Lirot v. Mashantucket Pequot Gaming

The claimant was represented by Mario P. Mikolitch, Esq., P. O. Box 1966, New London, CT 06320-1966.

The respondents were represented by Theodore Pappas, Esq., Law Offices of Scott B. Clendaniel, 300 Windsor Street, P. O. Box 2138, Hartford, CT 06145-2138. Notice also sent to Michael Colonese, Esq., Brown, Jacobs, Tillinghast, Lahan & King, P.C., Twenty-two Courthouse Square, P. O. Box 391, Norwich, CT 06360.

This Petition for Review from the March 19, 1999 Findings of Facts, Dismissal in Part, Award in Part of the Commissioner acting for the Second District was heard September 10, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Stephen B. Delaney and Ernie R. Walker.

OPINION

JESSE M. FRANKL, COMMISSIONER. The claimant has petitioned for review from the March 19, 1999 Findings of Facts, Dismissal in Part, Award in Part of the Commissioner acting for the Second District. She contends on appeal that the trial commissioner erred by granting a Form 36 that the respondents filed in order to transfer the claimant to light duty work. We affirm the trial commissioner’s decision.

The claimant injured her right arm and hand on March 24, 1996, when a money cart that she was pushing along tipped over. The compensability of the incident was accepted by a voluntary agreement approved on May 16, 1996. A physician’s assistant at CONNcare diagnosed her with an avulsion fracture of the metacarpal phalangeal joint in her right thumb, and returned her to work with restrictions on April 1, 1996. The claimant then visited Dr. Wainwright, who diagnosed a fracture of the ulnar styloid, and released her for one-handed work on April 11, 1996. The claimant testified that she had also complained of pain in her arm, shoulder and mid-back, but the doctor did not listen to what she said. The employer then provided the claimant with light duty tasks that she could not perform without using her right hand to some degree. Findings, ¶ 16-21.

On April 23, 1996, the respondents filed a Form 36 with a report from Dr. Wainwright attached. It was later approved effective as of that date. The trier found that the form was properly dated, signed and certified by a physician. The claimant, who became disabled for eight weeks after falling down at home in June 1996 and injuring her left knee, testified in October 1996 that she was still experiencing pain in her right hand, radiating up her arm and into her back. The trier nonetheless concluded that the Form 36 had been properly approved, though he authorized the claimant to select her own treating physician, preferably an orthopedist. The claimant has appealed that decision.

The claimant asserts that the Form 36 filed by the respondents was insufficient because, contrary to the trier’s finding, it was not properly certified by a licensed physician. The respondents rejoin that their Form 36 substantially complied with the format prescribed by § 31-296 C.G.S., as the document contained all of the elements required by the statute. The relevant portion of § 31-296 provides, “Before discontinuing or reducing payment on account of total or partial incapacity under any [voluntary] agreement, the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction and the reason therefor, [which] shall not become effective unless specifically approved in writing by the commissioner.” See, e.g., Herwerth v. Groton, 3105 CRB-2-95-6 (Dec. 24, 1996), aff’d., 45 Conn. App. 922 (1997) (per curiam). The statute goes on to state that “[s]uch notice of intention to discontinue or reduce payments shall be in substantially the following form,” whereupon it sets forth the model upon which this Commission’s Form 36 is based.

The Form 36 completed by the respondents by itself contains most of the important information mandated by § 31-296: the name and address of the employee, employer, and insurance carrier, a description of the date, cause and nature of the injury, and its reason for discontinuing benefits. Although no one has filled in the section dedicated for the use of the physician in certifying the claimant’s work readiness, the notice explains that “[t]he injured worker has been released to light-duty work as of April 11, 1996, per the attached report of Dr. William Wainright dated April 11, 1996.” The attached report, which is indeed signed by Dr. Wainright and dated April 11, 1996, states that the claimant may “return to one-handed work only (left hand only).” The information provided by these documents, taken as a whole, appears to substantially comply with the format outlined in § 31-296.

The claimant argues that, although the report attached to the Form 36 was signed by Dr. Wainwright, “it does not bear any certification. Therefore, the Form 36 is invalid.” Brief, 2. This contention lacks merit. By asking the physician to “certify” that the employee can return to work, the Form 36 and § 31-296 merely seek a verifiable acknowledgement of the claimant’s condition. The signed note by Dr. Wainwright that is attached to the respondents’ Form 36 performs the same function (with the exception of prescribing permanency), and was reasonably relied on by the trial commissioner. The fact that one of the respondents’ claims representatives affixed her own signature to the Form 36 is irrelevant given the presence of the doctor’s signature elsewhere.

This case is similar to Damelio v. Anaconda, Inc., 4 Conn. Workers’ Comp. Rev. Op. 31, 281 CRD-5-83 (March 4, 1987), no error, 15 Conn. App. 805 (1988) (per curiam), cert. denied, 208 Conn. 814 (1988). There, a respondent submitted a Form 36 that was not signed by the attending physician, although a statement on said Form annexed the physician’s signed report. This board held that a Form 36 may incorporate a physician’s report by reference, and found that the respondent had substantially complied with the requirements of § 31-296 C.G.S. (formerly § 7444). Id., 33. Wisdom counsels that we follow this sensible ruling twelve years later, rather than divert from our precedent in order to elevate form over substance.