Tutsky v. YMCA of Greenwich

• Decision Date: 11 August 1992
• Docket Number: No. 9934,9934
• Citation: 28 Conn.App. 536,612 A.2d 1222
• Court: Connecticut Court of Appeals
• Parties: Ronald TUTSKY v. YMCA OF GREENWICH et al.

Page 1222

612 A.2d 1222

28 Conn.App. 536

Ronald TUTSKY v.YMCA OF GREENWICH et al.

No. 9934.

Appellate Court of Connecticut.

Argued May 7, 1992.

Decided Aug. 11, 1992.

Lawrence E. Larson, Greenwich, for appellant(plaintiff).

Thomas A. Mulligan, with whom, on the brief, was Thomas J. Hickey, Fairfield, for appellees(respondents).

Before DUPONT, C.J., and FOTI and LANDAU, JJ.

FOTI, Judge.

The plaintiff appeals from the January 17, 1991, decision of the workers' compensation review division, dismissing his appeal from the commissioner's July 31, 1989, denial of a "motion to reopen"¹ compensation proceedings.The plaintiff claims that the review division improperly (1) failed to find that an insurer that is not paying the claimant temporary total disability benefits is obligated to disclose to the commissioner information from the claimant's treating physician indicating that the claimant is unable to work, (2) failed to find that the commissioner should have granted the claimant's motion to open the compensation proceedings upon receipt of information from the claimant's treating physician that the claimant is unable to work, and (3) found that certain correspondence between the insurer and the treating physician was immaterial to the motion to open the proceedings.We affirm the decision of the compensation review division.

The following facts are pertinent to this appeal.The plaintiff injured his back on February 27, 1980, while working at the YMCA of Greenwich.The plaintiff, the YMCA, and its insurer, Royal Insurance Company(Royal), entered a voluntary agreement acknowledging compensability on April 29, 1981.The agreement was approved by the commissioner, and the plaintiff began receiving temporary total disability benefits.On March 17, 1980, shortly after the work related accident, the plaintiff suffered a back injury that was not work related when he slipped on some waxed stairs at the Greenwich YMCA, where he also lived.He later filed a common law action against the YMCA.

As part of Royal's ongoing investigation of the compensation claim, the plaintiff was examined on April 15, 1983, by Arthur Brovender, an orthopedic surgeon.During the examination, the plaintiff allegedly suffered additional back injury, for which he later brought a malpractice action against Brovender.

On May 14, 1984, Royal requested that the plaintiff submit to a second independent medical examination.The plaintiff agreed to undergo the exam, but advised Royal that, pursuant to General Statutes § 31-305, he wanted his treating physician, James D. Prokop, to be present.While arrangements were being made for the exam, Royal stopped paying benefits and filed a "Notice to Compensation Commissioner and Employee of Intention to Discontinue Payments"(form 36).The reason for termination stated on the form 36 was the plaintiff's refusal to undergo an independent medical examination.The commissioner issued a conditional form 36 approval and suspended benefits on July 9, 1984.The plaintiff has received no further temporary total disability benefits since July 3, 1984.The exam was eventually performed on August 1, 1984.

The plaintiff contested the form 36 on July 13, 1984.Thereafter, the commissioner held a series of seven hearings between December 1984 and August 1986, at which the plaintiff submitted medical information from both his treating physician and chiropractor.On December 26, 1986, the commissioner issued a finding and dismissal of the plaintiff's claim.The decision was based on the commissioner's findings that the plaintiff's March 1980 and April 1983 injuries were intervening causes of his disability, and that the plaintiff had failed to relate his current condition causally to the compensable event of February 27, 1980.

The plaintiff appealed the commissioner's dismissal, the compensation review division affirmed the commissioner, and this court affirmed the review division.Tutsky v. YMCA, 6 Conn.Workers' Comp.Rev.Op. 167(1989), aff'd, 21 Conn.App. 806, 572 A.2d 391, cert. denied, 214 Conn. 809, 573 A.2d 321(1990).Following the dismissal, the plaintiff made three motions to open his case, in order to introduce additional medical information.The first two motions were denied by the commissioner, and, after each denial, the plaintiff appealed to the review division, which affirmed the denials.In his third motion, the plaintiff sought to introduce some newly discovered correspondence consisting of four letters between Vincent Afasano of Royal and Prokop, the plaintiff's physician, which he claimed were material to his case.The letters were discovered by the plaintiff's attorney during a review of Prokop's records, preparatory to trial of the malpractice action against Brovender.This third motion was denied after the commissioner determined that the four letters were not material to the claim, in that they did not causally connect the claimant's condition to the February 1980 injury.On January 17, 1991, the compensation review division dismissed the plaintiff's appeal from the denial of this third motion.The plaintiff then filed the present appeal.

