Opinion
CASE NO. 1971 CRB-2-94-2
AUGUST 16, 1996
The claimant was represented by Kathleen M. Coleman Tytla, Esq., Coleman Horgan, Shaw's Cove Five.
The respondents were represented by S. Dave Vatti, Esq., Zeldes, Needle Cooper, P.C.
This Petition for Review from the February 3, 1994 Findings of Facts and Award of the Commissioner acting for the Second District was heard January 12, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.
OPINION
The claimant has petitioned for review from the February 3, 1994 Findings of Facts and Award of the Commissioner acting for the Second District. He argues on appeal that the trial commissioner erred in not awarding him further compensation in light of the respondents' failure to follow proper Form 36 procedure in discontinuing payment of benefits, that he erred in finding Dr. Zondag, a Wisconsin practitioner, to be a treating physician; and that he erred by denying the claimant's Motion to Correct. We affirm the trial commissioner's decision.
This board issued an opinion on December 28, 1994 allowing the claimant to reargue before the trial commissioner his Motion to Quash the deposition of Dr. Zondag, as the commissioner's previous ruling on that issue had been made off the record, thus providing the CRB with an incomplete record for review.
The claimant, a truck driver, suffered an injury to his shoulder and neck on April 28, 1992 during his employment. The next day, he visited a walk-in medical center in Norwich, where he was treated and told to stay out of work for a few days. After returning to work, the claimant continued to experience pain, and was again removed from work by a physician at the walk-in clinic. Pam Peters, a representative of the employer, then contacted the claimant and told him there was light duty work available for him in Wisconsin, where she had set up physical therapy for him as well. The claimant's treating physician at the walk-in center had changed his work status to light duty after talking to Ms. Peters. The claimant then drove to Wisconsin, continuing to experience pain after he arrived there. He was treated in Wisconsin by Dr. Zondag, the employer's doctor, on two separate occasions.
After Dr. Zondag told the claimant he could return to full duties, the respondents ceased payment of all benefits on June 12, 1992, without notice to the claimant. See § 31-296 C.G.S. The claimant then returned to Connecticut, where he eventually returned to the walk-in clinic on July 1, 1992, when he was again taken out of work. He was referred to an orthopedist, Dr. Masterson, who diagnosed cervical discogenic syndrome related to the April 28, 1992 accident, and instructed the claimant to stay out of work. After reviewing Dr. Masterson's records, Dr. Zondag indicated that in his opinion, the claimant had underlying degenerative disc disease of the neck unrelated to the April 28, 1992 injury, which was not aggravated by the work incident.
The claimant filed a Form 30C on July 9, 1992, but the respondents waited until March 29, 1993 to give notice of their intention to contest liability to pay compensation. Thus, the commissioner granted the claimant's Motion to Preclude the respondents from contesting the compensability of the injury. See § 31-294c C.G.S. He also noted that the issue of the extent and duration of the claimant's disability was still open. Ruling that both Dr. Zondag and Dr. Masterson were authorized treating physicians, the commissioner found that the claimant's cervical disc bulges were a pre-existing condition unrelated to the April 28, 1992 injury, and that the neck condition was not aggravated by the injury. He found that the claimant was not totally disabled, and that he had already been paid for any lost time incurred as a result of his compensable injury. The claimant has appealed that decision.
Two of the claimant's three arguments can be resolved rather briefly. The fact that the claimant did not feel he had much of a choice in selecting Dr. Zondag as a physician, and the fact that Dr. Zondag is not a licensed Connecticut practitioner, do not prohibit his qualifying as an authorized treating physician in this case. As the claimant notes in his brief, the authorization of a particular treating physician is largely within the trial commissioner's discretion. Byars v. Whyco Chromium Co., 11 Conn. Workers' Comp. Rev. Op. 39, 40, 1257 CRB-5-91-7 (March 10, 1993). In the past, this board has allowed a commissioner to approve out-of-state treatment for workers, even where the claimant resided in Connecticut and sought treatment in Worcester, Massachusetts as a matter of convenience. Veillette v. State, 3 Conn. Workers' Comp. Rev. Op. 135, 288 CRD-2-83 (Jan. 21, 1987); see also Struckman v. Burns, 205 Conn. 542, 545-46 (1987) (section 52-174 does not prevent state courts from admitting reports of nonresident medical practitioners). As Dr. Zondag provided medical care to the claimant while he was in Wisconsin, it was not improper for the commissioner to conclude he was an authorized treating physician under § 31-294 C.G.S.
