CASE NO. 5686 CRB-4-11-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 11, 2012
GRIFFIN HEALTH SERVICES CORPORATION
The claimant was represented by Patrick D. Skuret, Esq., Law Offices of Daniel D. Skuret, P.C., 215 Division Street, P.O. Box 158, Ansonia, CT 06401.
The respondents were represented by Terrance M. Brennan, Esq., McGann, Bartlett & Brown, LLC, 111 Founders Plaza, Suite 1201, East Hartford, CT 06108.
This Petition for Review from the September 19, 2011 Finding and Dismissal of the Commissioner acting for the Fourth District was heard on March 23, 2012 before a Compensation Review Board panel consisting of Commission Chairman John A. Mastropietro and Commissioners Jodi Murray Gregg and Daniel E. Dilzer.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the September 19, 2011 Finding and Dismissal of the Commissioner acting for the Fourth District. We find error and accordingly affirm in part and remand in part the decision of the trial commissioner.1
The trial commissioner made the following factual findings which are pertinent to our review. The claimant testified at a prior proceeding that she was injured in 2004 while working for the respondent employer and was diagnosed with and treated for bilateral carpal tunnel syndrome and bilateral cubital tunnel syndrome. On May 4, 2010, the instant trial commissioner issued a Finding and Award in which he found the claimant’s depression was related to her physical injuries and therefore compensable, entitling the claimant to reasonable or necessary medical treatment.
At the proceeding which is the subject of this appeal, claimant’s counsel testified that he was seeking penalties based upon the respondent’s delay in paying mileage reimbursement and several indemnity checks.2 On December 30, 2010, claimant’s counsel made a demand for mileage reimbursement for the period from February 27, 2009 through October 27, 2010 in the amount of $1,920.52 plus $10.00 for a parking fee. On January 27, 2011, the respondent paid the claimant a lump sum of $1,467.16. In subsequent correspondence to respondent’s counsel dated February 16, 2011, claimant’s counsel indicated that the claimant was then owed an accumulated mileage reimbursement in the amount of $133.32 for the period commencing October 28, 2010 through the formal hearing of March 31, 2011. In addition, claimant’s counsel contended that the claimant had not received six weekly indemnity checks during the time period ranging from February 2007 to August 2010. Claimant’s counsel also testified that an IPad, a hands-free telephone device and access to an aqua therapy pool were reasonable or necessary medical treatment and the claimant was owed reimbursement in the amount of $90.00 for three months out-of-pocket aqua therapy expenses and $74.99 (plus tax) for the out-of-pocket expense for the hands-free telephone device. Claimant’s counsel indicated that he is seeking attorney’s fees in the amount of $12,825.00 for 42.75 hours of work at an hourly rate of $300.00 for time spent trying to secure for the claimant the six missing indemnity checks and the past-due reimbursements.
Claimant’s counsel also testified that the issue of non-payment of reimbursements arose at a previous formal hearing but the claimant withdrew it after the respondents paid the claimant. Claimant’s counsel indicated that the claimant would drop off the mileage reimbursement forms at his office and he would then forward the forms to the respondent, following up if the claimant did not receive payment within a few weeks. Claimant’s counsel stated that although the respondent claimed it had paid the claimant all her indemnity payments, it was only able to produce endorsed copies of one or two of the missing checks. In a post-hearing brief, claimant’s counsel contended that the claimant was owed five weeks of disability for the period of February 2007, July 2008, May 30, 2010, July 5, 2010, and August 1, 2010.
The claimant also testified at the proceeding which is the subject of this appeal, stating that she had not been paid six temporary partial disability checks although she was unsure which weekly check for the month of February 2007 she was missing. She indicated that the checks are sent to her attorney’s office and that she has reviewed the file copies and six checks are missing. The claimant also testified that she received no indemnity checks for the period of January 12, 2011 to February 16, 2011. She testified that she has “not been good” at keeping her own file but will write notes on a piece of paper and then throw the paper away when her question has been addressed. She stated that she was owed approximately $1,500.00 in unpaid mileage reimbursement as of October 2010 for the period of February 2009 through October 27, 2010. The claimant indicated that on October 27, 2010, Steven Levin, M.D., prescribed a hands-free telephone that she purchased out of pocket. On March 2, 2010, Dr. Levin gave the claimant a prescription for aqua therapy for which the claimant also paid out of pocket.
