on May 20, 2008 and assigned a five (5%) percent permanent partial disability rating of the left knee. He did not recommend any additional medical treatment. Dr. Shea also reported that during the examination, the claimant had indicated he was capable of returning to his original employment.

The trial commissioner took administrative notice of a Form 30C filed by the claimant on June 22, 2006 with the Sixth District office of the Workers’ Compensation Commission; the Form 30C was forwarded to the First District office where it was received on June 26, 2006. The respondents did not file a timely Form 43; the trial commissioner also took administrative notice of a Motion to Preclude which had been granted by Commissioner Howard Belkin on December 4, 2006. At trial, the claimant’s attorney, citing Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102 (2008), objected to the introduction of Dr. Barnett’s deposition and reports. The trial commissioner overruled the objections and admitted the challenged reports and deposition transcript. The trial commissioner also took administrative notice of Dr. Shea’s report over the objection of the claimant. The parties stipulated that the respondents had paid the claimant for a five (5%) percent permanent partial disability.

The trial commissioner, having found Dr. Shea’s opinion as to permanency credible and persuasive, determined that the claimant had sustained a five (5%) percent permanent partial disability of the left knee and accordingly dismissed the claim for seventeen (17%) percent. Although the trier did not find Dr. Steckler’s opinion credible or persuasive as to permanency, she did find that the claimant’s maximum medical improvement date should be September 26, 2007 as assigned by Dr. Steckler. The trial commissioner also concluded that Harpaz did not support the claimant’s contention that the respondents should have been precluded from contesting Dr. Steckler’s permanency rating. In addition, the trial commissioner, quoting a passage from Donahue v. Veridiem, Inc., 291 Conn. 537 (2009) which speaks to the broad powers of the trial commissioners, likewise determined that she was not precluded from taking administrative notice of Dr. Shea’s report.3

The claimant filed a Motion to Correct which was denied in its entirety. The claimant then filed a Motion to Vacate and Reassign which was also denied, and this appeal followed. On appeal, the claimant contends that the trier’s decision to admit the deposition and exhibits of Dr. Barnett and take administrative notice of the Commissioner’s Examination of Dr. Shea was “a per se abuse of discretion and in plain legal error.” Appellant’s Brief, p. 5. As a result, “[t]he Claimant was unduly prejudiced by the admission into the record and consideration of the deposition of Respondent’s Examiner Dr. Peter Barnett, the Commissioner’s Examination by Dr. Kevin Shea that had been tainted with the Respondent-Insurer’s evidence, and by the Respondent-Insurer’s submitting a brief after having been precluded.” Id. The claimant also asserts that the trier’s decision to allow the Respondent-Employer to submit a brief contesting the extent of the claimant’s permanency for the formal hearing constituted error. The claimant avers that a finding of harmless error cannot be justified and seeks the granting of a Motion to Vacate and Reassign. “Where the Commissioner relies on precluded evidence that prejudices her evaluation of the facts, her judgment must be set aside.” Id., at 10.

The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled. “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) citing Burton v. Mottolese, 267 Conn. 1, 54 (2003). As a result, we

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 [v. American International Airways, Inc., 262 Conn. 31, 37 (2002)]; Duddy [v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002)]. 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).

McMahon v. Emsar, Inc., 5049 CRB-4-06-1 (January 16, 2007).

As previously noted herein, the claimant’s assertions of error in the instant matter rely substantially upon our Supreme Court’s holdings in both Harpaz and Donahue. In Harpaz, the court identified as the “dispositive” issue “whether an employer that is deemed ‘conclusively presumed to have accepted the compensability of the alleged injury’ under General Statutes § 31-294c(b) … is permitted to contest the extent of the claimant’s disability from that alleged injury.”4 Id., at 104-105. The court, after conducting a lengthy analysis of relevant precedent and an examination of the text of and legislative history behind § 31-294c(b) C.G.S., concluded that in situations when

an employer neither timely pays nor timely contests liability, the conclusive presumption of compensability attaches and the employer is barred from contesting the employee’s right to receive compensation on any ground or the extent of the employee’s disability. Such a penalty is harsh, but it reflects a just and rational result.5

Id., at 130.

