Harpaz v. Laidlaw Education Services

The claimant was represented by Philip F. Spillane, Esq., Allingham & Spillane, LLC, 62 Bridge Street, New Milford, CT 06776.

The respondents were represented by Richard S. Bartlett, Esq., McGann, Bartlett & Brown, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.

This Petition for Review1 from the December 13, 2005 Finding and Dismissal of the Commissioner acting for the Seventh District was heard August 25, 2006 before a Compensation Review Board panel consisting the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant herein appeals from a finding and dismissal of his claim regarding a November 7, 2001 motor vehicle accident. His position is that the respondents having been precluded from contesting compensability of the injury as a result of a late disclaimer of claim, that he was entitled, as a matter of law, to receive an award for a surgery he claims was a sequelae of the compensable injury. The trial commissioner decided to the contrary and we agree with his legal reasoning and dismiss the appeal.

We note that the claimant did not file a Motion to Correct, therefore, for the purposes of this appeal all the facts found by the trial commissioner are deemed valid. Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6 (July 26, 2006). The commissioner found the following facts. The claimant was employed by the respondent as a bus driver and injured in a motor vehicle accident November 2, 2001 while in the course of employment. Findings, ¶ 1. He filed his Form 30C on October 31, 2002 asserting a back injury as a result of the accident. Findings, ¶ 2. The respondents filed their Form 43 contesting compensability on May 15, 2003. Findings, ¶ 3. A Motion to Preclude was filed by the claimant and on January 8, 2004 the commissioner found the respondents were precluded from challenging compensability due to the late disclaimer. Findings, ¶ 4.

The claimant did not seek medical treatment regarding his back injury until June 26, 2002 when he was examined by Dr. Ronald Ripps, an orthopedic surgeon. Findings, ¶ 7. He had experienced no pain until a few days prior to that visit. Dr. Ripps’s notes reported the claimant noted “no antecedent strain or trauma” and did not report a history of a motor vehicle accident. Findings, ¶¶ 8-10. The claimant visited a neurosurgeon, Dr. S.J. Shahid, on July 10, 2002, and complained of left leg pain which “. . . came on suddenly.” Findings, ¶ 11. The claimant was examined by Dr. Cameron Brown on July 15, 2002, who noted the claimant had been experiencing back and leg pain for over four weeks. Dr. Brown’s notes did not reflect a motor vehicle accident had occurred. Findings, ¶¶ 12-13. He performed surgery on the claimant on July 24, 2002. Findings, ¶ 14.

On September 25, 2002, the claimant informed Dr. Brown of the November 7, 2001 motor vehicle accident, but also said he had not suffered back pain subsequent to the accident. Findings, ¶ 15. Nonetheless, Dr. Brown opined on February 12, 2004 that the claimant’s need for surgery “is entirely related to his November 7, 2001 motor vehicle accident.” Findings, ¶ 16. He performed additional surgery on the claimant on March 23, 2004. Findings, ¶ 17.

The respondents had filed Form 43’s on March 15, 2003 and February 3, 2004 contesting the extent of the Claimant’s disability and his need for surgery. Findings, ¶ 6. They had an orthopedic surgeon perform a medical examination of the claimant. Their expert, Dr. Glenn Taylor, concluded that the claimant had no back or leg pain after the accident, had no symptoms until June 2002, and that his review of medical reports did not alter his opinion that the 2001 accident was not a factor in the claimant’s need for surgery in 2004. Findings, ¶¶ 18-19.

Following a formal hearing on April 25, 2005 the trial commissioner issued his Finding and Dismissal on December 13, 2005. The commissioner concluded that § 31-294c(b) did have applicability to this situation and that the respondent was required to file a Form 43 or commence payment within 28 days of the Notice of Claim. Findings, ¶¶ A-B. He found the respondents had failed to do so. Findings, ¶ C. He however concluded that the claimant had failed to establish a causal connection between the 2001 motor vehicle accident and the 2004 surgery. Findings, ¶ D. He found the opinions of Dr. Taylor more persuasive than that of Dr. Brown. Findings, ¶ F. Having determined that applicable case law required a link of causation between the compensable injury and the medical treatment, and concluding this had not been established, the commissioner dismissed the claim regarding the 2004 surgery. Findings, ¶¶ E and G. This appeal ensued.