The trial commissioner, having taken administrative notice of prior hearing notices and hearing requests as well as the exhibits and transcripts associated with the prior formal hearings, determined that the claimant was “vague in her recollection” relative to the dates of the allegedly missing checks and was not credible regarding the need for a hands-free telephone. Conclusion, ¶ c. In addition, the trial commissioner indicated that because Dr. Levin’s prescriptions gave no medical justification for either the hands-free telephone or aqua therapy, neither constituted reasonable nor necessary medical treatment. Likewise, because no medical justification for the IPad could be determined from the record, the trial commissioner found the IPad did not constitute reasonable or necessary medical treatment.
Relative to the missing indemnity checks for the period of January 19, 2011 through February 9, 2011, the trial commissioner noted that although another trial commissioner had previously approved a Form 36 effective October 18, 2007 awarding the claimant temporary partial disability contingent on job searches, the claimant did not submit job searches for this time period to the respondent. However, the trial commissioner found that because the respondent voluntarily had paid the claimant all the outstanding temporary partial disability payments on February 16, 2011, there was no undue delay because of a lack of job searches. In addition, the trial commissioner determined that the claimant had not introduced into evidence any exhibit detailing the mileage reimbursement for the period from October 28, 2010 through the date of the formal hearing of March 31, 2011. The trial commissioner accepted as accurate a payment record provided by the respondent’s third-party administrator indicating that all the allegedly missing indemnity checks had been paid to the claimant. Having concluded that the claimant had failed to meet her burden of persuasion that either six temporary partial disability checks or any reimbursement payments were unduly delayed, the trial commissioner determined that sanctions were not warranted and dismissed the claim for attorney’s fees and penalties.
The claimant filed a somewhat exhaustive Motion to Correct which was denied in its entirety, and this appeal followed. On appeal, the claimant asserts numerous claims of error. First, the claimant contends that the trial commissioner’s failure to find the respondent unduly delayed the payment of the claimant’s mileage for the period of February 28, 2009 through October 27, 2010 and for the period of October 28, 2010 through February 16, 2011 and his concomitant failure to award penalties, interest and attorney’s fees constituted an abuse of discretion. The claimant also argues that the trial commissioner’s failure to find the respondent unduly delayed the payment of four temporary partial disability payments for the period of January 16, 2011 through February 6, 2011 and the five temporary partial disability payments for the period of February 2007, July 2008, May 30, 2010, July 5, 2010, and August 1, 2010 and his concomitant failure to award penalties, interest and attorney’s fees likewise constituted an abuse of discretion. In addition, the claimant identifies as error the trial commissioner’s determination that the hands-free telephone, IPad and aquatic therapy did not constitute reasonable or necessary treatment such that the claimant was entitled to reimbursement for any out-of-pocket costs incurred for same. Finally, the claimant contends that the trial commissioner erroneously denied her Motion to Correct.
The standard of deference we are obliged to apply to a trial commissioner’s findings and legal conclusions is well-settled. “The trial commissioner’s factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003). “This presumption, however, can be challenged by the argument that the trial commissioner did not properly apply the law or has reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).
We begin with the claimant’s assertions of error relative to the outstanding mileage reimbursements for the period of February 28, 2009 through October 27, 2010 and for the period of October 28, 2010 through February 16, 2011.3 Regarding the period commencing February 28, 2009, the trial commissioner found that on December 30, 2010, claimant’s counsel made a demand for the outstanding mileage and received the check for same on January 27, 2011. Findings, ¶ 7. Our review of the record indicates that the accumulated mileage reimbursement in the amount of $1,467.16 for this time period was indeed paid in full by a check from the respondent dated January 27, 2011. Claimant’s Exhibit H. However, claimant’s counsel points out that during the time period of February 27, 2009 through December 30, 2010, he actually sent nineteen separate letters regarding the outstanding mileage reimbursement to the respondent, all of which were furnished as an exhibit to the instant proceedings. Claimant’s Exhibit I. Counsel asserts that he also reiterated this demand during numerous telephone conferences with respondent’s counsel and at workers’ compensation hearings.
Relative to the second period in question commencing October 28, 2010, the trial commissioner found that no exhibit had been introduced into evidence indicating the mileage reimbursement being claimed for this time period. However, our review of the record indicates that in fact, the claimant submitted into evidence copies of correspondence requesting payment of this reimbursement dated November 4, 2010, December 6, 2010, December 30, 2010, and February 16, 2011. Claimant’s Exhibit I. Claimant also submitted into evidence copies of mileage worksheets for this time period which were evidently faxed to respondent’s counsel on November 12, 2010, November 22, 2010, December 9, 2010, December 14, 2010, and February 17, 2011. Id.
In light of the foregoing, the trier’s conclusions relative to the issue of mileage reimbursement cannot stand given the possibility that the trier may have “reached a finding of fact inconsistent with the evidence presented at the formal hearing.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007). We are therefore compelled to remand the file to the trial commissioner for additional analysis of whether the respondent’s pattern of late payment of the claimant’s mileage reimbursement constituted undue delay such that interest, attorney’s fees, and/or penalties are warranted.4
We turn next to the claimant’s assertions of error relative to the trier’s failure to find that the respondent unduly delayed the payment of four temporary partial disability payments for the period of January 16, 2011 through February 6, 2011.5 Although the trial commissioner found that the respondent did not make these payments on time, instead paying the claimant for these weeks in one lump sum on February 16, 2011, he declined to find the payments were unduly delayed. The trial commissioner predicated his decision at least in part on his finding that the claimant did not provide job searches to the respondent despite the existence of the October 18, 2007 Form 36 placing the claimant on temporary partial disability contingent upon the claimant providing job searches. The trial commissioner concluded that the respondent “voluntarily made up the previous outstanding temporary partial disability checks despite the absence of job searches.” Findings, ¶ k.
The claimant filed a first Motion to Submit Additional Evidence (identified as Claimant’s Exhibit N) pursuant to § 31-301-9 C.G. S. in the form of job searches for the weeks in question along with the accompanying fax cover sheets and fax confirmation pages indicating that, contrary to the finding of the trial commissioner, these forms were provided timely to the respondent.6 In accordance with the provisions of § 31-301-9 C.G.S., our directive in such situations is to determine whether the additional evidence a party is seeking to admit is material and whether there were “good reasons” for the failure of the party to present the evidence during the proceedings below. Clearly, the evidence the claimant is seeking to admit is material, as it directly contradicts the findings of the trier relative to the issue of whether the claimant submitted job searches to the respondent for the period in question, so the first prong of the regulation is satisfied. Moreover, as the claimant points out, at no time either during the proceedings before the trier or in its brief did the respondent raise as a defense to the issue of nonpayment the fact that it had not received job searches for the weeks in question.
We would be remiss at this juncture if we failed to point out that in Shimko v. Ferro Corp., 40 Conn. App. 409 (1996), our Appellate Court concurred with this board’s analysis in Goncalves v. Cornwall & Patterson, 10 Conn. Workers’ Comp. Rev. Op. 43, 1111 CRD-4-90-9 (January 28, 1992), wherein we stated that neither § 31-308(a) C.G.S. nor any of the administrative regulations require a job search form. Rather, “the work search procedure was informally accepted as an evidentiary basis to demonstrate a willingness to work, and when no work was found, a further basis to demonstrate the unavailability of such work.” Id., at 45. Despite the court’s analysis in Shimko, we recognize that an argument may be legitimately advanced that proof of job searches should automatically be submitted into evidence whenever the timeliness of payment of temporary partial disability expressly contingent upon said job searches is challenged.
Of even greater relevance to our deliberations, however, is the fact that although the formal hearing in this matter was held on March 31, 2011 and the record closed on June 30, 2011, the claimant did not file her first Motion to Submit Additional Evidence until October 26, 2011. We are at a loss to comprehend why the relevant job searches could not have been provided before the record closed. This is particularly so given that the claimant testified at the formal hearing of March 31, 2011 that she had furnished the job searches in question to her attorney, transcript, pp. 25-26, and her attorney also testified regarding his general office procedure for handling the claimant’s job searches.7 Id., at 54. Thus, in light of the claimant’s signal failure to explain why the material she is seeking to admit could not have been furnished prior to the close of the record, the claimant’s first Motion to Submit Additional Evidence dated October 26, 2011 is denied.
