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Bennett v. Federal Express Corp.

CASE NO. 4023 CRB-04-99-04



MAY 22, 2000











The claimant was represented by Kenneth E. Taylor, Esq., Guendelsberger & Taylor, 28 Park Lane, New Milford, CT 06776.

The respondents were represented by Michael Vocalina, Esq., Berchem, Moses & Devlin, 75 Broad Street, Milford, CT 06460 (formerly Cotter, Cotter & Sohon, L.L.C.).

This Petition for Review from the March 29, 1999 Finding and Dismissal of the Commissioner acting for the Seventh District was heard December 3, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Angelo L. dos Santos and Stephen B. Delaney.


JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the March 29, 1999 Finding and Dismissal1 of the Commissioner acting for the Seventh District. He contends on appeal that the trier erred by prohibiting the introduction of evidence concerning the proceedings at an earlier informal hearing, and by declining to reopen a previous Form 36 decision in order to affix a later maximum medical improvement (MMI) date. Though we disagree with most of the claimant’s assignments of error on appeal, we find that the effective date of the respondents’ Form 36 must be adjusted so that it does not precede the date on which said form was filed.

The claimant, who has a history of low back pain dating back to approximately 1990, suffered a compensable injury to his lumbar spine on October 9, 1995. According to the medical reports in evidence, the claimant returned to work about a month later, lasted two weeks, and was out of work again until the fall of 1996. Claimant’s Exhibit A. He has since continued to perform light-duty work for the respondent Federal Express, but with a shorter schedule, and with some pain and discomfort. Findings, ¶ 6. The respondents paid benefits to the claimant following his injury, but filed a Form 36 on August 19, 1996 claiming that he had reached MMI six months earlier as indicated by a Form 42 prepared by Dr. Balasic, the claimant’s treating physician. The claimant objected to the respondents’ attempt to discontinue benefits. He requested an informal hearing on the matter, which was held on September 10, 1996. Soon after, Commissioner Metro approved the Form 36 retroactive to March 12, 1996, which was the likely MMI date mentioned in Dr. Balasic’s opinion.

The claimant was dissatisfied with this order, and sought to reopen the decision in order to change the MMI date. An independent medical examination was performed by Dr. Schweitzer at the respondents’ request. The resulting report stated that the claimant was suffering from a two-level disk herniation and nerve root impingement. Claimant’s Exhibit A. Dr. Schweitzer stated that he had not yet reached MMI, and though the risks of surgical intervention were high, so was the potential reward. After another hearing on March 12, 1997, the commissioner sent the claimant to Dr. D’Angelo for a § 31-294f examination. Dr. D’Angelo agreed that the claimant’s condition still might improve, and said that the claimant’s history and symptoms suggested that surgery might be necessary in the future, even though his disability rating probably wouldn’t decrease much. Id. Currently, he rated the claimant’s lumbar spinal disability at 22%, which figure the parties have since accepted. March 15, 1999 Transcript, 8.

An informal hearing was held on July 30, 1997, where the claimant’s counsel took the position that his client had not yet reached MMI, and that all benefits paid so far should be considered wage differential benefits. According to counsel, Commissioner Metro emphasized that the claimant could not forestall the advent of maximum medical improvement indefinitely. “It was discussed and agreed by all parties that Mr. Bennett would be given three (3) months to decide if he was going to proceed with surgery. If he did, then MMI would be determined after surgery. If he did not, MMI would be considered the date of the next scheduled hearing in November of 1997.” Claimant’s Brief, 4. Counsel indicates that both he and the attorney representing the respondents confirmed this agreement by letter. When the claimant eventually decided not to have surgery, he accordingly requested that his MMI date be deemed November 18, 1997, the date that said informal hearing had been scheduled.

This request was not honored by Commissioner White, who presided over the formal hearing on the reopening of the Form 36. In his view, the claimant had an extensive medical history, and had opted to refuse back surgery “as recommended by various medical examiners and treaters” over the years. Findings, ¶ 7. The trier made no mention in his findings of the agreement that the claimant and the respondents allegedly reached at the July 30, 1997 informal hearing. He stated that, though the claimant was to be commended for his continued work efforts, there was no direct evidence that justified reopening the Form 36 to substitute a later MMI date. The commissioner accordingly denied the motion, which ruling the claimant has appealed to this board.

In a workers’ compensation case, the trial commissioner is the finder of fact. He is charged with the responsibility—and possesses the sole authority—to determine the credibility of the evidence, including all medical reports. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). He may accept or reject, in whole or in part, the testimony of any expert, including a § 31-294f examiner. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999). This board may not disturb the factual findings of the trier unless they omit undisputed material facts, or unless they are completely without support in the record. Webb, supra.

