CASE NO. 4147 CRB-01-99-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 19, 2000
FEDERAL RESERVE BANK OF BOSTON
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Walter R. Dudek, Esq., and David E. Marmelstein, Esq., 146 High St., P. O. Box 1298, Enfield, CT 06083.
The respondent employer and Liberty Mutual Insurance Group were represented by Ellen Aspell, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.
This Petition for Review from the November 8, 1999 Finding and Award of the Commissioner acting for the First District was heard July 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the November 8, 1999 Finding and Award of the Commissioner acting for the First District. She contends on appeal that the trier erroneously dismissed her claim for total incapacity benefits, denied her Motion to Preclude, and refused her request for attorney’s fees, costs, and interest. We affirm the trial commissioner’s decision.
The claimant suffered a compensable injury at her workplace on January 11, 1993 when she was struck in the head by a wall divider. She contends that this incident caused her to develop complex partial seizure disorder. After considering the evidence, the trier agreed with her, as he found the most credible medical opinion to be that of Dr. Hazratji, a neurologist to whom the claimant had been referred after initially treating with her family physician. Dr. Hazratji stated that, after obtaining a detailed medical history and performing a neurological examination, he could only conclude that the claimant’s seizure disorder was related to her 1993 head trauma. The trier accepted Dr. Hazratji’s diagnosis of a fourteen percent permanent partial disability of the brain, with a maximum medical improvement date of March 6, 1996. He did not find, however, that the claimant had met her burden of proving that she was totally disabled because of her condition. He also denied the claimant’s Motion to Preclude, and dismissed her motion for interest and attorney’s fees. The claimant has appealed these adverse rulings to this board.
We begin by noting that the claimant did not file a written notice of claim (Form 30C) with this Commission or with her employer following her 1993 injury. Instead, she satisfied the notice requirements of § 31-294c by virtue of the fact that her employer immediately provided her with medical treatment following her injury, and paid for her subsequent medical bills. The claimant then filed a motion to preclude in which she argued that her satisfaction of the “medical care” exception in § 31-294c(c) constituted adequate notice of claim, thereby compelling her employer to file a written notice of intent to contest liability within 28 days of its “receipt” of this statutorily-sanctioned alternate form of notice. This argument is without merit. Section 31-294c(b) expressly contemplates that a written notice of claim must be filed before the employer’s duty to contest liability is triggered. See Pelletier v. Caron Pipe Jacking, Inc., 13 Conn. App. 276, 280 (1988), cert. denied, 207 Conn. 805 (1988). Although a claimant need not comply strictly with all of the technical requirements of a Form 30C in order for her notice to be sufficient to support a motion to preclude; Pereira v. State, 228 Conn. 535, 542-43 n.8 (1994); it is settled that she must have filed some type of written notice in order to seek relief via the preclusion provision of § 31-294c(b). Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 607 (2000). As that did not occur here, the trial commissioner correctly applied the law by denying the claimant’s Motion to Preclude.
In his decision, the trier declared that Dr. Hazratji’s opinions were credible on several issues. However, the claimant’s work capacity was not one of them. The commissioner noted several varying opinions by the doctor. He stated that the claimant was capable of working as of November 20, 1995. Findings, ¶ 27. He declared her disabled from her occupation during the fall of 1998 due to excessive sleepiness caused by her anticonvulsive medications. Findings, ¶¶ 29-30. He then testified that she “may be able to work part-time” in February 1999. Findings, ¶ 38, quoting Feb. 4, 1999 Transcript, p. 36. The trier characterized these observations as “contradictory.” He also deemed the opinion of Dr. George (the claimant’s family physician) unpersuasive. Findings, ¶ O. He then dismissed the claimant’s request for temporary total disability benefits. The claimant urges this board to overrule that finding, insisting that the evidence is “abundantly clear” that she is not employable. Brief, 9.
When a claimant asserts that she is totally incapacitated, the burden of proving such a disability falls on her. Cummings v. Twin Tool Mfg., 40 Conn. App. 36, 42 (1996). The trial commissioner acts as the finder of facts and the arbiter of evidentiary credibility, including all medical reports and testimony. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998); Garcia v. Bridgeport, 3595 CRB-4-97-4 (June 8, 1998). If the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal. Id. Here, the trier not only itemized the discrepancies he perceived in Dr. Hazratji’s testimony; he also entertained the claimant’s Motion to Correct, which contained numerous proposed findings, including several excerpts from Dr. Hazratji’s testimony and reports that highlight the claimant’s work limitations. That motion was denied in its entirety. The proposed corrections might have fleshed out some of the details of the claimant’s work limitations, but they would not have directly contradicted the doctor’s statements in 1995 and 1999 that indicated the claimant had some work capacity. Thus, there is little doubt that the trier was well within his authority to reject these corrections. Pallotto, supra. As this board is not empowered to alter a commissioner’s findings unless they are completely without support in the evidence, we must affirm the instant dismissal of the claimant’s request for total disability benefits. The trier’s findings and conclusions seem reasonable here.
The claimant’s other argument on appeal is that the trier erroneously dismissed her request for attorney’s fees and interest based on the respondents’ unreasonable contest of her claim and their undue delay in paying benefits. Section 31-300 provides that in “cases where the claimant prevails and the commissioner finds that the employer or insurer has unreasonably contested liability, the commissioner may allow to the claimant a reasonable attorney’s fee.” The statute also allows the trier to award interest where there has been delay in adjustment or payment of compensation, even where such delay is not due to the fault of the employer or insurer. Such awards are discretionary, and whether the respondents unreasonably contested their liability for the claimant’s injury, medical care and permanency benefits in this case was a factual question for the trial commissioner to answer. Sanchez v. Steben’s Motors, 3247 CRB-6-96-1 (Dec. 24, 1996); Robinson v. Allied Grocers Cooperative, Inc., 1 Conn. Workers’ Comp. Rev. Op. 132, 135, 68 CRD-1-81 (July 13, 1982), affirmed, 39 Conn. Sup. 386, 388-89 (1983).
Although the claimant attempts to list numerous incidences of delay and groundless contest in her brief, we do not believe that the compensability of the claimant’s partial complex seizure disorder was ever so clear as to be indisputable by a reasonable person. Even though the respondents were never able to obtain medical documentation definitively showing that the claimant’s pre-existing arteriovenous malformation (AVM) and/or her May 1988 head injury were responsible for her seizures, there were definite indications that the etiology of those seizures was uncertain, and a co-worker of the claimant testified that he had seen her “spacing out” at work prior to her 1993 injury in a manner that could be consistent with such seizure episodes. Findings, ¶ 40. Indeed, Dr. Belt stated on June 6, 1995 that the claimant’s “minor closed head injury” of January 11, 1993 was less likely a cause of her seizures than her congenital AVM. Given this and other evidence, the trier did not abuse his discretion by refusing to award interest or attorney’s fees on account of unreasonable contest or undue delay.
The trial commissioner’s decision is hereby affirmed.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.