The claimant also claims as error the trial commissioner’s failure to find that respondent’s failure to pay five temporary partial disability payments during the period of February 2007, July 2008, May 30, 2010, July 5, 2010, and August 1, 2010 constituted undue delay such that the claimant should have been awarded penalties, interest and attorney’s fees. Also challenged is the trier’s finding that the claimant was “vague in her recollection concerning what checks were missing” and not credible regarding the dates of the missing checks. Findings, ¶ c. In addition, the claimant contends that the trier erroneously (1) concluded that the respondent’s payment print-out was accurate and (2) failed to take into account the respondent’s failure to produce copies of the canceled checks despite an order by the commission to do so. Pursuant to § 31-300 C.G.S., the claimant is seeking interest at the rate of twelve percent per annum and attorney’s fees on the five missing checks which total $3,074.45.8 The claimant is also seeking penalties in the amount of $5,000.00 pursuant to § 31-288(b) (1) C.G.S.9
It is axiomatic that the decision to award sanctions in the form of penalties, interest, and/or attorney’s fees lies squarely within the discretion of the trial commissioner. This board has “repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner.” McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (November 12, 1998). Our scope of review of such determinations is therefore sharply constrained, limited as it is to whether the trial commissioner’s decision constituted an abuse of discretion, which “exists when a court could have chosen different alternatives but has decided the matter so arbitrarily as to vitiate logic, or has decided based on improper or irrelevant factors.” In re Shaquanna M., 61 Conn. App. 592, 603 (2001). In addition, the provisions of § 31-288(b) C.G.S. require that a trial commissioner reach specific findings which support an order for sanctions. “For a respondent to be penalized for undue delay under this statute, the trial commissioner must determine the action or inaction by the respondent ‘unduly delayed’ benefits due the claimant. The trial commissioner must further find these delays were due to ‘fault or neglect.’” Kuhar v. Frank Mercede & Sons, Inc., 5250 CRB-7-07-7 (July 11, 2008).
Turning to the matter at bar, we note that the claimant testified that she was unsure as to which weeks in February 2007, May 2008 and July 2008 she did not receive her temporary partial disability checks. March 31, 2011 Transcript, p. 20. She also stated that when she did receive a check, she often did not know for which week payment was being issued. Id. The claimant indicated that on occasion, she would receive multiple checks and it would likewise be unclear as to the dates of the weeks for which she was being paid. Id., at 21. The claimant also testified that despite repeated requests to the respondent to mail payments in care of the claimant’s attorney, her checks were sent to at least three different addresses, one of which was in North Carolina. Id., at 22-23. The claimant conceded that she has not “been very good at keeping a strict file” and indicated that her recordkeeping primarily consisted of jotting down notes on pieces of paper regarding issues requiring attention and then throwing the notes away once the issues were addressed. Id., at 30.
The record also indicates that at an earlier proceeding, the claimant had stated:
My mind in the way I am looking, I know I get fuzzy at times and I have a lot of doctors’ appointments and sometimes I do screw up on things, but I really don’t – but I am like 99% sure that I haven’t gotten those checks but there is always that thing where I know there are times where things get busy in my life I may not write something down or – some of it could be mine but I can’t imagine being wrong about all those checks. But I mean I do get fuzzy, so you know ....
January 12, 2009 Transcript, p. 8.
At this same earlier proceeding, the claimant also testified that in addition to the missing check from February 2008, she was missing three checks from February 2007, one or two checks from May 2007, and one check from June 2007. Id., at 6-7.
The trial commissioner, having heard the claimant’s testimony regarding the missing checks, ultimately concluded that this testimony was not credible. It is not generally within the purview of an appellate body to reverse such a determination, given that:
[c]redibility must be assessed . . . not by reading the cold printed record, but by observing firsthand the witness’ conduct, demeanor and attitude . . . . An appellate court must defer to the trier of fact’s assessment of credibility because [i]t is the [fact finder] . . . [who has] an opportunity to observe the demeanor of the witnesses and the parties; thus [the fact finder] is best able to judge the credibility of the witnesses and to draw necessary inferences therefrom . . . .
