CASE NO. 5693 CRB-4-11-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 27, 2012
AMERICAN STATES INS. CO. a/k/a SAFECO INSURANCE CO. & COLORADO CASUALTY
The claimant was represented by James T. Baldwin, Esq., Coles, Baldwin & Kaiser, LLC, 1261 Post Road, Fairfield, CT 06824.
The respondents were represented by Terrance Brennan, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review1 from the October 11, 2011 Finding and Orders of the Commissioner acting for the Fourth District was heard March 23, 2012 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has appealed from the Finding and Orders issued by the trial commissioner in this matter concerning her medical treatment and her claim for benefits under § 31-308a C.G.S. We find that the major portion of the original dispute between the parties as to the utility of in-patient detoxification of the claimant has been resolved by agreement and these issues are now moot. The claimant argues however, that the trial commissioner improperly ordered her to perform job searches as a prerequisite to receiving her § 31-308a C.G.S. benefits. Our review of the record indicates this issue was not fully considered by the trial commissioner prior to issuing this order. We remand this issue to the trial commissioner for further hearings.
The trial commissioner found the following facts which are relevant to the present appeal. The claimant was injured February 7, 1989, when a metal fire door fell on top of her and she has had three major surgeries and one minor surgery since. The claimant testified she last worked in 2004 when she was let go from a job in a delicatessen as her injury slowed her work and the pain expressed on her face was perceived as anger. The claimant continues to take pain medication including Oxycontin, Valium and Roxicodone. The claimant discussed the difficulties she had faced in trying to reduce her intake of pain medication on her own subsequent to the December 10, 2009 Finding and Orders issued by Commissioner Scott Barton. She said her treating physician, Dr. Michael Brennan, had recently increased the dosage of these medications which enabled her to drive, sit still and pay attention to questions at the hearing. She testified to being unable to sleep much and testified she was in too much pain to work. The claimant also testified she did not believe she was up to an inpatient program to reduce her intake of pain medications, but was interested in an outpatient program.
Dr. Brennan testified that he had treated the claimant since 2001 and she had undergone three spinal surgeries including a fusion. He began reducing medicines at the claimant’s request during the summer of 2010 to see how she would do, culminating in a 90 percent reduction by December 2010. The claimant was quantitatively and qualitatively worse with each reduction in dosage. Dr. Brennan reversed course due to a terrible escalation of pain which caused him to begin increasing her medicine. The claimant was now on a lower level of medication than her peak level, but still enough pain medication to get her through her daily activities. Dr. Brennan opined the claimant did not have a work capacity particularly because of her pain, lack of mobility, frequent need for position change, inconsistent response to medicine, side effects from medicine, and inability to do any kind of work on a regular level or a consistent level. He indicated that various inpatient treatment regimens at out of state facilities were potentially beneficial as long as there is follow-up care afforded her afterward. He did not know why the claimant did not want to be treated in this fashion, and suggested that a new program at Silver Hill Hospital might be a viable option.
The respondent’s expert witness, Dr. Jerrold Kaplan, testified by way of deposition. He conducted a respondent medical examination on the claimant on November 10, 2010. He opined the claimant needed a program that would address all the issues which were caused by her surgeries, including deconditioning, chronic pain and opiate usage. He said an inpatient pain management program to address all of those issues gives her the best chance for a successful outcome. He recommended the claimant attend Rosomoff or the Pride clinic for a one-month program on an inpatient basis. He also opined that the claimant should try to stop using Valium, Oxycodone and Roxycodone, and he agrees with Dr. Brennan that the claimant needs to undergo a holistic approach of physical, psychological, and functional attention to her needs.
After considering the testimony and the documentary evidence presented the trial commissioner concluded the claimant had made a good faith effort to reduce her medication intake and the Form 36 dated June 22, 2010, was denied. The commissioner found Dr. Kaplan more persuasive than Dr. Brennan on the issues of the need for the claimant to attend an inpatient treatment clinic to be weaned from the use of Valium, Oxycontin, and Roxicodone; as well as on the issue of the claimant’s work capacity where Dr. Kaplan found she had a light duty capacity with 12-pound lifting restrictions and the need to sit or stand 50 percent of the time. The commissioner found Dr. Brennan more persuasive than Dr. Kaplan on the issues of the claimant’s medication treatment being curative as opposed to palliative; as well as the claimant’s need to be followed by a nurse case manager to act as her patient advocate and to be afforded psychological and physical therapy treatment as necessary to continue to aid her in staying off the narcotic medications after attending an inpatient program. The trial commissioner directed the claimant to enroll in an inpatient treatment program at the expense of the respondent and for the regimen recommended by Dr. Brennan to be provided upon her release.
Following the Finding and Orders, both the claimant and the respondent filed Motions to Correct. The claimant’s Motion to Correct was denied. The respondent filed a Motion to Correct on October 21, 2011, seeking to add a job search requirement as a requisite to the claimant seeking benefits under § 31-308a C.G.S. prior to admission to an inpatient clinic. The trial commissioner granted this motion on October 25, 2011. On October 28, 2011, the claimant filed an Objection and Motion for Reconsideration to the respondent’s Motion to Correct, asserting the issue in question was not raised at the time of trial and that the motion was in contravention of an agreement between the parties on this issue. The trial commissioner overruled this objection. The claimant proceeded with the present appeal.
We note that on the principal issue in the trial commissioner’s Finding and Orders the parties reached an agreement subsequent to the formal hearing and the claimant was admitted to an out-of-state inpatient treatment facility for her opiate dependency. We find therefore those issues are now moot and decline to address them on appeal. We are left with the trial commissioner’s decision to approve the respondent’s Motion to Correct and to overrule the claimant’s objection. We cannot find sufficient grounds to sustain this decision and believe the matter must be remanded for further consideration.