As for the claimant's Motion to Correct, we need only note that it is the trial commissioner's role to choose between the conflicting medical opinions of two physicians, and not the role of the CRB. We cannot say as a matter of law that Dr. Masterson's medical opinion was more or less credible than Dr. Zondag's. That is the sole province of the trial commissioner. Webb v. Pfizer, Inc., 14 Conn. Workers' Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); Wrighten v. Burns International Security, 13 Conn. Workers' Comp. Rev. Op. 173, 174-75, 1659 CRB-2-93-2 (March 10, 1995). As Dr. Zondag's medical opinion directly supports the trial commissioner's findings regarding the causal relationship between the compensable injury and the cervical condition, we have no choice but to affirm those findings. Fair v. People's Savings Bank, 207 Conn. 535, 539 (1988).
We now turn to the issue of the Form 36. The commissioner found that the respondents discontinued paying the claimant benefits on June 12, 1992, after Dr. Zondag released the claimant to normal work duty. The respondents did not provide any notice to the claimant that they intended to discontinue his benefits. The claimant contends that this unilateral discontinuation of benefits violates § 31-296, and that he is entitled to payment of temporary total disability benefits from June 12, 1992 until the date of the April 27, 1993 formal hearing, along with interest and attorney's fees.
The respondents stipulated that they accepted the claim for a compensable neck strain and left shoulder strain, and the claimant acknowledged that he was paid for his lost time and lost wages until his vacation in June 1992. (Transcript of April 27, 1993, pp. 38-39.)
Section 31-296 provides, in relevant part:
Before discontinuing or reducing payment on account of total or partial incapacity under any [voluntary] agreement, 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. The employee may request a hearing on any such proposed discontinuance or reduction within ten days receipt of such notice. . . . The commissioner shall not approve any such discontinuance or reduction prior to the expiration of the period for requesting a hearing or the completion of such hearing, whichever is later."
This statute also applies where a claimant is receiving compensation for total or partial incapacity under an oral agreement, an award, or where the employer's acceptance of compensability has been conclusively presumed under § 31-294c(b) for failure to timely contest the claim, as was the case here. Platt v. UTC/Pratt Whitney Aircraft Div., 3 Conn. Workers' Comp. Rev. Op. 3, 7, 164 CRD-6-82 (Aug. 16, 1985). Thus, if an employee receiving disability benefits claims that his incapacity still continues, he is entitled to notice before such payments may be stopped. If the employee objects to such discontinuance of benefits, he may request an emergency informal hearing on the matter. Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers' Comp. Rev. Op. 32, 35, 1765 CRB-2-93-6 (May 4, 1995).
Keeping in mind that the respondents were precluded from contesting the compensability of the claimant's injury, but not its extent and duration, we see that the claimant was potentially entitled to partial incapacity benefits under § 31-308(a) C.G.S. while he was in Wisconsin performing light duty work for his employer. We note that § 31-308(a) states that, where the employer provides suitable light duty work for the injured employee, the earning capacity of the employee shall be assumed to be the wages offered in his light duty employment during the period of the employment. The claimant's term of light duty employment ended when he left Wisconsin (after Dr. Zondag told him he could go back to regular work) and drove back to Connecticut to begin his vacation. Thus, the period of his partial incapacity under § 31-308(a) ended at that point, and his potential entitlement to such benefits ceased.
At the time of the claimant's injury, § 31-308(a) entitled a partially incapacitated employee to eighty percent of the difference between the amount he was able to earn after his injury and the wages currently earned by an employee in a position comparable to the position held by the injured employee before his injury.
Under these facts, we do not believe that it was error for the commissioner to fail to penalize the respondents for failing to file a Form 36 before discontinuing payment of benefits. At the time payment was stopped, the claimant was no longer performing light duty work for the respondents, as he had returned to Connecticut to begin his vacation. Furthermore, he attempted to return to regular duty on the first two workdays after his vacation had ended, as he called his employer and asked if there was a load available for him to deliver (although none was at hand). Section § 31-296 requires the employer to notify the claimant in advance that benefits will be discontinued only in cases where the claimant alleges continuing incapacity. See Hurley v. Bridgeport, 14 Conn. Workers' Comp. Rev. Op. 366, 368, 2037 CRB-4-94-5 (Sept. 26, 1995). As the claimant ceased claiming that he was incapacitated for at least two weeks after leaving Wisconsin, the employer was not required to notify him of its intent to discontinue benefits under the Workers' Compensation Act.
The trial commissioner's decision is affirmed.
Commissioners George A. Waldron and Robin L. Wilson concur.