Burton v. Mottolese, 267 Conn. 1, 40 (2003).
In addition, our review of the instant record indicates that on two separate occasions, the respondent provided a print-out to date of workers’ compensation payments made to the claimant indicating that the respondent had issued a check to the claimant for every week in question. Claimant’s Exhibit L; Respondent’s Exhibit 1.
Based on the foregoing, we do not find it can be reasonably inferred that the trial commissioner’s refusal to award penalties, interest or attorney’s fees on the allegedly missing temporary partial disability checks constituted an abuse of his discretion. While there is no question that there may be, relative to the identical fact pattern, an element of inconsistency regarding discretionary matters among triers of fact, the circumstances of the instant claim are such that we decline to reverse the trial commissioner’s decision regarding sanctions. Moreover, although we find troubling the claimant’s allegations that the respondent failed to comply with a trial commissioner’s directive to produce endorsed copies of the missing checks, we note that on February 14, 2011, the respondent did provide copies of the endorsed checks dated February 6, 2007, February 22, 2007, February 27, 2007, March 6, 2007, May 6, 2008, May 13, 2008, May 20, 2008, May 27, 2008 and June 3, 2008.10 Claimant’s Exhibit K. While we recognize that this submission did not fully satisfy the claimant’s demands, we do not share the claimant’s view that the respondent’s limited compliance in this regard was egregious. This is particularly so in light of the fact that the weekly payment history for this long-running claim goes back to at least January 20, 2005. Thus, while we would caution the respondent that full compliance with a directive from a workers’ compensation commissioner is not optional, we do not find that the trier’s refusal to sanction the respondent on this issue constituted an abuse of his discretion.
We turn next to the claimant’s allegations of error regarding the trial commissioner’s failure to find that the hands-free telephone device, IPad or aquatic therapy were reasonable or necessary medical treatment such that the claimant was owed reimbursements for the associated out-of-pocket expenses.11 This board has previously remarked that “[w]hether or not medical care satisfies the ‘reasonable or necessary’ standard of § 31-294d is a factual issue to be decided by the trial commissioner.”12 Zalutko v. Danbury Hospital, 4229 CRB-7-00-4 (May 23, 2001), citing Cummings v. Twin Tool Mfg., 13 Conn. Workers’ Comp. Rev. Op. 225, 228, 2008 CRB-1-94-4 (April 12, 1995), appeal dismissed, A.C. 14747 (June 29, 1995). Moreover, “[t]he trier must decide the issue on the basis of the medical reports in the record, and if the medical evidence does not persuade the trier that a proposed treatment option is reasonable pursuant to § 31-294d C.G.S., this board is not empowered to reassess that evidence and draw a different inference.” Briggs v. Waterbury, 5665 CRB-5-11-7 (July 6, 2012).
In Bowen v. Stanadyne, Inc., 2 Conn. Workers’ Comp. Rev. Op. 60, 232 CRD-1-83 (June 19, 1984), we articulated the proper method of analysis as follows:
Reasonable or necessary medical care is that which is curative or remedial. Curative or remedial care is that which seeks to repair the damage to health caused by the job even if not enough health is restored to enable the employee to return to work. Any therapy designed to keep the employee at work or to return him to work is curative. Similarly, any therapy designed to eliminate pain so that the employee can work is curative. Finally, any therapy which is life prolonging is curative.
Id., at 64.
Turning to the matter at bar, we note at the outset that on November 23, 2011, the claimant filed a second Motion to Submit Additional Evidence on the issue of the medical treatment denied by the trial commissioner. As discussed previously herein, this board’s discretion to admit or deny additional evidence is governed by the provisions of § 31-301-9 C.G.S. which mandate that a motion for additional evidence explain the reasons why the evidence is material and why it could not have been presented before the close of the record. The claimant seeks to admit a report authored by David S. Kloth, M.D. dated June 7, 2011 (identified as Claimant’s Exhibit O) and two reports from Jerrold Kaplan, M.D., dated January 6, 2011 and November 8, 2011 (identified as Claimant’s Exhibit P) pertaining to a respondent’s medical examination performed by Dr. Kaplan on January 6, 2011. Relative to the issue of materiality, the claimant asserts that all three reports are relevant because they discuss the reasonableness and medical necessity of previously recommended medical treatment.
