CASE NO. 5635 CRB-4-11-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 17, 2012
PREMIER LIMOUSINE OF HARTFORD
FIRST COMP INSURANCE
The claimant was represented by Mark Carron, Esq., and Ellen B. Wisser, Esq., Carron & Fink, 1698A Post Road East, Westport, CT 06880.
The respondents were represented by Gerald V. Davino, II, Esq., Adelson, Testan, Brundo & Jimenez, 2080 Silas Deane Hwy, Suite 304, Rocky Hill, CT 06067.
This Petition for Review1 from the March 2, 2011 Finding and Award/Finding and Dismissal of the Commissioner acting for the Fourth District was heard October 28, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Scott A. Baron and Christine L Engel.
JOHN A. MASTROPIETRO, CHAIRMAN. This case involves an award to the claimant, William Gonzalez, for his injuries incurred pursuant to a February 17, 2008 motor vehicle accident. Both the claimant and the respondents have appealed from a Finding and Award/Finding and Dismissal issued after the formal hearing in this matter.The claimant has appealed based on his belief the respondents failed to proffer timely medical care for his injuries and therefore, the trial commissioner should have sanctioned the respondents for their delay. The respondents have appealed arguing that the evidence presented to the trial commissioner did not justify his decision that the claimant’s compensable injury was a substantial factor in the claimant’s current cervical spine condition and potential need for surgery. We find the trial commissioner’s decision in this matter was legally sound and supported by probative evidence. Therefore, we dismiss both appeals and affirm the Finding and Award/Finding and Dismissal.
The trial commissioner found the following facts at the conclusion of the formal hearing. The trial commissioner noted the claimant had sustained two noncompensable injuries prior to the 2008 incident. The claimant was in a car accident in 2000 and subsequently treated with Dr. Melchias N. Mukendi and the now deceased Dr. William Lewis. In 2001, Dr. Lewis assigned a 10% permanent partial disability rating to the claimant’s cervical spine and a 5% rating to the lumbar spine. Subsequent to that rating Dr. Lewis reviewed a repeat cervical MRI performed on October 21, 2003 after continued complaints by the claimant of cervical pain with radiation into the right upper extremity in the interscapular area with associated numbness and paraesthesias of the right hand. The MRI showed a disc herniation at C6-C7 and a spondylotic ridge consisting of a disc and osteophytes at C4-C5. Dr. Lewis on October 25, 2003 diagnosed cervical radiculopathy at C6-C7 and at C4-C5. He recommended a cervical decompression and fusion and internal fixation with plate and screws, and referred the claimant to Dr. Patrick Mastroianni, a neurosurgeon, for a consultation.
The claimant suffered a second noncompensable injury on February 10, 2004 when he slipped on ice and landed on his neck and lower back. He treated at the Bridgeport Hospital Emergency Room that day with complaints of neck and back pain and was given prescriptions of Naprosyn and Flexeril. Dr. Lewis referred him for physical therapy, which he underwent from February 11 through March 10, 2004. After a MRI on May 14, 2004 Dr. Lewis stated there was no significant changes from the prior study and the cervical radiculopathy had resolved with the physical therapy. Dr. Lewis on October 5, 2004 assigned an additional 5% rating to the cervical spine and an additional 2.5% to the lumber spine from the February 10, 2004 fall.
The claimant was injured on February 17, 2008 while driving a limousine for the respondent and in a Form 30C claimed injuries to the upper neck, lower back, and right arm. The respondent in a Form 43 contested the claim. A Voluntary Agreement accepting liability for the neck injury only was approved October 21, 2008 and included a weekly compensation rate of $454.09 and a designation of Dr. David Brown of Bridgeport as the authorized physician. The claimant submitted to two Respondent’s Medical Examinations, one performed by Dr. Charles Raftery on September 24, 2009, and the other performed by Dr. Gary Zimmerman on January 26, 2010.
The claimant testified as to the circumstances of the accident as follows. He was en route to Sikorsky Aircraft to pick up a client and bring her to Kennedy Airport when his limousine was rear-ended by another motor vehicle while stopped at a red light. He notified dispatch of the accident via radio as soon as it happened but did not report that he was injured. He continued with his assignment of taking the client to the airport. He first reported his injury to the respondent on February 27, 2008. The claimant testified he stopped working in May 2009 after Dr. Brown prescribed medication that prevented him from driving. He also could not lift luggage into the limousine, which was necessary for the job to be performed. The claimant said he had received no indemnity payments since sometime in late 2009.
