CASE NO. 4525 CRB-4-02-5
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 28, 2003
RISK MANAGEMENT PLANNING GROUP
The claimant was represented by Laura Mooney, Esq., 203 Church Street, P.O. Box 702, Naugatuck, CT 06770-0645.
The respondents were represented by Neil J. Ambrose, Esq., Letizia, Ambrose & Falls, P.C., One Church Street, New Haven, CT 06510.
This Petition for Review from the May 1, 2002 Finding and Award of the Commissioner acting for the Fourth District was heard November 22, 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 1, 2002 Finding and Award of the Commissioner acting for the Fourth District. They argue on appeal that the trial commissioner erred by ruling that the claimant was entitled to have her compensation rate augmented by cost-of-living adjustments (COLAs) pursuant to § 31-307a(c) C.G.S. The claimant, meanwhile, has filed a Motion to Dismiss the appeal for lack of subject matter jurisdiction and for failure to prosecute with due diligence. We deny that motion, and remand this matter to the trial commissioner for further articulation.
A compensable back injury was sustained by the claimant on August 25, 1995, as found in a November 20, 1997 Finding and Award. Surgery was performed as a result of that injury on January 28, 1998, and the claimant has been unable to work since. At the time of the May 1, 2002 Finding and Award, the claimant had been receiving total disability benefits since January 28, 1998. The trier concluded that she was suffering from a compensable psychiatric/psychological condition, and ordered the respondents to pay for all related medical treatments (including psychiatric and psychological care), along with total disability benefits “for the period subsequent to and not covered by” the earlier award. Findings, ¶ C. He then stated, “As claimant has been temporarily totally disabled for a period exceeding five years, she is entitled to receive cost of living adjustments retroactive to the date total incapacity began; further, her current compensation rate is to be adjusted to reflect the COLA adjustments.” Id., ¶ D. The respondents have filed an appeal from that decision.
Before addressing the merits of this appeal, we must resolve a Motion to Dismiss the respondents’ appeal that was filed by the claimant on August 12, 2002. Following the issuance of the commissioner’s decision, the respondents’ attorney filed a petition for review on May 10, 2002, which filing was timely under § 31-301(a) C.G.S. Counsel simultaneously requested from this board a three-week extension of time to file the Reasons of Appeal required by Admin. Reg. § 31-301-2, as he was waiting for a copy of the transcript. We granted counsel an extension until July 30, 2002. Nothing was filed during that time period. On August 8, 2002, the respondent employer retained the law firm of Letizia, Ambrose and Cohen [now known as Letizia, Ambrose and Falls] as substitute counsel. Said firm immediately filed an appearance in this matter, along with a second Motion for Extension of Time to file Reasons of Appeal and a promise that no further requests for extensions would be sought. This motion was granted on August 12, 2002, allotting the respondents two more weeks to file said reasons.
On that same date, this board received an objection to the Motion for Extension of Time, along with a Motion to Dismiss the appeal for failure to file timely reasons of appeal. Because we had already granted the Motion for Extension of Time, the claimant filed a Motion for Reconsideration of that ruling on August 13, 2002. In her objection, the claimant argues that she was being prejudiced insofar as COLAs were not being paid, and she was not receiving psychiatric treatment pending appeal. She raises Admin. Reg. § 31-301-4, which states that the two-week filing period for a Motion to Correct may be “extended for cause,” as support for her position that good cause must be shown for a requested extension of time. In her view, the respondents have shown no good cause for an extension beyond July 31, 2002, and she asserts that their appeal should be dismissed for failure to file Reasons of Appeal by that date.
As stated by our Appellate Court in Sager v. GAB Business Services, Inc., 11 Conn. App. 693 (1987), an appeal is voidable where an appellant fails to file Reasons for Appeal within the time required by regulation. If a timely motion to dismiss is filed by the appellee, this board may decide whether or not the circumstances warrant dismissal of the appeal. Chang v. Pizza Hut of America, Inc., 4122 CRB-6-99-9 (Nov. 28, 2000). We find the delays in the instant matter regrettable, and have not lost sight of the fact that this claimant has already been subjected to one frivolous appeal in this case, wherein we awarded her interest and attorney’s fees. See Yuille v. Bridgeport Hospital, 3735 CRB-4-97-12 (June 10, 1998)(CRB held that appeal from November 20, 1997 award was taken solely for purpose of vexation and delay). However, the respondents’ replacement counsel has demonstrated an intent to resolve the current appeal with appropriate diligence, and managed to file Reasons of Appeal on August 21, 2002, less than two weeks after it had been retained to represent its client. Oral argument in this matter was held on November 22, 2002, as originally scheduled. Because no ascertainable delay in the resolution of this appeal has ultimately resulted from the belated filing of the Reasons of Appeal, we decline to dismiss the respondents’ petition for review. See Schilling v. New Departure-Hyatt Division, 3290 CRB-6-96-3 (Aug. 4, 1997)(where brief was two weeks tardy and no prejudice was shown from delay, CRB declined to dismiss appeal).