Regarding the issue of timeliness, we again note that the formal hearing which is the subject of this appeal was held on March 31, 2011 and the record closed on June 30, 2011.13 We can therefore conceive of no reason why the report from a respondent’s medical examination conducted in January 2011 could not have been submitted prior to the close of the record. As such, the claimant’s motion to submit the January 11, 2011 report of Dr. Kaplan is denied. With regard to Dr. Kloth’s report dated June 7, 2011, it is unassailable that the report was prepared prior to the close of the record. We would therefore question why, given that this correspondence purports to review the results of Dr. Kaplan’s respondent’s medical examination of January 11, 2011, this report could not have been submitted in a timely fashion. Therefore, the motion to submit the June 7, 2011 report of Dr. Kloth is also denied. Finally, we note that Dr. Kaplan’s report of November 8, 2011 was generated based on a second respondent’s medical examination. Given that this examination occurred more than seven months after the formal hearing of March 31, 2011 and more than four months after the closure of the record on June 30, 2011, it may be reasonably inferred that the findings contained therein are beyond the scope of the proceedings which are the subject of the instant appeal. Accordingly, the motion to admit the November 8, 2011 report of Dr. Kaplan is denied.
Turning to the merits of the claim of error relative to whether the hands-free telephone constituted reasonable or necessary medical treatment, we note that although the claimant testified as to her need for a hands-free telephone, the trial commissioner did not find her testimony credible in this regard. March 31, 2011 Transcript, pp. 16-17, 39-40. As previously discussed herein, this board is not empowered to second guess a trier’s determinations regarding the credibility of a witness. Burton, supra. In support of her claim, the claimant also relied upon a prescription script supplied by Dr. Levin on October 27, 2010. Claimant’s Exhibit B. However, this script is devoid of any discussion as to how the respondent’s furnishing of a hands-free telephone device accords with the standard for curative care enunciated in Bowen, supra, and no report in support of this proposition appears to have been entered into the record. Finally, the claimant relies upon testimony advanced by Duffield Ashmead, M.D., at a deposition held on April 1, 2009 wherein he commented that a headset would not be “unreasonable” and that he would “absolutely” recommend the headset as a way of making the claimant more “marketable.” February 9, 2010 Transcript, Respondent’s Exhibit 3, p. 44.14 However, we also note that at this same deposition, Dr. Ashmead observed that, “I felt that beyond ongoing pharmacologic support ... I didn’t really see any promising avenues of further intervention.” Id., at 10. In addition, Dr. Ashmead testified:
I would say thankfully it is relatively uncommon that a patient would realize so little benefit from carpal and coupeal [sic] tunnel surgeries given that the diagnoses were fairly secure based on symptoms and physical exam and neurodiagnostic testing. It’s relative[ly] uncommon that a patient has surgery to address those conditions that the nerve conduction testing normalizes and the patient remains as miserable as Mrs. Gendron. Thankfully, that is relatively uncommon.15
Id., at 40.
Having reviewed the testimony of Dr. Ashmead, we find it may be reasonably inferred the trier simply was not persuaded that the hands-free telephone device constituted reasonable or necessary medical treatment in accordance with the standard for curative care articulated in Bowen, supra. Similarly, with respect to the claimant’s request for an IPad, we note that while the claimant testified as to her belief that an IPad would assist her with completing her job searches, the trial commissioner was not persuaded by this testimony, and the record is devoid of a medical opinion in support of the proposition that an IPad constituted reasonable or necessary medical treatment in accordance with the standard for curative care articulated in Bowen, supra.
In light of the foregoing, we can find no justification for reversing the trier’s conclusion that neither the IPad nor the hands-free telephone device constituted reasonable or necessary medical treatment. As this board pointed out in Briggs, supra, “a distinction must be drawn between treatment which is medically ‘reasonable’ and treatment which is in accordance with the provisions of § 31-294d C.G.S. and satisfies at least one of the prongs of the legal standard set forth in Bowen, supra.” It may be reasonably inferred that the trier simply did not find that the claimant’s evidence relative to her need for these devices provided an adequate basis for concluding that the use of these devices would either allow the claimant to maintain or return to employment or “eliminate pain so that the employee can work.” Id. As such, the trier’s conclusions must stand, as this board is simply not empowered to second-guess factual determinations of this nature. “If the trier is not persuaded by the claimant’s evidence, there is nothing that this board can do to override that decision on appeal.” Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000), appeal dismissed, A.C. 21533 (2001).
