CASE NO. 3302 CRB-6-96-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 16, 1997
NEW BRITAIN GENERAL HOSPITAL
CONNECTICUT HOSPITAL ASSOCIATION WORKERS’ COMPENSATION TRUST
SECOND INJURY FUND
The claimant was represented by Lawler & Associates, P.C., Cromwell Executive Center, 75 Berlin Rd., Suite 111, Cromwell, CT 06416, which did not appear at oral argument.
The employer and its insurer were represented by Suzanne Fetter, Esq., Letizia & Ambrose, 1764 Litchfield Turnpike, Woodbridge, CT 06525.
The Second Injury Fund was represented by Nancy Sussman, Esq., Assistant Attorney General, 55 Elm St., P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the March 15, 1996 Finding and Dismissal of the Commissioner acting for the Sixth District was heard December 13, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.
JESSE M. FRANKL, CHAIRMAN. The respondent employer and its insurer (hereinafter “respondents”) have petitioned for review from the March 15, 1996 Finding and Dismissal of the Commissioner acting for the Sixth District. In that decision, the trial commissioner found that the claimant did not have a preexisting impairment of his left knee and thus denied the respondents’ request to transfer liability for the claimant’s left knee injury pursuant to § 31-349. The respondents argue on appeal that the Finding and Award is void because it was not issued within 120 days. In addition, the respondents contend that the trial commissioner erred in relying upon the opinion of Dr. Selden.
We will first address the respondents’ contention that the trial commissioner’s decision is invalid because it was made more than 120 days after the briefs were submitted to the trial commissioner on November 13, 1995. According to § 31-300, the trial commissioner was required to issue a decision within one hundred twenty days of the close of the hearing. Our Supreme Court has held that the time period in § 31-300 is mandatory, and that prejudice need not be demonstrated to invalidate a late decision. Stewart v Tunxis Service Center, 237 Conn. 71, 76-80 (1996). However, the parties may waive a trial commissioner’s noncompliance with § 31-300, either explicitly or implicitly by conduct. Id. at p. 80; Dichello v. Holgrath Corporation, 15 Conn. Workers’ Comp. Rev. Op. 441, 2249 CRB-5-94-12 (Sept. 5, 1996). In the Stewart case, on remand from our Supreme Court this board stated that “when the 120-day time limit has long passed, and a party has made no indication that it has an objection to the lateness of a decision, this board is inclined to interpret that inaction as an intent to waive the 120-day time limit. A party shall not be allowed to choose to enforce its right to invalidate a ruling only after the party reviews the decision and decides that it is adverse to its interests, barring special circumstances.” Stewart v. Tunxis Service Center, 16 Conn. Workers’ Comp. Rev. Op. 69, 71, 1684 CRB-6-93-4 (Oct. 30, 1996).
In the instant case, the respondents did not object to the delay of the issuance of a decision by the trial commissioner until March 25, 1996, the date the respondents filed a Motion to Set Aside the Finding and Dismissal. “We will not allow parties to acquire a type of veto power over a decision by failing to object to a late award until they have an opportunity to see whether they approve of the result.” Minneman v. Norwich Board of Education, 2294 CRB-2-95-2 (Dec. 13, 1996). Thus, we hold that the respondents waived their right to enforce the 120-day time limit in § 31-300.
We now turn to the merits of the respondents’ appeal. Section 31-349 (Rev. to 1989) provides that where an employee who has a “permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of the disability” from the Second Injury Fund after 104 weeks, assuming statutory filing requirements are met. A preexisting permanent physical impairment is clearly a condition precedent to Fund liability under the statute. Williams v. Best Cleaners, Inc., 237 Conn. 490, 499 (1996); Rowe v. Plastic Design, Inc., 37 Conn. App. 131, 134 (1995). In order for a transfer of liability to the Fund to be appropriate, the claimant’s preexisting condition and the second injury must result in a “permanent disability caused by both (conditions) which is materially and substantially greater than (that which) would have resulted from the second injury alone....” Williams, supra, at 497.
