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Dahle v. The Stop and Shop Supermarket Company, LLC

Court of Appeals of Connecticut

September 25, 2018

BARBARA DAHLE
v.
THE STOP AND SHOP SUPERMARKET COMPANY, LLC, ET AL.

          Argued April 16, 2018.

         Procedural History

         Appeal from the decision of the Workers' Compensation Commissioner for the Sixth District dismissing the plaintiff's claim that she was entitled to temporary total disability benefits without a social security offset, brought to the Compensation Review Board, which affirmed the commissioner's decision, and the plaintiff appealed to this court. Affirmed.

          Barbara Dahle, self-represented, the appellant (plaintiff).

          Jane M. Carlozzi, for the appellee (named defendant).

          Francis C. Vignati, Jr., assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Philip M. Schulz, assistant attorney general, for the appellee (defendant Second Injury Fund).

          DiPentima, C. J., and Sheldon and Harper, Js.

          OPINION

          HARPER, J.

         The plaintiff, Barbara Dahle, appeals from the decision of the Compensation Review Board (board), which affirmed the decision of the Workers' Compensation Commissioner for the Sixth District[1] dismissing the plaintiff's claim that she was entitled to temporary total disability benefits without a social security offset. On appeal, the plaintiff claims[2] that the board erred by: (1) not addressing past incorrect evidence, not finding her new evidence credible, and not addressing a statement from Commissioner Stephen B. Delaney about delayed medical care; and (2) denying her request for financial compensation without a social security offset pursuant to General Statutes (Rev. to 2003) § 31-307 (e).[3] We disagree and, accordingly, affirm the decision of the board.

         The following facts and procedural history are relevant to our resolution of this appeal. On August 8, 2003, the plaintiff suffered a compensable injury to her right shoulder and left hip after she fell during and in the course of her employment with the defendant The Stop & Shop Supermarket Company, LLC.[4] Following treatment, Scott Organ, a physician, issued a 5 percent permanent partial disability rating as to the plaintiff's right upper extremity by report dated March 17, 2006. By voluntary agreement of the parties, dated September 5, 2006, the plaintiff was paid a 5 percent permanent partial disability[5] of the right shoulder with a maximum medical improvement date of September 5, 2006. No permanency rating was ever issued as to the plaintiff's left hip.

         A formal hearing took place before Commissioner Ernie R. Walker on June 3, 2008. The issues addressed at the hearing included the plaintiff's claim for wage differential benefits pursuant to General Statutes § 31-308a[6] and her claim for additional medical treatment pursuant to General Statutes (Rev. to 2003) § 31-294d.[7]On June 4, 2008, Commissioner Walker issued a decision (2008 commissioner's decision) in which he granted the plaintiff's request for § 31-308a benefits but denied her request for additional medical treatment pursuant to § 31-294d. Regarding the denial of additional medical treatment, the commissioner noted that he found credible the testimony of the plaintiff's treating physician, Organ, who testified at the hearing that it was his opinion that additional treatment would be palliative and not curative.

         On June 18, 2008, the plaintiff filed a motion to correct the 2008 commissioner's decision, which was denied on June 19, 2008. On June 27, 2008, the plaintiff filed a petition for review of the 2008 commissioner's decision denying her request for additional medical treatment.

         The petition for review was heard before the board on December 12, 2008. On June 5, 2009, the board affirmed the 2008 commissioner's decision, finding no error. Specifically, the board concluded, inter alia, that ‘‘the medical opinions in the . . . record provide ample support for the determination by the . . . commissioner that a pain management regimen would be palliative rather than curative and, thus, would not constitute reasonable or necessary treatment.''[8] The plaintiff did not appeal the June 5, 2009 decision of the board (2009 board decision).[9]

         On April 18, 2011, the plaintiff requested approval from the Workers' Compensation Commission (commission) for surgery on her right shoulder. The request initially was denied. The plaintiff then underwent surgery on her right shoulder on September 17, 2014, for which she received total incapacity benefits pursuant to § 31-307, ...


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