Finally, as mentioned previously herein, the claimant cites as error the trial commissioner’s denial of her Motion to Correct in its entirety. Insofar as several of the proposed corrections pertain to issues which are the subject of a remand, the trier’s denial of same may have constituted error. However, our review of the balance of the proposed corrections suggests that the claimant was merely reiterating the arguments made at trial which ultimately proved unavailing. As such, we find no error in the trier’s decision to deny those proposed corrections. D’Amico v. Dept. of Correction, 73 Conn. App. 718, 728 (2002), cert. denied, 262 Conn. 933 (2003). “The [claimant] cannot expect the commissioner to substitute the [claimant’s] conclusions for his own.” Id.
Having found error, the September 19, 2011 Finding and Dismissal of the Commissioner acting for the Fourth District is hereby affirmed in part and remanded in part for additional proceedings consistent with this opinion.
Commissioners Jodi Murray Gregg and Daniel E. Dilzer concur in this opinion.
1 We note that four motions for extension of time were granted during the pendency of these proceedings. BACK TO TEXT
2 Claimant’s counsel took the stand at the formal hearing of March 31, 2011 and offered testimony by way of a direct examination conducted by Daniel D. Skuret III, Esq., and a cross-examination by respondent’s counsel. BACK TO TEXT
3 The claimant’s mileage reimbursement claim is predicated on the provisions of § 31-312(a) C.G.S. (Rev. to 2003) which states, in pertinent part: “An employee receiving medical attention under the provisions of this chapter and required to be absent from work for medical treatment, examination, laboratory tests, x-rays or other diagnostic procedures, and not otherwise receiving or eligible to receive weekly compensation, shall be compensated for the time lost from the job for required medical treatment and tests.... The employer shall furnish or pay for the transportation of the employee by ambulance or taxi where transportation is medically required from the point of departure for treatment and return. In all other cases, the employer shall furnish the employee transportation or reimbursement for the cost of transportation actually used, at a rate equal to the federal mileage reimbursement rate for use of a privately owned automobile set forth in 41 CFR Part 301-10.303, as from time to time amended, for a private motor vehicle or the cost incurred for public transportation, from the employee’s point of departure, whether from the employee’s home or place of employment, and return, if the employee is required to travel beyond a one-fare limit on an available common carrier from the point of departure to the place of treatment, examination or laboratory test....” BACK TO TEXT
4 Although the trial commissioner may have overlooked the existence of evidence supporting the claimant’s contention that the respondent unduly delayed the payment of mileage reimbursement, we find the trier’s error factually, if not legally, forgivable. The claimant’s organization of the documents proffered in support of her claim was inadequate. When a party puts forward evidence for the trier’s consideration and that party carries the burden of proof, it behooves the party to organize its exhibits in a manner which closely correlates the evidence with the party’s claim. Our review of the instant record indicates that the documents proffered for the purpose of demonstrating undue delay in the payment of mileage reimbursement were included as part of Claimant’s Exhibit I. However, Claimant’s Exhibit I consisted of approximately 32 separate pieces of correspondence, plus attachments, pertaining to a variety of issues. Some of the correspondence related to the reimbursement of mileage, some to unpaid temporary partial benefits, some to the expenditure of counsel’s time on behalf of the claimant, and some to the claimant’s job search efforts. Given that these documents were proffered in one large undifferentiated exhibit with no correlation to the issues for which they were claimed to provide probative value, it was not unforeseeable that the trial commissioner might overlook some of the claimant’s points of proof. BACK TO TEXT
5 The claimant’s temporary partial disability claim is predicated on the provisions of § 31-308(a) C.G.S. (Rev. to 2003) which states, in pertinent part: “If any injury for which compensation is provided under the provisions of this chapter results in partial incapacity, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury ... and the amount he is able to earn after the injury ..., except that when (1) the physician attending an injured employee certifies that the employee is unable to perform his usual work but is able to perform other work, (2) the employee is ready and willing to perform other work in the same locality and (3) no other work is available, the employee shall be paid his full weekly compensation subject to the provisions of this section.... BACK TO TEXT
