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Bowman v. Jack’s Auto Sales et al.

CASE NO. 3384 CRB-1-96-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 18, 1997

RICHARD BOWMAN

CLAIMANT-APPELLEE

v.

JACK’S AUTO SALES

EMPLOYER

and

AMERICAN MUTUAL LIABILITY INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

and

AAMCO TRANSMISSIONS

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Lorenzo Cicchiello, Esq., Cicchiello & Cicchiello, 582 West Main St., Norwich, CT 06360.

Jack’s Auto Sales and American Mutual Liability Insurance Co. were represented by David A. Kelly, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

AAMCO Transmissions and Hartford Insurance Group were represented by Lucas D. Strunk, Esq. and

Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was not represented at oral argument. Notice sent to Ernie Walker, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120

This Petition for Review from the July 9, 1996 Corrected Finding and Award of the Commissioner acting for the First District was heard May 9, 1997 before a Compensation Review Board panel consisting of Commissioners James J. Metro, John A. Mastropietro, and Stephen B. Delaney.

OPINION

JAMES J. METRO, COMMISSIONER. The respondents Jack’s Auto Sales and American Mutual Liability Insurance Co. have petitioned for review from the July 9, 1996 Corrected Finding and Award of the Commissioner acting for the First District.1 They argue on appeal that the trier erred by awarding duplicate permanent partial disability payments for a single injury, and by awarding § 31-308a benefits without sufficient supporting evidence. We affirm the award of additional benefits under § 31-308a, but reverse the commissioner’s decision regarding the issue of a credit for 48.4 weeks of permanency benefits.

The facts surrounding the claimant’s 1977 hand injury and resulting disability are stated in a prior opinion of this board, in which we remanded this case to the trial commissioner for further findings on two of the issues that were raised in the first appeal. Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 1721 CRB-2-93-5 (March 22, 1995). The trier determined on remand that, pursuant to an earlier voluntary agreement, the claimant had been paid for a 10 percent permanent partial disability of the hands, and that his 78-week award of compensation for a permanent skin impairment “as it relates to the body” differed in nature from the previous payment. Thus, he ruled that there was no basis for deducting 48.4 weeks of compensation as a credit against the 78-week award. The trier also held that the claimant was entitled to two years of § 31-308a benefits after the conclusion of the permanent partial disability award. The respondents-appellants have petitioned for review from that decision.

Initially, we note that the § 31-308a award made by the trier on remand is just a modified version of the same award that was made in the previous decision. Because the trier adjusted his decision on the credit, he consequently moved the commencement date of the § 31-308a award forward. However, the grounds for the award itself are exactly the same as they were in the prior Bowman decision. This board has already affirmed the substance of the § 31-308a award for that 104-week time period, and will not readdress the same issue in a subsequent appeal. See Chase v. State of Connecticut/Department of Motor Vehicles, 15 Conn. Workers’ Comp. Rev. Op. 292, 294-95, 2185 CRB-2-94-9 (June 20, 1996) (doctrine of “law of the case” prevents CRB from readdressing questions that were or could have been answered in a previous appeal).

The issue regarding the two permanency awards is somewhat more complex. Pursuant to a voluntary agreement dated December 11, 1981, the claimant was paid 48.4 weeks of benefits for a 10 percent permanent partial loss of use of the left and the right hands. The commissioner later ruled in the 1993 Finding and Award of Compensation that the claimant was entitled to 78 weeks of compensation for a ten percent impairment of the skin as it relates to the whole man, with a credit for the 48.4 weeks of compensation already paid pursuant to the voluntary agreement. In making this finding, the trier expressly stated that he found Dr. Goldman’s assessment of the claimant’s physical impairment most convincing. On remand, the commissioner decided that his deduction of 48.4 weeks from the award had been in error, as “10% of the skin as it relates to the body is wholly different and apart from the 10% impairment for the loss of use of hands.” Corrected Finding and Award, ¶ 2.

