Opinion
CASE NO. 742 CRD-3-88-6
AUGUST 11, 1989
The claimant appeared pro se.
The respondents was represented by Edward D. O'Brien, Jr., Esq. and Christopher P. Hankins, Esq., O'Brien Hankins.
This Petition for Review from the June 22, 1988 Finding and Award of the Commissioner for the Third District acting for the Second was heard March 31, 1989 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and Darius Spain.
OPINION
Claimant and respondents have all filed appeals in this matter. It involves a back injury recognized as compensable in a July 13, 1979 voluntary agreement approved by the second district. That agreement established a ten per cent permanent partial disability of the back with maximum improvement February 20, 1979. On June 5, 1980 another agreement was approved awarding an additional two and one half per cent permanency for a total of twelve and one half per cent specific of the back.
As claimant had moved his residence the matter was thereafter transferred to the third district. Proceedings in the new district resulted in a Finding and Award June 22, 1988. In that decision the third district commissioner awarded an additional twelve and one half per cent permanency of the back so that the total specific awarded under Sec. 31-308 was twenty-five per cent. The new maximum medical improvement date was set at June 17, 1985. The date when Dr. Robert N. Margolis, a New Haven orthopedic surgeon, saw claimant and evaluated his permanent partial back loss to be twenty-five per cent.
Claimants appeal seeks award of interest to run from May 13, 1980 to the present. Respondents' appeal argues that the facts do not justify the award of any further permanency subsequent to the June 5, 1980 voluntary agreement.
We consider first the Respondents' contention. There was new evidence submitted in the third district proceedings, i.e. Dr. Margolis' June 17, 1985 findings. That was a sufficient basis for the commissioner's ruling. Respondents argue that claimant failed to undergo reexamination by Dr. Mario Sculco, a Norwich neurosurgeon, after Dr. Margolis' evaluation. Dr. Sculco had examined claimant while he lived in the second district and had evaluated his permanency at that time. Respondents contend that under Sec. 31-305 concerning reasonable medical examinations requested by the employer, "The refusal of an injured employee thus to submit himself to a reasonable examination shall suspend his right to compensation during such refusal", claimant had no further right to benefits.
Respondents have filed no brief. Claimant appearing pro se has filed a handwritten document purporting to be a brief. All parties participated in oral argument. Respondents basic point is that Dr. Sculco in 1979 and 1980 already had given claimant a higher permanency evaluation than the twelve and one half per cent of the June 5, 1980 agreement. Consequently that agreement represented a compromise. Further since a twenty-five per cent evaluation had already been made, Dr. Margolis 1985 rating was not really new evidence.
We find that the Margolis rating in 1985 was in fact new evidence from an expert whose opinion was not available in 1980. The passage of the five years plus the new medical opinion constituted changed circumstance under Sec. 31-315. Moreover the sanctions provided in Sec. 31-305 prevail only where a "reasonable" medical examination is refused. It is not per se unreasonable for a claimant to refuse a medical examination in Norwich when he now lives far away from the area.
As to claimant's request for interest we find interest at six per cent per annum to be due under Sec. 31-301c(b) from June 22, 1988 on any unpaid portion of the award. It was within the commissioner's discretion to deny the interest claim under Sec. 31-300, Carlino v. Danbury Hospital, 5 Conn. Workers' Comp. Rev. Op. 139, 357 CRD-7-84 (7/18/88).
We affirm the decision below and dismiss both appeals and award interest as found above.
Commissioners Frank Verrilli and Darius Spain concur.