CASE NO. 03922 CRB-02-98-10 CLAIM NO. 100000576Workers’ Compensation Commission
NOVEMBER 30, 1999

The claimant was represented by Brian Prucker, Esq., Fitzgerald Prucker.

The respondent was represented by Lisa Guttenberg Weiss, Esq., Assistant Attorney General.

This Petition for Review from the October 20, 1998 Finding and Award of the Commissioner acting for the First District was heard May 21, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Stephen B. Delaney.


The respondent has petitioned for review from the October 20, 1998 Finding and Award of the Commissioner acting for the First District. It contends on appeal that the trier erred by finding that the claimant was totally disabled for almost three years following the date of her injury, and by going beyond the scope of this board’s remand to award attorney’s fees, the payment of medical bills, and health insurance coverage. We affirm most of the trial commissioner’s findings and conclusions, reversing only one portion of the attorney’s fee award.

This appeal marks the third instance in which issues relating to this case have been brought before this board. By virtue of a June 24, 1994 Finding and Award, the claimant was found to have suffered a compensable psychiatric condition stemming from workplace stress that she experienced in the spring of 1991. Specifically, the claimant had a panic attack on April 29, 1991 following a disagreement with her supervisor, and was admitted to the hospital several weeks later. Her personal physician, Dr. Purcell, diagnosed her with depression and anxiety, and referred her to Dr. Zariphes, a psychiatrist, who related the claimant’s stress to her job. This award was not appealed.

Further hearings were subsequently held to determine the claimant’s entitlement to benefits. In a Supplemental Finding and Award dated August 14, 1995, Drs. Zariphes and Purcell were named as authorized treating physicians, and based on the uncontested opinion of Dr. Zariphes, the claimant was deemed totally disabled from May 17, 1991 to January 20, 1994. The commissioner also decided that a reasonable attorney’s fee was $12,000; however, he did not order the respondent to pay that sum. Rather, he noted that the parties ought to attempt to reach an agreement as to apportionment of that fee. This board reversed part of the trier’s finding, holding that there was insufficient medical evidence in the record to establish that a 33-month period of total work incapacity resulted from the claimant’s compensable injury. The case was remanded for new proceedings on the extent of disability. Bailey v. State of Connecticut/GHCC,15 Conn. Workers’ Comp. Rev. Op. 433, 3152 CRB-5-95-8 (Sept. 3, 1996).[1]

Several formal hearings were held before a different trial commissioner following the remand. These proceedings were marked by disagreement over certain evidentiary rulings made by the commissioner, and the respondent filed further appeals on some of those issues, which were recently passed upon by this board.[2]
While those appeals were pending, the trier closed the record on June 22, 1998, and subsequently issued his Findings of Facts and Award on Remand — the decision on appeal here.

The trier found the claimant’s medical treatment to be appropriate and necessary, and was persuaded by Dr. Zariphes’ opinion that the claimant was unable to work from April 29, 1991 to January 20, 1994 because of her compensable mental stress injury. He also characterized the claimant’s testimony as “credible and persuasive on the issue of whether she could work during the periods in question;” Findings, ¶ A; while commenting that the respondent offered no proof to substantiate its contention that the claimant then possessed a full work capacity. “Some of the activities of the claimant during this period of time certainly could have been interpreted to be consistent with a work capacity. The employer presented no evidence to prove its potential.” Id., ¶ C. The commissioner ordered the respondents to pay temporary total disability benefits and medical bills for the disputed 33-month stretch following the claimant’s injury. He also ordered the respondent to accept responsibility for the claimant’s health insurance during the period in question, including reimbursement of premiums paid, and to pay both a $7,500 attorney’s fee for unreasonably contesting the claim and “the $12,000 attorney’s fee award previously assigned by Commissioner Spain, which has not been appealed.” The respondent filed a petition for review from the trier’s decision, and his denial of its Motion to Correct.

