CASE NO. 3298 CRB-8-96-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 25, 1997
NEW BRITAIN GENERAL HOSPITAL
EMPLOYERS INSURANCE OF WAUSAU
The claimant was represented by James E. Swaine, Esq., 234 Church Street, New Haven, CT 06510.
The respondents were represented by Richard Bartlett, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.
This Petition for Review from the March 1, 1996 Finding of Approval of Form 36 of the Commissioner acting for the Sixth District was heard November 22, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Robin L. Wilson and Amado J. Vargas.
JESSE M. FRANKL, CHAIRMAN. The claimant and respondents have both petitioned for review from the March 1, 1996 Finding and Approval of Form 36 by the Commissioner acting for the Sixth District. The claimant argues on appeal that the commissioner erred by failing to find that the claimant was still totally disabled, while the respondents argue that the commissioner erred by approving the Form 36 effective October 3, 1995 rather than on its filing date of December 21, 1994. We dismiss the claimant’s appeal, and grant the respondents’ cross-appeal.
The claimant sustained a compensable back injury on December 30, 1993, which was accepted by voluntary agreement. She began having lower back pain in February 1994, which Dr. Frechette, her treating physician, opined was due to her compensable lifting injury. He opined that the claimant reached a medical plateau in July 1994, and sent her to Gaylord Hospital for possible psychiatric and occupational therapy, along with pain management. A doctor in the pain management program thought she would be a good candidate for outpatient treatment, but the respondent insurer would not authorize it. Dr. Frechette said that the claimant has been totally disabled since March 6, 1994 due to a concurrent psychogenic factor with a functional overlay.
Dr. Morrow, a psychiatrist who had been treating the claimant since 1992, indicated that her psychiatric condition had sufficiently stabilized and that she had no hypochondriacal symptoms. Dr. Greenwall performed an independent medical examination in April 1994, and could not find any evidence of neurological impairment. He believed there was a psychogenic factor producing functional overlay. Finally, Dr. Goodman examined the claimant at the respondents’ request in November 1994, and diagnosed hypochondriasis with an unknown etiology. He thought the claimant’s total disability was due to psychiatric factors. The respondents filed a Form 36 seeking to discontinue benefits on November 29, 1994, based on that examination.
The medical evidence indicated to the trial commissioner that the claimant was disabled because of a psychiatric condition of unknown etiology. He did not think it was causally related to her 1993 compensable injury. Noting that Dr. Frechette again found no neurological problems when he examined the claimant on October 3, 1995, he held that the Form 36 should be approved effective on that date. Both parties then appealed.
We will first discuss the claimant’s petition for review. As both parties recognize, this board’s role in reviewing factual findings is quite limited. Where there is support in the record for a commissioner’s findings, this board cannot disturb them, because it is the duty of the trial commissioner to determine the weight and credibility of any evidence that the parties introduce at a formal hearing. Dichello v. Holgrath Corporation, 15 Conn. Workers’ Comp. Rev. Op. 441, 445, 2249 CRB-5-94-12 (Sept. 5, 1996); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). The decision as to a claimant’s disability status at any given time is a question of fact. Monaco v. Metal Masters Inc., 15 Conn. Workers’ Comp. Rev. Op. 415, 416, 2245 CRB-3-94-12 (Aug. 29, 1996). Where, as here, that decision rests upon the interpretation of doctor’s reports, a commissioner is entitled to choose among conflicting opinions, or even to disregard uncontradicted evidence if he does not find it believable. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997).
The respondents’ Form 36 offered as a reason for discontinuing payments that the claimant “has no disability causally related to the injury of December 30, 1993 in accordance with the attached report from Dr. Alan Goodman dated November 29, 1994.” Respondents’ Exhibit 1. Dr. Goodman stated there that, although he was not a psychiatrist and was unable to identify the etiology of the claimant’s hypochondriasis, he was confident that she suffered from no underlying structural problems of her spine or extremities that would explain her current incapacity. She was physically capable of returning to her job. Rather, her psychological state was rendering her unemployable. Respondents’ Exhibit 2. We note that the trier properly denied the proposed corrections regarding the meaning of “hypochondriasis,” as they would not have affected the gist of Dr. Goodman’s diagnosis. Monaco, supra.
The commissioner was entitled to rely on Dr. Goodman’s report over those of the other doctors based on his fact-finding authority. Jusiewicz, supra. When we consider that the claimant was treating with a psychiatrist before her compensable injury, and that none of the doctors could conclusively define the interplay among the claimant’s back condition, her psychological problems, and her inability to work, we can understand why the commissioner concluded that the claimant had not shown a causal connection between her continuing disability and her compensable injury. He was perfectly entitled to find as he did under the facts of this case, and we may not disturb his decision. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
Turning to the respondents’ appeal, we noted above that the Form 36 was filed on December 21, 1994. We have stated that “in granting a Form 36, a trial commissioner should discontinue or reduce benefits effective on the date the Form 36 was filed, unless extenuating circumstances dictate that a later date is more appropriate.” 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 also noted that a Form 36 should be ruled on as soon as possible in order to avoid undue delay, for a claimant should stop receiving total disability benefits as soon as possible after incapacity ceases. Stefenski v. C. Raimondo & Sons, 3081 CRB-2-95-6 (decided Jan. 8, 1997); Stryczek, supra. Preferably, a Form 36 should not be held in abeyance for more than 30 days, and a hearing on discontinuation of benefits should be held as soon as possible after a claimant objects to a Form 36. Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 n.2 (decided Feb. 5, 1997).
Here, the commissioner made the Form 36 effective as of Dr. Frechette’s last treatment on October 3, 1995, over nine months after it was filed. Dr. Frechette’s reports describe no change in the claimant’s condition after mid-1994, however. The claimant’s complaints of pain and stiffness continued afterward, but Dr. Frechette’s neurological examinations were normal. No other medical reports postdating the Form 36 were submitted. There is no sign of any special circumstance that would justify withholding the effect of the Form 36 until October 3, 1995, instead of December 21, 1994. The sole reason for the later effective date seems to be the delay in holding hearings on this issue, which is not a sufficient ground for such an extension. See Stefenski, supra (no finding supported use of date after Form 36 filing date as point of severance for total disability benefits.) Therefore, we must sustain the respondents’ appeal.
The trial commissioner’s decision is affirmed with respect to the claimant’s appeal. The case is remanded for entry of an appropriate order regarding the effective date of the Form 36.
Commissioners Robin L. Wilson concurs.
AMADO J. VARGAS, COMMISSIONER, concurring in part and dissenting in part. I agree with the majority that the trial commissioner’s decision should be affirmed regarding the claimant’s appeal. However, I part company with their reasoning on the issue of the effective date of the Form 36.
The doctors who examined the claimant in 1994 and 1995 agreed that she was still totally disabled, but due to a psychiatric condition unrelated to her back injury. The trier understandably concluded that the evidence was insufficient to link the claimant’s current disability to her compensable back injury. The commissioner specifically cited Dr. Frechette’s October 3, 1995 examination that resulted in a finding of no neurological problems, and tied the effective date of the Form 36 to that report. Notably, he did not date the Form 36 back to the November 29, 1994 medical report of Dr. Goodman, the respondents’ medical examiner, even though the Form 36 was filed on that date.
As the majority stated, “a trial commissioner should discontinue or reduce benefits effective on the date the Form 36 was filed, unless extenuating circumstances dictate that a later date is more appropriate.” Stryczek, supra, 34; see also Herwerth v. City of Groton, 3105 CRB-2-95-6 (decided Dec. 24, 1996), aff’d, 45 Conn. App. 922 (1997) (per curiam). The majority does not fully account for the trier’s authority to find the facts here, however, because there was room for the commissioner to conclude that circumstances indeed favored the use of a later date in this case. The claimant maintained that her psychologically-driven disability continued to relate back to her compensable injury. There were several medical reports offered into evidence that contradicted that assertion. It was the province of the trier of fact to decide which of those medical reports was the decisive factor in establishing the absence of a causal link. He chose Dr. Frechette’s October 3, 1995 report.
We should not override that determination on review by assuming that all of the reports were equally credible, and that the commissioner erred by not granting the Form 36 as soon as it was filed. The trial commissioner found that none of the doctors were able to indicate the etiology of the psychiatric condition. It was therefore reasonable for him to rule that benefits should cease as of October 3, 1995, when one of the doctors was able to say that the claimant had no neurological problems stemming from the 1993 injury. I would not reverse his decision on the effective date of the Form 36.
I also write to express my disagreement with the dicta in Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 n. 2 (decided Feb. 5, 1997), which was cited by the majority above. I do not dispute the importance of avoiding delays in ruling on Forms 36. Nevertheless, there is no statutory basis for the establishment of a rule that a Form 36 should not be held in abeyance for more than 30 days, and I believe that the adoption of such a policy unreasonably constrains the ability of a commissioner to schedule meaningful hearings on Form 36 issues. In actual practice, 30 days is simply not enough time to schedule a hearing on this issue and allow the parties time to prepare their cases. I do not believe such a rule should be adopted, especially one that may prove to be impracticable.
Accordingly, I would not sustain the respondents’ appeal.