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Fusciello v. Ronnie Demeo, Inc.

CASE NO. 1535 CRB-6-92-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 7, 1994

ILIO FUSCIELLO

CLAIMANT-APPELLEE

v.

RONNIE DEMEO, INC.

EMPLOYER

and

ORION GROUP (EBI COMPANIES)

and

TRAVELERS INSURANCE COMPANY

INSURERS

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Paul S. Ranando, Esq., Law Offices of Edward T. Dodd, Jr., 182 Grand Street, Waterbury, CT 06702.

The respondent-employer and its insurer Orion Group (EBI Companies) were represented by Brian E. Prindle, Esq., 627 Main Street, Manchester, CT 06040.

The respondent-employer and its insurer Travelers Insurance Company were represented by Robert S. Cullen, Esq., P.O. Box 9802, New Haven, CT 06536-0802.

This Petition for Review from the October 14, 1992 Finding and Award of the Commissioner for the Sixth District was heard October 29, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. The respondents have petitioned for review from the Sixth District Commissioner’s October 14, 1992 Finding and Award. On appeal, the respondents contend that the commissioner improperly found (1) that the claimant sustained injuries arising out of and in the course of his employment with the respondent-employer on September 20, 1983 and November 9, 1983, (2) that the claimant was totally incapacitated as a result of those injuries, (3) that the claimant was totally disabled after November 13, 1987, the last date he was seen by his treating physician, and (4) that the claimant was entitled to total incapacity benefits after finding the claimant entitled to permanency benefits. We modify the Finding and Award based on certain of these claims.

It is well settled that the scope of our appellate review is limited. We do not retry the facts. Rather, our task is to determine whether there was evidence to support the commissioner’s conclusion and whether the conclusion was based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988) Muldoon v. Homestead Insulation Co., 33 Conn. App. 695, 699 (1994).

The respondents first claim that the trial commissioner improperly found that the claimant sustained injuries on September 20 and November 9, 1983, arising out of and in the course of his employment with the respondent-employer. The respondents contend that the pain experienced by the claimant during and after his employment with the respondent-employer was the result of prior injuries. The respondent-employer and its insurer EBI Companies (Orion Group) also contend that the evidence showed no occurrence on November 9, 1983, but only that the claimant experienced pain while at work.

“Whether an injury arose out of and in the course of employment is a question of fact to be determined by the commissioner . . . . If supported by competent evidence and not inconsistent with the law, the commissioner’s inference that an injury did or did not arise out of and in the course of employment is, thus, conclusive.” (Citations omitted.) Pereira v. State, 228 Conn. 535, 544 (1994). In his deposition testimony, Dr. Russell Bower, the claimant’s treating neurosurgeon, stated that the claimant experienced a worsening of symptoms during and after his work with the respondent-employer in 1983 and that the September and November occurrences at work were responsible for the claimant’s increased problems. See Deposition of Russell S. Bower, M.D. (Claimant’s Exhibit 3A), pp. 48, 54-55, 62, 66, 67, 85 and 89-90. Additionally, Dr. Bower opined that the claimant had an ulnar nerve problem before his employment with the respondent-employer but that he developed a disc problem at C5-C6 after and as a result of employment. Id., pp. 85, 89-90. Finally, the claimant testified concerning specific injuries while in the employ of the respondent-employer in September 1983 when he hurt his neck while working with heavy cement blocks; Transcript of May 11, 1988, pp. 10-12; and in November, 1983, when he fainted after experiencing intense pain while again lifting blocks. Id., p. 24. The record, therefore, amply supports the commissioner’s factual findings and conclusions regarding causation.

The respondents next claim that the trial commissioner improperly found that the claimant was totally disabled as a result of the injuries he sustained while working for the respondent-employer. To support this contention, the respondents assert that the first medical evidence to support a finding of total disability was Dr. Bower’s April 25, 1986 report and that no evidence was presented to support a finding of total incapacity between November, 1983 and April, 1986.1 We disagree.

The claimant testified that he did not work after November 9, 1983. He explained that he wanted to work and that he was called to work on some jobs, but that after seeing what was involved in doing those jobs he ended up referring each job to another mason because he could not do the work. See Transcript of May 11, 1988, p. 43, 61-62. Additionally, Dr. Bower testified that the claimant’s lifting of blocks while employed by the respondent-employer “caused him to be disabled from work” and prevented the claimant from doing “anything except the lightest of activity.” Claimant’s Exhibit 3A, p. 53; see also Claimant’s Exhibit 2A. Dr. Bower’s medical reports also show a continuation of the same disabling symptoms and pain after November, 1983; see generally Claimant’s Exhibit 1A; and specifically mention an inability to work on August 29, 1985 and April 25, 1986. Id.; see also Claimant’s Exhibit 2A (Bower letter dated April 18, 1984). The commissioner’s finding that the claimant was totally incapacitated after November 9, 1983, as a result of the injuries sustained by the claimant while working for the respondent-employer, was therefore supported by evidence in the record and the inferences which the commissioner could reasonably draw from that evidence.

