State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Morales v. City of Bridgeport

CASE NO. 5551 CRB-4-10-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

APRIL 18, 2011

RONALD MORALES

CLAIMANT-APPELLANT

v.

CITY OF BRIDGEPORT

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

and

BERKLEY ADMINISTRATORS OF CONNECTICUT

ADMINISTRATOR

APPEARANCES:

The claimant was represented by John T. Bochanis, Esq., Daly, Weihing & Bochanis, 1776 North Avenue, Bridgeport, CT 06604.

The respondent was represented by Matthew S. Necci, Esq., Montstream & May, LLP, Salmon Brook Corporate Park, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033-6087.

This Petition for Review from the April 15, 2010 Finding and Award/Finding and Dismissal of the Commissioner acting for the Fourth 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.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter has appealed from the determination of the trial commissioner that denied his claim for temporary partial disability benefits. The claimant also appeals from a determination that sanctions should not be awarded in this case. Both these decisions are within the discretion of the trial commissioner, and an appellate panel such as ours cannot reverse such decisions unless the trial commissioner did not properly apply the law, or reached a decision which was clearly erroneous or unsupported by the evidence in the record. We are not persuaded the trial commissioner erred in his determination of these issues. Therefore, we dismiss this appeal and affirm the Finding and Award/Finding and Dismissal dated April 15, 2010.

The following facts are pertinent to our consideration of this appeal. The claimant commenced work with the city of Bridgeport as a firefighter in 1987 and started working temporarily as a fire inspector for a short time in 1991. He became a permanent fire inspector in 2006. The claimant said this job involved a great deal of paperwork. He testified that he injured his right elbow on October 2, 2006. The claimant filed a Form 30C on October 4, 2006. See claim #400066223. On October 3, 2007 a Form 30C was filed listing “RT & LT Hand/Wrist” as the injured body parts. See claim #400070149. A Voluntary Agreement was approved by this commission on April 24, 2009 for the claimant in case # 400066223 with a date of injury of October 2, 2006.

The claimant underwent two surgeries which were performed by his treating physician, Dr. Henry Backe. The first surgery, for the right elbow, was performed in July 2008. The claimant later underwent left carpal tunnel surgery on April 20, 2009. This surgery also removed a ganglion cyst. During the pendency of this claim the claimant testified that he was terminated by the city on August 28, 2008 for not “doing whatever they thought I should be doing.”. The claimant was contesting the termination in a proceeding at the State Board of Mediation and Arbitration. During the duration of the labor arbitration the claimant retained his group health benefits from his employer.

The commissioner considered the issue of numerous Form 36’s which had been denied at informal hearings or held in abeyance pending the resolution of the labor mediation. Evidence was submitted as to whether the multiple Form 36’s presented to the commission should be approved. In particular, the trial commissioner considered testimony on the issue of whether the claimant could perform light duty work. Dr. Backe testified that based on the October 27, 2008 physical therapy notes the claimant had a light duty work capacity at that time. On October 30, 2008 Dr. Backe maintained the claimant in the status of being disabled and out-of-work. Dr. Backe’s rationale was that the claimant was terminated, did not have a job, and an employer was not available to give him a safe, light-duty capacity job. Under those circumstances, he said he will keep the claimant out of work until the workers’ compensation issues were resolved or the claimant received vocational retraining. Dr. Backe also testified that during the claimant’s recovery from surgery there was an issue with unequal strength between the claimant’s hands (which could jeopardize the prior surgery) as well as a need for physical therapy. In a report dated May 26, 2009 Dr. Backe stated the claimant could return to light duty work with restrictions on his left and right upper extremities. He said the claimant has chronic overuse issues and never will be able to return to data entry or repetitive keyboard work at eight hours a day but should be able to manage four hours per day with a break every hour contingent on having an ergonomically correct computer work station.

The claimant testified that since his April 2009 surgery his hand strength on the left side is 40 to 50 percent of what it should be. His strength on the right side was 80 to 90 percent of normal. He testified that he performed job searches online and applied for jobs which he believed were within his restrictions, including job openings out of state.

The respondent’s examiner, Dr. Duffield Ashmead, testified the claimant in February 2009 was capable of work of a sedentary to light level of physical demand, provided it was not hand intensive or repetitive. Dr. Ashmead further testified that a patient with an epicondylitis release typically would be on temporary total disability for about three weeks and then on temporary partial disability for some limited period before returning to unrestricted duty. Dr. Ashmead said there is nothing in Dr. Backe’s October 30, 2008 report to indicate the claimant was totally disabled, and that he did not understand several of Dr. Backe’s notes that said “continue out of work status,” because they did not say the claimant was totally disabled.