The gravamen of the claimant’s argument appears to be that the trial commissioner should not have followed the CRB’s precedent in Tucker v. Connecticut Winpump, Inc., 4492 CRB-5-02-2 (February 21, 2003). Upon review, we believe this case is indistinguishable from Tucker and take this opportunity to reaffirm it as binding precedent.

In Tucker, the claimant had been involved in an incident breathing chemicals at his workplace, to which he filed a claim for benefits that the respondents did not contest within the statutory guidelines. He then argued that his chronic obstructive pulmonary disease (CPOD) was related to the claim. The trial commissioner determined that this claim was not supported by the medical evidence. The CRB upheld the trial commissioner on appeal.

The case turned on whether the preclusion related to the inhalation of workplace chemicals served to bar evaluation of whatever ailments he claimed were sequelae of the compensable injury. “The claimant urges that the mandated acceptance of this injury incorporates an acceptance of liability for his entire lung disability, regardless of its actual cause.” The CRB declined, stating “[w]e note, however, that there is a clear distinction in § 31-294c(b) and in our case law between the right to contest liability for an injury and the right to contest the extent of disability attributable to such an injury,” pointing to such cases as Adzima v. UAC/Norden Division, 177 Conn. 107 (1979) where our Supreme Court pointed out, “the statute itself clearly delineates a distinction between liability and disability.” Id., 113.

Our decision in Tucker was also based on the fact that the relevant statute was amended in 1993, removing language which limited the ability of respondents to contest the extent of disability. See Public Act 93-228 § 8. This revision brings this statute into harmony with other similar legal mechanisms where the incontrovertible determination of liability still requires the moving party to prove his debt or damages; such as a hearing in damages in civil litigation, Murray v. Taylor, 65 Conn. App. 300, 334-335 (2001) “the plaintiff still must prove how much of the judgment prayed for in the complaint he is entitled to receive,” or an uncontested mortgage foreclosure, New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 760 (1996) “in pursuing the remedy of strict foreclosure GHR or its assignees nevertheless will have to establish the amount of the debt that Bedford owes.”

Conversely, had we adopted the claimant’s rationale in Tucker, the failure of a respondent to file a timely Form 43 would create a lifetime obligation for the respondent to honor any claims filed by the claimant for any and all medical treatment irrespective of its relationship to his employment. We rejected this theory as inconsistent with the revised statute and concluded the preclusion statute was not “in anyway chilled by allowing an employer who is precluded from contesting an injury’s compensability to contest the extent of a claimant’s disability, insofar as that disability may be attributed to causes other than the accepted injury.” Tucker. Id.

The claimant relies on two Appellate Court cases in an effort to overcome the holding of Tucker. Upon review, both cases are readily distinguishable. While a different result was reached in DeAlmeida v. M.C.M. Stamping Corporation, 29 Conn. App. 441 (1992), the preclusion statute interpreted by the Appellate Court in that case has since been substantially revised from the law in effect when that claim was filed. The case of Tower v. Miller Johnson, 67 Conn. App. 71 (2001) is also not on point. In Tower, the “sole claim on appeal” was the defendant’s argument the commissioner failed to address the jurisdictional issue of whether the decedent’s injury occurred in the course of his employment. Id., 73. The Appellate Court restated long-standing case law that whether or not an injury is compensable is not an issue of jurisdiction. They did not consider and thus did not rule on the factual issues presented herein.

In this case, there is no issue of jurisdiction. The claimant has a compensable injury as a result of the preclusion statute. He did not convince the trial commissioner his 2004 surgery was associated with that compensable injury. Such a factual determination is reserved for the trier of fact to resolve. See D’Amico v. Dept. of Correction, 73 Conn. App. 718, 725 (2002). As no Motion to Correct was filed, these issues will not be considered on appeal. Even if we were empowered to consider those issues the record presented is absent of error.

Both factually and legally this case is virtually identical to Tucker, hence stare decisis compels us to reach the same result by upholding the trial commissioner and dismissing the appeal.

Commissioners Donald H. Doyle, Jr. and Nancy E. Salerno concur in this opinion.

1 We note that a postponement was granted during the pendency of this appeal. BACK TO TEXT