CASE NO. 5549 CRB-8-10-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 1, 2011
PAULA J. SZTABA
SPECIALTY RISK SERVICES, INC.
The claimant was represented by Donald P. Reney, Jr., Esq., 110 Grandview Drive, Newington, CT 06111.
The respondents were represented by Lucas D. Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Suite 216, Glastonbury, CT 06033-4453.
This Petition for Review from the April 8, 2010 Finding and Dismissal of the Commissioner acting for the Eighth District was heard October 22, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from a Finding and Dismissal which concluded she had reached maximum medical improvement and further determined she was not authorized to undergo a certain medical treatment she was seeking. We conclude that the appeal in this matter was filed late and we lack subject matter jurisdiction. Even were we to have ruled on the merits of this appeal, we find the trial commissioner’s decision was supported by probative evidence. We dismiss this appeal and affirm the Finding and Dismissal.
The trial commissioner found the following facts at the conclusion of a formal hearing that commenced on April 29, 2009 with the record closing in March of 2010. The claimant suffered a compensable right elbow injury on March 1, 2004 while working for the respondent Aetna. Aetna accepted this injury. The claimant treated with Dr. Robert Belniak who performed three surgeries, a right carpal tunnel release on November 8, 2004, a lateral epicondylar release on February 7, 2005 and a revision of the epicondylar release on November 28, 2005. Following the third surgery the claimant complained of residual discomfort and had difficulty doing repetitive work.
Dr. Belniak referred the claimant to Dr. Andrew Caputo, of Hartford Orthopedics, for a second opinion and consultation. Dr. Caputo first examined the claimant on August 24, 2006. On August 24, 2007, Dr. Caputo performed a right lateral ligament reconstruction on the claimant.
The respondents filed a Form 36 on September 23, 2008, citing Dr. Caputo’s opinion that the claimant had reached maximum medical improvement (“MMI”). The claimant was scheduled to see Dr. Caputo on August 28, 2008 for an impairment rating and did not appear. Dr. Caputo assigned a ten (10%) percent impairment of the right upper extremity and opined that her restrictions were those delineated in the May 2008 Functional Capacity Examination.
The trial commissioner noted the Functional Capacity Examination found the claimant “provided unreliable efforts .” and demonstrated performance inconsistencies. Findings, ¶ 5. The trial commissioner also noted the claimant underwent an electrodiagnostic evaluation and examination with Dr. Pietro A. Memmo on June 11, 2008 which “were all normal in her right upper extremity including testing of the median, ulnar and radial nerve studies. . . . EMG needle examination was normal.”. Findings, ¶ 6. Having been discharged from the care of Dr. Caputo, the claimant returned to treat with Dr. Belniak on July 2, 2008. Dr. Belniak suggested she see Dr. Daniel Mastella for another opinion. Although the claimant complained of diffuse pain, Dr. Belniak said “[t]here will be no further treatment by me pending Dr. Mastella’s opinion.”. Findings, ¶ 8.
Ultimately, the claimant was evaluated by Dr. Mastella on November 4, 2008 as an independent medical examination. After a review of all the records Dr. Mastella concluded that the claimant had reached maximum medical improvement, and assigned a five (5%) percent permanent partial impairment of the right wrist and a twelve (12%) percent permanent impairment of the right arm relating to the elbow, combining for a sixteen (16%) percent permanent partial impairment of the right arm.
The claimant continued to complain of pain and returned to Dr. Belniak on March 17, 2009. Dr. Belniak suggested additional diagnostic testing consisting of an MRI of the claimant’s right shoulder and a right elbow arthrogram. The MRI showed evidence of a minor partial tear of the lateral collateral ligament and postsurgical changes. Dr. Belniak did not recommend additional surgery; instead he suggested the only treatment that the claimant had not tried would be a trial of platelet-rich plasma injection (CASCADE procedure). Dr. Belniak declined to proffer a permanency rating or direct the claimant to return to work until the claimant completed the plasma injections, as the claimant was still complaining of right elbow pain.
Dr. Mastella on September 4, 2009 again reviewed the claimant’s records and commented upon Dr. Belniak’s suggestion for the platelet-rich plasma procedure. He concluded that there was “insufficient evidence in the medical literature to recommend this as a treatment for this patient. It certainly is not a necessary part of her treatment and while determined by the FDA to be the equivalent to another safe procedure, injection of platelet-rich plasma is untested in the multiply operated elbow with recalcitrant lateral elbow pain.”. Findings, ¶ 13.