The trial commissioner also received evidence regarding whether the respondent acted properly as to approval of the claimant’s surgery. The claimant testified that Berkley Administrators of Connecticut (the city’s administrator) had approved the initial surgery long before it was performed but later denied having approved it, forcing a formal hearing on January 5, 2009. At that time Berkley said they erred and the surgery which the claimant had proceeded with on his own was approved. The claimant said he was given a check for more than $18,000 in temporary total disability benefits that was owed for a period in which his bills accumulated and his mortgage was not paid. Counsel for the respondent addressed an e-mail which was supposed to have approved the initial surgery. He testified that he had not seen it until immediately prior to the January 2009 formal hearing and at that time the surgery was reauthorized. The claimant testified that he did not know when he or his attorney received the authorization e-mail from Berkley.

The claimant also testified to other alleged lapses by Berkley. He testified that Berkley provided transportation to an initial Respondent’s Medical Examination by Dr. Ashmead in Hartford but then, before a second scheduled examination, at the last minute, declined to provide it, causing him to miss that appointment. He conceded he did not request the transportation until the Friday before the scheduled Monday examination. He also testified he had not spoken to his treating physician as to his ability to drive a car. The claimant chose not to drive for physical and safety reasons.

The parties also discussed a February 2009 fine levied on the respondent. Respondent’s counsel argued these issues were not sufficient to warrant an additional claim of unreasonable contest. The claimant argued he was incurring attorney fees and costs for a claim which had been accepted by the carrier in 2008.

Based on these subordinate facts the trial commissioner concluded Dr. Backe was persuasive on the question of whether the claimant had a light duty work capacity when one hand was stronger than the other. Due to these factors, together with the claimant’s need for additional physical therapy, the trial commissioner decided to deny the Form 36 dated January 28, 2009. The commissioner also denied the Form 36 issued January 30, 2009, noting the required medical authorizations were later provided. As the claimant evidenced a willingness to seek employment, the Form 36 dated April 27, 2009 was denied. The commissioner denied the Form 36 dated June 9, 2009 based on the respondent’s refusal to arrange for transportation to the Respondent’s Medical Examination; as the respondent had made such transportation available on prior occasions. The trial commissioner dismissed the respondent’s claim in that they should receive payment from the claimant as a result of his decision to not attend the RME. The Form 36 issued on July 2, 2009 was approved based on the treating physician’s medical report of May 26, 2009, which placed the claimant on light work status. Based on the evidence on the record, the trial commissioner found the respondents did not engage in unreasonable contest or undue delay of the proceedings and dismissed the claim for sanctions.

Both parties filed post-decision motions. The respondent filed a Motion for Articulation concerning the effective date of the Form 36 which was granted by the trial commissioner. The claimant filed a Petition for Review and a Motion to Correct. The Motion to Correct was denied by the trial commissioner. The respondent filed a Motion to Dismiss, asserting that the appeal was filed late; along with a Motion to submit additional evidence on this issue.

We must first consider the respondent’s Motion to Dismiss. If the appeal herein was filed late we lack subject matter jurisdiction to hear the appeal, and therefore, this is a threshold issue to resolve prior to considering any other issue. See Stec v. Raymark Industries, Inc., 299 Conn. 346 (2010).

The Supreme Court pointed out in Stec that the General Assembly repealed the prior ten day appeal period from a workers’ compensation decision and replaced it with a twenty day appeal period when it enacted Public Act 01-22 Id., 360-364 § 31-301 (a) C.G.S. requires the appellant to file “an appeal petition” during that twenty day appeal period. The trial commissioner’s Findings were issued on April 15, 2010. The claimant filed a Petition for Review on May 5, 2010. This is within twenty days of the original decision, and therefore we need not consider the claimant’s argument that the time period was extended by virtue of a pending decision on the claimant’s Motion to Correct or the respondent’s Motion for Articulation.

The respondent argues that notwithstanding the claimant’s compliance with the statutory time period to commence the appeal that the appeal is subject to dismissal due to noncompliance with our regulations. They cite Admin. Reg. § 31-301-2 for the proposition that the claimant’s Reasons of Appeal must be filed within ten days of filing the appeal petition. The claimant argues that as the final day of this period fell on a weekend, by operation of law, the deadline was extended to the next business day, when the Reasons for Appeal were filed. Claimant’s Brief, p. 9. We deny the respondent’s Motion.

