CASE NO. 03697 CRB-02-97-01 CLAIM NO. 200111674Workers’ Compensation Commission
JANUARY 28, 1999
The claimant was represented by Stephen F. McEleney, Esq., McEleney McGrail.
The respondents were represented by Timothy Welch, Esq., McGann, Bartlett Brown.
The Second Injury Fund was represented by Michael Giammatteo, Esq., Assistant Attorney General.
This Petition for Review from the October 2, 1997 Finding and Award of the Commissioner acting for the Second District was heard May 29, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr. and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN.
The respondent employer and its insurer (hereinafter “respondents”) and the Second Injury Fund (“Fund”) have petitioned for review from the October 2, 1997 Finding and Award of the Commissioner acting for the Second District. In that decision the trial commissioner found that both the respondents and the Fund unreasonably contested the claimants claim of temporary total disability and medical treatment in contravention of § 31-300. Furthermore, the trial commissioner concluded that the failure of both the Fund and the respondents to make any payments constituted unreasonable delay pursuant to § 31-300, and thus awarded attorneys fees. In support of their appeal, the respondents contend that the medical evidence regarding the cause of the claimants temporary total disability was contradictory and thus that it was not unreasonable to contest liability. The Fund makes a similar argument on appeal.
The trial commissioner found the following relevant facts. The claimant suffered a compensable back injury on October 20, 1983 when she fell at work. The claimants back injury was transferred to the Fund effective September 8, 1986. On April 1, 1993, a previous trial commissioner issued a Finding and Award in which he found that on October 20, 1983 the claimant also sustained a head injury which caused severe episodic headaches and nausea. That commissioner ordered Wausau to be responsible for the claimants debilitating headaches, including the payment of temporary total disability benefits and all medical benefits. During the formal hearings in the instant case, the claimant claimed temporary total disability from December of 1994 forward and unpaid medicals. The claimant also requested attorneys fees and interest pursuant to § 31-300 due to unreasonable contest and undue delay.
In the instant case, during the formal hearing the respondent Wausau argued that the claimants headaches alone did not cause the claimant to be totally disabled, and that if the claimant was totally disabled it was caused by her back injury. Similarly, the Fund argued at the formal hearing that the claimants total disability was due to the disabling headaches rather than to her back condition, and thus denied liability for temporary total disability.
The trial commissioner found that the medical restrictions due to the claimants low back are extensive, and that the claimant testified that her back pain is constant. The claimants headaches occur two to three times per week and can be severe, lasting twenty four to forty-eight hours, and cause the claimant to be bedridden in a dark room, applying ice to her head. The claimant treats with Dr. Vildozola for her back and with Dr. Reik, a neurology/headache specialist, for her headaches. The claimant was referred by Dr. Vildozola to Dr. Essack, a psychiatrist, for treatment of her depression, which was related to her inability to function due to her work injuries and the pain that she endures from her failed back surgery and debilitating headaches. Wausau denied any responsibility for payment to Dr. Essack and refused to pay for medications ordered by Dr. Essack and Dr. Reik, the claimants authorized headache treater. The Fund also denied responsibility for Dr. Essack’s treatment.
Despite the previous trial commissioners order that Wausau be responsible for the claimants debilitating headaches, including the payment of temporary total disability benefits and all medical benefits, Wausau stopped paying for the claimants headache medications, causing her to become “more disabled both physically and emotionally.” (Finding No. 21). The claimant has received no indemnity benefits since May of 1993. However, the claimants treating neurologist, Dr. Reik, opined that the claimant was temporarily totally disabled in a December 1994 report, and so noted again in February of 1996. The claimants treater for her back, Dr. Vildozola, noted that the claimant was temporarily totally disabled in March of 1996 and continuing. Dr. Vildozola opined that the claimant was temporarily totally disabled due to a combination of her back injury, her headaches, and depression. The claimant was examined by a Commissioner’s examiner, Dr. Selig, who opined that the claimant was totally disabled due to both the back injury, the head injury, along with the depression caused by said injuries. The claimants treaters, Dr. Vildozola and Dr. Reik, along with Dr. Selig, do not find the claimant to be a malingerer.
The trial commissioner concluded that the claimant was temporarily totally disabled commencing December of 1994, and that said disability was caused by both the back injury for which the Fund is liable and by the headache condition for which Wausau is liable, together with the depression caused by both of these conditions. The trial commissioner further found that Dr. Essack’s treatment was authorized, and ordered said treatment costs to be split equally between the Fund and Wausau. The trial commissioner concluded that the respondents positions constituted unreasonable contest because both respondents “reargued the positions previously found by” the original trial commissioner in his Finding and Award of April 1, 1993. (Finding I). The trier emphasized that “no new definitive medical [evidence] was obtained by either respondent and the Commissioner’s examiner, Dr. Selig, confirmed claimants claims and position with regard to medical treatment and her on-going temporary total disability which was easily discerned to be due to the combination of claimants failed low back surgery and its sequelae, along with claimants debilitating headaches.” Id. The trial commissioner further found that the respondents unreasonably failed to pay for her medication and treatment of authorized treaters.
