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CASE NO. 4392 CRB-3-01-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 6, 2002
TIMOTHY R. SIEBOLD
HELICOPTER SUPPORT, INC.
SENTRY INSURANCE COMPANIES
The claimant was represented by David Pinciaro, Esq., Toro & Pinciaro, P.C., 22 Trumbull Street, New Haven, CT 06511.
The respondents were represented by David Davis, Esq., McGann, Bartlett & Brown, LLC, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.
This Petition for Review from the May 8, 2001 Finding and Award of the Commissioner acting for the Third District was heard January 25, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the May 8, 2001 Finding and Award of the Commissioner acting for the Third District. They raise several issues on appeal concerning the trier’s finding that the claimant’s thoracic spine injury and an allegedly related depression were compensable, and his award of benefits pursuant to § 31-308a C.G.S. We find error, and remand this case for further proceedings as explained below.
The claimant sustained compensable injuries to his neck and back in a motor vehicle accident on February 17, 1992. At the time, he had been working for the respondent Helicopter Support, Inc. for twelve years. His job on the date of his injury was to act as a purchasing and sales supervisor, which entailed not only the supervision of the four other employees in his department, but also physical labor such as carrying and transporting parts, stocking shelves, unloading parts for shipping, delivering parts to airports, and loading and unloading tractor trailers. These duties required repetitive lifting, climbing and a lot of walking.
Compensability was formally accepted by a voluntary agreement that was approved on August 23, 1994, setting the claimant’s average weekly wage at $950.43, with a total disability compensation rate of $609.40. The claimant’s condition worsened in 1995, and an MRI showed increased protrusion of his C6-C7 disc. After discussing his options with Dr. Murphy, who recommended surgery, the claimant decided not to undergo an operation. His cervical spine reached maximum medical improvement on June 26, 1997, and the claimant was paid specific indemnity benefits for a 20% permanent partial disability. He also received a 5% permanent partial disability of the lumbar spine (with a maximum medical improvement date of December 8, 1997). These payments concluded on or about June 21, 1998. The claimant was then advanced § 31-308a payments through October 24, 1998.
Hearings were subsequently held concerning the subject of further § 31-308a benefits. In the notices for the formal hearings below, the single listed issue was “§ 31-308a - Temporary Partial Benefits.” At the outset of the December 9, 1999 formal hearing, the claimant’s attorney identified the issue as “whether or not the claimant, Timothy Siebold, is entitled to . . . 31-308a benefits, post-specific.” Transcript, p. 2. After introducing the claimant’s medical records into evidence as Exhibit A, counsel began direct examination of his client and immediately began inquiring into his work experience and his duties at the respondent Helicopter Support. Further testimony, including that of the employer’s human resources manager, was geared toward the nature of the claimant’s former job, changes that had occurred in the responsibilities of that position since his injury, and the issue of whether the claimant could still physically perform that job given those changes.
Comparatively little attention was paid to the injuries themselves, and the claimant’s current symptoms. However, these subjects were not completely ignored. The claimant explained that, while his back had “gotten tolerable,” his neck and the nerves extending into his arms and hands were causing him significant pain and difficulty every day. Transcript, p. 52. He spoke of the medication that he was taking; Id., p. 53; and then confirmed that he had been treated for depression. He testified that his injuries had changed his life, as he had been a “very active, sports-minded person” before his accident, while his subsequent inability to continue those activities and participate in sports with his son had caused him to become depressed and to feel useless. Id., 55. The focus of questioning then turned back to the claimant’s attempts to obtain work and his experiences with various light-duty jobs that he had tried. On cross-examination, the respondents’ counsel asked questions related to the claimant’s education and avenues of employment he had not pursued. Nothing was directly said about his physical or mental condition. The claimant’s proposed findings included mention of his worsening physical condition, his neck pain and his depression. See Proposed Findings, ¶¶ 30-38. The record does not contain a set of proposed findings by the respondents.
In his May 8, 2001 Finding and Award, the trial commissioner found that the claimant continues to suffer daily from neck and back pain, though the back pain has become more tolerable, and that he suffers from depression due to these injuries. Findings, ¶¶ 36-37. In accordance with Dr. Richard Schuster’s vocational evaluation in January 1998, the trier found that the claimant had a reduced earning potential. However, he disagreed with Dr. Schuster’s estimate of the claimant’s earning capacity, as the claimant had been earning significantly less at a job he had held since November 17, 1999, and had not been able to perform many of the jobs he had attempted earlier. He observed that the claimant had made diligent and consistent efforts to find work with potential employers, e.g., responding to newspaper want ads, inquiring upon seeing “Help Wanted” signs, attending job fairs, taking the civil service exam, consulting employment agencies, and attempting to work through this Commission’s vocational rehabilitation program (for which he did not qualify because of his college degree). He concluded that the claimant had a reduced earning capacity of $400 per week, entitling him to receive benefits of $355.12 weekly through October 2001, “when the undersigned will hold another hearing to reassess the Claimant’s situation.” The respondents have appealed that decision to this board, along with the denial of their Motion to Correct.
Here on appeal, the respondents argue that the trier found that the claimant’s thoracic spine condition and his symptoms of depression were compensable, which finding was inappropriate because these medical conditions were not at issue at the formal hearing. They claim that the only issue raised at the formal hearing was § 31-308a benefits, and that the trier’s findings of compensability deprived them of due process. Their point regarding the manner in which the issue was identified is well-taken: the hearing notices stated that the issue was § 31-308a benefits, and at the formal hearing the claimant’s counsel framed the issue the same way. The difficulty with the respondents’ position, however, is that a claim for § 31-308a benefits is based upon lost earning capacity. A commissioner would be unable to determine “the weekly amount which such employee will probably be able to earn” after his injury by applying the criteria listed in § 31-308a without first coming to some sort of understanding as to the claimant’s degree of physical and/or associated psychological disability. Though no psychological condition had ever been accepted in this case, both the cervical and lumbar portions of the claimant’s spine are acknowledged to have been injured as a result of the claimant’s automobile accident. The thoracic spine is not categorized as a separate part of the spine under §31-308(b), and the claimant’s accepted lumbar spine injury would appear to encompass that part of the spine as well, making it an acceptable subject of discussion at the formal hearing below.
The claimant’s attorney introduced a large complement of medical reports to substantiate his condition. Claimant’s Exhibit A. The claimant also discussed his current symptoms at the formal hearing. The respondents, meanwhile, did not object to this evidence, nor did they mention this part of the § 31-308a equation at the formal hearing. However, they did introduce a July 6, 1998 report from Sharon Kott, a vocational rehabilitation counselor, that states at one point, “The client reports an increase in cervical symptomatology, which may negatively impact vocational reentry.” Respondent’s Exhibit 5. Thus, even within their own reports, there were statements made that indicated awareness that the claimant was alleging a worsening of his physical condition, which would clearly be material to any argument concerning his work capacity.
This board has repeatedly held that “(i)t is fundamental in proper judicial administration that no matter shall be decided unless the parties have fair notice that it will be presented in sufficient time to prepare themselves upon the issue.” Palm v. Yale University, 3923 CRB-3-98-10 (Jan. 7, 2000), quoting Connolly v. Connolly, 191 Conn. 468, 475-76 (1983) (internal quotations omitted); see also, Casertano v. Shelton, 3329 CRB-4-96-4 (Sept. 16, 1997); Cummings v. Twin Tool Mfg., 13 Conn. Workers’ Comp. Rev. Op. 225, 2008 CRB-1-94-4 (April 12, 1995), appeal dismissed, A.C. 14747 (June 29, 1995). Though Connecticut workers’ compensation practice does not require formal pleadings, this agency’s hearing notices should be detailed enough to provide the parties with a useful synopsis of the issues, and the scope of the controversy to be addressed. Mosman v. Sikorsky Aircraft Corp., 4180 CRB-4-00-1 (March 1, 2001). “[Notice] is adequate if it fairly and sufficiently apprises those who may be affected of the nature and character of the action proposed, so as to make possible intelligent preparation for participation in the hearing.” Hartford Electric Light Co. v. Water Resources Comm., 162 Conn. 89, 110 (1971) (citations omitted). Because we are not bound by strict pleading rules, we recognize that a party may also be apprised that a claim is at issue by other means, such as statements made at trial, the evidence in the record, or papers that have been filed. Mosman, supra. “To that end, the parties involved in a formal hearing should recognize the importance of taking the time at the outset of the hearing to articulate the issues they wish to address during the proceedings.” Id.
The cases in which we have found insufficient notice of a pending issue have generally been situations where a party or a commissioner has stated during the formal hearing that the subject for resolution would be limited to a specific point, and that some other issue should not be considered. See, e.g., Palm, supra (claimant’s counsel repeatedly asserted that claimant was not seeking temporary partial disability benefits, and sought to limit issue at formal hearing to Form 36 procedure); Casertano, supra (parties explicitly agreed that the issue in dispute was limited to the date claimant discovered he had high blood pressure, which would govern whether notice was timely filed; CRB suspected that they were unaware date, form and method of notice were also integral parts of case); Cummings, supra (trier repeatedly advised parties that total disability would not be addressed). In those cases, we have remanded for further proceedings because the parties were led to believe that certain acknowledged issues were not to be determined. The instant case, however, is not one in which the parties discussed the proceedings as being limited with respect to other relevant issues; instead, the single named issue was broadly framed as the claimant’s entitlement to § 31-308a benefits.
In deciding whether a remand is appropriate here, we also look to our recent decision in Mosman, supra, for guidance. There, the formal hearing notices listed one issue for discussion: “§ 31-294d - Medical Treatment.” At the formal hearing, the claimant’s attorney stated that he was also seeking temporary total disability benefits, along with temporary partial disability benefits after a certain date. maximum medical improvement was discussed with regard to the claimant’s upper extremities, but not her cervical spine condition. The trial commissioner had also requested that a commissioner’s examiner address not only the necessity of surgery, but also work capacity and restrictions. In the trier’s award, findings were entered denying surgery, prescribing payment of permanent partial disability benefits, and setting a 5% permanency rating of the cervical spine. On appeal, this board noted that the claimant had “placed the issues of temporary total disability and temporary partial disability before the trial commissioner by virtue of her counsel’s representations at the formal hearing,” along with the noticed issue of medical treatment authorization. Hence, it became foreseeable that the claimant would not need surgery, and that the trier would find that her condition had progressed to the point at which it would no longer improve. However, the board was troubled by the 5% permanency rating, as the trier had excluded that issue in her letter to the § 31-294f examiner, and the claimant’s treating physician had not been given a chance to assess permanency (for he believed that further surgery was warranted). The ruling on permanency was thus reversed, and a remand was ordered.
This case seems to fall on the cusp of these situations. Nowhere did the parties specifically state that the issue of the claimant’s cervical/thoracic spine or his alleged depression was or was not to be decided in the case. The record does contain some medical and testimonial evidence that would support a finding on these issues. On the other hand, there are no statements such as those in the Mosman record that would have explicitly raised the issue of the claimant’s worsening disability as one that the trier was expected to decide, and there was no mention of the claimant’s depression—a separate condition—as an issue for determination. There is instead an inference that the subject was implicitly raised by virtue of evidence having been offered as to the claimant’s medical condition, but the matter was never discussed in any depth.
It is possible that, prior to trial, the respondents understood the claimant’s physical condition to be static since he reached maximum medical improvement in 1997, thus leaving them unprepared to address his claim of having experienced further cervical symptoms. Nevertheless, because the claimant’s cervical spine injury is an accepted injury and is partially the prerequisite of his § 31-308a claim, it was a legitimate subject of discussion at the formal hearing. Again, we note that Respondents’ Exhibit 5 does acknowledge the claimant’s allegation that his symptoms were getting worse.
However, the trier’s finding regarding depression implicates a separate type of claim that was not previously accepted, and should not be found compensable without proper notice and proper medical substantiation. We cannot discern from the trier’s award whether this finding regarding depression played a part in his decision that the claimant was entitled to § 31-308a benefits, or whether his award was solely based on physical symptoms relating to the claimant’s lower back, cervical spine, or both. When in doubt, we think it best to rule in a manner that will ensure that due process has been provided to all parties. Accordingly, we remand this matter so that the trier may better articulate the basis of his § 31-308a award.
