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CASE NO. 3196 CRB-2-95-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 27, 1997
EMPLOYERS INSURANCE OF WAUSAU
The claimant was represented by Nathan Shafner, Esq., and Mark Oberlatz, Esq., O’Brien, Shafner, Stuart, Kelly & Morris, P.C., 475 Bridge St., P. O. Drawer 929, Groton, CT 06340.
The respondents were represented by David Davis, Esq., and Robert McGann, McGann, Bartlett & Brown, 281 Hartford Tpke., Vernon, CT 06066.
This Petition for Review from the October 16, 1995 Finding of the Commissioner acting for the Second District was heard August 30, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the October 16, 1995 Finding and Award of the Commissioner acting for the Second District. He argues on appeal that the commissioner erroneously granted the respondents’ Form 36 and that she erred by denying his claim for permanent partial disability. We affirm the trial commissioner’s decision.
The commissioner found that the claimant, who did not testify at or attend the formal hearing, was injured at work on July 12, 1993, when he fell off a ladder. The respondents filed four Forms 36 between September 1993 and March 1994, each with a different proposed date of discontinuance of total disability benefits. A different commissioner approved one of those Forms 36 as of January 7, 1994. The claimant had initially treated with Dr. Messinger, who did not see him again after September 20, 1993, but testified that a November 1993 MRI was normal. He also said that the claimant did not complain of neck pain when he last saw him, although he mentioned headaches that could have been related to a neck problem.
The claimant was next examined by Dr. Murray, an orthopedist, on January 7, 1994. The commissioner found that the claimant did not tell Dr. Murray that he had a 10% permanent partial disability of his back from a prior compensable injury. Dr. Murray’s reports indicate that in February 1994, the claimant had increasing problems with his low back, neck and right arm. However, the claimant was involved in a car accident on February 4, 1994, for which he was also treated by Dr. Murray. The commissioner noted that the doctor’s reports after February 7, 1994 did not indicate the source of his disability. She also noted that the claimant fell down while attending a Hartford Whalers’ game on April 11, 1994, injuring his left knee. Dr. Murray assigned the claimant a 5% disability to his lumbar spine in addition to his preexisting 10% disability, along with 5% of the cervical spine.
The commissioner ruled that January 7, 1994 was not the proper effective date for the Form 36, as it was not filed on that date. Instead, she granted the Form 36 received January 3, 1994 as of that date. She also concluded that the claimant failed to prove that his temporary total disability after February 4, 1994 was related to his compensable injury rather than his motor vehicle accident, his fall at the Whalers’ game, or his previous lumbar spine injury. She was not convinced that his increased lumbar spine disability and his 5% cervical spine disability were related to the July 12, 1993 work injury, and dismissed those claims. The claimant has appealed that decision.
Along with his appeal, the claimant filed a Motion to Submit Additional Evidence pursuant to Admin. Reg. § 31-301-9, which allows this board to consider additional evidence or testimony if it is material to the proceedings and if there was a good reason why it was not presented below. Lesczynski v. New Britain Memorial Hospital, 10 Conn. Workers’ Comp. Rev. Op. 205, 208-209, 1289 CRD-6-91-9 (Dec. 2, 1992). Here, the claimant wants to introduce the affidavit of a paralegal from the office of the claimant’s attorney to show that the claimant did not attend the formal hearing below because he was not notified of it until afterward. The claimant argues that it is material to the issue of whether an adverse inference should be drawn from his failure to appear.
Although the commissioner noted that the claimant was not present in her findings, there is no indication that she made her decision contingent on his absence. Further, despite the claimant’s argument that respondents’ counsel agreed to proceed without him at the hearing, it was not their burden to refute the claimant’s case, but the claimant’s burden to prove it. If claimant’s counsel thought his presence was crucial to their case, he should have requested a continuance. That was not done. The failure of counsel to anticipate the need for the claimant to be present at the formal hearing cannot now be remedied by allowing additional evidence at this stage of the case. See Glenn v. Glenn Fence Co., Inc., 2132 CRB-1-94-8 (April 10, 1995) (Ruling on Motion to Submit Additional Evidence). The claimant’s motion is hereby denied.
Turning to the merits, we note several claims of error on appeal. One of those claims, that the commissioner erred by not granting the claimant’s requested correction of the date of his car accident from February 4, 1994 to February 9, 1994, is clearly supported by all of the evidence, e.g., medical and police reports, and is agreed on by both parties in their briefs. It is probable that this correction was not granted because the claimant cited the wrong exhibit in support of this change in his Motion to Correct (Joint Exhibit 4 was cited rather than Joint Exhibit 1). In considering this appeal, we will take into account the correct date of the car accident.