We agree with the respondents, however, that the commissioner’s finding of total disability beyond November 13, 1987, is not supported by the evidence. The only medical evidence supporting the claim for temporary total benefits was the deposition testimony and medical reports of Dr. Bower. Dr. Bower last treated the claimant on November 13, 1987, shortly before his retirement from the practice of medicine. In Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 100, 725 CRD-6-88-4 (1989), we observed that, in most instances, “total incapacity [is] a matter of continuing proof for the period claimed” and concluded that a finding of total incapacity cannot be made for a period beyond the date of the last evidentiary hearing. Similarly, where no medical evidence is offered beyond the testimony of a physician who left the practice of medicine at the end of 1987 and last treated the claimant on November 13, 1987, the commissioner’s determination that the claimant continued to be totally disabled for a period of nearly five years thereafter (including a period of more than two years since the last evidentiary hearing and nearly two-and-a-half years since Dr. Bower’s deposition testimony) is not supported by any evidence of record or any reasonable inference capable of being drawn from the evidence presented. “[A]dditional proceedings are necessary to provide the requisite factual basis for a conclusion of continued total incapacity.” Id. Accordingly, Paragraph B of the Finding and Award must be modified to reflect the claimant’s entitlement to payment of temporary total disability benefits for the period November 9, 1983 through April 18, 1984 and from February 4, 1985 through November 13, 1987.

The respondents’ final claim on appeal is that it was improper for the commissioner to award benefits for total incapacity after having found that the claimant was entitled to a permanency rating. That is not a correct statement of our law, however. Temporary total disability benefits may be awarded notwithstanding a finding that the claimant sustained a permanent partial disability. See McCurdy v. State, 227, Conn. 261, 266-68 (1993); Osterlund v. State, 129 Conn. 591, 600 (1943); Marchitto v. Hamden Upholstery Co., 9 Conn. Workers’ Comp. Rev. Op. 138, 140, 953 CRD-3-89-12 (1991); Masse v. Becton Dickinson Company, 1 Conn. Workers’ Comp. Rev. Op. 83, 83 CRD-5-81 (1981).2

We, therefore, modify Paragraph B of the Sixth District Commissioner’s October 14, 1992 Finding and Award to provide that the claimant is entitled to temporary total disability benefits for the period of November 9, 1983 through April 18, 1984 and from February 4, 1985 through November 13, 1987. Furthermore, we affirm the decision of the commissioner, as so modified. The claimant is entitled to pursue the matter of his entitlement to total disability benefits, if any, for any period after November 13, 1987.

Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 The respondents also claim that, even if the claimant were totally disabled from November, 1983 until the date of the hearing, the evidence showed that this disability was due to the claimant’s prior injuries with other employers. This argument simply recasts the respondents’ first claim on appeal and is without merit for reasons previously discussed. BACK TO TEXT

2 In his Finding and Award, the trial commissioner found that “[t]he claimant has suffered a permanent partial disability of 15% of the neck and an additional 5% permanent partial disability of the right arm” (paragraph 27) and that “[t]he claimant has sustained a 15% permanent partial disability of the neck and a 5% permanent partial disability from employment since November 9, 1983 as a result of these injuries and the same is so found.” (Paragraph 31) Both of these findings appear to be based on Dr. Bowers’ April 18, 1984 letter which included a disability rating. At the conclusion of his Finding and Award, in paragraph D, the commissioner ordered that “[t]he claimant be and hereby is entitled to payment of permanent partial disability benefits for 5% of the master arm and 15% of the cervical spine at the compensation rate of $303.52 when he has reached maximum medical improvement.” (Emphasis added.)

The finding of a permanency without a finding that the claimant has reached maximum medical improvement cannot support an award of permanent partial disability benefits. See McCurdy v. State, 227 Conn. 261, 266-69 (1993); Messier v. General Dynamics/Electric Boat Division, 1495 CRB-2-92-8 (decided April 26, 1994). The respondents, however, do not challenge the commissioner’s “award” of permanent partial disability. Rather, they argue in their brief: “[The] finding that the claimant has sustained a permanency . . . by implication incorporates a determination that the claimant is at maximum medical improvement and has a work capacity. As such, it was error [for] the Commissioner to award benefits for total incapacity after having found that the claimant was entitled to permanency.” Notwithstanding our agreement with the respondents that the finding of permanency does imply a determination that the claimant reached maximum improvement, such a finding does not preclude an award of total incapacity benefits where permanency is not also awarded for the same time period. See McCurdy v. State, supra; Osterlund v. State., 129 Conn. 591, 600 (1943). BACK TO TEXT

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