CASE NO. 1468 CRB-4-92-7
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 29, 1994
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by James M. Connolly, Esq. and John F. Saylor, Esq., Rodie & Connolly, P.C., 3380 Main Street, P.O. Box 254, Stratford, CT 06497.
The respondents were represented by Robert M. Brennan, Esq., Law Offices of Rosenbaum & Brennan, 655 Winding Brook Drive, P.O. Box 695, Glastonbury, CT 06033.
This Petition for Review from the July 21, 1992 Finding and Dismissal of the Commissioner for the Fourth District was decided on the basis of papers submitted for the May 21, 1993 hearing before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.
JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review of the Fourth District Commissioner’s July 21, 1992 Finding and Dismissal. On appeal, the claimant argues that the commissioner improperly concluded that the claimant’s 1990 condition was a continuation of his 1985 compensable injury and therefore not a relapse or recurrence entitling the claimant to benefits pursuant to General Statutes Sec. 31-307b.1 In light of our recent decision in Mulligan v. F.S. Electric, 12 Conn. Workers’ Comp. Rev. Op. 91, 1424 CRB-4-92-5 (decided February 15, 1994), we reverse the trial commissioner.
The claimant sustained a compensable injury to his back on November 18, 1985 while in the employ of Sikorsky Aircraft. As a result of that back injury, the claimant was out of work for a six month period until March 1986, for which compensation was paid. During November 1990, the claimant experienced back pain, subsequently diagnosed by his treating physician as a recurrence of his 1985 back injury. A second physician opined the claimant’s 1990 back problem as a relapse from the 1985 injury. In 1991, the claimant underwent back surgery.
The claimant acknowledged that his doctor treated him for his back “on and off” after the 1985 injury and continuing through (and beyond) November 1990. The claimant testified that his back bothered him during the time he was working (1986-1990) and that his 1990 pains were similar to pains he had been feeling since 1985. The claimant further testified that he never recovered from the 1986 injury, and that the pain and numbness he felt in 1990 had been going on since 1985.
Based on the evidence before him, the trial commissioner found that the “claimant did not recover from the November 18, 1985 injury. The surgery and related lost time is a continuation of the original injury in 1985.” The commissioner also found that “the doctor’s opinion concerning a relapse or recurrence is not supported by the evidence.” Whereupon, the commissioner dismissed the claim for Sec. 31-307b benefits. This appeal followed.
In Mulligan y. F.S. Electric, supra, we were presented with facts nearly identical to the present case. There, the commissioner denied Sec. 31-307b benefits after concluding that the claimant had not recovered from his 1987 injury when he went to work in December, 1989, but later became totally disabled after working for two months. The commissioner also concluded that although the claimant had returned to work, he had not recovered from his July, 1987 injury because he continued to experience symptoms and receive medical treatment for that condition. We reversed because the commissioner’s conclusion resulted from an incorrect application of the law to the subordinate facts. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
In Mulligan, we noted that when originally enacted in 1967, Sec. 31-307b benefits were available for a relapse only when a claimant “returns to work after maximum recovery . . . .” (Emphasis added.) In 1969, the statute was amended to delete the word “maximum.”2 This particular statutory change must be viewed as significant. See Farricelli v. Personnel Appeal Board,186 Conn. 198, 204 (1982); see also State v. Anderson, 227 Conn. 518, 527-28 (1993). The legislature has, therefore, declined to define the extent of recovery required of a claimant before a relapse or recurrence will permit access to Sec. 31-307b benefits other than to require a return to work. Thus, we have concluded that in order to be eligible for benefits under the provisions of Sec. 31-307b “the claimant need not make a complete recovery. It is enough if he has recovered sufficiently so that he is no longer eligible for temporary benefits nor is he, at that time, eligible for a specific indemnity award.” (Internal quotation marks omitted.) Mulligan v. F.S. Electric, supra.
As we concluded in Mulligan, the fact that the claimant continued to experience pain and required ongoing medical treatment during his return to work did not affect his eligibility for Sec. 31-307b benefits where the claimant returned to full-time work after receiving temporary total disability benefits and later became totally disabled as a result of the prior injury.
We, therefore, reverse the trial commissioner’s denial of benefits pursuant to Sec. 31-307b and remand for further proceedings consistent with this opinion.
Commissioner George A. Waldron concurs.
