Testone v. C.R. Gibson Co., No. 28918.

• Decision Date: 05 May 2009
• Docket Number: No. 28918.
• Citation: 969 A.2d 179,114 Conn.App. 210
• Court: Connecticut Court of Appeals
• Parties: Ida TESTONE v. C.R. GIBSON COMPANY et al.

969 A.2d 179

114 Conn.App. 210

Ida TESTONE v. C.R. GIBSON COMPANY et al.

No. 28918.

Appellate Court of Connecticut.

Argued December 2, 2008.

Decided May 5, 2009.

Daniel D. Skuret III, Ansonia, for the appellant (plaintiff).

John P. Clarkson, Hartford, with whom, on the brief, was Matthias J. DeAngelo, for the appellees (defendants).

BISHOP, DiPENTIMA and FOTI, Js.

DiPENTIMA, J.

In this workers' compensation case, the plaintiff, Ida Testone, appeals from the workers' compensation review board's (board) decision affirming the findings and conclusion of the workers' compensation commissioner for the fifth district (commissioner), in which the commissioner denied the plaintiff's claims for temporary partial disability benefits and attorney's fees. The principal issue in this appeal is the commissioner's admission and use of three independent medical examination reports. Specifically, the plaintiff claims that the board should have determined that the commissioner improperly admitted the three reports and improperly relied on those reports in denying the plaintiff temporary partial disability benefits. The plaintiff also claims that the board improperly affirmed the commissioner's ruling denying the plaintiff's motion to correct and the determination that the plaintiff had not suffered a compensable recurrence or relapse under General Statutes § 31-307b. We affirm the decision of the board.

The plaintiff suffered a compensable injury to her right hand on June 12, 2000.¹ As of early 2002, the defendant C.R. Gibson Company² was paying benefits to the plaintiff for this injury. On January 17, 2002, the plaintiff's treating physician, Robert W. Nolan, issued a report stating that the plaintiff had reached maximum medical improvement and could be discharged from therapy. The report also stated that the plaintiff would have a permanent restriction on work activities of no repetitive use of her right hand. On the basis of Nolan's report, the defendant filed a form 36³ seeking to reduce the plaintiff's benefits from temporary total disability to temporary partial disability and to require the plaintiff to perform job searches. The plaintiff objected to the form 36, and, following a formal hearing, the commissioner approved the form 36, effective March 25 2002. The defendant paid the plaintiff for a 5 percent permanent partial disability to her wrist. On February 25, 2002, Balazs Somogyi, a physician, performed an independent medical examination of the plaintiff. Somogyi's report concluded that the plaintiff was at maximum medical improvement and that "[t]he present symptoms and functional limitations are out of proportion to the injury reported." On November 21, 2002, the plaintiff was seen by Nolan, who maintained his opinion that the plaintiff had reached maximum medical improvement and recommended that she continue job searches.

From May, 2002, to March, 2005, eight informal hearings and three preformal hearings were held regarding the plaintiff's claims. On June 18, 2003, the plaintiff was seen by Marvin S. Arons, a physician, for an evaluation of an injury to her shoulder, which had occurred in 1999. Arons opined that the plaintiff had not reached maximum medical improvement and recommended that she be seen by a shoulder specialist before treatment could begin for symptoms related to her wrist injury. One year later, on June 30, 2004, Arons reported that the plaintiff's medical conditions had not changed. The plaintiff began receiving temporary partial disability benefits on August 2, 2004. On October 25, 2004, Arons issued an additional report, in which he diagnosed the plaintiff with chronic upper extremity pain syndrome and recommended that she undergo a wrist arthrogram.⁴ The plaintiff subsequently had a wrist arthrogram performed and underwent surgery on March 31, 2005.

In 2005, the plaintiff sought a formal hearing to open the commissioner's decision on the form 36 and claimed entitlement to temporary partial disability benefits from March 14, 2002, through August 1, 2004. The plaintiff also sought attorney's fees, interest and penalties for the discontinuance of temporary partial benefits on March 14, 2002, and for undue delay and unreasonable contest of medical treatment and payment of the benefits. On April 26, 2005, a formal hearing was held before the commissioner. On January 5, 2006, the commissioner issued her findings and denied the plaintiff's requests. Specifically, the commissioner denied the plaintiff's claim for temporary partial disability benefits between March 25, 2002, and August 1, 2004, concluding that the substantial weight of the medical authority did not support awarding the plaintiff those benefits. The commissioner further concluded that there was no undue delay in the provision of medical treatment or unreasonable contest of the claim and that the plaintiff was not entitled to attorney's fees, interest or penalties.