6 Section 31-301-9 C.G.S. (Rev. to 2003) states: “If any party to an appeal shall allege that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, he shall by written motion request an opportunity to present such evidence or testimony to the compensation review division, indicating in such motion the nature of such evidence or testimony, the basis of the claim of materiality, and the reasons why it was not presented in the proceedings before the commissioner. The compensation review division may act on such motion with or without a hearing, and if justice so requires may order a certified copy of the evidence for the use of the employer, the employee or both, and such certified copy shall be made a part of the record on such appeal.” BACK TO TEXT
7 At the formal hearing held on March 31, 2011, claimant’s counsel testified that he had submitted into evidence only “the job searches that had attachments in regard to the mileage issue which was for today.” Transcript, p. 54. BACK TO TEXT
8 Although not specifically articulated by the claimant, it may reasonably be inferred that the provision of § 31-300 C.G.S. (Rev. to 2003) being invoked is as follows: “In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in the award interest at the rate prescribed in section 37-3a and a reasonable attorney’s fee in the case of undue delay in adjustments of compensation and may include in the award in the case of undue delay in payments of compensation, interest at twelve per cent per annum and a reasonable attorney’s fee.” BACK TO TEXT
9 Section 31-288(b) (1) C.G.S. (Rev. to 2003) states: “Whenever (1) through the fault or neglect of an employer or insurer, the adjustment or payment of compensation due under this chapter is unduly delayed ... the delaying party or parties may be assessed a civil penalty of not more than five hundred dollars by the commissioner hearing the claim for each such case of delay....” P.A. 07-80 amended this provision by increasing the penalty to $1,000.00 for the undue delay of payment or adjustment of compensation by an employer or insurer. BACK TO TEXT
10 Although the respondent provided copies of endorsed checks dated February 6, 2007 and February 22, 2007, no endorsed check copies were provided for the time period between these two dates. In addition, it is not readily apparent which periods of indemnity are covered by any of the checks provided. BACK TO TEXT
11 The record indicates that the aquatic therapy was apparently approved by the respondent. See Claimant’s Exhibit K. As such, while the current status of the $120.00 reimbursement remains unclear, we see no need to reach the issue of whether the trier erred in determining that the aquatic therapy did not constitute reasonable or necessary medical treatment. Moreover, in light of the fact that the respondent authorized the aquatic therapy, it would be our expectation that the reimbursement has since been made. BACK TO TEXT
12 Section 31-294d (a) (1) C.G.S. (Rev. to 2003) states: “The employer, as soon as the employer has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services and prescription drugs, as the physician or surgeon deems reasonable or necessary. The employer, any insurer acting on behalf of the employer, or any other entity acting on behalf of the employer or insurer shall be responsible for paying the cost of such prescription drugs directly to the provider.” BACK TO TEXT
13 Although the claimant states in her Motion to Submit Additional Evidence dated November 23, 2011 that the record in this matter closed on March 31, 2011, our review of the Finding and Dismissal of September 19, 2011 indicates that the record actually closed on June 30, 2011. BACK TO TEXT
14 It should be noted that the trial commissioner took administrative notice of all of the transcripts and exhibits associated with prior formal hearings. Conclusion, ¶ a. BACK TO TEXT
15 We note that in his report based on the results of a respondent’s medical examination conducted on February 2, 2009, Dr. Ashmead stated, “I do not see any promising avenue of further treatment in this case. There is certainly no indication for further surgical intervention. I would also question the role for ongoing pain management, for while this has apparently been of some palliative value over the past ten months it does not appear that there has been any substantive change in the patient’s functional status. If infrared treatments have provided significant symptom relief consideration might be given to a home infrared (or comparable thermal) device but beyond this and ongoing pharmacologic support I would leave well enough alone.” February 9, 2010 Transcript, Respondent’s Exhibit 2, p. 3. BACK TO TEXT