In the instant case, the trial commissioner found the following relevant facts. The claimant injured his left knee on February 23, 1990 when he fell off a ladder at work. The respondents contended that the claimant suffered from a preexisting degenerative condition and arthritic condition in his left knee which caused his left knee injury to be materially and substantially greater. The claimant was treated by Dr. Swartz who performed arthroscopic surgery on his left knee on August 8, 1990. Dr. Swartz testified that the claimant had preexisting arthritis in his left knee but that he omitted this information from his contemporaneous operative notes. Dr. Swartz further testified that due to the claimant’s obesity, the claimant had degenerative changes in his left knee prior to the injury. Pursuant to § 31-294f, an examination of the claimant was conducted by Dr. Selden, who also considered the claimant’s history, the MRI, the X-rays, and the operative notes of Dr. Swartz. Dr. Selden opined that there was no significant pre-existing condition in the claimant’s left knee prior to the February 23, 1990 injury.
On appeal, the respondents argue that the record does not support the trial commissioner’s determination that the claimant did not have a preexisting impairment of his left knee which caused his injury of February 23, 1990 to result in a disability which was materially and substantially greater. Whether or not a particular condition constitutes a physical impairment is a factual decision for the trial commissioner. Rowe, supra, at 135. As we have often stated, this board does not retry the facts because the power and duty of determining the facts rests on the commissioner as the trier of fact. This fact-finding authority “entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses.” Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995) (citing Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994)). We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
The respondents contend that it was improper for the trial commissioner to rely upon the opinion of Dr. Selden because Dr. Selden reviewed the operative notes of Dr. Swartz, who testified that he had omitted reference in those notes to a preexisting arthritic condition. The trial commissioner considered this issue when making his determination. (Finding No. 8). The trial commissioner’s decision is fully supported by the record, including the deposition of Dr. Selden.1 Dr. Selden testified that the claimant had only minimal degenerative changes which were normal for his age. (Deposition of Dr. Selden at p. 7). Moreover, an MRI was taken prior to the arthroscopic surgery and the report did not reference any preexisting arthritis. Similarly, x-rays taken after the claimant’s injury did not reveal any arthritic condition. Furthermore, Dr. Swartz, who had treated the claimant prior to his February 23, 1990 injury, testified that the claimant had never complained of knee pain prior to the injury.
The trial commissioner found that Dr. Swartz was not able to explain how the preexisting arthritis caused the claimant’s injury to be materially and substantially greater. (Finding No. 11; Deposition of Dr. Swartz at p. 17-20). The trial commissioner’s determination that the claimant did not suffer from a preexisting condition of the left knee which made his resulting injury materially or substantially greater was based upon the weight and credibility which he accorded the evidence. We will not disturb that conclusion on appeal, as there is evidence to support it in this case. Fair, supra; see also Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996).
Finally, we will address the respondents’ contention that the trial commissioner erred in denying their motion to correct. On review of the denial of a motion to correct, this board may not alter a commissioner’s findings unless they are unsupported by the evidence or unless they fail to include admitted or undisputed material facts. Knoblaugh v. Greenwood Health Center, 13 Conn. Workers’ Comp. Rev. Op. 150, 152, 1608 CRB-1-92-12 (Feb. 6, 1995). A Motion to Correct also may be denied properly where the legal conclusion of the commissioner would not be altered by the substituted findings. Id.; Plitnick v. Knoll Pharmaceuticals, 13 Conn. Workers’ Comp. Rev. Op. 26, 28, 1699 CRB-8-93-4 (Nov. 7, 1994). In the instant case, the respondents’ motion to correct largely relates to the trial commissioner’s reliance on Dr. Selden’s opinion over that of Dr. Swartz. We find no error in the commissioner’s denial of the respondents’ motion to correct.
The trial commissioner’s decision is affirmed.
Commissioners George Waldron and Robin L. Wilson concur.
1 We note that Dr. Selden was asked whether he would change his opinion if he were told that Dr. Swartz subsequently stated, based on the arthroscopy, that there were preexisting degenerative changes. Dr. Selden replied in the negative, explaining: “I am not relying on one sole piece of data. I’m relying on the patient’s history, his examination, regular x-rays, MRI, arthroscopy, all of these are very consistent in indicating that there was no preexisting condition to this patient’s knee.” (Deposition of Dr. Selden at p. 19-20). BACK TO TEXT