DONALD H. DOYLE, JR., COMMISSIONER (Dissenting). I dissent. Whether or not a particular happening is a recurrence or a relapse is a factual determination which must be made by the trial commissioner. The claimant’s argument that a finding of “recovery” is not a prerequisite to establishment of a recurrence is unavailing. Tauber’s Cyclopedic Medical Dictionary 1470 (15th ed. 1985) defines “relapse” as “[r]ecurrence of a disease or symptoms after apparent recovery”. It also defines “recurrence” as “[r]eturn of symptoms after a period of quiescence”. Tauber’s Cyclopedic Medical Dictionary 1462 (15th ed. 1985). A plain reading of the statute requires a return to work after recovery from injury regardless of whether it is a relapse or recurrence. Notwithstanding the statutory language the definition of recurrence presupposes a period of improvement or recovery. The trial commissioner’s finding that the claimant did not recover from the November 18, 1985 injury is specifically supported by the testimony of the claimant and must stand unless it results from an incorrect application of the law to the subordinate facts. Fair v. People’s Savings Bank, 207 Conn. 535, 538-39 (1988).
The thrust of my dissent is directed to the majority’s application of Mulligan v. F. S. Electric, 12 Conn. Workers Comp. Rev. Op. 91, 1424 CRB-4-92-5 (1994) and the basis upon which Mulligan was decided, specifically a misapplication of the law. The CRB and this majority refers to a 1969 amendment to Sec. 31-307b C.G.S. which deleted the word “maximum”, which they deem to be significant. They then extrapolate that “the legislature declined to define the extent of recovery required of a claimant before a relapse or recurrence will permit access to Sec. 31-307b benefits other than to require a “return to work”. The CRB and this majority then conclude that if the claimant returns to work and is not eligible for temporary benefits or specific indemnity benefits and later becomes totally disabled, without a new injury, as a matter of law the claimant is entitled to Sec. 31-307b benefits.
By arriving at this conclusion, the CRB and this majority has ignored the phrase “after recovery from his injury”. The Connecticut Supreme Court has appropriately stated, “[We] must consider the statutory scheme as a whole, giving meaning to every section and assuring no word or phrase to be superfluous”. (citations omitted) Berger v. Tonken, 192 Conn. 581, 589 (1984). The CRB and this majority correctly observe that when the legislature took the word “maximum” out of Sec. 31-307b in 1969 but left the word “recovery”, it declined to define the extent of recovery that would be required before a claimant was eligible for Sec. 31-307b benefits. By ignoring the word “recovery” in Sec. 31-307b the CRB and this majority has relieved the trial commissioner of the duty to first find as a matter of fact that there has been a “recovery”. Where the legislature has specifically chosen not to define the extent of recovery it is not for the CRB and this majority to so define. The interpretation of the CRB renders the word “recovery” superfluous and unnecessary in direct contravention of the tenets of statutory construction. Had the legislature intended the result reached in Mulligan and the instant matter, it could have also deleted the word recovery. The language of the statute is clear and unambiguous. It requires an individual to recover from their injury before becoming eligible to claim Sec. 31-307b benefits. The phrase “return to work” in the statute is clearly qualified by the language “after recovery”.
The CRB in arriving at their decision in Mulligan relies and adopts an unsupported theory enunciated in J. Asselin’s, The Connecticut Workers’ Compensation Practice Manual, p 168, regarding whether a claimant is entitled to claim Sec. 31-307b benefits. Such reliance of an unsupported theory is misplaced particularly in light of the CRB’s decision in Janoy v. General Electric Co., 4 Conn. Workers’ Comp. Rev. Op. 44,45, 491 CRD-4-86 (1987) wherein the CRB held, “[w]hether or not a particular happening is a recurrence is a factual determination to be made by the trial Commissioner”.
The CRB and this majority misapplies the law and violates the tenets of appellant review reiterated by the Supreme Court in Fair, supra, by invading the province of the trial commissioner and eliminating the ability to make a factual determination of whether the claimant has “recovered” from his injury. Therefore, the Fourth District July 21, 1992 decision denying Sec. 31-307b benefits should be affirmed and the appeal should be dismissed.
1 At the time of the claimant’s injuries, General Statutes Sec. 31-307b provided in pertinent part: “If any employee who receives benefits under section 31-307 returns to work after recovery from his injury and subsequently suffers total or partial incapacity caused by a relapse from the recovery from, or a recurrence of, such injury, such employee shall be paid a weekly compensation equal to sixty-six and two-thirds percent of his average weekly earnings at the time of the original injury or at the time of his relapse or at the time of the recurrence of such injury, whichever sum is greater . . . .” BACK TO TEXT
2 In 1979, Sec. 31-307b was amended to cover a recurrence of an earlier injury. BACK TO TEXT