However, the court also observed that “[i]t is clear … that the legislature prescribed the conclusive presumption for the purpose of protecting employees with ‘bona fide claims.’” Id., at 131, quoting Menzies v. Fisher, 165 Conn. 338, 342, 343 (1973). As such, the court concluded that “there is no evidence that [the legislature] intended to relieve a claimant of his responsibility under the Workers’ Compensation Act to prove that he has suffered a compensable injury, i.e., an injury that arose out of and in the course of his employment, including the extent of his disability.”6 Id. The Harpaz court ultimately reversed and remanded the matter for additional proceedings, noting that “[b]ecause the commissioner expressly credited the defendant’s expert over the plaintiff’s expert, the commissioner concluded that the plaintiff had failed to sustain his burden. There is nothing, however, to suggest that the commissioner would have made the same determination in the absence of the expert testimony presented by the defendant.” Id., at 132.

The contemplated role of the trial commissioner when preclusion has been granted was given further amplification in Donahue v. Veridiem, Inc., 291 Conn. 537 (2009), wherein our Supreme Court was confronted with “the issue of whether an employer subject to the conclusive presumption is precluded from challenging the claimant’s proof through cross-examination and submission of a written argument.” Id., at 540. The Donahue claimant had appealed the trial commissioner’s dismissal of her claim for compensation for medical care and permanent partial disability, contending that “the commissioner improperly allowed the defendant to contest her claim by challenging her proof.” Id. Although the trial commissioner had granted the claimant’s motion to preclude, thereby establishing the compensability of the claimant’s back injury, she also denied reimbursement of the claimant’s medical bills and the payment of permanent partial disability benefits because she “found the plaintiff’s testimony not to be credible or persuasive with respect to the extent of her disability.” Id., at 543.

The Donahue claimant appealed the decision, and while that appeal was pending, the Supreme Court handed down its decision in Harpaz. The Appellate Court then asked the Donahue parties to file supplemental briefs analyzing the impact of Harpaz on their own matter and, after hearing oral argument and reviewing the supplemental briefs, requested that the appeal be transferred to the Supreme Court pursuant to Practice Book § 65-2.7 The Supreme Court granted the Appellate Court’s request and transferred the appeal pursuant to § 51-199(c) C.G.S.8

The Supreme Court, noting the parties’ “different positions” relative to the employer’s role in litigation after a motion to preclude has been granted, ultimately determined that “the only role an employer plays is to decide whether to stipulate to the compensation claimed. If the employer does not so stipulate, the claimant proceeds with her case, subject to examination by the commissioner.”9 Id., at 546-547. As previously noted herein, the court recognized the “broad powers” conferred on trial commissioners by the legislature and stated, “[i]n the absence of an express indication that the legislature intended to abrogate or limit that authority when a motion to preclude is granted, we presume that the commissioner retains such authority.”10 Id., at 554. “Indeed, § 31-294c(b) and the workers’ compensation scheme generally indicate that the conclusive presumption under § 31-294c does not operate to bar any inquiry on the claim, but, rather, only the employer’s ability to do so. By its own terms, § 31-294c(b) attaches the conclusive presumption to the employer.” (Emphasis in the original.) Id., at 553.

Thus, because the Donahue respondents had been allowed to crossexamine the claimant and submit a brief in opposition to her eligibility for the compensation claimed, the court reversed and remanded the decision of the trial commissioner. The court concluded that “[a]lthough the commissioner cited to testimony adduced through direct examination of the plaintiff and exhibits submitted by the plaintiff in support of the vast majority of the factual findings, we are not convinced that the defendant’s challenges to the plaintiff’s case had no effect on the commissioner’s decision.” Donahue, supra, at 555.