The respondent’s first argument on this appeal is that the record does not support the trier’s conclusion that the claimant was totally incapacitated from April 1991 to January 1994. As the respondent recognizes in its brief, the role of this board in reviewing factual findings is limited. We may not disturb a trier’s findings where they are reasonably derived from the record, as it is the duty of the factfinder to determine the weight and credibility of any evidence that the parties introduce. Santala v. New Britain General Hospital,3298 CRB-8-96-3 (Nov. 25, 1997). Among the factual questions reserved for the purview of the trial commissioner is the disability status of a claimant. Monaco v. Metal Masters Inc.,15 Conn. Workers’ Comp. Rev. Op. 415, 416, 2245 CRB-3-94-12 (Aug. 29, 1996). In drawing his conclusions on that issue, the trier is entitled to choose among conflicting medical reports, or to credit only part of a report, and he is not bound to accept even uncontradicted evidence if he doubts its probity. Santala, supra;Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997).

Here, the trier chose to rely upon the testimony of the claimant and the medical expertise of Dr. Zariphes, her psychiatrist, in finding her totally disabled. The respondent protests that the claimant admittedly performed numerous activities, such as matriculating at the University of Hartford, attending classes, student teaching, and successfully receiving her master’s degree in education, that are patently inconsistent with a total disability evaluation. According to the respondent, the claimant and her physician both testified that she possessed skills and abilities that belie any assertion that she could not work. This argument overlooks the fact that a claimant may have the ability to perform “some type of work” and still be totally disabled. Meredina v. Anderson Insurance Co., 3460 CRB 3-96-11 (April 8, 1998); Gerena v. Rockbestos Company,14 Conn. Workers’ Comp. Rev. Op. 394, 395, 1986 CRB-5-94-3 (Oct. 17, 1995). Factors outside of a claimant’s ostensible ability to accept certain responsibilities and achieve academic goals may be considered in determining her work capacity.

This claimant explained that, after her compensable mental stress injury, she was admitted to the psychiatric ward of a hospital, and found herself unable to speak, think and feed herself once she got home. June 5, 1997 Transcript, 55-56. Though she recuperated enough to attend graduate school from 1992-94, and managed to complete her relatively non-strenuous courses with high marks, she did so with far more difficulty than the other students, and still lacked the autonomy in her daily life characteristic of a normal adult. She was generally accompanied by her mother everywhere, including school; p. 98; and even while student-teaching a first grade class, she found herself too exhausted mentally to attempt anything beyond the lesson plan set forth in the teacher’s manual. Id., 106. When asked by counsel why she did not try to find a “less skilled” or “less mentally taxing” position during the period in question, the claimant replied that, after her experience in the hospital, she felt compelled to go back to college because she “had to try and think again” — to reclaim those cognitive abilities, such as literacy, that were distressingly absent during her term of hospitalization. Id., 144-45.

Dr. Zariphes also qualified the recuperative significance of the claimant’s school activities. Though she was functioning “fairly well” as of October 1993, he did not believe that she had yet returned to normalcy, and kept her on medication. Aug. 14, 1997 Transcript, 26. He had doubts as to whether she was capable of employment, but did not want to discourage her from applying to school, as he knew that she was trying hard to put her life back together. Id., 27. He may not have officially imposed work restrictions on her; Id., 32; but he did state that, within a reasonable degree of medical probability, she was disabled from April 29, 1991 through January 20, 1994 as a result of her 1991 mental breakdown. December 4, 1997 Transcript, 105, 121-22. Given the nature of the claimant’s original symptoms; Id., 57; Dr. Zariphes certainly could have thought that the claimant was not ready to handle the pressure of going back to work even though she seemed capable of voluntary attendance at school. His medical opinion was not merely speculative, either, as he had been treating the claimant continuously since 1991, and was familiar enough with her condition to reason that she was not yet ready to work.

The trial commissioner was justified in relying on the claimant’s remarks, and the substance of Dr. Zariphes’ testimony, in finding that the claimant was totally disabled from the date of her injury through January 20, 1994. This board would be reaching beyond its authority as an appellate review body if it were to substitute its own interpretation of Dr. Zariphes’ testimony for that of the trier of fact. O’Reilly v. GeneralDynamics Corp., 52 Conn. App. 813, 817-19 (1999). Though the respondent may fervently believe that the claimant had a work capacity during much of this time period, the factfinder has ruled otherwise, and his ruling has sufficient roots in the evidence.