We note the regulation relied upon by the respondent was adopted prior to the enactment of Public Act 01-22. We also note that respondent has not argued that this delay impairs the subject matter jurisdiction of this tribunal. We also note the respondent has alleged no prejudice from the claimant’s filing. As a result, we believe our precedent in Damon v. VNS of CT/Masonicare, 5413 CRB-4-08-12 (December 15, 2009) governs this issue and compels us to deny the Motion to Dismiss.

Prior to considering the merits of this appeal, we must address the procedural issues raised by the respondents. They have filed a Motion to Dismiss under Practice Book § 85-1 asserting that the claimant’s appeal was untimely. They note that the claimant did not file either a Motion to Correct the Finding or her Reasons for Appeal within the time limits outlined under Sec. 31-301-2 or Sec. 31-301-4 of this Commission’s Administrative Regulations. We deny the respondent’s Motion to Dismiss, however, for the reasons stated in Vitoria v. Professional Employment & Temps, 5217 CRB-2-07-4 (April 4, 2008). . . .we are reluctant to dismiss the claim on jurisdictional grounds when we can find no evidence that the respondents were prejudiced by the claimant’s actions. Since a timely Petition for Review was received from the claimant, we believe Roussel v. Village Gate of Farmington, 4918 CRB-6-05-2 (February 28, 2006) compels us to deny the Motion to Dismiss. We believe some indicia of prejudice to the respondents should generally exist before we dismiss a claim initiated in a timely manner, as the sole dispute herein is over the adequacy of the pleadings. See also Rinaldi v. Tilcon Connecticut, Incorporated, 4981 CRB-3-05-7 (August 30, 2006).
We find no prejudice to the respondents by the manner in which the claimant has commenced her appeal. Therefore, we deny the respondent’s motion.

Id.1

Having resolved the jurisdictional issues in the claimant’s favor we must now turn to the substance of his appeal. The claimant argues that the Form 36 should not have been approved by the trial commissioner. He also argues that it was error for the trial commissioner not to impose sanctions on the respondent. We are not persuaded by these arguments.

The claimant argues that he met all the statutory requirements under § 31-308(a) C.G.S. to receive temporary partial disability benefits. As the claimant views the circumstances, he is entitled to those benefits as he believes the trial commissioner improperly applied the precedent in Levey v. Farrel Corp., 3649 CRB-4-97-7 (July 30, 1998) to deny the claimant’s bid for benefits. We generally extend great deference to a trial commissioner’s determination of such issues “[a]s 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).

The Form 36 in question cited medical reports from the treating physician and the respondent’s expert witness concurring that the claimant had a light duty work capacity. The Form 36 further stated that the employer was willing to accommodate the claimant’s work restrictions but that the claimant had been terminated for cause, and therefore, was not able to earn money performing the light duty work the respondent had made available. In the Motion to Correct, and on appeal, the claimant does not challenge the medical evidence that the claimant had a work capacity; rather, he focuses on the issue of “just cause” termination.

In Fountain v. Coca Cola Bottling Company, 5328 CRB-1-08-3 (February 18, 2009) we pointed out “[w]hether a claimant has satisfied the statutory criteria for § 31-308(a) wage differential benefits is a factual determination for the trial commissioner. Wright v. Institute of Professional Practice, 13 Conn. Workers’ Comp. Rev. Op. 262, 1790 CRB-3-93-8 (April 18, 1995).”. Id. The claimant correctly cited the three part test for eligibility delineated in Sellers v. Sellers Garage, 80 Conn. App. 15, (2003) but we are left unpersuaded the commissioner erred in his application of the test.2 3

There is no dispute the claimant was offered a light duty job, was working at the light duty job, and was terminated from the light duty job. The respondent states that this termination was “for cause”. It is undisputed the labor mediation contesting the dismissal had not been resolved at the time of the formal hearing. We reject the implied argument by the claimant that our commission was obligated to delay its determination until the appropriate authorities ruled on issues related to collective bargaining, and would then be bound by such a decision. See Dzienkiewicz v. State/Dept. of Correction, 5211 CRB-8-07-3 (March 18, 2008), aff’d, 291 Conn. 214 (2009). (Workers’ Compensation Commission not bound by decision of state board applying different standards).4