Turning to the matter at bar, we note that in terms of chronology, both the RME with Dr. Barnett and the Commissioner’s Examination with Dr. Shea were ordered (and, in the case of the RME, performed) prior to the publication of Harpaz on March 18, 2008.11 We also note that Donahue was not handed down until May 19, 2009, more than three months after the formal hearing of February 10, 2009 and one and onehalf months after the record had closed. While the chronology of events does not ultimately affect our decision in the case, it cannot be denied that this reviewing board has certain benefits of hindsight that were unavailable to the parties involved in the litigation as it unfolded.

That being said, however, we are still required to examine the trial commissioner’s findings in light of the Supreme Court’s holdings in Harpaz and Donahue. As such, we note at the outset that because both Harpaz and Donahue stand for the proposition that the submission into the record of respondents’ evidence is prohibited once preclusion has been granted, the trier’s decision to admit the RME of Dr. Barnett constituted error and the claimant’s attorney’s objection to same at the formal hearing should have been sustained. See February 10, 2009 Transcript, p. 6. While the trier’s conclusions do not specifically state that she relied upon Dr. Barnett’s opinion in reaching her decision, the factual findings contain references to both the five (5%) percent rating assigned by Dr. Barnett and the deposition of Dr. Barnett held on September 18, 2008. Findings, ¶¶ 9, 10. As such, it cannot be reasonably inferred that Dr. Barnett’s opinion played no role in the formulation of the trial commissioner’s decision.

The trial commissioner also took administrative notice of Dr. Shea’s report and subsequently concluded that Dr. Shea’s opinion as to permanency was more credible and persuasive than Dr. Steckler’s. However, Dr. Shea’s report indicates that at the very least, he reviewed the x-rays associated with Dr. Barnett’s RME and concurred with Dr. Barnett’s assignment of five (5%) percent permanent partial disability based on said x-rays. In addition, we are well aware that the customary preparation for Commissioner Examinations generally involves forwarding a complete set of the claimant’s medical records to the examining physician. While it is beyond the purview of this opinion to ruminate as to whether such procedures may need to be altered in light of Harpaz and Donahue, the fact remains that in this case, at least, it may be reasonably inferred that Dr. Shea was given the opportunity to review Dr. Barnett’s records and apparently availed himself of that opportunity.

The trier’s decision to take administrative notice of Dr. Shea’s report in light of the apparent reliance of Dr. Shea upon the opinion of Dr. Barnett is therefore highly problematic. We are certainly cognizant of the “broad powers” afforded to trial commissioners pursuant to § 31-298 C.G.S., which, as the trial commissioner accurately noted in her Finding and Dismissal, include the right to order Commissioner Examinations.12 While these broad powers were also recognized by the Donahue court, however, our interpretation of that decision does not support the inference that the trial commissioner was entitled to rely on the Commissioner’s Examination in the instant matter. Had the trial commissioner reviewed the submissions of the claimant’s expert, Dr. Steckler, and concluded, sua sponte, that a Commissioner’s Examination was warranted, her subsequent review of, and possible reliance upon, the report generated thereby would have been not only appropriate but anticipated. However, such was not the case in the matter at bar. Rather, the trial commissioner opted to take administrative notice of a previously-ordered Commissioner’s Examination which appears to have been based at least in part on the opinion of the respondents’ expert. Thus, in light of Harpaz and Donahue, the trial commissioner’s decision to take administrative notice of, and subsequently rely on, Dr. Shea’s report constituted error.

Moreover, the Donahue court circumscribed the role of the employer in preclusion situations even further, holding that in addition to the prohibition against the respondent’s proffer of expert testimony cited in Harpaz, employers are also precluded from submitting briefs or cross-examining the claimant. While the instant claimant did not proffer testimony, the record does indicate that briefs were filed by the respondents at both the trial and appellate levels.13 We recognize that these briefs were filed prior to the Supreme Court’s release of Donahue. Nevertheless, because we cannot reasonably infer that the content of the respondents’ briefs did not influence the decision of the trial commissioner, we find the admission of the respondents’ briefs into the record likewise constitute error.

