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Fish v. Visiting Nurse & Community Care, Inc.

CASE NO. 4545 CRB-1-02-6



JULY 2, 2003











The claimant was represented by Bruce J. Comollo, Esq., 519 Center Street, Manchester, CT 06040.

The respondents were represented by Timothy Ward, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the June 13, 2002 Ruling Re: Form 36 of the Commissioner acting for the First District was heard December 20, 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 June 13, 2002 Ruling Re: Form 36 of the Commissioner acting for the First District. They contend on appeal that the trier erred by failing to make a finding regarding the claimant’s disability status. We detect no error of law upon our review, and affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to her low back on October 1, 1988. Her treating physician is Dr. Stephen Calderon, a Hartford neurosurgeon. The trier found that the claimant underwent lumbar disc surgery with Dr. Calderon in February, 1999, but has continued to be symptomatic despite that procedure. Physical therapy and epidural steroid injections brought little relief, and Dr. Calderon recommended that the claimant undergo a Ray Cage fusion. The claimant consented to that procedure during a February, 2001 visit to the doctor, with whom she discussed her need to take a trip to Australia to help care for her sick brother. Dr. Calderon permitted the claimant to take the trip, instructing her to walk around to minimize the effects such a long airplane flight would have on her back. He thought the claimant would experience discomfort, but did not think her underlying condition would worsen. The claimant decided to wait until her trip had concluded before having surgery, and asked that it be scheduled after her May 12, 2001 return date.

Following the claimant’s departure for Australia on March 29, 2001, the respondents scheduled a medical examination for the claimant with Dr. Ballon on May 2, 2001. Upon being informed that the claimant would not be available until after May 12, 2001, a claims adjuster for the respondent insurer maintained that she did not have to reschedule the examination, and refused to do so. The respondents then filed a Form 36, requesting termination of the claimant’s total disability benefits due to failure to follow prescribed medical treatment. They wrote, “Her treating physician has recommended surgery and claimant has delayed due to long term vacation in Australia.” Joint Exhibit 1. The claimant’s husband, meanwhile, sent a letter notifying this Commission that his wife was still abroad, and would send a request for a hearing within ten days. Prior to receiving that letter, the First District office had already docketed an emergency hearing on the Form 36 for May 9, 2001. The Form 36 was approved at that hearing, which the claimant challenged in a timely manner upon receiving notice of that ruling. The proceedings below then ensued.

In finding in favor of the claimant, the trial commissioner judged the testimony of the claimant and her husband to be credible. The trier stated, “since the Respondents had not yet authorized the surgery and had in fact scheduled an IME with Dr. Ballon for May 2, 2001, it is somewhat disingenuous to accuse the Claimant of delaying her surgery.” Findings, ¶ 23. The trier concluded that the claimant had met her burden of challenging approval of the Form 36, as any delay in surgery had been primarily due to the respondents. The respondents were ordered to reinstate the claimant’s temporary total disability benefits as of the original Form 36 approval date of April 30, 2001. The respondents then sought review of that ruling by this board.

The central issue here on appeal is the respondents’ contention that the trial commissioner should have delved into the medical question of the claimant’s disability status as part and parcel of his consideration of the Form 36. Some evidence exists in the record to suggest that the claimant was capable of light duty employment as of February 2001, though it is scant. The most notable instance of such proof is a “yes” response by Dr. Calderon to the question, “if a patient can take a trip to Australia, do you think she could have been capable of doing at least part-time selective work?” Respondent’s Exhibit 1, p. 23. Just prior to that exchange, however, Dr. Calderon had observed that there was no comment in his notes with regard to the claimant’s ability to perform light duty or sedentary work. Id., p. 22. His notes gave no indication as to whether the claimant was capable of doing such work, and he had no independent recollection of her work status. Id., pp. 14-15. It would be a strain to characterize this opinion as definitive. Moreover, the claimant testified that Dr. Calderon never discussed with her the prospect of returning to light-duty work. January 31, 2002 Transcript, p. 32. The trier specifically noted that her testimony was “credible and persuasive.” Findings, ¶ 22. Nevertheless, the respondents maintain that the issue of light duty work capacity was properly raised at trial, and therefore should have been addressed in the trier’s decision.

As noted above, the Form 36 filed by the respondents on April 12, 2001 does not purport to contest the claimant’s disability status. Rather, it focuses only on an alleged delay in obtaining surgery that was recommended by her treating physician. Going into the formal hearing, the claimant had no reason to suspect that the respondents were contesting continued disability benefits for any reason aside from her alleged deviation from prescribed medical treatment. Though a claimant maintains the burden of proving continued total disability through the submission of adequate medical evidence; Papa v. Jeffrey Norton Publishers, Inc., 4486 CRB-3-02-1 (Feb. 25, 2003); 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 concepts of due process and meaningful notice do not fall by the wayside upon the filing of a Form 36, thus obligating a claimant to re-establish her work capacity regardless of the reasons the respondents have alleged for discontinuing benefits.

A trial commissioner presiding over a formal hearing on a Form 36 may indeed consider issues beyond the grounds listed in that notice, but he is not obligated to do so. Brown, supra. Much depends on whether, under the circumstances of the case, it would be reasonable to stray beyond the narrow issue listed in the Form 36. The wisdom of such an extension of subject matter would depend on the evidence that has been introduced into the record, and the degree to which the parties have had an opportunity to discuss additional issues and could reasonably expect the trier to make an expanded finding. See Kasfeldt v. Heitkamp, Inc., 4452 CRB-5-01-10 (Sept. 18, 2002)(due process requires that parties be aware that element of case is ripe for determination).

The respondents’ direction of a few questions regarding this subject to the claimant and Dr. Calderon during the course of their testimony, and the subsequent mention of this issue in the respondents’ closing argument (Transcript, pp. 53-54) and trial brief, did not automatically elevate those inquiries into a contested issue that the trier needed to specifically address in his findings. The evidence concerning the claimant’s disability status was scant, and it was never made clear in advance of the formal hearing that the respondent wished to expand the proceedings to contest the claimant’s work capacity along with the dispute over the propriety of her actions in failing to attend the respondent’s scheduled May 2, 2001 examination with Dr. Ballon and the May 9, 2001 emergency informal hearing. As the trial commissioner found the claimant’s testimony credible with regard to her absence at the hearing, and found that the respondents had not acquiesced to Dr. Calderon’s recommendation for surgery prior to the claimant’s return from Australia, he reasonably concluded that there was no cause to suspend benefits, and overturned the approval of the Form 36. This obviated the need to pursue the larger question of her general disability status, given the parameters of the question that had been formally raised. Any subsequent contest of the claimant’s total disability status would thus have to be made by filing a Form 36 specifically alleging that the claimant has a work capacity.1 Irizarry v. Purolator Courier Corp., 4382 CRB-4-01-4 (May 2, 2002).

The trial commissioner’s decision is hereby affirmed. Insofar as any benefits may have remained unpaid pending appeal, interest is awarded pursuant to § 31-301c.

Commissioners Donald H. Doyle, Jr., and Amado J. Vargas concur.

1 We note that the file contains a pair of Forms 36 that were received by this Commission on June 27, 2002, which purport to contest the claimant’s total disability status. Said forms are not currently before us as a disputed matter. BACK TO TEXT

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