The determination of a claimant’s maximum medical improvement date is a textbook example of such a factual issue. Hodgdon v. UTC/Pratt & Whitney, 16 Conn. Workers’ Comp. Rev. Op. 164, 167, 3150 CRB-1-95-8 (May 2, 1997). Despite the introduction into evidence of medical opinions by Drs. Schweitzer and D’Angelo that did not ascribe an MMI date to the claimant, the trial commissioner was entitled to rely upon the May 1996 opinion of Dr. Balasic, who was, as he noted, the claimant’s treating physician. Transcript, supra, 8. This board is not empowered to override that decision on review. Hodgdon, supra; Kluttz v. Howard, 3738 CRB-4-97-12 (Feb. 18, 1999). The trier’s exercise of his factfinding discretion was reasonable under the law.

There is also the matter of the claimant’s allegation that the commissioner should have recognized an alleged agreement to bring forward the MMI date. At the formal hearing, the claimant’s counsel averred in his opening remarks that, during the July 30, 1997 informal hearing, Commissioner Metro suggested that the claimant should decide whether he wanted surgery, and that a negative decision would result in the assignment of a November 1997 MMI date. Transcript, 5-7. However, once the trier articulated that the issue before him was a motion to reopen the Form 36 in order to change the MMI date, the claimant made no attempt to offer evidence regarding such an agreement. Instead, the medical reports of the various doctors were submitted, and the commissioner made a decision based on the medical evidence itself. Following the trier’s decision, the claimant did not attempt to correct the findings to reflect the existence of an agreement regarding the MMI date, nor did he file a Motion to Submit Additional Evidence with this board. Under these circumstances, we have no basis on which to presume that binding written recommendations were formalized pursuant to § 31-297a. The claimant’s appellate argument must therefore fail.

Yet, the case does not end there. Another issue has presented itself concerning the March 12, 1996 effective date of the Form 36. We address this point of law sua sponte on appeal, as it has not been briefed or argued by either party. Pursuant to § 31-296, in cases where a claimant contends that his disability status has not changed, an employer is required to notify both this commission and the claimant of its intent to reduce or discontinue payment for total or partial incapacity and its reason for doing so before such payments are actually reduced or discontinued. Moreover, the cessation or reduction in benefits is not effective until approved in writing by a commissioner. This statute has been described as “clear and unambiguous” concerning an employer’s responsibility to obtain an approved Form 36 before discontinuing benefits. Platt v. UTC/Pratt & Whitney Aircraft Div., 3 Conn. Workers’ Comp. Rev. Op. 3, 7, 164 CRD-6-82 (Aug. 16, 1985).

We have often held that § 31-296 prevents a trial commissioner from declaring a Form 36 effective prior to its filing date where the claimant legitimately contests the cessation or reduction of his disability, even if the trier determines that the claimant reached maximum medical improvement significantly earlier. See, e.g., Jones v. Maaco of Greater Bridgeport, 3634 CRB-4-97-4 (Aug. 5, 1998); Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (Feb. 5, 1997); Herwerth v. Groton, 3105 CRB-2-95-6 (Dec. 24, 1996), aff’d, 45 Conn. App. 922 (1997) (per curiam); Crowe v. DBD, Inc., 14 Conn. Workers’ Comp. Rev. Op. 283, 1941 CRB-7-93-12 (Sept. 11, 1995). “The earliest date that a termination of benefits may become effective is the date on which the Form 36 is filed. Stryczek v. State of Connecticut/Mansfield Training Center, 14 Conn. Workers’ Comp. Rev. Op. 32, 34, 1765 CRB-2-93-6 (May 4, 1995). Although the commissioner may determine that a later date is more appropriate, he cannot make permanent partial disability payments commence retroactively to the date of maximum medical improvement if it occurs prior to the filing date of the Form 36.” Torres, supra. The statute clearly places the burden on the employer or insurer to promptly file a Form 36 once it receives a medical report that purports to alter the claimant’s disability status. Id. (Brouillet, C., concurring).

Here, there is no dispute that the respondents’ Form 36 was filed on August 19, 1996. It is also apparent that, at that time, the claimant was not ready to concede that his period of eligibility for temporary disability benefits had ended. He immediately requested a hearing on the Form 36, and following an adverse ruling by the trial commissioner, he attempted to reopen the matter once other medical reports were obtained stating that he had not yet reached MMI. Thus, § 31-296 required the respondents to file a notice of their intent to stop paying wage loss benefits before such discontinuance could become effective. The commissioner’s assignment of a March 12, 1996 effective date was incompatible with that mandate, and it will have to be revised.

As a result, we must remand this case to the trier with instruction to assign an effective date to the respondents’ Form 36 that is no earlier than August 19, 1996. In all other respects, the trial commissioner’s decision is affirmed.

Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.

1 The full heading of the decision is, “Finding and Dismissal Re: Claimant’s Request to Reopen a Form ‘36’ Decision and Set a New maximum Medical Improvement Date.” BACK TO TEXT

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