The claimant’s treating physician, Dr. Brown, testified via a December 16, 2009 deposition. He ordered a fourth MRI on April 16, 2008. He interpreted the new study to represent a worsening of the 2004 MRI to a small degree. There was no nerve root or cord compression and the slightly progressed herniation could have been either traumatic or progressive in nature. A fifth MRI was performed on August 8, 2009. It contained no significant changes but showed multilevel degenerative changes from C5-C6 with minimal stenosis at the C4-C5 levels. He diagnosed the claimant with right cervical radiculopathy versus carpal tunnel symptomatology and thoracic strain and recommended a neurological consult. He sought the consult because the claimant appeared to now have pain on the left as well as right side, so he believed the condition had become more severe and was interfering with the claimant’s daily activities. He stated on September 9, 2008 that the claimant needed cervical surgery, which was causally related to the work-related motor vehicle accident of February 17, 2008. Dr. Brown said the neurosurgical consult was necessary to consider the possibility of cervical surgery. Dr. Brown concluded that the claimant was at maximum medical improvement with conservative care, but may not be at maximum medical improvement for surgery, which might improve his condition.
Dr. Brown further testified that he agreed with the original opinion stated in the first report of Dr. Charles Raftery, wherein he opined that the claimant has a 14.3% rating of the cervical spine, one-half of which was from pre-existing injuries. Dr. Brown said that problems relating to the first three fingers are generally C-6 and the fourth and fifth fingers are C-7. Problems at C-4 and C-5 would be higher up in the upper arm, so the claimant’s symptoms track with the radiological findings, and median nerve neuropathy on the right could account for numbness and tingling in the fingers. He testified it’s likely that the degree of arthritis in the cervical spine, which is compressing nerve roots, has affected the nerves that extend into the hand and could be the cause of the median neuropathy, sometimes called carpal tunnel syndrome. Dr. Brown believed with reasonable medical certainty that the claimant’s numbness and wrist problems are directly or indirectly caused by the cervical spine problem. He said the claimant should consult with a neurosurgeon, either Dr. Patrick Opalak or Dr. Mastroianni. He did not see the claimant after July 7, 2008 until July 17, 2009. In an August 5, 2008 note Dr. Brown said that the claimant should remain out of work. In a July 17, 2009 note, he said the claimant had continued to work as a limousine driver until he was recently laid off. Dr. Brown opined the claimant had a light duty work capacity and should not be lifting heavy suitcases.
The respondent’s two expert witnesses testified by way of deposition. Dr. Raftery testified he performed a Respondent’s Medical Examination on the claimant on September 24, 2009. He opined the claimant is not a candidate for surgery. His primary complaint is neck stiffness, which surgery does not improve. Nothing in the records, diagnostic testing or subjective complaints, make the claimant a surgical candidate or require a referral to a neurosurgeon. The claimant has reached maximum medical improvement and has a 14.3% rating of the cervical spine, possibly apportioned among the three different incidents, although his report of September 24, 2009 originally attributed one-half of the 14.3% cervical spine rating to the claimant’s pre-existing injuries. He recommends the pre-emptive use of non-steroidal anti-inflammatory medication and a home exercise program. Dr. Raftery also opined that surgery would not have been useful in 2004, and the likely surgery which would be proposed for the claimant would cause him not to be able to be employed as a limousine driver.
Dr. Gary Zimmerman testified by deposition on September 28, 2010. He said he saw the claimant on January 26, 2010 for a Respondent’s Medical Examination, and reported that the injury of 2008 exacerbated the claimant’s chronic cervical condition, leading to chronic cervical radiculitis. After reviewing some records from Dr. Lewis that were forwarded to him after writing his report, he changed his opinion slightly, because the claimant had prior cervical injuries that led to symptoms similar to those he had during the January 26, 2010 examination. He said it was difficult to use words like exacerbated or accelerate, but the bottom line is the claimant had an accident that led to worsening symptoms. Without the 2008 injury the claimant would not have the symptoms he does have today.
Dr. Zimmerman further testified the claimant was at maximum medical improvement without surgery. He also agreed with Dr. Raftery’s revised apportionment of the permanent partial disability rating, as it would not make sense to assign half the claimant’s disability rating to the 2008 injury and therefore this proportion should be reduced. Dr. Zimmerman further testified the need for surgery was due to the 2008 injury, not the claimant’s degenerative process.
The trial commissioner also noted evidence was presented from the claimant’s attorney, Mark Carron, Esq., detailing more than $30,500 in attorney fees, costs and penalties sought by the claimant.
