A Specious Defense of Temporary Total Benefits, and Sua Sponte Sanctions

LEE VS. CULTEC, INC. CASE NO. 5546 CRB-7-10-4 (FEBRUARY 25, 2011) In a case in which the respondent originally accepted a cervical injury, but ignored the treating physician’s recommendation for a referral to a spine specialist, during which period of time the claimant was deemed to be totally disabled by the treating internist, the respondent could not cry foul when its belated-RME determined that the claimant had a work capacity for some indeterminate period prior to his examination. Respondent conducted an RME only after the respondent claimed that the trial commissioner did not have  competent evidence upon which to determine that the claimant was temporarily and totally disabled for the period of time between the injury and the date of the finding and award, almost a year later. Using unvarnished language, the CRB characterized the respondent’s arguments as specious, finding that there was plenty of evidence in the record to sustain the commissioner’s decision that the claimant was totally disabled. Further, the CRB determined that having limited the claimant to treating with general practitioners, the respondent could not then fairly criticize the opinion from such physicians.

The CRB upheld the trial commissioner’s sua sponte finding that the respondent’s egregious behavior in failing to provide appropriate medical treatment prior to the finding and award, and then formulating a defense payment of temporary total  benefits by attacking the quality of his treatment and credibility of the treating physicians, which they foisted upon the claimant, (by not allowing the referral to his spinal specialist),  merited a penalty under 31-288(b)(1). In affirming the trial commissioner’s 31-288(b)(1) penalty, the CRB indicated that 31-300 attorney’s fees sanction had been properly noticed and because of the similarity in the statutes between 31-300 and 31-288(b)(1), respondent could not claim it was deprived of due process. Specifically, the CRB stated “we do not find the two sanction statutes so dissimilar that the respondent was unable to prepare an effective defense regarding §31-288(b)(1) CGS.

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