Hines v. Linc Scientific Imaging

The respondents were represented by Timothy G. Zych, Esq., Chabot & Breen, 9 Washington Ave., P. O. Box 5035, Hamden, CT 06518.

This Petition for Review from the March 3, 1995 Finding and Award of the Commissioner acting for the Eighth District was heard October 11, 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 pro se claimant has petitioned for review from the March 3, 1995 Finding and Award of the Commissioner acting for the Eighth District. She argues on appeal that the commissioner erred by denying her request to reopen a voluntary agreement, and that he miscalculated her compensation rate. We affirm the trial commissioner’s decision.

The parties stipulated that the claimant suffered a compensable injury to her neck and dorsal spine on November 2, 1989, reaching maximum medical improvement on December 14, 1991 with a 5% permanent partial disability to both body parts. After paying the specific award, the insurer paid 34 weeks of temporary partial and three weeks of temporary total disability benefits at $333.33 per week. At the formal hearing, the claimant testified that she could not return to her original job as an MRI technician because of her injury. She has obtained a secretarial position instead, at which she can work no more than 20 hours a week because of the pain her injury causes her. This has resulted in a wage loss of about $9 per hour from what her previous position now pays.

The commissioner found that Dr. Murphy, the claimant’s treating physician, limited her to 24 hours of work per week in December 1992, and prescribed mild lifting restrictions. Her light duty capacity was cut to 20 hours per week in August 1993, as she continued to receive trigger point injections. Meanwhile, Dr. Goodman examined the claimant at the respondents’ request, and opined that she had no permanent partial impairment from the compensable injury based on objective tests. Two years earlier, the claimant’s then-treating physician, Dr. Hasbani, had diagnosed cervical and thoracic spine impairments based on the results of an MRI and on the claimant’s long-running symptoms. The commissioner also ordered an examination by Dr. Sella, an orthopedist, in late 1993. Dr. Sella diagnosed cervical and thoracic sprains, and thought that the trigger point injections were helping the claimant recover. He indicated that the claimant had reached maximum medical improvement, with a 6 to 7 percent permanent partial impairment of the cervical spine. He said that she should become as active as possible, with a 30-hour-a-week light duty capability beginning November 20, 1993.

The claimant contended that the voluntary agreement should be reopened because she never reached maximum medical improvement, and that the § 31-308a benefits she received through May 1, 1993 were less than two-thirds of the difference between her average weekly wage as listed on the voluntary agreement and what she actually earned. She also contended that she should still be getting temporary partial benefits. The commissioner found that there was no basis for reopening the voluntary agreement, and that the $333.33 compensation rate was correct. He adopted Dr. Sella’s report as the most credible, and awarded the claimant § 31-308a benefits from May 2, 1993 through December 1, 1993 at $333.33 per week. The claimant has appealed that decision.

Initially, we must address the respondents’ April 29, 1996 Motion to Dismiss the claimant’s appeal for failure to file a brief. The claimant objected to that motion on the ground that her document entitled “Reasons for Appeal - Motion to Correct” was intended to serve as her brief. This board requires all parties to file a separate brief in support of an appeal, and retains discretion to dismiss an appeal for failure to comply with that requirement. Norton v. James Fleming Trucking, Inc., 2119 CRB-1-94-8 (decided Sept. 16, 1996). However, in the case of a pro se claimant, some leniency regarding the rules of procedure is always advisable. As the claimant’s Reasons of Appeal adequately explain her claims of error, we will not dismiss her appeal because she failed to file a separate appellate brief. See Bennings v. State of Connecticut/Dept. of Corrections, 3213 CRB-4-95-11 (decided Dec. 18, 1996).

The claimant argues that her voluntary agreement should have been reopened because new evidence showed that she had not reached maximum medical improvement, contrary to the parties’ earlier assumption. The decision to open and modify a voluntary agreement falls within the discretion of the trial commissioner, and this board will not disturb his decision unless he arbitrarily reached an unreasonable result. Scalora v. Dattco Bus Company, 2059 CRB-1-94-5 (decided Oct. 9, 1996). Similarly, any factual findings made by the commissioner cannot be disturbed unless they are without any evidentiary support, and the conclusions reached by the commissioner must stand unless they are illegal or based on impermissible inferences drawn from the evidence. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In trying to establish error, the claimant would need to show that not one of the medical reports relied on by the commissioner supports his finding that she reached maximum medical improvement. However, Dr. Sella’s report of November 3, 1993 specifically states that the claimant’s condition was best described by a sentence in the AMA Guides to the Evaluation of Permanent Impairment that referred to soft tissue lesions as “unoperated on, stable, with medically documented injury, pain, rigidity, associated with none or minimal degenerative changes on structural tests . . . ,” and assigned a permanent impairment for that condition. (Claimant’s Exhibit B.)

Even though Dr. Sella also refers in that same report to the claimant’s need for several more trigger point injections, at which point she would be at maximum medical improvement, he had drawn a distinction between the original compensable injuries and the claimant’s current signs of fibromyalgia. The commissioner denied the claimant’s requested correction regarding this report, which indicates that he concluded from Dr. Sella’s report that the claimant’s compensable injury had stabilized, and that her fibromyalgia was not legally significant. Such a conclusion was not impermissible or unreasonable from that evidence, and this board may not alter the commissioner’s findings on that issue. Fair, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). In turn, we cannot say that the commissioner acted unreasonably in failing to open the voluntary agreement.

The claimant also argues that the commissioner erred in determining that her base compensation rate of $333.33 was correct. She provides little explanation for this contention, simply claiming that her rate should have been modified to reflect her salary at the time of injury, which was $741 per week. As the respondents point out in their brief, however, the amount of money that the claimant is currently earning as a part-time secretary is not the only possible evidence of her earning capacity under § 31-308a, even if it is acceptable evidence of that figure. See Genovesi v. Choice Designs, Inc., 13 Conn. Workers’ Comp. Rev. Op. 218, 221, 1745 CRB-5-93-6 (April 12, 1995). Without some concrete evidence that the commissioner relied on an erroneous figure, we have no basis on which to question his decision not to recalculate the claimant’s compensation rate.

Finally, the claimant requests that this board order the respondents to pay for several treatments ordered by Dr. Murphy. There is no dispute that this issue has not yet been discussed at an informal or formal hearing. Therefore, it is not yet ripe for review.