The respondent also argues in its brief that the commissioner erred by failing to consider the claimant’s receipt of benefits from her employer’s “sick leave bank” during the above time period. Insofar as the claimant’s request for benefits bears on the issue of whether her disability was related to her compensable injury, the trier was not required to construe that request as an admission in the respondent’s favor. Rather, he rationally found that the claimant used sick time because the respondent refused to compensate her for temporary total disability, and she was in no condition to argue over a paycheck.

As to reimbursement, the respondent cites Nichols v.Lighthouse Restaurant, 246 Conn. 156 (1998), for the proposition that the public policy against doubly compensating a workers’ compensation claimant applies to these facts. Nichols discusses the application of § 31-293, a statutory provision that allows an employer to intervene in a claimant’s third-party action against a tortfeasor, and prescribes reimbursement of workers’ compensation benefits paid in the event of recovery from the tortfeasor. The instant case is different; there is no similar provision in the Workers’ Compensation Act that applies to sick leave payments made pursuant to a collective bargaining agreement. Given the limited nature of the remand to the trier, the questionable jurisdiction of this board to interpret a union contract, the absence of evidence as to the terms of that contract, and the ancillary nature of this matter to the chapter 568 issue of disability, we do not believe that the trier erred in failing to address reimbursement in his award.

Despite the respondent’s contention that a reimbursement order would have been proper here, it objects to the presence in the Finding and Award of orders that it pay medical bills, §31-284b insurance benefits, and attorney’s fees on the ground that all of those issues were outside the scope of this board’s remand. We disagree with that characterization. Once the trier found that the claimant was entitled to temporary total disability benefits through January 20, 1994, she automatically became entitled to § 31-284b benefits for that time period as part and parcel of her disability status. No further quantum of proof was necessary. As for the order in ¶ E that all medical providers be paid “the sums they are owed,” it merely confirms what was decided in the 1995 Supplementary Award: that Drs. Purcell and Zariphes are authorized treaters, and are entitled to payment for their services from the respondent. Again, no new factual or legal issues have been injected into the proceedings in order to make this decision.

The two awards for attorney’s fees stand on a slightly different footing. They are premised on the unreasonableness of the respondent’s argument itself, rather than the outcome of the disability issue, and are thus neither integral to nor a direct function of the finding that the claimant was totally disabled. Technically, one could therefore say that an award of attorney’s fees for unreasonable contest was not one of the issues that the trier was directed to address on remand. By their nature, however, such fees can seldom be anticipated at the outset of any workers’ compensation proceeding. They are awarded pursuant to § 31-300 when the trial commissioner decides, after hearing the parties’ arguments and reviewing the evidence, that the employer or insurer lacked a reasonable basis upon which to contest the claimant’s request for benefits. This task can best be performed by the commissioner who presided over the hearings and heard the testimony, and is often raised sua sponte only after the record has been closed and the commissioner is considering his decision. See Hicks v. Connecticut,6 Conn. Workers’ Comp. Rev. Op. 111, 118, 429 CRD-5-85 (Feb. 23, 1989) no error, 21 Conn. App. 464 (1990), cert. denied, 216 Conn. 804
(1990). In that sense, an award of attorney’s fees for unreasonable contest is a possibility in any proceeding, even if that proceeding is a remand for a full hearing on one particular period of disability.

It is clear from the transcript and the trier’s findings that he was dismayed by the manner in which the respondent defended this claim. He wrote that, “Despite having sufficient time to prepare after the remand, the Respondent presented no evidence to substantiate its contentions or alleged defenses.” Findings, ¶ 35. The respondent protests that this finding is erroneous, because it was the claimant’s burden to prove her disability, and the respondent was able to cast doubt upon her claim by cross-examining her and her treating physician, without having to introduce witnesses of its own. It also blames the flaws in its case on the commissioner’s allegedly improper evidentiary rulings, which we discussed in our Bailey decision of January 12, 1999.