The claimant argues that the commissioner erred by approving the Form 36 effective on January 3, 1994. Initially, the previous trial commissioner issued a notice dated April 12, 1994 stating only that “The Form 36 is Approved as of Jan. 7, 1994 (date of Dr. Murray’s report).” Attached to that notice were two Forms 36, and a February 4, 1994 letter from Dr. Murray. One Form 36 had been filed on January 3, 1994, stating that discontinuance of benefits was sought because the claimant was no longer actively treating with a physician. The second Form 36 had been filed on March 10, 1994, and contended that payment of benefits should cease because the claimant was capable of returning to work as of February 7, 1994, as per Dr. Murray’s attached letter.
As neither of the Forms 36 had been received on January 7, 1994, the trial commissioner ruled that discontinuance of benefits on that date was improper. Instead, she approved the Form 36 received on January 3, 1994, because the claimant had not proven that he was totally disabled subsequent to that date. The claimant argues that this was in error, because the first Form 36 was based on the claimant’s failure to continue treating for his injuries, not the cessation of his total disability, and the grounds for that Form 36 became moot when he agreed to treat with Dr. Murray. As for the second Form 36, it could not take effect earlier than its filing date of March 10, 1994. Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 34, 1765 CRB-2-93-6 (May 4, 1995).
We have recently explained that § 31-296 C.G.S. requires a speedy emergency informal hearing to be held after a claimant objects to a Form 36. Stryczek, supra, 35. At such a hearing, a commissioner would ordinarily be restricted to considering the grounds listed in the Form 36 in making a decision. See Phelps v. State of Connecticut/Mansfield Training School, 2 Conn. Workers’ Comp. Rev. Op. 92, 93, 133 CRD-2-82 (July 30, 1984). However, a party is also entitled to challenge a Form 36 ruling at a subsequent formal hearing. Anguish v. TLM, Inc., 14 Conn. Workers’ Comp. Rev. Op. 195, 196-97, 2286 CRB-7-95-1 (July 13, 1995). Once those formal proceedings begin, as they did here, the trial commissioner is entitled to consider a broader range of issues, including the key question of whether the claimant continued to be totally disabled. As such, she is no longer limited to the specific grounds raised in the initial Form 36. This is especially true in a case like this one, where more than one Form 36 had been filed, and the claimant was well aware that the respondents were contesting his claim of continuing disability.
The claimant also challenges the factual basis of the commissioner’s conclusions that the claimant was not totally disabled after January 3, 1994, and that his permanent partial disability ratings were not attributable to his 1993 compensable injury. We remind the claimant that the existence of total disability is a factual issue to be determined by the trier of fact based on her evaluation of the credibility of the evidence presented by the parties. Coutu v. Interroyal Corp., 13 Conn. Workers’ Comp. Rev. Op. 215, 216, 1680 CRB-2-93-3 (April 12, 1995), appeal dismissed, A.C. 14694 (Oct. 25, 1995); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Similarly, the claimant had the burden of establishing that his permanent partial disability of the cervical and lumbar spines was caused by the 1993 injury. As long as the commissioner’s findings were not unreasonably drawn from the evidence, we cannot overturn them on appeal. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
Although Dr. Murray stated on February 4, 1994 that the claimant would be able to return to work on February 7, 1994, he also noted in that letter that the claimant had reported having no prior back problems during his January 7, 1994 visit. (Joint Exhibit 5). Dr. Murray then referred to a letter from the respondent insurer’s claim supervisor informing him that the claimant actually had a 10% permanent partial disability of the back. Rather than stating a definite connection between the 1993 injury and the claimant’s current disability, Dr. Murray merely said that, at the time of the January 7, 1994 visit, he felt that the claimant would benefit from staying out of work for approximately one month.
After reading this report, it was not unreasonable for the commissioner to doubt the claimant’s contention that he continued to experience total disability as a result of his July 1993 injury. She was not required to give credence to Dr. Murray’s March 11, 1994 and April 12, 1994 notes stating that the claimant‘s disability was the result of that incident. Nasinka v. Ansonia Copper & Brass, 13 Conn. Workers’ Comp. Rev. Op. 332, 335, 1592 CRB-5-92-12 (April 27, 1995) (trier is entitled to reject the opinion of a medical expert). This is especially so since in the April 12, 1994 note, Dr. Murray reports having no record of a recent hit and run accident that the insurer had referred to in its March 18, 1994 letter; yet, there is a detailed February 11, 1994 report of Dr. Murray’s treatment of the claimant for his February 9,1994 car accident in evidence. (Joint Exhibit 1). It is understandable that the commissioner might have questioned the credibility of Dr. Murray’s reports, including his June 28, 1994 assessment of permanent partial spinal disability. We are certainly not prepared to say that the claimant proved continuing disability and causation as a matter of law in this case.
The trial commissioner’s decision is affirmed.
Commissioners George A. Waldron and Robin L. Wilson concur.
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