Brinson v. Finlay Brothers Printing Co.

• Decision Date: 10 June 2003
• Docket Number: No. 22506.,22506.
• Citation: 823 A.2d 1223,77 Conn.App. 319
• Court: Connecticut Court of Appeals
• Parties: Carl BRINSON v. FINLAY BROTHERS PRINTING COMPANY et al.

Page 1223

823 A.2d 1223

77 Conn.App. 319

Carl BRINSON v. FINLAY BROTHERS PRINTING COMPANY et al.

No. 22506.

Appellate Court of Connecticut.

Argued January 16, 2003.

Decided June 10, 2003.

COPYRIGHT MATERIAL OMITTED

LAVERY, C. J., and SCHALLER and WEST, Js.

Dominick C. Statile, Glastonbury, for the appellants (defendants).

Leonard B. Bren, for the appellee (plaintiff).

LAVERY, C.J.

The defendants, Finlay Brothers Printing Company (Finlay Printing) and Atlantic Mutual Insurance Company, appeal from the decision of the workers' compensation review board (board) affirming the October 11, 2000 finding and award of the workers' compensation commissioner for the first district, in which the commissioner reversed the approval of a properly filed form 36,¹ and found that the plaintiff's fibromyalgia arose out of and in the course of his employment and restricted his work capacity to four hours per day. On appeal, the defendants claim that the board improperly affirmed the commissioner's finding and award because the commissioner improperly (1) reversed the approval of a properly filed form 36, (2) considered evidence that was not in existence at the time the form 36 was approved and (3) reinstated temporary partial benefits retroactive to July 7, 1997, when there was no evidence in the record documenting any fibromyalgia related work restrictions until March 26, 1999.² We affirm the decision of the board.

The following facts and procedural history are relevant to our resolution of the defendants' appeal. The plaintiff was employed as an offset stripper in the printing business by Finlay Printing beginning in May, 1993. His job involved careful, tedious work and required him to bend over a light table repeatedly to check the registration of multiple layers of film. On September 24, 1996, the plaintiff reported work-related injuries to his neck and lower back. The plaintiff's injuries were not the result of a particular traumatic event, but were an accumulation of neck and back problems caused by his work. The defendants accepted the plaintiff's injuries as injuries that arose out of and during the course of the plaintiff's employment. After missing work because of his injuries, the plaintiff's treating physician, Thomas Barber, returned the plaintiff to work on a part-time basis beginning on February 10, 1997. At the request of Atlantic Mutual Insurance Company, Steven Selden, an orthopedic surgeon, performed an independent medical examination on April 1, 1997. Selden was of the opinion that the plaintiff could return to work full-time. On the basis of Selden's report, the defendants, on April 25, 1997, filed a form 36 seeking to discontinue the plaintiff's temporary partial benefits. After an informal hearing, Commissioner Michael S. Miles approved the defendants' form 36 on July 9, 1997, thereby discontinuing the plaintiff's temporary partial benefits.³

Meanwhile, on May 27, 1997, Barber reported that the plaintiff "continues to have significant pain," but nevertheless "suggested to [the plaintiff that] ... he needs to get back to work full-time as best as possible." Barber gave the plaintiff a work slip to return to work eight hours a day starting June 1, 1997. By the middle of June, 1997, Barber had returned the plaintiff to four hour work restrictions because of the pain the plaintiff was experiencing.⁴ Barber noted: "I am at a loss to do anything further with [the plaintiff] because he has had such severe pain, and we have done everything conservatively that we know how to do. I am going to send him over to the spine surgeons and see if they have other options for him." Barber referred the plaintiff to Charles Kime, an orthopedic surgeon.

The plaintiff continued to seek medical treatment for his pain, and was referred to and examined by various physicians, including Kime, W. Jay Krompinger, an orthopedic surgeon, and Ralph Stocker, a board certified internist and rheumatologist. On May 15, 2000, a formal hearing was held before Commissioner Jesse M. Frankl (trial commissioner). On October 11, 2000, the trial commissioner issued a finding and award. In the finding and award, the trial commissioner determined that the plaintiff suffered from fibromyalgia, which arose out of and during the course of his employment. The trial commissioner also found that the fibromyalgia restricted the plaintiff's work capacity to four hours per day. The trial commissioner reversed the approval of the form 36 having found that the form 36 should not have been approved by Commissioner Miles and that the plaintiff should have been on temporary partial benefits from the time of the approval of the form 36. The trial commissioner ordered the defendants to reinstate the plaintiff's temporary partial benefits retroactive to July 9, 1997, the date of the approval of the form 36. The defendants appealed, and the board affirmed the decision of the trial commissioner. This appeal followed. Additional facts will be set forth as necessary.

