5342 CRB-4-08-5 (2009). Gilbert v. City of Ansonia.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5342 CRB-4-08-5 (2009). Gilbert v. City of Ansonia CASE NO. 5342 CRB-4-08-5COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSION MAY 14, 2009KEVIN GILBERT CLAIMANT-APPELLEE v. CITY OF ANSONIA EMPLOYER and CIRMA INSURER RESPONDENTS-APPELLANTS APPEARANCES: The claimant was represented by Michael E. Passero, Esq., Law Firm of John M. Creane, 92 Cherry Street, P.O. Box 170, Milford, CT 06460. The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, 268 Post Road, P.O. Box 550, Fairfield, CT 06824-0550. Also in attendance on behalf of the City of Ansonia as Corporation Counsel was Kevin Blake, Esq., Shepro & Blake, 2051 Main Street, Stratford, CT 06615. This Petition for Review from the May 2, 2008 Finding and Order of the Commissioner acting for the Fourth District was heard on November 21, 2008 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners and Ernie R. Walker and Amado J. Vargas. OPINIONJOHN A. MASTROPIETRO, CHAIRMAN.The claimant has petitioned for review from the May 2, 2008 Finding and Order of the Commissioner acting for the Fourth District. We find no error, and affirm the decision of the trial commissioner.The following factual background is pertinent to our review of this appeal. The claimant, a volunteer firefighter for the City of Ansonia, sustained multiple injuries on June 16, 1995 after falling from a ladder while fighting a fire. A Voluntary Agreement approved on September 8, 1997 described the claimant's injuries as follows: "T12-L1 fracture, paraplegia, Rt. tibial fx, hairline fx of pelvis, Rt. ulnar fx, right radial fx, left elbow fx, collapsed Rt. lung." Claimant's Exhibit C (March 9, 2004). In an Order Pursuant to C.G.S. 31-278 issued on June 22, 2004, the trial commissioner presiding over the matter at that time determined the respondents had accepted compensability for a T12-L1 fracture, paraplegia, a right tibia fracture, a pelvis fracture, a right ulnar fracture, a right radial fracture, a left elbow fracture and a collapsed right lung.(fn1) The trial commissioner also found that the claimant had been receiving total incapacity benefits pursuant to § 31-307(c) C.G.S. because of his paraplegia.(fn2) In addition, the trial commissioner determined that the claimant, who was actively employed as an owner/operator of a trucking company at the time of the decision, was permitted to continue working inasmuch as the class of total disability benefits to which he was entitled accorded him the status of a "permanent and total disabled person pursuant to C.G.S. 31-307(c)." Findings, ¶ E. Finally, the trial commissioner authorized the deposition of Matthew Raymond, M.D., in order to "obtain an update on the status of the spinal cord injury." Findings, ¶ H. Dr. Raymond, the claimant's treating physician, had previously diagnosed the claimant with an ASIA-A spinal cord injury, which is defined by the American Spinal Injury Association as, "a complete injury with no motor or sensory function preserved in the sacral segments, S4S5." Respondents' Exhibit 1, p. 5 (March 9, 2004). Following the deposition of Dr. Raymond, the respondents then sought to have the claimant undergo a respondents' medical examination, to which the claimant objected.(fn3) This dispute proceeded to a formal hearing, and the Finding and Order of May 2, 2008 is the subject of the instant appeal. In this Finding and Order, the trial commissioner adopted and incorporated the voluntary agreement of September 8, 1997 and the Finding and Order of June 22, 2004, and concluded "[t]he law of this case establishes that the claimant has been receiving total incapacity payments to date pursuant to C.G.S. Section 31-307(c)." Findings, ¶ C. The trial commissioner further determined, "[g]iven the history of this case, the voluntary agreement, the prior Finding and Order dated June 22, 2004, and pursuant to C.G.S. 31-294f, I hereby find the respondents' request for an examination of the claimant unreasonable and therefore deny their request."(fn4) Findings, ¶ B. The trial commissioner "[found] the respondents' attempt to relitigate this matter several years after the date of injury to be unreasonable and against the humanitarian purpose of the Workers' Compensation Act." Findings, ¶ E. The respondents have appealed this decision, asserting they have a "statutory right" to such an examination, Appellant's Brief, p. 6, and "[t]here has never been an independent medical examination in this case although such a request has been outstanding since 2002 and multiple attempts have been made to schedule such an examination." Id. The respondents concede that Dr. Raymond, in his report of December 13, 2002, states that the claimant had sustained a T-11 ASIA A spinal cord injury. However, the respondents point out that Dr. Raymond also indicated in the same report that the claimant "does have a small zone of partial preservation, greater on the left than on the right." Id., at 7. See also Respondents' Exhibit 1, p. 5 (March 9, 2004). The respondents contend that Finding, ¶ H, in the decision of June 22, 2004, wherein the trial commissioner authorized the respondents to take the deposition of Dr. Raymond, "infers that the Commission believed that the Respondents had the right to obtain an update regarding the status of the claimant's leg paralysis and whether it comports to §31-307(c)." Id. The respondents also assert the trial commissioner's determination that the law of the case established the claimant was receiving benefits pursuant to § 31-307(c) C.G.S. was erroneous. "There was no order or written agreement between the parties after the date of injury indicating that the Claimant's total disability benefits were pursuant to §31-307(c). The Voluntary Agreement only puts forth that the Claimant was receiving temporary total disability benefits pursuant to §31-307." Id., at 8. The respondents further dispute the inference drawn by the instant trial commissioner relative to Finding, ¶ C of the June 22, 2004 Order wherein that trial commissioner found "the claimant has been receiving total incapacity benefits from the date of injury pursuant to C.G.S. 31-307(c) due to his paraplegia." The respondents argue that because "[t]he only issue at that time before the Commissioner was the discovery issue regarding whether the Respondents would be allowed to schedule the treating physician's deposition," Appellants' Brief, p. 8,

any 'findings' set forth in the June 22, 2004 Order regarding the characterization of the temporary total disability benefits being paid must not influence the decision in this case as to whether an Independent Medical Examination is reasonable on the issue of the Claimant's current leg paralysis and should not bar the Respondents from investigating whether the Claimant has lost complete use of his legs or whether he has had a change in his condition.

Id., at 9. The respondents contend that the trial commissioner's decision to deny the respondents' medical examination represents a violation of due process. However, the respondents also assert that even if "the Claimant has been adjudicated to be permanently and totally disabled pursuant to §31-307(c), there exists...