49 Conn. App. 339 | Conn. App. Ct. | 1998
Opinion
The plaintiff appeals from the decision of the compensation review board (board) affirming the commissioner’s award of reimbursement for disability payments made to the plaintiff. We affirm the decision of the board.
A brief overview of the background is appropriate at this point. On May 7, 1984, the plaintiff, Esterina Dichello, and the defendant Holgrath Corporation entered into a voluntary agreement, approved by the workers’ compensation commissioner, which provided that the plaintiff had a 30 percent loss of use of her right hand as the result of a compensable event that occurred at Holgrath on September 6, 1983.
In addition to those facts, we add the following from the commissioner’s finding and award. James Sabshin, a neurosurgeon, was noted on the voluntary agreement of May 7,1984, as the treating physician. Gene D’Angelo, the plaintiffs family physician, referred her to Ira Spar, an orthopedist, who first saw the plaintiff on November 3,1983. Spar, after examining the plaintiff and considering her history, felt that she suffered from carpal tunnel syndrome in the right hand and tendinitis. The plaintiff had no complaints involving her left hand, and Spar’s examination did not reveal any abnormalities. There were no complaints or findings involving the shoulders or elbows. Spar prescribed medication and applied a plaster splint.
Upon the plaintiffs return to Spar on November 17, 1983, he advised the plaintiff to undergo a nerve conduction study. On December 17, 1983, a right hand nerve
Before making a diagnosis, Sabshin sent the plaintiff to Norman Werdiger for a nerve conduction study. After that study, Sabshin saw the plaintiff on January 5,1984, and recommended a right carpal tunnel release, which was done on January 27, 1984. Sabshin followed the plaintiff during her recovery and on February 23, 1984, she complained of left wrist pain. In May, 1984, Sabshin recommended nerve conduction studies of both hands and both wrists. Werdiger conducted these studies, which showed problems with the left wrist as well as showing that the nerve conduction in the right hand had not improved after the surgery.
On June 6, 1984, Sabshin recommended left carpal tunnel surgery, which was performed on July 30, 1984, on the left wrist. The plaintiff underwent a course of physical therapy, and on January 7, 1985, Sabshin approved the plaintiffs return to restricted work. On April 18, 1985, the plaintiff complained to Sabshin of cervical, bilateral shoulder, elbow, wrist and hand pain “resulting from any motion of either hand. ” An examination, however, revealed no basis for the plaintiffs complaints. She requested a letter from Sabshin indicating
After another examination of the plaintiff by Sabshin on June 18, 1985, he referred her to David Goodkind, a hand surgery specialist. The latter recommended repeat surgeiy on the right wrist, but the plaintiff declined. On July 16 and September 24, 1985, Sabshin met with the plaintiff and her daughter, and again repeated his recommendation of right carpal tunnel surgery. Werdiger again saw the plaintiff in May, 1984, and he noted that his examination was difficult due to her complaints of pain. He, however, found no problem with her left arm proximate to the wrist or shoulder. He did diagnose bilateral carpal tunnel syndrome, worse on the right wrist.
After a later examination on April 22,1985, following the plaintiffs complaints of pain in her hands, arms, shoulders, neck, legs and thighs, Werdiger indicated that his examination was difficult because of her complaints of extreme pain even on the slightest movement of her fingers. Werdiger opined that her complaints did not fit any established neurological pattern, that he could find no cause for her symptoms, that he was skeptical of the degree of pain she was expressing, that he did not attribute any of her multiple complaints to her carpal tunnel syndrome and that she consider referral to a pain clinic. On August 6, 1983, Werdiger again saw her on referral by Sabshin. At that time, she complained of pain in both hands, neck, lower back and right leg, as well as severe pain at the slightest touch, even when she was asked to look from side to
At the defendant’s request the plaintiff was examined and evaluated by Marvin Arons,
Later, during his deposition, Arons was shown a videotape and photographs taken during surveillance of the plaintiff.
When Arons saw the videotape of the plaintiff, he described himself as “astonished, in a state of shock,” and he felt that the patient that he had examined nineteen months prior to the videotape “could not have done what the videotape showed . . . without something of great significance having occurred.” He noted the possibilities to be: (1) malingering and feigning her prior
On the basis of the facts found and the reasonable inferences drawn therefrom, the commissioner found that (1) the plaintiffs bilateral carpal tunnel syndrome had been dormant until aggravated by her workplace activity and was therefore compensable, (2) the plaintiffs permanent partial disability, as evidenced by the voluntary agreement, was interrupted for the reinstatement of temporary total disability on July 10, 1984, when she underwent left carpal tunnel surgery, (3) the plaintiffs temporary total disability ended on January 7, 1985, and permanent partial disability payments resumed on January 8,1985, (4) the defendant is entitled to reimbursement of all payments in excess of those representing permanent partial disability for bilateral carpal tunnel syndrome, (5) Sabshin was the authorized treating physician and, because Werdiger and Goodkind were seen on referral by Sabshin, their charges are the responsibility of the defendant, (6) the charges of Arons and the providers to whom he made referrals are the responsibility of the defendant and (7) those providers not referred to in (5) or (6) are not in the chain of authorization and, therefore, their charges are not the responsibility of the defendant. The commissioner’s decision of December 19,1994, constituted the approval of the defendant’s form 36, which was filed in 1985.
After the issuance of the commissioner’s decision, the plaintiff filed a number of motions. The first was her motion for extension of time to file a motion to correct and reasons for appeal dated December 22, 1994. On January 12, 1995, after the commissioner’s decision of December 19, 1994, the plaintiff filed a
On appeal, the board affirmed the decision of the commissioner. In doing so, the board held (1) that the plaintiff had, by her conduct, waived the time limit required by § 31-300
I
We turn first to the plaintiffs claim that the board improperly affirmed the commissioner’s award of December 19, 1994, because that decision was issued over 500 days after the record was closed, in contravention of the 120 day mandate of § 31-300. Implicit in this claim is the contention that the board also improperly concluded that the plaintiff had waived the 120 day limit of § 31-300. We affirm the decision of the board.
In discussing this issue, it is important to keep in mind that the commissioner’s hearings concluded on July 13, 1993. Therefore, for purposes of § 31-300, the 120th day after the hearings concluded was November
“Administrative agencies are tribunals of limited jurisdiction and their jurisdiction is dependent entirely upon the validity of the statutes vesting them with power and they cannot confer jurisdiction upon themselves. Regents of University System of Georgia v. Carroll, 338 U.S. 586, 597-98, 70 S. Ct. 370, 94 L. Ed. 363 (1950); Gerson v. Industrial Accident Commission, 188 Cal. App. 2d 735, 738-39, 11 Cal. Rptr. 1 (1961); Bair v. Blue Ribbon, Inc., 256 Iowa 660, 663, 129 N.W.2d 85 (1964); Soars v. Soars-Lovelace, Inc., 346 Mo. 710, 719, 142 S.W.2d 866 (1940) (workers’ compensation commission); Fink v. Cole, 1 N.Y.2d 48, 52, 133 N.E.2d 691 (1956); 2 Am. Jur. 2d, Administrative Law § 328 [1962], We have recognized that ‘[i]t is clear that an administrative body must act strictly within its statutory authority, within constitutional limitations and in a lawful manner. ... It cannot modify, abridge or otherwise change the statutory provisions, under which it acquires authority unless the statutes expressly grant it that power.’ Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971). . . .'' Castro v. Viera, 207 Conn. 420, 428, 541 A.2d 1216 (1988).
“Waiver is the intentional relinquishment of a known right. Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 251, 618 A.2d 506 (1992); Olean v. Treglia, 190 Conn. 756, 772, 463 A.2d 242 (1983); Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 286, 348 A.2d 618 (1974); Brauer v. Freccia, 159 Conn. 289, 295, 268 A.2d 645 (1970). A waiver occurs, therefore, only if there is both knowledge of the existence of the right and intent to relinquish it. Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 562, 316 A.2d 394 (1972) . . . .” Heyman Associates No. 1 v. Insurance Co. of Pennsylvania, 231 Conn. 756, 777, 653 A.2d 122 (1995).
Recently in Stewart v. Tunxis Service Center, 237 Conn. 71, 676 A.2d 819 (1996), our Supreme Court addressed the nature of the 120 day time limit set out in § 31-300. In Stewart, our Supreme Court held that time limit was mandatory and not directory, and “that any lack of timeliness may be waived, either expressly or by conduct.” Id., 76. The Stewart court stated that “[w]aiver does not have to be express, but may consist of acts or conduct from which waiver may be implied. ... In other words, waiver may be inferred from the circumstances if it is reasonable to do so.” (Internal quotation marks omitted.) Id., 80-81. We have noted that “[a] late judgment has been characterized by our Supreme Court as voidable rather than void, and the lateness of a judgment, if not seasonably objected to, has been permitted to be waived by the conduct or consent of the parties. [Waterman v. United Caribbean, Inc., 215 Conn. 688, 692, 577 A.2d 1047 (1990).] That consent need not be express but may be implied.” Building Supply Corp. v. Lawrence Brunoli, Inc., 40 Conn. App. 89, 97, 669 A.2d 620, cert. denied, 236 Conn. 920, 674 A.2d 1326 (1996).
In our discussion, we do not overlook the fact that the plaintiff was represented by counsel throughout the underlying proceedings. On April 12, 1995, the plaintiff filed a statement of reasons of appeal for overturning the commissioner’s decision with the board. This statement maintained that the commissioner committed seven errors. None of the reasons stated, either
Some months later on September 27, 1995, the plaintiff filed an amended statement of reasons of appeal in which for the first time she mentions the tardiness of the commissioner’s decision as a ground for vacating his finding and award. The period from December 19, 1994, to September 27, 1995, is 280 days. Under the circumstances set out and given the application of the legal principles to which we have referred, we conclude that the plaintiff clearly waived by implication her right to have the December 19, 1994 decision of the commissioner vacated for lateness under § 31-300. Among those circumstances are her efforts to have the record opened to present additional evidence, her reasons for appeal filed April 12, 1995, containing several grounds for appeal, not one of which suggests a lateness issue, and her unreasonable assertion in a motion filed on September, 28,1997, in which she first raises the lateness issue.
II
Next, the plaintiff claims that the board improperly affirmed the commissioner’s finding that she was not totally disabled from her employment. She claims that the defendant failed to meet its burden of proof with respect to form 36 and that the evidence before the commissioner did not support a finding that she did not suffer a temporary total disability during the period when she received benefits. She also argues that the “ [commissioner based his decision on Dr. Arons’ reaction to a short videotape prepared surreptitiously by the defendant.”
In Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99, 669 A.2d 1214 (1996), our Supreme Court said: “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. Czeplicki v.
We point out that as early as January 7,1985, Sabshin, the plaintiffs treating physician, approved of her returning to restricted work. In the spring of 1985, the plaintiff requested a letter from Sabshin “indicating total disability” and he refused to issue such a letter. The commissioner made a number of findings, as indicated earlier in this opinion, that the plaintiffs bilateral carpal tunnel syndrome was compensable and was the only neurological condition attributable to her employment, and that Werdiger came to this conclusion on the basis of his own findings and examination.
The decision of the compensation review board is affirmed.
In this opinion the other judges concurred.
The history given by the plaintiff to Ira Spar, an orthopedist, in November 1983, was that her right middle finger had been pierced by a needle in the course of her employment. In examining the plaintiff, Spar determined that she suffered from carpal tunnel syndrome.
An employer cannot terminate or reduce total or partial disability payments to an employee without first notifying the workers’ compensation commission and the employee of his intent to do so. See General Statutes §§ 31-296 and 31-321.
The commissioner also found that the plaintiffs permanent partial disability payments resumed on January 8, 1985.
The deposition of Arons was introduced into evidence before the trial commissioner.
The report of the surveillance included notes from October 12 and 28, 1989; November 8, 9, 10, 16 and 29, 1989; December 1, 5 and 7, 1989; and January 8, 9, 13 and 15, 1992.
On December 27, 1994, the plaintiff filed her “Petition for Review” of the December 19, 1994 decision by the compensation review board. See General Statutes § 31-301.
General Statutes § 31-300 provides in relevant part: “As soon as may be after the conclusion of any hearing, but not later than one hundred twenty days after such conclusion, the commissioner shall send to each party a written copy of his findings and award. ...”
In her brief in this court, the plaintiff claims that the commissioner failed to render a decision on the defendant’s form 36, which was filed on February 28,1985, until December 19, 1994, almost ten years later, in violation of her right to due process of law. In doing so, she refers “to the basic protections of due process of law embodied in the state of Connecticut and United States constitutions.” The claim is briefed in one paragraph' without the citation of any authority. She again referred to it in oral argument and again failed to provide any supporting authority. We decline to review this claim.
Even if the plaintiffs mere mention of the due process clause in her brief to the compensation review board could be construed as distinctly raising the issue at the trial level, we decline to review this claim because of inadequate briefing to this court. “ ‘Assignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.’ ” Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 249-50 n.3, 524 A.2d 610 (1987), quoting Hayes v. Smith, 194 Conn. 52, 66 n.12, 480 A.2d 425 (1984); State v. Hart, 23 Conn. App. 746, 748 n.1, 585 A.2d 103 (1991), rev’d in part on other grounds, 221 Conn. 595, 605 A.2d 1366 (1992). This also applies to constitutional claims. Hayes v. Smith, supra, 66 n.12; Rodriguez v. Mallory Battery Co., 188 Conn. 145, 149, 448 A.2d 829 (1982); Mazur v. Blum, 184 Conn. 116, 120, 441 A.2d 65 (1981).
It is instructive to observe that in a similar context one of the factual contents that has been held to validate a judgment voidable under General Statutes § 51-183b is where “the losing party has allowed the defective judgment to stand without objection for an unseasonable period of time and through inaction has enabled the winning party to claim implied consent to the delay that has occurred. See, e.g., Gordon v. Feldman, [164 Conn. 554, 556-57, 325 A.2d 247 (1973)]; Borden v. Westport, [112 Conn. 152, 154, 151 A. 512 (1930)]; Cheshire Brass Co. v. Wilson, [86 Conn. 551, 560, 86 A. 26 (1913)].” Waterman v. United Carribean, Inc., supra, 215 Conn. 693.
As to this opinion of Werdiger, the commissioner specifically found: “A later review of reports from Dr. Sabshin; Dr. Goodkind; Dr. Scialla; Dr. Chiapetta; Martin DeSomma, D.C.; Dr. Feinglass; Marvin Arons, M.D.; Dr. Hutchinson and Dr. Hasbani confirmed Dr. Werdiger’s conclusion.”
Workers’ compensation benefits were being paid during the period covered by the surveillance. The defendant has paid the plaintiff weekly workers’ compensation benefits through November, 1994.