Turrell v. Department of Mental Health & Addiction Services
2013 WL 3990917
Conn. App. Ct.2013Background
- Debra A. Turrell, a state employee, was assaulted at work on July 22, 2007; she sought treatment for cervical symptoms and later required cervical fusion/discectomy in July 2009.
- Parties executed a voluntary agreement (approved Nov. 4, 2008) accepting a compensable cervical injury with a 9.5% permanency rating and a maximum medical improvement (MMI) date of July 22, 2008.
- Employer/insurer filed Form 36 notices (Jan. 20, 2009 and June 4, 2009) asserting plaintiff had reached MMI and contesting causation for the proposed surgery, attaching physician reports (Drs. Selden and Mushaweh).
- Commissioner took administrative notice of the voluntary agreement and the Form 36s/reports, found plaintiff reached MMI on July 22, 2008, and concluded the July 22, 2007 work injury was not a substantial factor in the need for the 2009 surgery.
- The workers’ compensation review board affirmed the commissioner; Turrell appealed claiming due process violation (notice/opportunity to challenge documents taken into administrative notice) and error on causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether commissioner violated due process by taking administrative notice of prior filings/reports without notice | Turrell: commissioner took administrative notice of the voluntary agreement and Form 36s/reports after hearings without advising her or allowing objection, denying due process | Employer: parties were on notice MMI/overpayment were at issue; documents were relevant and properly considered | Held: No reversible due process violation; any failure to give advance notice was harmless because MMI was supported by evidence Turrell herself introduced (Dr. Danyliw) and parties knew MMI/overpayment were at issue |
| Whether the July 22, 2007 work injury was a substantial factor in Turrell’s need for 2009 surgery | Turrell: work injury initiated/aggravated cervical pathology and was a substantial factor in need for surgery | Employer: treating and commissioned physicians (Selden, Mushaweh) concluded preexisting degenerative disease was primary cause; injury aggravated but was not the substantial factor | Held: Commissioner entitled to credit Mushaweh’s testimony and other evidence; reasonably concluded work injury was not a substantial factor in the need for surgery |
Key Cases Cited
- Sapko v. State, 305 Conn. 360 (explains proximate-cause/substantial-factor standard in workers’ compensation and limits on appellate review)
- O’Connor v. Med-Center Home Health Care, Inc., 140 Conn. App. 542 (discusses deference to commissioner on factual findings and credibility)
- Brinson v. Finlay Bros. Printing Co., 77 Conn. App. 319 (defines Form 36 and statutory role in discontinuing compensation)