Tutsky v. YMCA of Greenwich

612 A.2d 1222, 28 Conn. App. 536, 1992 Conn. App. LEXIS 318
CourtConnecticut Appellate Court
DecidedAugust 11, 1992
Docket9934
StatusPublished
Cited by15 cases

This text of 612 A.2d 1222 (Tutsky v. YMCA of Greenwich) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tutsky v. YMCA of Greenwich, 612 A.2d 1222, 28 Conn. App. 536, 1992 Conn. App. LEXIS 318 (Colo. Ct. App. 1992).

Opinion

Foti, J.

The plaintiff appeals from the January 17, 1991, decision of the workers’ compensation review division, dismissing his appeal from the commissioner’s July 31,1989, denial of a “motion to reopen”1 compensation proceedings. The plaintiff claims that the review division improperly (1) failed to find that an insurer that is not paying the claimant temporary total disability benefits is obligated to disclose to the commissioner information from the claimant’s treating physician indicating that the claimant is unable to work, (2) failed to find that the commissioner should have granted the claimant’s motion to open the compensation proceedings upon receipt of information from the claimant’s treating physician that the claimant is unable to work, and (3) found that certain correspondence between the insurer and the treating physician was immaterial to the motion to open the proceedings. We affirm the decision of the compensation review division.

The following facts are pertinent to this appeal. The plaintiff injured his back on February 27,1980, while working at the YMCA of Greenwich. The plaintiff, the YMCA, and its insurer, Royal Insurance Company (Royal), entered a voluntary agreement acknowledging compensability on April 29, 1981. The agreement was approved by the commissioner, and the plaintiff began receiving temporary total disability benefits. On March 17,1980, shortly after the work related accident, the plaintiff suffered a back injury that was not work [538]*538related when he slipped on some waxed stairs at the Greenwich YMCA, where he also lived. He later filed a common law action against the YMCA.

As part of Royal’s ongoing investigation of the compensation claim, the plaintiff was examined on April 15, 1983, by Arthur Brovender, an orthopedic surgeon. During the examination, the plaintiff allegedly suffered additional back injury, for which he later brought a malpractice action against Brovender.

On May 14,1984, Royal requested that the plaintiff submit to a second independent medical examination. The plaintiff agreed to undergo the exam, but advised Royal that, pursuant to General Statutes § 31-305, he wanted his treating physician, James D. Prokop, to be present. While arrangements were being made for the exam, Royal stopped paying benefits and filed a “Notice to Compensation Commissioner and Employee of Intention to Discontinue Payments” (form 36). The reason for termination stated on the form 36 was the plaintiff’s refusal to undergo an independent medical examination. The commissioner issued a conditional form 36 approval and suspended benefits on July 9, 1984. The plaintiff has received no further temporary total disability benefits since July 3, 1984. The exam was eventually performed on August 1, 1984.

The plaintiff contested the form 36 on July 13,1984. Thereafter, the commissioner held a series of seven hearings between December 1984 and August 1986, at which the plaintiff submitted medical information from both his treating physician and chiropractor. On December 26,1986, the commissioner issued a finding and dismissal of the plaintiff’s claim. The decision was based on the commissioner’s findings that the plaintiff’s March 1980 and April 1983 injuries were intervening causes of his disability, and that the plaintiff had failed to relate his current condition causally to the compensable event of February 27, 1980.

[539]*539The plaintiff appealed the commissioner’s dismissal, the compensation review division affirmed the commissioner, and this court affirmed the review division. Tutsky v. YMCA, 6 Conn. Workers’ Comp. Rev. Op. 167 (1989), affd, 21 Conn. App. 806, 572 A.2d 391, cert. denied, 214 Conn. 809, 573 A.2d 321 (1990). Following the dismissal, the plaintiff made three motions to open his case, in order to introduce additional medical information. The first two motions were denied by the commissioner, and, after each denial, the plaintiff appealed to the review division, which affirmed the denials. In his third motion, the plaintiff sought to introduce some newly discovered correspondence consisting of four letters between Vincent Afasano of Royal and Prokop, the plaintiff’s physician, which he claimed were material to his case. The letters were discovered by the plaintiff’s attorney during a review of Prokop’s records, preparatory to trial of the malpractice action against Brovender. This third motion was denied after the commissioner determined that the four letters were not material to the claim, in that they did not causally connect the claimant’s condition to the February 1980 injury. On January 17,1991, the compensation review division dismissed the plaintiffs appeal from the denial of this third motion. The plaintiff then filed the present appeal.

The plaintiff first claims that the review division improperly found that Royal did not have a duty to disclose to the commissioner the four letters between Royal and Prokop at the time this correspondence was exchanged. He bases this claim on General Statutes (Rev. to 1987) § 31-290b, which was in effect at that time2 and which provided: “Any person who knowingly makes a false statement or representation or fails to disclose a material fact in order to obtain, increase, pre[540]*540vent or decrease any benefit or payment under this chapter shall be guilty of a class A misdemeanor.” The thrust of the plaintiffs claim is that these letters contained “material facts” relevant to his compensation claim, and that because Royal failed to disclose them when they were written, the commissioner, exercising his equitable powers, should have permitted their introduction when they were later discovered.

As we will discuss more fully below, the commissioner reviewed the four letters between Royal and Prokop, and found that, although they refer to the plaintiffs injury, the letters shed no light on the critical issue affecting liability in this case: whether the plaintiffs current condition is causally related to his February 1980 work related accident. The commissioner concluded that none of the letters specifically addressed the issue. While this evidence may have been new, in that the plaintiff did not have these particular letters in hand at the time his case was originally before the commissioner, the letters contained no new information about the plaintiff’s condition; they merely reiterated the medical data already submitted and would not have affected or materially changed the commissioner’s decision. General Statutes § 31-290b addresses only the consequences of a failure to disclose “material” facts. Since the commissioner found that the information in these letters was not “material,” Royal’s failure to disclose them could have no bearing on the outcome of the plaintiff’s case.

The plaintiff’s second and third claims challenge the review division’s affirmance of the commissioner’s determination that the plaintiff was not entitled to an opening of his compensation claim because of the newly discovered correspondence between Royal and Prokop. The commissioner held that this evidence was cumulative and not likely to change the outcome of the case, and the review division affirmed this decision. We agree.

[541]*541A workers’ compensation award is, by nature, an interlocutory decree. Fair v. Hartford Rubber Works Co., 95 Conn. 350, 356, 111 A. 193 (1920).

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Bluebook (online)
612 A.2d 1222, 28 Conn. App. 536, 1992 Conn. App. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tutsky-v-ymca-of-greenwich-connappct-1992.