Based on these facts and evidence the trial commissioner concluded that the 2008 Voluntary Agreement established this injury was compensable. As the commissioner found the opinions and deposition testimony of Dr. Brown and Dr. Zimmerman were more persuasive than that of Dr. Raftery, he determined the February 17, 2008 incident was a substantial contributing factor to the claimant’s current need for surgery. He approved the referral of the claimant to Dr. Opalak or Dr. Mastroianni to determine if surgery was still needed and if it was deemed necessary, authorized such surgery. In the event surgery was not pursued the commissioner restated the claimant’s permanent partial disability rating, but as the claimant had received a slightly higher award already, directed that no further award was due at this time. The commissioner determined that as the record reflected the claimant had a work capacity no temporary total disability benefits were owed. The commissioner further found as the claimant had not sought work no temporary partial disability benefits were owed. Finally, the trial commissioner found there was no undue delay in the provision of medical treatment and that evidence from the treater provided a rational basis to contest the claim. Therefore, sanctions were not awarded.
The respondents filed a Motion to Correct and a Motion to Reopen the Finding. The Motion to Reopen the Finding was to add additional evidence to the record. The respondents also filed a Petition for Review seeking an appeal. On March 23, 2011 the trial commissioner granted three of the twelve requested corrections, which did not materially change the relief ordered in the original Finding except to permit the respondents to question any surgical recommendation from the neurosurgeon. On May 24, 2011 the trial commissioner ruled on the Motion to Reopen the Finding and reiterated that after consideration of additional evidence the original Findings were affirmed. The claimant then filed his own Petition for Review.
We will first address the respondents appeal. The respondents appeal is summed up by a simple premise. They believe that their Motion to Correct should have been granted in its entirety. Had the trial commissioner granted all of the respondents corrections, they believe the outcome of the case would have been different and the claimant’s further need for possible treatment of his cervical spine condition would not have been found compensable. In their opinion, the trial commissioner could not exclude “uncontradicted medical evidence” from his decision. Appellant/Respondent’s Brief, p. 18. The respondents cite no precedent for the argument and we are not persuaded by this argument. On the other hand, we do find we addressed very similar issues earlier this year in Anderson v. Target Capital Partners, 5615 CRB-6-10-12 (January 3, 2012).
In Anderson, the claimant filed a Motion to Correct seeking to have evidence from his medical experts credited on the issue of work capacity. The trial commissioner in that case denied those corrections. We affirmed that decision on appeal based on the following rationale.
He argues that the Motion to Correct should have been granted as it included what he regarded as material and undisputed evidence which would have supported a conclusion of total disability. We believe that the trial commissioner could have considered this evidence, but ultimately found the evidence was neither probative nor persuasive. This decision was consistent with precedent in Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008) and Brockenberry v. Thomas Deegan d/b/a Tom’s Scrap Metal, Inc., 5429 CRB-5-09-2 (January 22, 2010), aff’d, 126 Conn. App. 902 (2011) (Per Curiam) where this tribunal held as follows:
When a party files a Motion to Correct this is an effort to bring factual evidence to the trial commissioner’s attention in an effort to obtain a Finding that is consistent with such facts. When a trial commissioner denies such a motion, we may properly infer that the commissioner did not find the evidence submitted probative or credible. Vitti v. Richards Conditioning Corp., 5247 CRB-7-07-7 (August 21, 2008). On appeal, our inquiry is limited to ascertaining if this decision was arbitrary or capricious. Id. The leading case on this point is Beedle v. Don Oliver Home Improvement, 4491 CRB-3-02-2 (February 28, 2003).
We also note that virtually all of the “undisputed facts” cited by the respondent in their Motion to Correct were derived from testimony, which the trier was not required to believe even if those statements were uncontradicted or otherwise corroborated. Duddy, supra. Pallotto v. Blakeslee Press, Inc., 3651 CRB-3-97-7 (July 17, 1998). The trier’s denial of those corrections implies that he was not swayed by this testimony, and we cannot invade his sphere of authority by reappraising the evidence and drawing a contrary inference on appeal. Sendra v. Plainville Board of Education, 3961 CRB-6-99-1 (January 20, 2000).