Whether the respondents unreasonably contested their liability for the claimants permanent partial disability and benefit rate was a factual question for the trial commissioner. See Robinson v. Allied Grocers Cooperative, Inc.,
1 Conn. Workers Comp. Rev. Op. 132, 135, 68 CRD-1-81 (July 13, 1982), affirmed, 39 Conn. Sup. 386, 388-89 (1983). Moreover, an award of interest and attorneys fees is within the discretion of the trial commissioner. Hicks v. Department ofAdministrative Services, 21 Conn. App. 464, 466-67 (1990);Wheeler v. Bender Plumbing Supply of Waterbury, Inc.,10 Conn. Workers’ Comp. Rev. Op. 140, 141, 1186 CRD-5-91-3 (June 5, 1992). We find no abuse of that discretion. In Muldoon v.New England Installation, 3552 CRB-4-97-3 (August 24, 1998) we held that where the carrier and the Fund each argued that the other should pay benefits pending appeal “nevertheless it [was] unreasonable and unconscionable for neither to pay thereby leaving the dependent widow with no benefits.”
In support of its appeal, the Fund acknowledges that this Board may not retry the facts of the case, and further acknowledges that there is sufficient medical evidence to support the trial commissioners conclusion that the claimants total disability was caused by both her back injury and her headache condition. (Fund’s Brief at p. 4). The Fund does not dispute that trial commissioners finding that the respondents positions constituted unreasonable contest because both respondents “reargued the positions previously found by Commissioner Waller” in his Finding and Award of April 1, 1993. (Finding I). Neither does the Fund dispute the trial commissioners finding that “no new definitive medical [evidence] was obtained by either respondent and the Commissioner’s examiner, Dr. Selig, confirmed claimants claims. . . .” Id. We find no error in the trial commissioners conclusion that the Funds position constituted unreasonable contest and undue delay in violation of § 31-300.
In support of their appeal, the respondent employer and its insurer, Wausau, contend that there was sufficient contradictory medical evidence to support their denial of temporary total disability. Specifically, the respondents contend that there was medical evidence which indicated that the claimants headaches were not the sole cause of her total disability. We note that in their brief, the respondents cite evidence which predated Commissioner Waller’s 1993 decision, and which was not entered as exhibits. In addition, the respondents cite the opinion of Dr. Fredericks, who performed an independent medical examination at the request of the respondents, that the claimant was a malinger. The trial commissioner specifically found that Dr. Fredericks opinion was initially made in 1989, which predates the 1993 Finding and Award. In further support of their appeal, the respondents cite portions of two office notes from Dr. Reik regarding the claimants headaches. It was within the discretion of the trial commissioner, as the finder of fact, to find that said notes do not support the respondents contention that their contest was reasonable. Moreover, the respondents arguments on appeal fail to acknowledge the trial commissioners finding that it was egregious for neither party to pay temporary total disability benefits and medical costs even though it was clear that one or both of them would be held liable for said payments. See Muldoon, supra. In the instant case, we conclude that the trial commissioners findings of unreasonable contest and unreasonable delay of payments are fully supported by the record.
Finally, we will address the respondents contention that the trial commissioner erred in ordering the respondents to pay the cost of the claimants expert witness, Dr. Cohen, a vocational rehabilitation expert. Section 31-298 (Rev. to 1997) provides in pertinent part: “Witnesses subpoenaed by the commissioner shall be allowed the fees and traveling expenses that are allowed in civil actions, to be paid by the party in whose interest the witnesses are subpoenaed.” Subsequently, § 31-298 was amended by P.A. 97-106 which added the following language: “When liability or extent of disability is contested by formal hearing before the commissioner, the claimant shall be entitled, if he prevails on final judgment, to payment for oral testimony or deposition testimony rendered on his behalf by a competent physician, surgeon or other medical provider, including the stenographic and videotape recording costs thereof, in connection with the claim, the commissioner to determine the reasonableness of such charges.” Because § 31-298 does not allow for the costs of a vocational expert, we must reverse the trial commissioner’s order that the respondents pay said cost.
The trial commissioners award of attorneys fees and interest against the respondents and the Fund is affirmed. We reverse only as to the order that the respondents pay for the cost of the claimants vocational expert, Dr. Cohen.
Commissioners Donald H. Doyle, Jr. and Michael S. Miles concur.
Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission