Rivera v. Patient Care of Conn.

188 Conn.App. 203

204 A.3d 761

Nilda RIVERA

v.PATIENT CARE OF CONNECTICUT et al.

AC 39154

Appellate Court of Connecticut.

Argued November 28, 2018

Officially released March 5, 2019

Jennifer Levine, New Britain, with whom was Harvey Levine, New Britain, for the appellant (plaintiff).

Eric F. King, for the appellee (named defendant).

Sheldon, Bright and Harper, Js.

SHELDON, J.

The plaintiff, Nilda Rivera, appeals from the decision of the Compensation Review Board (board) affirming the decision of the Workers' Compensation Commissioner (commissioner), in which the commissioner approved a form 36¹ filed by the defendant Patient Care of Connecticut² based upon a finding that the plaintiff had reached maximum medical improvement as to one of the three injuries claimed by the plaintiff and accepted by the defendant for which she had been receiving and continues to receive temporary incapacity benefits.³ On appeal, the plaintiff claims that the board erred in affirming the commissioner's ruling because the commissioner did not require the defendant to prove that she had a work capacity and improperly shifted the burden to her to prove that she did not have a work capacity. Because the commissioner limited his finding on the defendant's form 36 to the issue of whether the plaintiff reached maximum medical improvement as to her partial disability to her right lower extremity, he did not need to address the issue of the plaintiff's work capacity. Consequently, the record does not support the plaintiff's contention that the commissioner improperly required her to prove that she lacked a work capacity. Accordingly, we affirm the decision of the board.

The following relevant facts were found by the commissioner.⁴ On May 30, 2006, the plaintiff was working as a certified nursing assistant and day care instructor for the defendant, when she sustained a fracture of the third metatarsal of her right foot, which required a surgical repair. Following surgery, she has experienced significant and persistent pain as a result of her injury. As a result of her persistent pain, she has become clinically depressed. As a result of the injury to her right foot, she also has developed bursitis in her right hip. The defendant has accepted all three of these injuries. Since the date of the plaintiff's initial injury, she has received incapacity benefits.

On August 29, 2012, the defendant filed a form 36 in which it requested "transfer of benefit status from [temporary partial disability] to [permanent partial disability] based on commissioner's exam[ination] by Dr. Enzo Sella dated July 2, 2012, that places [the plaintiff] at maximum medical improvement with 6 percent impairment rating to the right lower extremity." At an informal hearing held on October 2, 2012, the commissioner approved the form 36.

On December 2, 2014, the commissioner held a formal hearing on the form 36, limited to the issue of "[w]hether the [plaintiff] has reached maximum medical improvement to [her] right lower extremity with a permanent partial disability rating of six (6) percent."⁵ The commissioner issued his written finding and dismissal on March 31, 2015. The commissioner held, inter alia: "I find the opinion of Dr. Sella persuasive in that the [plaintiff] has reached maximum medical improvement of her right lower extremity with a permanent partial disability rating of 6 percent to the right lower extremity, which equates to 9 percent rating of the [plaintiff's] right foot." The plaintiff thereafter filed a motion to correct the commissioner's decision, which was denied.

The plaintiff filed a petition for review with the board, claiming that "the ... commissioner's decision to limit the scope of the trial de novo on the form 36 approved on October 2, 2012, to the issue of maximum medical improvement and exclude the issue of work capacity constituted error ...."⁶ The plaintiff argued that the commissioner "erred by ignoring the incapacity issue and refusing to require that the [defendant] sustain [its] burden of proof showing that ... she ... has a work capacity." (Internal quotation marks omitted.) The board rejected the plaintiff's claim, explaining that "[a] person may reach maximum medical improvement, have a permanent partial impairment, and be temporarily totally disabled from working all at the same time....

Moreover, a [plaintiff] deemed totally disabled due to one injury or condition is entitled to receive ongoing total disability benefits even if the claimant has reached maximum medical improvement for a different injury or condition." (Citations omitted; emphasis omitted; internal quotation marks omitted.) The board noted that, here, the defendant was not seeking to terminate or reduce the plaintiff's incapacity benefits. Instead, the defendant's form 36 sought a change in the designation of her right lower extremity injury from temporary partial disability to permanent partial disability based on a claim that the plaintiff had reached maximum medical improvement as to that injury. Because the defendant was not seeking to terminate or reduce the plaintiff's...