Brown v. State of Connecticut/Norwich State Hospital

The claimant was represented by Brian Prucker, Esq., Fitzgerald & Prucker, 1127 Tolland Tpke., Manchester, CT 06040.

The respondent was represented by Philip M. Schulz, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 6, 1995 Finding and Award of the Commissioner acting for the Second District was heard June 14, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the June 6, 1995 Finding and Award of the Commissioner acting for the Second District. She sustained compensable injuries to her head, neck and right shoulder on July 16, 1987, while working for the self-insured respondent. She was receiving temporary total disability benefits on September 21, 1992, when she was examined by Dr. Derby at the respondent’s behest. Dr. Derby estimated that the claimant had reached maximum medical improvement with 10-20 percent permanent partial disabilities of her neck and both shoulders. He also diagnosed carpal tunnel syndrome in her left wrist unrelated to the compensable injury. He believed that she was unfit to resume her previous job as a mental health worker. The respondent filed a copy of this report with the commissioner along with a Form 36 seeking to discontinue total disability benefits, and a Form 43 contesting liability for the carpal tunnel treatment. (The trial commissioner took administrative notice of these documents.) The claimant objected to the Form 36 on several grounds.

An informal hearing was held regarding the Form 36, at which the Acting Commissioner approved the discontinuance of benefits effective October 26, 1992. At the formal hearing, the respondent introduced Dr. Derby’s deposition, in which he testified that the claimant had a light duty work capacity, and that her left-sided symptoms were not caused by the compensable injury, including her carpal tunnel syndrome. The claimant testified that her treating physician had referred her to a neurosurgeon, who in turn referred her to Dr. Raycroft, an orthopedic surgeon, for treatment of her carpal tunnel syndrome, including surgery performed in 1993. The trial commissioner ruled that the claimant had not presented any evidence that she was totally disabled as a result of the effects of her compensable injury, and approved the Form 36 effective October 26, 1992. The claimant has appealed that decision to this board.

First, we note on review that any claims of error that the appellant has made regarding the authority of the Acting Commissioner to rule on the Form 36 at the informal hearing are moot, as that issue was tried de novo at a subsequent formal hearing. Once the trial commissioner made his ruling in the Finding and Award, the effects of the prior approval of the Form 36 were superseded. See Anguish v. TLM, Inc., 14 Conn. Workers’ Comp. Rev. Op. 195, 197, 2286 CRB-7-95-1 (July 13, 1995). Because the trial commissioner did not rely on the alleged untimeliness of the claimant’s objection to the Form 36 in his decision, we decline to discuss that issue on review as well.

The claimant argues that all of the medical evidence at the time the Form 36 was filed supported a finding of total disability. However, the trial commissioner cited Dr. Derby’s explanation that his 1992 statement describing the claimant as “permanently disabled” referred to permanent partial disability rather than total disability from all work. The trial commissioner at the formal hearing was certainly entitled to avail himself of Dr. Derby’s testimony in assessing the meaning of that report. The fact that the doctor did not personally sign the report did not render it automatically useless in later proceedings, as he stated at the deposition that he would have no problem affixing his signature to that report. (Aug. 31, 1994 Deposition, p. 23). Thus authenticated, the commissioner was entitled to give credence to the substance of that medical report.

Having said that, it is clear that the respondent introduced evidence to support the discontinuation of total disability benefits. The commissioner’s alleged placement of the burden of proof of continuing disability on the claimant is in fact an observation that the claimant introduced no evidence to rebut the respondent’s evidence that the claimant was no longer temporarily totally disabled. This is completely appropriate in these proceedings, and is not the same as the initial placement of the burden of proof of continuing disability on the claimant. See Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 8-9, 164 CRD-6-82 (Aug. 16, 1985).

Also, there is no conclusive evidence that the respondent failed to file a copy of Dr. Derby’s medical report with the claimant; the commissioner was within his authority as a fact-finder to infer that the claimant received a copy of the IME report along with the Form 36, based on the date and the physical appearance of the file copies. (See Dec. 8, 1994 Transcript, p. 8). The claimant’s suggestion that the respondents failed to provide proper notice of the Form 36 is likewise contradicted by the certified mail receipts attached to the Form 43. Even though it appears that the Form 36, Form 43 and doctor’s report were all sent together to the Workers’ Compensation Commission, the claimant would have us draw a contrary inference (as a matter of law) that the respondent did not observe the same procedure with the notice provided to the claimant. That is not an assumption we can make on review.