The respondents contend that in essence, the instant claimant is challenging the factual findings of the trial commissioner relative to her determinations as to the credibility and persuasiveness of Drs. Steckler, Barnett, and Shea, and is therefore “improperly attempting to have this Board substitute its judgment for that of the Trial Commissioner.” Appellees’ Brief, p. 8. We disagree.14 It is certainly well-settled that “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, emphasis added.) Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999). Nevertheless, our inquiry in the instant matter is more properly focused on the threshold issue of whether the evidence upon which the trial commissioner relied rightfully belonged in the record. Our interpretation of both Harpaz and Donahue suggests that they both stand for the proposition that once preclusion has been granted, a trial commissioner’s discretion to accept and reject certain evidence is no longer unfettered.

As previously noted herein, the claimant submitted a Motion to Correct which was denied in its entirety. Insofar as the corrections sought pertain to findings which we have determined were erroneous, the trier’s decision to deny those corrections also constituted error.

Having found error, the July 31, 2009 Finding and Dismissal of the Commissioner acting for the First District is hereby reversed and remanded for additional proceedings consistent with this opinion.

Commissioners Nancy E. Salerno and Jack R. Goldberg concur.

1 We note that a motion for extension of time was granted during the pendency of this appeal. BACK TO TEXT

2 Section 31-294f(a) C.G.S. (Rev. to 2005) states: “An 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. The physician or surgeon shall be selected by the employer from an approved list of physicians and surgeons prepared by the chairman of the Workers’ Compensation Commission and shall be paid by the employer. At any examination requested by the employer or directed by the commissioner under this section, the injured employee shall be allowed to have in attendance any reputable practicing physician or surgeon that the employee obtains and pays for himself. The employee shall submit to all other physical examinations as required by this chapter. The refusal of an injured employee to submit himself to a reasonable examination under this section shall suspend his right to compensation during such refusal.” BACK TO TEXT

3 The trial commissioner quoted the following passage: “More significantly, the legislature specifically vested the commissioners with broad powers and authorized them to exercise such powers ‘in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.’ (Citations omitted.) In the absence of an express indication that the legislature intended to abrogate or limit that authority when a motion to preclude is granted, we presume that the commissioner retains such authority.” Donahue v. Veridiem, Inc., 291 Conn. 537, 554 (2009). BACK TO TEXT

4 Section 31-294c (b) C.G.S. (Rev. to 2005) states: “Whenever liability to pay compensation is contested by the employer, he shall file with the commissioner, on or before the twenty-eighth day after he has received a written notice of claim, a notice in accord with a form prescribed by the chairman of the Workers’ Compensation Commission stating that the right to compensation is contested, the name of the claimant, the name of the employer, the date of the alleged injury or death and the specific grounds on which the right to compensation is contested. The employer shall send a copy of the notice to the employee in accordance with section 31-321. If the employer or his legal representative fails to file the notice contesting liability on or before the twenty-eighth day after he has received the written notice of claim, the employer shall commence payment of compensation for such injury or death on or before the twenty-eighth day after he has received the written notice of claim, but the employer may contest the employee’s right to receive compensation on any grounds or the extent of his disability within one year from the receipt of the written notice of claim, provided the employer shall not be required to commence payment of compensation when the written notice of claim has not been properly served in accordance with section 31-321 or when the written notice of claim fails to include a warning that (1) the employer, if he has commenced payment for the alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim, shall be precluded from contesting liability unless a notice contesting liability is filed within one year from the receipt of the written notice of claim, and (2) the employer shall be conclusively presumed to have accepted the compensability of the alleged injury or death unless the employer either files a notice contesting liability on or before the twenty-eighth day after receiving a written notice of claim or commences payment for the alleged injury or death on or before such twenty eighth day. An employer shall be entitled, if he prevails, to reimbursement from the claimant of any compensation paid by the employer on and after the date the commissioner receives written notice from the employer or his legal representative, in accordance with the form prescribed by the chairman of the Workers’ Compensation Commission, stating that the right to compensation is contested. Notwithstanding the provisions of this subsection, an employer who fails to contest liability for an alleged injury or death on or before the twenty-eighth day after receiving a written notice of claim and who fails to commence payment for the alleged injury or death on or before such twenty-eighth day, shall be conclusively presumed to have accepted the compensability of the alleged injury or death.” BACK TO TEXT

