CASE NO. 4816 CRB-5-04-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 16, 2005
CRAWFORD & CO.
The claimant was represented by Andrew Morrissey, Esq., Morrissey & Morrissey, LLC, 203 Church Street, P.O. Box 31, Naugatuck, CT 06770.
The respondents were represented by William C. Brown, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the May 20, 2004 Finding and Award of the Commissioner acting for the Fifth District was heard December 17, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White, Jr. and Ernie R. Walker.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Naugatuck Glass and Crawford & Company, have appealed from the May 20, 2004 Finding and Award of the Commissioner acting for the Fifth District. We reverse the trial commissioner’s decision in part.
The pertinent facts are as follows. The claimant alleged that on October 31, 1999 she had injured her back while working for the respondent-employer when she bent over. The claimant sought treatment for her injury at the St. Mary’s Hospital emergency room on that date. She was given medication and advised to follow up with her primary care physician, Dr. Kanthimathi Jega. Dr. Jega arranged for the claimant to have an MRI of her back and referred her to Dr. Gary Bloomgarden, a neurosurgeon.
Dr. Bloomgarden performed a lumbar laminectomy on the claimant on November 9, 1999 and released her back to work with a ten-pound weight lifting restriction on January 18, 2000. Dr. Bloomgarden did a neurological follow up examination on the claimant on July 6, 2000. Dr. Bloomgarden’s medical records stated at that time the claimant had resumed more than 95 percent of her usual activity and relaxed most of her residual activity restrictions. He released the claimant with instructions to return as needed.
On August 7, 2000 the claimant sustained a compensable injury to her back. The claimant sought treatment for this back injury with Dr. Jega on August 8, 2000. Dr. Jega prescribed Motrin and ordered another MRI of the claimant’s back. Dr. Jega saw the claimant again on August 10, 2000 when he prescribed Prednisone and took her out of work indefinitely as of August 8, 2000. Dr. Jega referred the claimant back to Dr. Bloomgarden at that time.
Dr. Bloomgarden saw the claimant on August 18, 2000 and opined that she had injured her muscles while lifting objects at work. Dr. Bloomgarden took the claimant out of work for several weeks and referred her to Dr. Lisa Bellner, a physiatrist. Dr. Bellner treated the claimant from September 25, 2000 through September 10, 2001. Claimant’s Exhibit F.
The claimant returned to Dr. Bloomgarden on March 2, 2001 and at that time he opined the claimant had reached maximum medical improvement with regards to the injury for which he had operated on her, however, he further opined that she had not reached maximum medical improvement for her subsequent injury. Dr. Bloomgarden believed that the symptoms the claimant was experiencing at that time were related to the August 2000 injury.
On May 5, 2001 Dr. Bloomgarden saw the claimant for a neurological follow-up examination. Claimant’s Exhibit E, May 5, 2001 report of Dr. Bloomgarden. In a medical report from that date Dr. Bloomgarden opined the claimant was unable to work and that she would likely not return to work. There is no evidence in the record that the claimant saw Dr. Bloomgarden after that date.
The trial commissioner determined the claimant’s October 31, 1999 injury was compensable. Additionally, the trier found the claimant was totally disabled from October 31, 1999 through January 18, 2000 and from August 7, 2000 through May 5, 2001. However, he found that there was insufficient medical evidence to determine total disability from May 5, 2001 through the date of the formal hearing, therefore, he made no finding in respect to that period. The respondents were ordered to pay the claimant § 31-307 benefits for the period of the claimant’s total disability.
The respondents have appealed this decision. The respondents contend the claimant failed to meet her burden of proof for temporary total benefits for the period of May 5, 2001 through the date of the formal hearing. The respondents argue that by failing to make a finding as to compensability beyond May 5, 2001 the trial commissioner improperly left the claimant the option of re-litigating the same claim.
“We have often stated that a party is not entitled to present his case in a piecemeal fashion, with a second bite at the apple forthcoming after failing to meet his burden of proof on the first try.” Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 2150 CRB-3-94-9 (December 7, 1995), citing Kearns v. Torrington, 119 Conn. 522, 529 (1935); Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 542 (1992); Germe v. Conway Eastern Express, 10 Conn. Workers’ Comp. Rev. Op. 148, 150, 1180 CRD-3-91-2 (June 29, 1992). The facts of Fassett, supra, are very similar to this case. In Fassett one of the issues at the formal hearing was a claim of total disability from 1989 through the date of the formal hearing, May 19, 1994. However, the claimant was unable to provide evidence to support this claim after July 1992 because he failed to obtain a report from his treating physician after that date. The trial commissioner found the issue of total disability should remain open.1 This board stated that, “the trial commissioner’s duty is to render a decision on the issues before him, however, using the evidence presented. If the claimant cannot meet his burden of proof, he is not entitled to have the issue put aside until he can gather further evidence in the future.” Ultimately the board held that since the claimant did not prove his claim for total disability through the date of the formal hearing, the portion of the claim that there was no evidence to support should have been dismissed.
Similarly, in Avila v. Parcel Port, 4481 CRB-3-02-1 (February 13, 2003), the board remanded the case back to the trial commissioner because the trier ordered that the issue of total disability through the date of the formal hearing should be the subject of additional medical opinions of the treating physician. This order was made presumably due to the lack of evidence in the record to support the period of total disability claimed. The board remanded the case and ordered the trial commissioner to resolve the issue of total disability for the period based on the record that was before him at that time.
We see no reason to depart from our reasoning in Avila, supra, and Fassett, supra, here. The claimant was aware that the issue of total disability through the date of the formal hearing was before the trial commissioner at the proceeding below. November 6, 2003 Transcript, p. 4. The conclusions drawn by the commissioner must stand if they are supported by the underlying facts and if they do not result from an incorrect application of the law to the facts. Crochiere v. Board of Education, 227 Conn. 333, 346-47 (1993), citing Fair v. People’s Savings Bank, 207 Conn. 535, 538-39 (1988). The trial commissioner found that there was insufficient evidence to support the period of disability from May 5, 2001 through the formal hearing. We will not disturb this finding on review, however, this finding necessarily leads us to the conclusion that the claimant failed to meet her burden of proof for that period. The trial commissioner cannot absolve the claimant of the duty to offer sufficient evidence to establish the disability claimed. Avila, supra, citing Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002); D’Amico v. State/Dept. of Correction, 4287 CRB-5-00-9 (August 3, 2001), aff’d, 73 Conn. App. 718 (2002), cert. denied, 262 Conn. 93 (2003). For this reason, the commissioner’s finding leaving the issue of total disability after May 5, 2001 open must be reversed.
Therefore, we reverse the trial commissioner’s decision in part.
Commissioners A. Thomas White, Jr. and Ernie R. Walker concur.
1 The trial commissioner in Fassett, supra, attempted to justify this ruling on the basis that the claimant’s wage records were unavailable, however, the board did not understand how the absence of these records would have impacted the total disability determination. The board noted that the wage records appeared to be unnecessary because the parties had stipulated to a base compensation rate and furthermore, there would not have been wage records for periods the claimant was totally disabled. BACK TO TEXT