As stated before, the trier has considerable discretion to make evidentiary rulings under § 31-298. Once he determined that the respondent had inexcusably waited until the eleventh hour before attempting to subpoena witnesses and evidence and trying to arrange a medical examination, and that it was belatedly improvising its defense strategy as the case went along, he had laid the foundation for a subsequent determination that the respondent’s grounds for contesting this claim were ultimately tenuous. See August 14, 1997 Transcript, 66-72. Indeed, undue delay in the payment of benefits is itself a valid reason for a trial commissioner to award attorney’s fees under § 31-300. The manner in which a party defends a case can be relevant to the issue of whether its contest of a claim is reasonable, and the substance and merit of a party’s theory of defense can be viewed in light of the evidentiary decisions that affect it. The $7,500 amount awarded by the commissioner in ¶ H of his decision is therefore affirmed.

The $12,000 attorney’s fee award in ¶ G, on the other hand, cannot be upheld on review. The trier described it as the “$12,000 attorney’s fee award previously assigned by Commissioner Spain, which has not been appealed.” In fact, although the prior trial commissioner found that a reasonable attorney’s fee was $12,000, he did not order the respondent to pay that sum; instead, he requested that the two law firms who had been involved in the presentation of the claimant’s case either reach an agreement to apportion that fee, or submit their claims in writing to him so that he might so apportion it. The 1995 award contains no finding of unreasonable contest or undue delay in payment of compensation, and we cannot presume that the trier intended to order the respondent to pay the fees of the claimant’s attorneys for their representation through August 14, 1995.

Thus, we affirm the trial commissioner’s decision, with the exception of the order that the respondent pay an outstanding $12,000 attorney’s fee, which ruling we reverse.

Commissioners Donald H. Doyle, Jr., and Stephen B. Delaney concur.

[1] The claimant appealed this board’s decision to the Appellate Court, which dismissed the matter for lack of a final judgment on December 4, 1996.
[2] These interim matters are discussed in Bailey v. State ofConnecticut/GHCC, 3694 CRB-1-97-9 (Jan. 12, 1999). It seems that, upon remand, the parties disagreed as to whether the trier should restrict his inquiry to disability through January 1994, or consider subsequent disability periods as well. The commissioner stated that he would limit the issue to “only the medical bills and the evidence that was presented or will be presented at this hearing concerning the period of the claimant’s disability until January of 1994.” June 5, 1997 Transcript, 19. However, he also ruled that the claimant could testify and be cross-examined concerning subsequent disability and other issues, even though they would not be included in his decision at this time, because the claimant’s fragile psychological state made it important to complete her testimony in one session, if possible, and her transcript would always be available for reference later. The hearing was conducted accordingly. At the next formal hearing (Aug. 14, 1997), the respondent requested the opportunity to cross-examine the claimant based on school and employment records it had received the previous day. The trier denied this request on the ground that the respondent had been given sufficient time to conduct discovery, but had waited until the last minute to prepare its case. He then granted a Motion for Protective Order that would prevent the respondent from again calling the claimant as a witness, from which decision the respondent appealed. At a formal hearing on May 22, 1998, the trier denied the respondent’s Motion for an Order Compelling Discovery. The respondent appealed from that ruling as well.

We held that, given the nonspecific language of our remand, the trier reasonably ruled that the instant proceedings should be limited to the issue of disability through January 20, 1994, and that he should restrict his findings as such. We also affirmed his denial of the respondent’s request for an independent medical examination, as it was within his discretion under § 31-298
to conclude that the respondent had not diligently attempted to obtain the necessary records, and that this particular claimant should be protected from having to testify on multiple occasions. Thus, insofar as they pertained to the claim for disability through January 1994, the trier’s decisions regarding discovery were affirmed. This board also noted that the discovery issues in relation to disability after that date should not be deemed settled (except for the issue of further cross-examination of the claimant), as the respondent had not been given the same opportunity for discovery on those matters as it had been given regarding the pre-1994 disability claim. Any issues settled in that opinion will not be readdressed here, as there is no reason for us to overturn the existing law of this case. Bowman v.Jack’s Auto Sales, 54 Conn. App. 289, 293-94 (1999).