The claimant therefore must establish that the trial commissioner’s decision not to rely on the medical evidence in the denied corrections amounted to an abuse of discretion. See In re Shaquanna M., 61 Conn. App. 592 (2001) and O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999). The trial commissioner found Dr. Zimmerman and Dr. Brown to be the persuasive and credible witnesses in this case. Both witnesses offered unequivocal opinions linking causation of at least part of the claimant’s condition to the compensable accident. See Claimant’s Exhibit D and Exhibit E, p. 18, as well as Respondent’s Exhibit 4, pp. 21-22. Whether other statements of these witnesses were unsupportive of the claimant’s position is of no moment. “We have held that it is within the discretion of the trial commissioner to accept some, but not all, of a physician’s opinion.” See Williams v. Bantam Supply Co., 5132 CRB-5-06-9 (August 30, 2007) and Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). We find the trial commissioner could reasonably have decided to reject those proposed corrections which he denied. This decision is dispositive of the respondents appeal. We now turn to the claimant’s appeal. The respondents have challenged this appeal both on procedural and substantive grounds.
The first argument the respondents advance is that the claimant’s appeal is time-barred as a result of having been filed late. They argue that the claimant could not benefit from the recent amendments to § 31-301(a) C.G.S. that extended the time to file an appeal to a twenty day period subsequent to a decision on a post-judgment motion.2 While such a post-judgment motion was filed in this case, it was not filed by the claimant and as the respondents view the law, the claimant may not utilize this extension for filing its appeal. The respondents also point out that in the absence of the claimant having filed a Motion to Correct the factual findings of this case, these findings were given conclusive effect. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). We also note that pursuant to cases such as Stec v. Raymark Industries, Inc., 299 Conn. 346 (2010) the failure to file a timely appeal to the Compensation Review Board creates an issue of subject matter jurisdiction which must be addressed prior to addressing the merits of the appeal.
The claimant argues notwithstanding these arguments that he is allowed to “piggyback” his appeal on the timely appeal which was brought by the respondent. We are skeptical of this argument as a result of the Supreme Court’s analysis of the appeal statute in Stec, supra. The statutory change considered in Stec acted to extend the time period for filing appeals from ten days to twenty days. In that case, the court relied on what it believed was the legislative purpose behind the 2001 amendment to § 31-301(a) C.G.S.
Under the former ten day period, parties appealed decisions of commissioners as a routine matter, motivated by “fear” that an appeal outside the ten day period would be dismissed by the board as untimely. This resulted in needless appeals, decreased efficiency of the workers’ compensation system, and unnecessarily postponed the finality of commissioners’ decisions....
Attorney David Schoolcraft, speaking before the judiciary committee in favor of the extended appeal period on behalf of the Workers’ Compensation Section of the Connecticut Bar Association, similarly opined that “the result of the short time period, which is half the period provided in civil appeals, is that appeals in [w]orkers [c]ompensation become virtually automatic. An aggrieved party, whether it be a claimant or a respondent, does not often have the time to consult with their client . . . and give them some time to think about whether or not they want to take an appeal.”
Stec, supra, at 361-362.
Our review of the legislative history of Public Act 07-31 indicates it was silent on a stated purpose as to extending the time period to commence an appeal. Only one speaker discussed the relevant provision of Public Act 07-31, Representative Kevin Ryan in moving that the House of Representatives adopt the bill on May 1, 2007.
Another portion of the bill deals with a 20-day deadline to file an appeal to the Compensation Review Board. Currently it begins when the motion has been filed but not yet acted on.
And this just extends that 20 day time to the point when the motion is actually ruled on. It begins the 20 day period at that point in time. I’d ask my colleagues to support this bill. Thank you, Mr. Speaker.
50 H.R. Proc. Pt.7, 2007 Sess., p. 2166.3
Based on this explanation, we may reasonably believe that similar motivations were at work in the present modification as what prompted the General Assembly to pass earlier legislation extending the deadline to file appeals. Prior to this act, parties with pending Motions to Correct were required to file an appeal within the twenty day period subsequent to a trial commissioner’s decision in order to protect their appeal rights, even if had their Motion to Correct been granted their grounds for an appeal would be obviated. The enactment of Public Act 07-31 permitted a party to defer commencing an appeal until its own post-judgment motions were resolved. Therefore, if a granted Motion to Correct satisfied the moving party’s concerns, no appeal would need to be filed. This parallels the motivation behind the statutory change adopted in 2001; the desire to avoid premature appeals.