Based on these facts, the trial commissioner found the claimant had an accepted elbow injury. However, he did not find the claimant credible or persuasive. He found the opinions of Dr. Mastella credible and persuasive that the claimant had reached MMI with a 16% permanent partial impairment rating for the right arm. The commissioner did not find the opinions of Dr. Belniak credible or persuasive, but conversely, found Dr. Mastella’s opinion regarding the efficacy of the platelet-rich plasma procedure credible and persuasive. The trial commissioner ordered that the claimant receive § 31-308a C.G.S. benefits upon the expiration of the payment of the permanency benefits by the respondent.
The claimant did not file a Motion to Correct regarding the Finding and Dismissal which was issued on April 8, 2010. She filed a Petition for Review on April 29, 2010. The respondents filed a Motion to Dismiss on May 27, 2010 asserting the appeal was untimely and the commission lacked subject matter jurisdiction.
In the wake of the Supreme Court’s opinion in Stec v. Raymark Industries, Inc., 299 Conn. 346 (2010) we believe we are required to grant the respondents Motion to Dismiss. This opinion clearly states that an untimely appeal deprives us of jurisdiction to act.
Accordingly, we conclude that the failure to take an appeal within the twenty day appeal limitation set forth in § 31-301(a) deprives the board of subject matter jurisdiction, a defect that may be raised at any time. Id., 371.1
Even were we to have considered the claimant’s appeal on the merits, we would have affirmed the trial commissioner. As the claimant did not file a Motion to Correct, on appeal, we must accept the validity of the facts found by the trial commissioner in this matter. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008); Claros v. Keystone Pipeline Services, 5399 CRB-1-08-11 (October 28, 2009) and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993).
The claimant argues in her brief that it was error for the trial commissioner to rely on the opinions of Dr. Caputo. We note, however, the commissioner’s conclusions do not cite a reliance on that expert’s opinion, however. She also argues that the opinions of Dr. Mastella should not be credited as he did not favor additional treatment. The trial commissioner is responsible for determining which medical witness he or she finds more credible and persuasive. See Williams v. Bantam Supply Co., Inc., 5132 CRB-5-06-9 (August 30, 2007), Weir v. Transportation North Haven, 5226 CRB-1-07-5 (April 16, 2008) and O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 817-818 (1999). We find no error in the commissioner concluding Dr. Mastella’s opinions were more persuasive than those of Dr. Belniak.
We also note that it is up to the commissioner to determine whether any proposed modality of treatment constitutes “reasonable or necessary medical care.”. See Cervero v. Mory’s Association, Inc., 5357 CRB-3-08-6 (May 19, 2009), aff’d, 122 Conn. App. 82 (2010), cert. denied, 298 Conn. 908 (2010) and Anderson v. R&K Spero Company, 4965 CRB-3-05-6 (February 21, 2007), aff’d, 107 Conn. App. 608 (2008). The trial commissioner herein was not persuaded the plasma injections proposed for the claimant were reasonable and necessary. That is a judgment call based on the evidence presented which we do not find an abuse of discretion.
At oral argument the claimant raised two other issues. Her counsel filed a Motion to Admit Additional Evidence. For the reasons stated in Gibson v. State/Department of Developmental Services-North Region, 5422 CRB-2-09-2 (January 13, 2010) we do not believe the standards promulgated in Admin. Reg. § 31-301-9 have been met. We are not persuaded the proposed evidence is either probative or could not have been presented at the time of the original hearing.
Claimant’s counsel also suggested that there was confusion as to the Form 36 which was under consideration that rendered the trial commissioner’s decision unreliable. We note that counsel did not brief this issue. We also note that the record makes clear that all parties were informed as to which Form 36 was under consideration in the formal hearing; see April 29, 2009 Transcript, p. 9 and June 15, 2009 Transcript, p. 21. Therefore, we find the relief granted herein consistent with the issues presented to the tribunal.
We find no error, and herein affirm the Finding and Dismissal. The appeal is dismissed.
Commissioners Nancy E. Salerno and Amado J. Vargas concur in this opinion.
1 An appeal period may be tolled when a party demonstrates it did not receive notice of the original decision and therefore, was delayed in filing an appeal. Kudlacz v. Lindberg Heat Treating Co., 250 Conn. 581 (1999). We are not persuaded the claimant did not receive timely notice of the decision, and therefore, we find Byczajka v. Stamford, 5023 CRB-7-05-11 (March 26, 2008) dispositive of this appeal. BACK TO TEXT