The appellants argue that the trier’s decision to eliminate the credit was legally erroneous, as both permanency awards are for the same injury to the same body part. They cite Misenti v. International Silver Co., 215 Conn. 206 (1990) in support of their argument, and point out that Dr. Goldman never testified in terms of permanent partial disability to the hand itself, but rather as to a 5 to 10 percent impairment of the whole man that the trier extrapolated to the skin. The appellants contend that the very same evidence was used to reach the 10% award in the prior voluntary agreement, and that allowing the claimant to recover the full amount of both awards would lead to double recovery in this case.

In Misenti, supra, the plaintiff suffered from dermatitis that left him totally disabled whenever his condition acted up. The trial commissioner awarded him 50% permanent partial disability for both hands. The defendants argued to the Supreme Court that the plaintiff was not eligible for a specific scheduled loss under § 31-308(b), because the origins of his disability were dermatological rather than orthopedic or neurological. They contended that the claimant instead should have received an award for an unscheduled loss under § 31-308(d). The Supreme Court disagreed, as a dermatologist testified that the skin condition had indeed resulted in the plaintiff losing 50% of the use of his hands, and there was no specific language in the statute limiting specific benefits for hand injuries to orthopedic or neurological causes. The Court did not address the issue of whether a claimant could collect separate benefits for both a skin disability and a permanent partial disability to the hands.

However, this board has stated in the past that the Workers’ Compensation Act does not provide for a separate award of benefits on the basis of a “whole man” disability rating. Piscitelli v. Connecticut Coke/Eastern Gas & Fuel, 6 Conn. Workers’ Comp. Rev. Op. 94, 96, 575 CRD-3-87 (Jan. 26, 1989). A commissioner may consider the effect of an injury on a person’s overall ability to function in determining the percentage loss of or loss of use of function of a specific organ or body part, but the award itself is for the body part, not the “whole man” disability. Id.; see also Repasi v. Jenkins Bros., 4 Conn. Workers’ Comp. Rev. Op. 82, 227 CRD-4-83 (June 11, 1987), appeal dismissed, 16 Conn. App. 121 (1988), cert. denied. 209 Conn. 817 (1988).

When the claimant received a 10% permanent partial disability award in 1981 pursuant to voluntary agreement, the medical reports of the treating physician, Dr. Taylor, and the other physicians, Dr. Millstone and Dr. Goldman, all concerned the claimant’s dermatitic condition in his hands. It is clear that this award was based on the claimant’s skin condition as it affected the use of his hands. The second 10% award made by the trial commissioner was ostensibly for the claimant’s skin impairment as it relates to the whole man. As we just explained, though, there is no “whole man” impairment award under the Workers’ Compensation Act. Furthermore, the commissioner expressly stated that he was relying on Dr. Goldman’s medical opinion in making his award. A review of the transcript of Dr. Goldman’s testimony shows that his diagnosis exclusively concerns the condition of the claimant’s skin as it relates to the use of his hands, even though the doctor was using the AMA “whole man” guidelines in making his rating. Transcript, April 3, 1990, p. 38-39. There is no evidence to support a conclusion that the second award was made for anything other than the same condition covered by the first one.

As § 31-308(d) allowed awards for unscheduled body parts (such as the skin) at the time of the claimant’s injury, it was not outside the commissioner’s discretion to grant the claimant 78 weeks of benefits (10% of 780, the maximum allowable length of an award at the time of the claimant’s injury). Misenti, supra, supports this proposition, and the respondents acknowledge this in their brief. Because this award was made on the basis of the same disability covered under the 1981 voluntary agreement, however, the trier should have offset the 48.4 weeks of benefits already paid against the subsequent 78-week award. We thus hold that the respondents only owed the claimant 29.6 weeks of benefits at the claimant’s base compensation rate for the 1993 award.

The trial commissioner’s decision is affirmed in part, and reversed in part.

Commissioners John A. Mastropietro and Stephen B. Delaney concur.

1 The respondents Aamco Transmissions and Hartford Insurance Group also filed a petition for review from the commissioner’s decision, but withdrew their appeal after the trier granted their Motion to Correct. BACK TO TEXT

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