Stiber v. Marks Total Security

The claimant was represented by Marc Ubaldi, Esq., Kennedy, Johnson, D’Elia & Gillooly, 555 Long Wharf Drive, 13th Floor, New Haven, CT 06511.

The respondents were represented by Jason E. Indomenico, Esq., Law Offices of David J. Mathis, 55 Farmington Avenue, Suite 500, Hartford, CT 06105.

This Petition for Review from the July 8, 2009 Finding and Denial of the Commissioner acting for the Fourth District was heard January 29, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Nancy E. Salerno and Christine L. Engel.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents in this matter have appealed from their denial of a Form 36 seeking to cut off medical treatment to the claimant for allegedly failing to obtain other necessary medical treatment. We have reviewed the respondent’s claims of error. We find that essentially the respondents failed in their burden of persuasion before the commissioner. We find the alleged errors committed by the trial commissioner do not rise to the level of compelling the relief sought by the respondents, and actually, are in the form of harmless error. We affirm the Finding and Denial and dismiss this appeal.

The following circumstances prompted this appeal. The claimant suffered a compensable injury some years ago and has continued to treat with Dr. Michael Robbins, a pain management and anesthesiologist specialist. On or about July 17, 2007 Dr. Robbins referred the claimant to Dr. James Yue so that Dr. Yue could test the stability of the claimant’s spinal fusion. The parties have stipulated this treatment was authorized. An initial appointment with Dr. Yue was scheduled on December 10, 2007. Dr. Robbins testified the claimant told him he did not attend this exam because his ride cancelled. Dr. Robbins further believed the claimant did not drive. The respondents presented surveillance tape showing the claimant driving. Dr. Robbins testified the claimant had rescheduled to see Dr. Yue in June 2008 and that he learned on October 29, 2008 that the claimant still had not seen Dr. Yue. As a result, the respondents filed a Form 36 seeking to suspend medical benefits. At an informal hearing on December 22, 2008 Commissioner Scott Barton denied the Form 36. The respondents then sought a formal hearing.

At the formal hearing counsel for the claimant asserted that the Form 36 was defective as it was the improper form to seek to terminate medical benefits. The claimant did not testify at the formal hearing. His counsel represented his client had missed the two appointments because of car trouble the first time and that he had forgotten about the second appointment. Claimant’s counsel represented a new appointment was scheduled with Dr. Yue on April 15, 2009. Respondents presented a report from Dr. Robbins wherein he deemed the Yue appointment reasonable and necessary medical care and that this was required so as to determine whether the fusion is adequate. The Robbins report also indicated the claimant had rescheduled the missed appointment with Dr. Yue.

The trial commissioner determined that there were only two exhibits presented by the respondents and they were “reviewed, considered and weighed.” Finding, ¶ a. The trial commissioner further determined that while the claimant had missed two appointments with Dr. Yue “[t]he claimant’s explanation of his failure to attend the two appointments was reasonable.” Finding, ¶ f. The trial commissioner deemed the procedural defect of the improper form waived upon commencement of the formal hearing. The commissioner denied the Form 36 and ordered the claimant to attend an examination with Dr. Yue. In the event the claimant failed to attend such an examination the respondents were directed to file a Form 43 to suspend medical treatment.

The respondents filed a Motion to Correct. Certain corrections were granted, but they did not materially change the outcome of the decision. Specifically, the trial commissioner did not grant the requested corrections that called for all representations of claimant’s counsel to have been stricken from the Finding & Denial.

The respondents’ appeal is based on one primary point; that the trial commissioner committed error in placing any weight on the representations of claimant’s counsel. Citing Blumenthal v. Kimber Manufacturing, 265 Conn. 1 (2003) they assert that such statements do not constitute evidence. By the respondents’ reasoning, in the absence of the challenged statements it was clearly unreasonable to deny the Form 36 and it should be ordered granted by this panel. The respondents believe it is uncontroverted that the claimant “refused” medical care as defined by § 31-294e (b) C.G.S. For a number of reasons, we are unwilling to make such a leap.

We find the case of Reeve v. Eleven Ives Street, LLC, 5146 CRB-7-06-10 (November 5, 2007) as instructive as to how to approach this matter. In Reeve the claimant appealed arguing that the trial commissioner improperly characterized a witness statement from an investigator as “testimony”. We noted in Reeve that the claimant failed to raise a seasonable objection to the introduction of the challenged evidence. In the present case the respondents failed to object at the formal hearing to the statements presented by claimant’s counsel. Our decision in Paige v. Hartford Insurance Co., 4594 CRB-2-02-12 (January 9, 2004) suggests there has been no error, as we upheld the trial commissioner when “in this case the claimant never raised an objection regarding the hearsay nature of the evidence.”

Further supporting our belief we should not overturn this decision is the plain language of § 31-298 C.G.S., which permits a somewhat more relaxed approach to evidentiary consideration before this tribunal. “In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry, through oral testimony, deposition testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” Had the respondents believed the claimant’s absence from the proceedings constituted a due process problem for them they could have adjourned the proceedings and subpoenaed him to the hearing. They chose not to do so and we must evaluate the trial commissioner’s decision in the absence of such evidence.

We are left with the question of whether the respondents’ evidence was so compelling that as a matter of law it would have compelled the granting of a cessation of benefits. We are not persuaded that the trial commissioner’s decision herein was solely based on the statements of counsel. In Finding, ¶ a, the trial commissioner “reviewed, considered and weighed Respondent Exhibits 1-2.” We may properly infer that after weighing this material that he did not find the respondents’ evidence particularly persuasive. Since the statute vests in the trial commissioner the determination of when the claimant has refused to accept reasonable medical care, we cannot second-guess his evaluation of such evidence. See Valiante v. Burns Construction Company, 5393 CRB-4-08-11 (October 15, 2009) “decisions regarding the relevance and remoteness of evidence in workers’ compensation proceedings fall solely within the discretion of the trier of fact.”

To order the discontinuance of benefits the trial commissioner would need to determine that the claimant “refused” to obtain reasonable medical care, as defined in § 31-294e (b) C.G.S. We cannot state that missing two appointments while continuing to reschedule an appointment with the same physician constitutes “refusal” as a matter of law. This poses a judgment call for the trial commissioner and we may not reverse such a decision unless it is arbitrary and capricious. See Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008) and In re Shaquanna M., 61 Conn. App. 592, 603 (2001). We also do not believe the record rises to the level of willful noncompliance for which a suspension of benefits pursuant to § 31-294f C.G.S. was ordered in Bailey v. State of Connecticut Greater Hartford Community College, 5144 CRB-1-06-10 (October 15, 2007). Had the trial commissioner found the respondents’ argument persuasive, we would be compelled to defer to his judgment. We must generally extend similar deference when he is not persuaded.

While we are mindful of the need for trial commissioners not to consider statements of counsel as the equivalent of testimony from a party before the tribunal, we deem this issue as harmless error in this matter. Peters v. Corporate Air, Inc., 14 Conn. Workers’ Comp. Rev. Op. 91, 1679 CRB-5-93-3 (May 19, 1995). We are not persuaded that a remand or a reversal of the trial commissioner’s decision in this matter is warranted. Therefore, we affirm the Finding and Denial and dismiss this appeal.