Further supporting our reasoning herein was the Supreme Court’s analysis of the issue of standing in Stec. A central element of standing is that “the party claiming aggrievement must successfully establish that the specific personal and legal interest has been specially and injuriously affected by the decision...” Id., at 374, citing Gold v. Rowland, 296 Conn. 186 (2010). Based on our review of the averments raised by the claimant on appeal, they clearly were aggrieved by the trial commissioner’s initial Finding and Award/Finding and Dismissal issued on March 2, 2011, and their aggrievement was not prompted by the commissioner’s decision on the respondent’s Motion to Correct. The central claim raised on appeal was an attack on the original factual findings of the commissioner adverse to the claimant and a demand for sanctions. The claimant could have filed an appeal within twenty days of that decision or filed a post-judgment motion seeking to have the trial commissioner undo elements of the factual findings and/or alter the relief ordered. The claimant did neither.
Therefore, we cannot distinguish the claimant’s position on the timeliness of its appeal from the position of the Second Injury Fund advanced which was rejected by the Supreme Court in Stec, supra, at 375-376, and in Dechio v. Raymark Industries, Inc., 299 Conn. 376 (2010). The claimant’s right to appeal had matured when the original Finding was issued and a timely appeal was not commenced in any fashion within twenty days. Therefore, the respondents Motion to Dismiss must be granted as this tribunal lacks subject matter jurisdiction.
Even had we considered the merits of the claimant’s appeal, we would be compelled to uphold the trial commissioner. The claimant is essentially attempting to retry the facts of this case, and in the absence of a Motion to Correct we must give the factual findings conclusive effect. Stevens, supra. We may only intercede if the trial commissioner’s findings lacked evidentiary foundation or if he failed to appropriately follow the law.
The claimant argues that the trial commissioner should have awarded him temporary total disability benefits, or in the alternative, temporary partial disability benefits. The trial commissioner in Finding,¶ h indicated the claimant failed to follow medical advice limiting his employment and left employment at a much later date. The trial commissioner found the claimant’s treater testified the claimant has a light duty work capacity. While the claimant may believe he was totally disabled, the trial commissioner could reasonably rely on evidence to the contrary. Smith v. Federal Express Corp., 5405 CRB-7-08-12 (December 1, 2009). These factual findings are also dispositive of the claimant’s demand for temporary partial disability benefits. The trial commissioner found the claimant had failed to perform work searches. Findings, ¶ i. When a claimant fails to perform work searches, a trial commissioner may determine he or she is not making a reasonable effort to seek employment and deny a bid for partial disability benefits. Baldino v. Charles Corcoran d/b/a Corcoran & Son Landscaping & Paving, 4275 CRB-4-00-8 (July 23, 2001).
We now come to the issue of whether the trial commissioner erred in not sanctioning the respondents for undue delay in providing medical care. The claimant argues that the respondents failed to authorize treatment by a neurosurgeon in a timely fashion after the treating physician suggested cervical spine surgery was necessary. The respondents argue that although they executed a Voluntary Agreement accepting the injury, they had a good faith basis to contest causation of the claimant’s neck ailments and they referred the claimant for a prompt Respondent’s Medical Examination.4
Based on the evidence on the record, the trial commissioner determined that the respondent’s response to the issue of whether cervical surgery was warranted was not so unreasonable as to warrant the imposition of sanctions. Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008) stands for the proposition that this tribunal has extended broad latitude to trial commissioners in deciding when a respondent’s conduct warrants the imposition of sanctions for undue delay or unreasonable contest. Given the complex medical issues intertwined in both causation and an appropriate response to the claimant’s cervical spine ailments, we do not believe the respondent’s liability for surgery was “. . . ever so clear as to be indisputable by a reasonable person.” Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000), appeal dismissed, A.C. 21533 (2001), cited in Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009). We do not believe as a matter of law the trial commissioner erred by denying the claimant’s bid to sanction the respondents.
We find no error in the Finding and Award/Finding and Dismissal. We affirm this decision and dismiss both appeals.
Commissioners Scott A. Barton and Christine L. Engel concur in this opinion.
1 We note that an extension of time was granted during the pendency of this appeal. BACK TO TEXT
2 See Public Act 07-31, § 2. BACK TO TEXT
3 It appears Representative Ryan inadvertently misstated the operative law for filing appeals by saying the deadline to file an appeal was when a party filed a post-judgment motion. We take administrative notice it was generally the practice of parties aggrieved with a trial commissioner’s Finding to simultaneously file both an appeal to the Compensation Review Board and a Motion to Correct with the trial commissioner prior to the enactment of Public Act 07-31. BACK TO TEXT
4 Dr. Brown first suggested the claimant would require surgery on September 9, 2009. Claimant’s Exhibit B. Dr. Raftery examined the claimant on September 24, 2009. Claimant’s Exhibit C. BACK TO TEXT