5 The Harpaz parties and, ergo, the Supreme Court paid particular attention to the apparent inconsistency between the third sentence of § 31-294c(b) C.G.S., which grants an employer who timely commences payment a one-year period to contest compensability or the extent of the claimant’s disability, and the fifth sentence of the statute, which appears to grant an employer who has neither contested liability nor commenced timely payments the right to contest compensability only. (Emphasis added.) BACK TO TEXT

6 The Harpaz court noted that “§ 31-294c(b) provides that the employer is conclusively presumed to have accepted the compensability of the injury, not that the injury is conclusively presumed to be compensable.” (Emphasis in the original.) Harpaz v. Laidlaw Transit, Inc., 286 Conn. 102, 131 (2008). BACK TO TEXT

7 Connecticut Practice Book § 65-2 states, in pertinent part: “If, at any time before the final determination of an appeal, the appellate court is of the opinion that the appeal is appropriate for supreme court review, the appellate court may file a brief statement of the reasons why transfer is appropriate. The supreme court shall treat the statement as a motion to transfer and shall promptly decide whether to transfer the case to itself.” BACK TO TEXT

8 Section 51-199(c) C.G.S. states: “The Supreme Court may transfer to itself a cause in the Appellate Court. Except for any matter brought pursuant to its original jurisdiction under section 2 of article sixteen of the amendments to the Constitution, the Supreme Court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1, 1983, to the Appellate Court. The court to which a cause is transferred has jurisdiction.” BACK TO TEXT

9 The Donahue claimant contended that the employer “was precluded ... from cross-examining witnesses, arguing against coverage and filing briefs in opposition to her claim.” Donahue v. Veridiem, Inc., 291 Conn. 537, 546 (2009). Alternatively, the Donahue respondents adopted “the position that it was precluded only from putting forth its own expert and evidence, not from challenging the plaintiff’s proof.” Id. BACK TO TEXT

10 The Donahue court did “acknowledge the possibility that there may be circumstances in which the commissioner properly may seek records or information from the employer to aid in the adjudication of a claim and the calculation of benefits.” Id., fn. 11. BACK TO TEXT

11 The record indicates that the claimant saw Dr. Barnett on November 6, 2007 and the Commissioner’s Examination was ordered on March 11, 2008. BACK TO TEXT

12 Section 31-298 C.G.S. (Rev. to 2005) states, in pertinent part: “In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” BACK TO TEXT

13 In their appellate brief, the respondents argue that the claimant “waived” his objection to the respondent’s submission of a brief and/or proposed findings of fact because he did not “timely” object to their submission. Appellees’ Brief, p. 6. Given that the court’s holding in Harpaz effectively forestalled the submission of a respondents’ brief, we are disinclined to find meritorious the respondents’ expectation that the claimant should have been required to waive something which was already prohibited. BACK TO TEXT

14 The respondents also contend that the instant matter should be dismissed because the claimant did not order a transcript when he filed his Petition for Review and thus failed to provide this board with an adequate record for review. Given that our review of the transcript of the formal hearing of February 10, 2009 indicates that claimant’s counsel requested a copy of the transcript at that time, we find the respondents’ request for dismissal on these grounds unmeritorious. See Transcript, p. 12. BACK TO TEXT

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