The respondents have also objected that the trier failed to properly evaluate the claimant’s earning capacity in light of his prior work experiences in marketing and life insurance sales, and they protest that the term of the § 31-308a award illegally extends beyond the date of the last evidentiary hearing. Recognizing that the trial commissioner is being asked to articulate the basis of his award on remand, we still think it appropriate to discuss the points raised by the respondents.
First, we remind the respondents that an award of § 31-308a benefits is discretionary, meaning that a trier’s decision will be left intact unless it amounts to an abuse of discretion. German v. Burndy Corp., 4007 CRB-5-99-3 (Aug. 4, 2000); Pontoriero v. Sanzo Concrete Construction Co., Inc., 3492 CRB-4-96-12 (Mar. 6, 1998). In general, as long as the trier has considered the criteria listed in § 31-308a before reaching his decision, and has kept his focus on the claimant’s earning capacity, this board will not tamper with his judgment. Chambrello v. Shaw’s Supermarkets, 4008 CRB-6-99-3 (Feb. 1, 2000), citing Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 295 (1999). Though a trier may consider a claimant’s educational level and specific vocational training in determining his earning capacity; German, supra; there are also other factors that play into such a determination, and we have never held that a claimant must exhaust every potential job-seeking avenue in order to establish a diminished earning capacity. See Chambrello, supra. Where, as here, a claimant has obtained work after making consistent but unsuccessful efforts to find suitable employment at a variety of jobs, we do not believe that a trial commissioner is abusing his discretion by finding that his current wages reflect his earning capacity simply because the claimant has experience in other areas that might also provide employment opportunities. Genovesi v. Choice Designs, Inc., 13 Conn. Workers’ Comp. Rev. Op. 218, 1745 CRB-5-93-6 (April 12, 1995). The totality of the circumstances must govern.
Second, we have recently confirmed that a trial commissioner has the authority to award temporary total disability benefits beyond the date of the last evidentiary hearing. Carlson v. Bic Corporation, 4364 CRB-3-01-2 (Jan. 29, 2002); Morris v. A&A Acoustics, 3429 CRB-7-96-9 (Aug. 8, 1997). As an employer is expected to monitor the status of a case concerning the employee’s level of incapacity, and is expected to be aware when a claimant returns to work, it becomes incumbent upon the employer to file a Form 36 if it seeks to have benefits discontinued. Carlson, supra, citing Platt v. UTC/Pratt & Whitney Aircraft Division, 3 Conn. Workers’ Comp. Rev. Op. 3, 9, 164 CRD-6-82 (Aug. 16, 1985). “This practice clearly supports the humanitarian purpose of the Workers’ Compensation Act by allowing trial commissioners to award ongoing benefits where the medical evidence indicates that a claimant will continue to be temporarily totally disabled after the close of the last evidentiary hearing.” Carlson, quoting Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998). In general, we see no reason why the same rationale should not apply in the case of partial disability benefits based upon lost earning capacity, where the medical evidence shows that a claimant’s status will not improve in the near future and the situation seems to warrant a reasonable extension of the award. See also, Brinson v. Finlay Brothers Printing Co., 4307 CRB-1-00-10 (Nov. 1, 2001) (ongoing temporary partial benefits approved by CRB). Should circumstances eventually change, a reasonably vigilant employer would then be able to file a Form 36.
In this particular case, however, we are uncertain regarding the trier’s award of benefits through October 2001 due to the length of time that passed between the formal hearing on December 9, 1999, and the issuance of the commissioner’s decision in May 2001. Temporary disability benefits, whether they be for total or partial incapacity, are matters of continuing proof. Brown v. State/Dept. of Mental Health & Addiction Services, 4053 CRB-2-99-5 (July 27, 2000), aff’d, 66 Conn. App. 882 (2001)(per curiam), cert. denied, 259 Conn. 913 (2002). The most recent medical report in evidence is Dr. Scherr’s June 30, 1999 report, which states that the claimant’s cervical spine is “architecturally unstable at present,” and notes that the claimant’s symptoms had increased over the last few months, when read in conjunction with his prior report of April 6, 1999. Dr. Scherr thought that the claimant’s problem would continue until successful corrective surgery was accomplished. Claimant’s Exhibit A. Given the due process requirements of this system, and the need for continuing proof of temporary disability status, we believe that this issue should also be reconsidered on remand.
The trial commissioner’s decision is accordingly remanded for articulation.
Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.
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