The merits of the instant appeal concern the trier’s award of COLAs. Section 31-307a(c) covers injuries occurring on or after July 1, 1993, and makes COLAs payable to employees who are totally incapacitated permanently, i.e., “adjudicated to be totally incapacitated permanently subsequent to the date of his injury or . . . totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years or more . . . .” The respondents argue that there is insufficient evidence to support the commissioner’s conclusion that the claimant has been totally disabled for more than five years (260 weeks). They observe that the medical records establish total disability for 15 2/7 weeks prior to the claimant’s January 28, 1998 back surgery, followed by another 190 6/7 weeks through the date of the last formal hearing1, which totals 206 1/7 weeks. The claimant counters that the respondents provided her with a printout that reflects over 273 weeks of temporary total disability benefits paid through the September 25, 2001 hearing. “This printout was entered into evidence at trial, without objection, as claimant’s Exhibit E. . . . Respondent’s counsel never disputed any portion of the printout, including the nature of the payments as listed on the printout.” Claimant’s Brief, p. 2. In her view, this record constitutes sufficient evidence to support the trier’s finding that she was totally disabled for more than five years at the time of the formal hearing.
An injured worker is entitled to total disability benefits under the Workers’ Compensation Act when her injury results in a total incapacity to work, which is defined as the destruction of the capacity to engage in one’s customary calling or any other occupation which one might reasonably follow. Osterlund v. State, 135 Conn. 498, 505 (1949); Laliberte v. United Security, Inc., 4264 CRB-5-00-7 (July 26, 2001), aff’d, 261 Conn. 181 (2002). In a contested case, whether or not a claimant is totally disabled is a question of fact for the trial commissioner. Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB-3-02-1 (Feb. 25, 2003); Laliberte, supra. Eligibility for such benefits is first and foremost a medical question, and is usually established via a medical opinion (or a series of periodically updated opinions) that states within a reasonable degree of probability that a claimant’s physical or psychological condition has rendered her unable to work. Papa, supra; Azzarito v. State/Office of the County Sheriff, 4173 CRB-7-00-1 (April 26, 2001). Without such input from a physician, legal entitlement to total disability benefits would be difficult to prove, barring dramatic circumstances that made such disability self-evident (e.g., a traumatic workplace injury that left one unable to communicate or move).
The November 20, 1997 Finding and Award makes no mention of total disability. Instead, it specifies that the claimant and respondent reached agreement regarding the payment of a temporary partial disability claim at a July 18, 1997 formal hearing. As the respondents note in their brief, the medical reports of Dr. Brennan recommended keeping the claimant out of work from September 8, 1995 through October 9, 1995, and from October 16, 1995 through November 28, 1995. Claimant’s Exhibit A. The respondents also refer in their brief to two or three additional weeks of total disability. On their face, these medical reports do not appear to set forth the substantial periods of disability necessary to bring the claimant to five years as of September 25, 2001. It is not clear how the trial commissioner reconciled this matter, as he made no findings regarding dates of total disability prior to January 28, 1998. We do not have the authority on appeal to consider these reports and draw our own inferences regarding credibility. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002).
Also, the trier made no finding regarding the correct interpretation of Claimant’s Exhibit E, which purports to list total disability payments that were made to the claimant on various dates from September 22, 1995 forward. Though this list of payments standing alone would not be enough to show that the claimant was in fact totally disabled during the time periods shown in the chart, it could conceivably have been used to corroborate substantive medical evidence showing total disability during those time periods. However, the trial commissioner did not explain this aspect in his findings. In fact, the claimant testified that she was totally disabled “at various times” prior to January 28, 1998, when she would be “placed on bedrest for a number of months” before getting back to light duty work, but it is unclear how or if the trier integrated this testimony with the medical evidence. See September 25, 2001 Transcript, p. 36. Again, we cannot resolve credibility issues ourselves on appeal. Duddy, supra; Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). The trier offered the conclusion that the claimant had been totally disabled for a period exceeding five years, however this was done, without findings that would explain how he reached that conclusion.
In situations where a set of findings and conclusions contain material inconsistencies, the optimal remedy is to remand the matter for clarification by the trier of fact. Avila v. Parcel Port, 4481 CRB-3-02-1 (Feb. 13, 2003); Ortiz v. Highland Sanitation, 4439 CRB-4-01-9 (Nov. 12, 2002). We believe that to be the best approach to take here as well. Therefore, we must remand this case so that the periods of total disability experienced by the claimant may be better articulated. In doing so, we note the possibility that the claimant has reached five years of total disability during the intervening time period between the last formal hearing in this case and the resolution of this appeal, given that she had already been disabled for over 190 weeks as of September 2001. As a means of avoiding further delay in this matter and of expediting the payment of any retroactive COLAs that may be due, thought should be given to whether opening the record on remand in order to take additional evidence regarding further periods of total disability would be advisable.
Accordingly, we remand the trial commissioner’s decision for further proceedings consistent with this opinion.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.
1 The date of this hearing is listed as September 20, 2001 in the respondents’ brief. However, the hearing was actually held on September 25, 2001, of which fact we take notice. BACK TO TEXT