The plaintiff first claims that the review division improperly found that Royal did not have a duty to disclose to the commissioner the four letters between Royal and Prokop at the time this correspondence was exchanged.He bases this claim on General Statutes(Rev. to 1987)§ 31-290b, which was in effect at that time ² and which provided: "Any person who knowingly makes a false statement or representation or fails to disclose a material fact in order to obtain, increase, prevent or decrease any benefit or payment under this chapter shall be guilty of a class A misdemeanor."The thrust of the plaintiff's claim is that these letters contained "material facts" relevant to his compensation claim, and that because Royal failed to disclose them when they were written, the commissioner, exercising his equitable powers, should have permitted their introduction when they were later discovered.

As we will discuss more fully below, the commissioner reviewed the four letters between Royal and Prokop, and found that, although they refer to the plaintiff's injury, the letters shed no light on the critical issue affecting liability in this case: whether the plaintiff's current condition is causally related to his February 1980 work related accident.The commissioner concluded that none of the letters specifically addressed the issue.While this evidence may have been new, in that the plaintiff did not have these particular letters in hand at the time his case was originally before the commissioner, the letters contained no new information about the plaintiff's condition; they merely reiterated the medical data already submitted and would not have affected or materially changed the commissioner's decision.General Statutes § 31-290b addresses only the consequences of a failure to disclose "material" facts.Since the commissioner found that the information in these letters was not "material," Royal's failure to disclose them could have no bearing on the outcome of the plaintiff's case.

The plaintiff's second and third claims challenge the review division's affirmance of the commissioner's determination that the plaintiff was not entitled to an opening of his compensation claim because of the newly discovered correspondence between Royal and Prokop.The commissioner held that this evidence was cumulative and not likely to change the outcome of the case, and the review division affirmed this decision.We agree.

A workers' compensation award is, by nature, an interlocutory decree.Fair v. Hartford Rubber Works Co., 95 Conn. 350, 356, 111 A. 193(1920).As such, it is "always limited to a claimant's current condition and always subject to later modification upon the request of either party during the entire period of compensation if the complainant's condition changes."Besade v. Interstate Security Services, 212 Conn. 441, 444-45, 562 A.2d 1086(1989).General Statutes § 31-315, ³ which provides statutory authority for opening an award when the disability changes, also permits modification when "changed conditions of fact have arisen which necessitate a change of such agreement or award in order to properly carry out the spirit of [the workers' compensation laws]."(Emphasis added.)SeeAdzima v. UAC/Norden Division, 177 Conn. 107, 116, 411 A.2d 924(1979).

While a workers' compensation award may, under the appropriate circumstances, be opened, the decision to do so and to modify the award is within the sound discretion of the commissioner.Lucarelli v. Earle C. Dodds, Inc., 121 Conn. 640, 645, 186 A. 641(1936).The commissioner must "deny the motion [to open] unless further hearing would produce evidence of such character and force that it would be likely to cause a different result."Metall v. Aluminum Co. of America, 154 Conn. 48, 53, 221 A.2d 260(1966);accordMeadow v. Winchester Repeating Arms Co., 134 Conn. 269, 273-74, 57 A.2d 138(1948);Olivieri v. Bridgeport, 126 Conn. 265, 270, 10 A.2d 770(1940).In Meadow v. Winchester Repeating Arms Co., supra, the court stated that " '[a]party to a compensation case is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing....Where an issue has been fairly litigated, with proof offered by both parties, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result....' "(Citation omitted.)

The test by which the commissioner determines whether to open a claim is "whether the new evidence [is] sufficient to show that an injustice had been done by his award and that a different result would probably be reached on a new...