In the present case the trial commissioner could have reasonably concluded the claimant’s termination from a light duty job was grounds not to award § 31-308(a) C.G.S. benefits. “Where a claimant is terminated for cause, the trier has the discretion to consider such a dismissal from employment tantamount to a refusal to perform a suitable light duty position for the purposes of § 31-308(a). If not for his own actions, the claimant in this case would have been able to earn the same salary he was earning before his injury, and would not have been entitled to temporary partial disability benefits.” Levey, supra. We have pointed out this decision is left solely to the trial commissioner’s discretion Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). In Lopez, the record included factual findings the claimant’s effort to perform his job was impeded by bureaucratic barriers to such performance. Such findings are not present in this case.5 We must respect the trial commissioner’s discretion in this matter.

We must also respect the trial commissioner’s decision not to award the claimant sanctions in this matter. The subordinate facts found by the trial commissioner would not, as a matter of law, compel the award of attorney’s fees and interest for unreasonable contest or undue delay. The claimant’s Motion to Correct did not seek to add such facts to the record, but sought solely to cause the trial commissioner’s conclusion to include facts that supported awarding statutory sanctions. We note that we generally require affirmative findings of respondent misconduct in the record prior to affirming an award for sanctions. Francis v. Rushford Centers, Inc., 5428 CRB-8-09-2 (February 8, 2010). On appeal, the claimant raises a number of events and decisions which in his view justify an award of sanctions. Claimant’s Brief, pp. 11-17. We are not persuaded the trial commissioner erred, however, as the claimant must prove the trial commissioner committed an abuse of discretion as defined in In re Shaquanna M., 61 Conn. App. 592, 603 (2001).

We find the precedent in Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008) governs this issue. Citing McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (November 12, 1998) and Duffy v. Town of Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006), we held in Kuhar, “[w]e have repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner.”. Id. We determined in Kuhar that it was a “judgment call for the trial commissioner” whether sanctions were warranted. Id. We reach the same determination in the present case. The claimant simply did not persuade the trial commissioner on this issue and we cannot find a denial “vitiates logic.”. In re Shaquanna M., supra.

The trial commissioner’s decision herein is supported by evidence on the record. We find no error, dismiss this appeal, and affirm the Finding and Award/Finding and Dismissal.6

Commissioners Nancy E. Salerno and Amado J. Vargas concur in this opinion.

1 Having determined this issue does not implicate our jurisdiction, we deny the respondent’s Motion to Submit Additional Evidence. BACK TO TEXT

2 The relevant statute reads as follows:

Sec. 31-308. Compensation for partial incapacity. (a) If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the amount he is able to earn after the injury, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, except that when (1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available, the employee shall be paid his full weekly compensation subject to the provisions of this section. Compensation paid under this subsection shall not be more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, and shall continue during the period of partial incapacity, but no longer than five hundred twenty weeks. If the employer procures employment for an injured employee that is suitable to his capacity, the wages offered in such employment shall be taken as the earning capacity of the injured employee during the period of the employment. BACK TO TEXT

3 In Sellers v. Sellers Garage, 80 Conn. App. 15 (2003), the Appellate Court outlined the standard for awarding a full partial disability award, “[t]o receive full compensation for partial disability under § 31-308(a), a plaintiff must satisfy the following three-pronged test: (1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available . . . .” (Internal quotation marks omitted.. Mikula v. First National Supermarkets, Inc., 60 Conn. App. 592, 598, (2000), Sellers, supra, at 20-21. BACK TO TEXT

4 In Dzienkiewicz v. State/Dept. of Correction, 5211 CRB-8-07-3 (March 18, 2008), aff’d, 291 Conn. 214 (2009) we concluded the claimant sought to cause decisions of the Medical Examining Board to be given the force of collateral estoppel over decisions of this Commission. We concluded there was no statutory grounds to apply such estoppel. This commission is not bound by the collective bargaining agreement in this matter, nor can a collective bargaining agreement act to limit a claimant’s rights under Chapter 568. We concur with the trial commissioner’s reasoning in Conclusion, ¶ n. See King v. State/ Department of Correction, 5339 CRB-8-08-4 (March 20, 2009). BACK TO TEXT

5 See Finding, ¶ 7, and July 22, 2009 Transcript, pp. 26-27. BACK TO TEXT

6 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. State/Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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