The plaintiff filed a motion to correct, which the commissioner denied in an order dated February 27, 2006. The plaintiff filed an appeal with the board, which affirmed the commissioner's decision.⁵ This appeal followed.

Before turning to the merits of the plaintiff claims, we identify our standard of review in workers' compensation appeals. "The commissioner is the sole trier of fact and [t]he 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.... The review [board's] hearing of an appeal from the commissioner is not a de novo hearing of the facts.... [I]t is [obligated] to hear the appeal on the record and not retry the facts.... On appeal, the board must determine whether there is any evidence in the record to support the commissioner's finding and award." (Internal quotation marks omitted.) Anderson v. R & K Spero Co., 107 Conn.App. 608, 613, 946 A.2d 273 (2008); O'Reilly v. General Dynamics Corp., 52 Conn.App. 813, 816, 728 A.2d 527 (1999). Our review of the board's actions is similarly limited. "[However] [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.... Put another way, the board is precluded from substituting its judgment for that of the commissioner with respect to factual determinations." (Internal quotation marks omitted.) Anderson v. R & K Spero Co., supra, at 614, 946 A.2d 273; see Tracy v. Scherwitzky Gutter Co., 279 Conn. 265, 272, 901 A.2d 1176 (2006).

I

The plaintiff's principal challenge addresses the commissioner's admission and use of three independent medical examination reports in denying the plaintiff's claim of temporary partial disability benefits. We conclude that the commissioner improperly relied on the reports for a broader purpose than that for which they were admitted. We conclude, however, that such use was harmless error.

At the formal hearing, the defendant sought to introduce a report dated July 23, 2002, by Christopher Lena, a physician, who performed an independent medical examination of the plaintiff. The plaintiff objected to the admission of the report on the basis that she would not have an opportunity to cross-examine Lena. The defendant stated that it was not offering the report for its truth but as a defense to the issue of undue delay and unreasonable contest. The commissioner overruled the plaintiff's objection and admitted the report into evidence. The defendant then sought to introduce a report dated December 16, 2003, by Ira Spar, a physician, who also performed an independent medical examination of the plaintiff. The defendant offered the report "just to prove as to ... what Travelers [Property and Casualty, the defendant's workers' compensation insurer] did and what they were told in the course of this case." The commissioner overruled the plaintiff's objection and admitted the report into evidence. Finally, the defendant sought to introduce a March 9, 2004 report by Michael Kaplan, a physician, who also performed an independent medical examination of the plaintiff. The defendant stated that it was also offering the report as a defense to the plaintiff's claim of undue delay. The plaintiff objected on the grounds of lack of opportunity to cross-examine the author and relevance, as the examination was performed for the plaintiff's 1999 shoulder injury. The commissioner overruled the plaintiff's objection and admitted the report "only so far as it is relevant to the wrist and hand injury and to the issue of undue delay...."

In her findings, under a heading entitled "Temporary Total Disability Benefits,"⁶ the commissioner referred to the conclusions reached by each physician in the three independent medical reports. On appeal, the plaintiff argues that she was deprived of her procedural due process rights when the reports were admitted without providing her with an opportunity to cross-examine their authors. She further argues that this violation caused her to suffer prejudice, as the commissioner relied on the reports in denying the plaintiff's claim for temporary partial disability benefits as well as other unspecified claims.

Administrative hearings, such as those held before a workers' compensation commissioner, are informal and are not bound by the common-law or statutory rules of evidence and procedure. Bryan v. Sheraton-Hartford Hotel, 62 Conn.App. 733, 740, 774 A.2d 1009 (2001); see General Statutes § 31-298. Instead, "the commissioner ... shall make inquiry in a manner that is best calculated to ascertain the substantial rights of the parties." Parisi v. Yale University, 89 Conn.App. 716, 723, 874 A.2d 852 (2005). "Nonetheless, procedural due process is a requirement of adjudicative administrative hearings, including those held before work[ers'] compensation commissioners...." Balkus v. Terry Steam...