The issue herein is one of whether the trial commissioner’s actions were properly noticed and supported by a sufficient quantum of probative evidence. While we must provide deference to the decision of a trial commissioner, we may reverse such a decision if the commissioner did not properly apply the law or reached a decision unsupported by the evidence on the record. Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007). We look first to the issue of notice. We find the respondent does not challenge the claimant’s argument that the issue of work searches was not properly noticed, arguing rather that the claimant’s counsel reopened this issue by contesting the issue of work capacity. Respondent’s Brief, pp. 15-16. While the respondent properly cited Vetre v. State/Dept. of Children and Youth Services, 3443 CRB-6-96-10 (November 28, 2000) for the proposition that the trial commissioner is permitted to follow the evidence where it leads; upon review of the record we are left uncertain what the factual predicate was to grant the respondent’s Motion to Correct. In particular, we compare this case to DiDonato v. Greenwich/Board of Education, 5431 CRB-7-09-2 (May 18, 2010) and find the factual basis to grant the issue at hand considerably weaker.
In DiDonato the claimant was ordered to undergo detoxification. The respondent argued on appeal that this modality of treatment had not been a noticed issue, and this relief should be vacated on appeal. We affirmed the trial commissioner because the evidence on the record, which encompassed both medical reports and witness testimony, “clearly established that the claimant was in need of detoxification and that provision of such medical treatment was warranted pursuant to § 31-294d C.G.S.” Id. In the present case we have reviewed the hearing transcript and find no reference by any witness to the issue of job searches. The respondent’s Motion to Correct cites Finding, ¶ D which found Dr. Kaplan’s deposition testimony credible on the claimant’s work capacity as supporting their motion to add a work search requirement to the Finding and Orders. We have reviewed Respondent’s Exhibit 1, the deposition transcript of Dr. Kaplan’s testimony, and are left uncertain as to what was the factual underpinning the respondent relied on in seeking this relief.
We do note Dr. Kaplan testified at his deposition to the claimant having a sedentary work capacity. Respondent’s Exhibit 1, February 23, 2011 Deposition of Dr. Jerrold Kaplan, pp. 17-18. The totality of the testimony focused on the many challenges the claimant had in reentering the work force, however. Dr. Kaplan made clear the claimant would benefit from vocational counseling prior to re-entering the work force. Id., pp. 61-62. The witness also made clear he was not incorporating any vocational studies or reports in his opinion. Id., p. 63. He also clarified that his opinions did not take into account a vocational standpoint. Id. Finally, we note the respondent’s medical examination report, dated November 10, 2010, contained no recommendation that the claimant undergo work searches.
The claimant argues that as § 31-308a C.G.S. benefits in this claim were the subject of prior hearings in 2006, 2009 and 2010, the appropriate means to address this issue would have been through a Form 36 filed with the commission to discontinue benefits, which had not been filed. Claimant’s Brief, pp. 12-14. We note that such prior interlocutory decisions in a pending claim should generally require some form of contested hearing prior to being materially changed by the trial commissioner. The respondent’s proposed Findings of Fact at the conclusion of the formal hearing, dated August 19, 2011, did not reference the need for job searches while referencing Dr. Kaplan’s expert opinions on work capacity. Therefore, the Claimant’s Proposed Finding And Award of August 22, 2011, did not address this issue.
The first time the issue of job searches was raised was in the respondent’s Motion to Correct. This motion was granted before the claimant had an opportunity to file an objection. The Claimant’s Motion For Reconsideration Of And Objection To Respondent’s Motion to Correct was overruled.
Earlier this year we had the occasion to consider a very similar situation in Zbras v. Colonial Toyota, 5631 CRB-4-11-2 (February 14, 2012) where the trial commissioner granted a Motion to Correct which added an additional form of relief to the original findings. We acknowledged in Zbras that our precedent in Rizzo v. Stanley Works/Hand Tools Division, 5106 CRB-6-06-6 (November 21, 2007) stood for the proposition that a trial commissioner may correct a finding so as to conform to the evidence on the record. In Rizzo, we found that the record clearly supported the commissioner’s granted correction as to the date of maximum medical improvement. We were unable to ascertain the factual predicate in Zbras for the granted correction in that case and remanded the issue of sanctions for further proceedings.
We find the factual predicate in the present case is similar to the factual underpinning behind the correction in Zbras, supra. We note that the precedent governing § 31-308a C.G.S. in claims such as; Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 1721 CRB-1-93-5 (March 22, 1995), aff’d, 54 Conn. App. 296 (1999) and McCarthy v. Hartford Hospital, 5079 CRB-1-06-3 (March 8, 2007), aff’d, 108 Conn. App. 370 (2008), cert. denied, 289 Conn. 910 (2008), do not make work searches mandatory prior to enabling the claimant to be paid benefits. As we held in McCarthy, supra, “[T]he Act does not require job searches in order to establish the unavailability of suitable work under § 31-308(a) or § 31-308a, . . .” Id. In light of this precedent, we believe the trial commissioner needed to articulate his rationale for ordering job searches in a § 31-308a C.G.S. case. In addition, as the Motion to Correct was granted prior to consideration of the claimant’s objection, we vacate that relief and direct further proceedings to be held on the issue of whether the claimant must perform job searches as a prerequisite to receiving § 31-308a C.G.S. benefits.
The claimant’s appeal is upheld on the issue of job searches. The issue is remanded for further proceedings. In all other respects, the Finding and Orders is affirmed.
Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.
1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT