Heyward Sellers v. Sellers Garage, Inc., et al.

MCLACHLAN, J. The plaintiff, Heyward Sellers,
appeals from the decision of the workers' compensation
review board (board) affirming the May 9, 2001 findings
and award of the workers' compensation commissioner
(commissioner) for the fifth district. On appeal, the
plaintiff claims that the commissioner improperly (1)
denied the plaintiff total incapacity benefits, pursuant
to General Statutes § 31-307, for the period of September
30, 1998, to July 23, 2000, (2) denied the plaintiff
partial incapacity benefits, pursuant to General Statutes
§ 31-308, for the period of September 30 to October 27,
1998, (3) denied the plaintiff partial permanent disability
benefits, pursuant to General Statutes § 31-308a, for
the period of November 8, 1998, to July 23, 2000, (4)
found that treatment for erectile dysfunction and
depression constituted unauthorized medical treatment,
and (5) determined that the defendant Hanover
Insurance Company (Hanover) was not required to file
a form 36 before discontinuing disability payments,
which Hanover had made without prejudice. We affirm
the decision of the board.

The plaintiff suffered three compensable injuries,
which were accepted by voluntary agreement, to his
right wrist, left wrist and cervical spine on September
25 and November 14, 1995, and on March 21, 1997,
respectively. All three injuries occurred while the plaintiff
was employed by the defendant, Sellers Garage,
Inc., which had workers' compensation insurance provided
by the defendant Royal Insurance Company
(Royal). On April 20, 1998, the plaintiff was employed by
the defendant Workforce One, Inc., which had workers'
compensation insurance provided by Hanover. On that
date, the plaintiff sustained increased pain in his
right wrist.

On May 1, 1998, the plaintiff timely filed notice of his
claim for compensation for the April 20, 1998 injury
pursuant to General Statutes § 31-294c (a). Ten days
later, Hanover timely filed notice contesting the plaintiff's
workers' compensation claim pursuant to § 31-
294c (b). Nevertheless, Hanover paid to the plaintiff,
without prejudice, disability benefits for the period of
April 22 to September 29, 1998. Those benefits were
paid in one lump sum by check dated September 21,
1998. No voluntary agreement was entered into by the
plaintiff and Hanover, nor was the payment issued as
the result of a previous commissioner's award. Hanover
did not file a form 36 at any point in time.1

Formal hearings were held on November 13, 2000,
and March 29, 2001, during which a multitude of documents
concerning the plaintiff's medical history, treatment and disability benefits payments for each injury
were admitted into evidence. The commissioner found
that no medical evidence was presented to support
the plaintiff's claim for total incapacity benefits for the
period of September 30, 1998, to July 23, 2000. Also,
the commissioner found that the plaintiff did not produce
any evidence that the plaintiff had attempted to
find employment between September 30 and October
26, 1998, or between November 8, 1998, and March
26, 2000.

The plaintiff also sought compensation for erectile
dysfunction and depression. On April 19, 1999, the plaintiff
sought treatment from his family physician, Eduardo
Mari, concerning erectile dysfunction. Mari referred the
plaintiff to Robert A. Feldman, a urologist, who in turn
referred the plaintiff to Carole MacKenzie, a psychiatric
social worker. The commissioner found that neither
Mari nor Feldman or MacKenzie were authorized physicians
or authorized referrals as required by General
Statutes § 31-294d.

Accordingly the commissioner concluded, in relevant
part, that (1) neither Royal nor Hanover was responsible
to the plaintiff for total incapacity benefits for the period
of September 30, 1998, to July 23, 2000, (2) the plaintiff
was not entitled to partial incapacity benefits from Hanover
for the period of September 30 to October 27,
1998, (3) Royal did not have to pay the plaintiff partial
permanent disability benefits for the period of November
8, 1998, to July 23, 2000, (4) the treatment for erectile
dysfunction and depression constituted unauthorized
medical treatment, and (5) Hanover was not required
to file a form 36. The board affirmed the commissioner's
findings and award. This appeal followed.

‘‘The standard of review applicable to workers' compensation
appeals is well established. The commissioner
is the sole trier of fact and [t]he conclusions
drawn by [the commissioner] from the facts found must
stand unless they result from an incorrect application
of the law to the subordinate facts or from an inference
illegally or unreasonably drawn from them. . . . On
appeal, the board must determine whether there is any
evidence in the record to support the commissioner's
findings and award. . . . Our scope of review of the
actions of the [board] is [similarly] . . . limited. . . .
[However] [t]he decision of the [board] must be correct
in law, and it must not include facts found without
evidence or fail to include material facts which are
admitted or undisputed.'' (Internal quotation marks
omitted.) Daubert v. Naugatuck, 71 Conn. App. 600,
607, 803 A.2d 343, cert. granted on other grounds, 261
Conn. 942, 808 A.2d 1135 (2002).

The procedural posture of the case affords us a limited
scope of review. Because the plaintiff never filed
a motion to correct the factual findings of the commissioner,
the plaintiff is unable to challenge those findings now.2 See Bergin v. Dept. of Correction, 75 Conn. App.
591, 595, 817 A.2d 136, cert. denied, 264 Conn. 903, 823
A.2d 1220 (2003); see also Regs., Conn. State Agencies
§ 31-301-4. We therefore are limited to determining
whether the board's conclusions based on those facts
‘‘result[ed] from an incorrect application of the law to
the subordinate facts or from an inference illegally or
unreasonably drawn from them. . . . In other words,
[t]hese conclusions must stand unless they could not
reasonably or logically be reached on the subordinate
facts.'' (Citation omitted; internal quotation marks omitted.)
D'Amico v. Dept. of Correction, 73 Conn. App.
718, 723, 812 A.2d 17 (2002), cert. denied, 262 Conn.
933, 815 A.2d 132 (2003).

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‘‘The plaintiff is entitled to total disability benefits
under General Statutes § 31-307 (a) only if he can prove
that he has a total incapacity to work . . . . The plaintiff
[bears] the burden of proving an incapacity to work
. . . . Our Supreme Court has defined total incapacity
to work as the inability of the employee, because of
his injuries, to work at his customary calling or at any
other occupation which he might reasonably follow.''
(Citation omitted; internal quotation marks omitted.)
Id., 724.

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