We first set forth our standard of review in workers' compensation cases. "As a preliminary matter, we note that when a decision of a commissioner is appealed to the review [board], the review [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts.... It is the power and the duty of the commissioner, as the trier of fact, to determine the facts.... [T]he commissioner is the sole arbiter of the weight of the evidence and the credibility of witnesses ...." (Citations omitted; internal quotation marks omitted.) D'Amico v. Dept. of Correction, 73 Conn.App. 718, 723, 812 A.2d 17 (2002), cert. denied, 262 Conn. 933, 815 A.2d 132 (2003). "The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them." (Internal quotation marks omitted.) Kudlacz v. Lindberg Heat Treating Co., 70 Conn.App. 559, 562, 800 A.2d 560, cert. denied, 261 Conn. 927, 806 A.2d 1059 (2002).

"We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed." (Internal quotation marks omitted.) Id., 563, 800 A.2d 560. Similarly, "[t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed." (Internal quotation marks omitted.) Daubert v. Naugatuck, 71 Conn.App. 600, 607, 803 A.2d 343, cert. granted on other grounds, 261 Conn. 942, 808 A.2d 1135 (2002).

I

The defendants first claim that the board improperly affirmed the trial commissioner's finding and award because he improperly reversed the approval of a properly filed and approved form 36. Specifically, the defendants argue that because Commissioner Miles acted within his discretion when he approved the form 36 on July 9, 1997, after the informal hearing, the trial commissioner could not reverse the approval of the form 36 after the formal hearing. That argument is without merit.

The parties do not dispute that General Statutes § 312-96 governs the method by which an employer may seek to discontinue benefits to an employee. See also General Statutes §§ 31-296a, 31-300. Section 31-296 provides in relevant part that "[b]efore discontinuing or reducing payment on account of total or partial incapacity ... the employer, if it is claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee, by certified mail, of the proposed discontinuance or reduction of such payments, with the date of such proposed discontinuance or reduction and the reason therefor, and, such discontinuance or reduction shall not become effective unless specifically approved in writing by the commissioner.⁵ The employee may request a hearing on any such proposed discontinuance or reduction within ten days of receipt of such notice...." (Emphasis added.)

The board has "interpreted the term `hearing' as used in § 31-296 ... to mean a single emergency informal hearing that should be held as soon as possible after the claimant has objected to the Form 36." Anguish v. TLM, Inc., 14 Conn. Workers' Comp. Rev. Op. 195, 197 (1995). The board also has made it clear, however, that the claimant is "entitled to challenge the Form 36 in a subsequent formal hearing."⁶ Id.

The defendants here do not appear to dispute the form 36 procedure, as established by the board, or the plaintiff's right to request a formal hearing. Instead, the defendants' argument appears to be that once a commissioner approves a form 36 at an informal hearing, that commissioner's decision is subject to an abuse of discretion standard, and the trial commissioner at a formal hearing may not reverse the earlier approval of the form 36, as long as there was evidence to support the earlier decision.⁷

The defendants' argument is wholly contrary to the position of the board, which is that "[t]he initial granting of a Form 36 at an emergency informal hearing pursuant to Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers' Comp. Rev. Op. [1995], is not an appealable decision, as it does not create a record that can be reviewed.... Instead, the initial ruling on a Form 36 may be challenged at a subsequent formal hearing, at which the previous ruling has no precedential weight. The issue is tried de novo." (Citation omitted; emphasis added.) DeMartino v. L.G. DeFelice, Inc., No. 3524, CRB-04-97-01 (February 18, 1998), p. 4 n. 2; see also Covaleski v. Casual Corner, No. 4419, CRB-01-01-07 (June 27, 2002).

As stated previously, the defendants do not dispute the form 36 procedure or the plaintiff's right to request a formal hearing. Moreover, at oral argument, the defendants conceded that the formal...