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Olsen v. Dubois Chemicals, Inc.

CASE NO. 3385 CRB-7-96-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 29, 1997

JANICE P. OLSEN

CLAIMANT-APPELLEE

v.

DUBOIS CHEMICALS, INC.

EMPLOYER

and

CNA INSURANCE COMPANIES

INSURER

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Pinney, Payne, Van Lenten, Burrell, Wolfe & Dillman, Lee Farm Corporate Park, 83 Wooster Heights, Danbury, CT 06810.

The respondents were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was represented by Michelle D. Truglia, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the July 19, 1996 Finding and Dismissal of the Commissioner acting for the Seventh District was heard March 14, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners John A. Mastropietro and Stephen B. Delaney.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the July 19, 1996 Finding and Dismissal of the Commissioner acting for the Seventh District. They argue on appeal that the trier erred by applying P.A. 95-277 § 4(a) to the instant case, and by failing to exercise his jurisdiction to decide all of the controverted issues between the parties. We affirm the trial commissioner’s decision.

The trier found that the claimant suffered a compensable lumbar spine injury on October 13, 1988, and either a recurrence or a new injury to her lumbar spine on January 24, 1989. The Second Injury Fund and the respondent insurer disagreed as to the existence of a previous disability, relying on conflicting medical opinions. The Fund’s attorney requested that the case be considered by the medical review panel prescribed by P.A. 95-277 § 4(a).1 The respondents objected on the ground that said Public Act is inapplicable to cases noticed prior to its effective date. The trier ruled that the medical dispute had to be resolved by a medical panel as per the Public Act, leaving him without jurisdiction to decide this issue. The respondents appealed that decision.

First, the issue regarding the applicability of P.A. 95-277 § 4(a) has been settled by our Supreme Court. In Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997), the Court held that said Public Act “applies retroactively to all pending transfer claims in which the claimant’s second injury occurred prior to July 1, 1995.” Id., 309. Thus, the statute clearly applies to this case, which was pending on that date. See, e.g., Soto v. Swank Crestline, Inc., 3255 CRB-7-96-1 (July 24, 1997).

The second argument raised by the respondents is that P.A. 95-277 § 4(a) is nonetheless inapplicable to this case, because here the issue was the date of injury and the timeliness of notice to the Fund instead of the § 31-349(a) issue of whether or not the claimant incurred a permanent disability caused by both a previous disability and a second injury. According to the respondents, there is an approved voluntary agreement that reflects a January 24, 1989 date of injury, which is the basis of their request for transfer. No evidence has been submitted regarding the Fund’s contention that the 1989 injury was actually a recurrence, and the respondents maintain that the trier should have granted their Motion to Correct, obviating any need to discuss P.A. 95-277 § 4(a).

Joint Exhibit 1 is a September 11, 1995 letter from the Fund’s attorney, Michelle Truglia, to the Chairman of this Commission requesting that this case be assigned to a medical panel. In that letter, counsel stated that the parties disagreed as to whether two distinct injuries had occurred in this case (the insurer’s position), or whether one underlying injury had occurred on October 13, 1988, with subsequent events constituting a recurrence or aggravation of that injury. Attorney Truglia also restated this position in greater detail at the April 9, 1996 formal hearing. Neither party introduced any medical reports or depositions into evidence, and there was no testimony given by witnesses.

We do not believe that it was error for the trier to rule that this case involves a medical dispute concerning the transferability of this claim to the Fund, and to withhold making a finding regarding the date of injury. P.A. 95-277 § 4(a), now codified at § 31-349c, states that “all controverted issues regarding the existence of a previous disability,” including any evidence and materials necessary for consideration, must be submitted through the Chairman to a three-physician panel for a decision. The crux of this case is the nature of the two injuries on October 13, 1988 and January 24, 1989, as there are no other contested issues. Whether or not a “previous disability” exists here fully depends on whether the claimant suffered a new injury or a recurrence in 1989.

Despite the insurer’s attempts to recast the underlying issue as one of timely notice, the applicability of § 31-349 to this case will ultimately depend upon a finding as to whether and how the claimant’s two injuries were related. This is clearly a medical question that would fall within the area of expertise of a medical panel, and would directly implicate the issue of the existence of a previous disability. We thus hold that the trier properly denied the respondents’ Motion to Correct, as there was no need for the Fund to introduce medical evidence at the formal hearing regarding an issue that more appropriately belonged before a medical panel rather than the commissioner.

The trial commissioner’s decision is affirmed.

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

1 This section, which took effect on July 1, 1995, and is now codified at § 31-349c, provides that “[t]he custodian of the Second Injury Fund and an insurer or self-insured employer seeking to transfer a claim to the fund shall submit all controverted issues regarding the existence of a previous disability under section 31-349 of the general statutes, as amended by section 3 of this act, to the chairman of the Workers’ Compensation Commission. The chairman shall appoint a panel of three physicians, as defined in subdivision (17) of section 31-275 of the general statutes, and submit such dispute to the panel, along with whatever evidence and materials he deems necessary for consideration in the matter. The panel may examine the claimant, who shall submit to any examination such panel may require. Within sixty days of receiving the submission, the panel shall file its opinion, in writing, with the chairman, who shall forward it, along with any records generated by the panel’s work on the case, to the commissioner having jurisdiction over the claim in which the dispute arose. The panel’s opinion shall be determined by a majority vote of the three members. Such opinion shall be binding on all parties to the claim and may not be appealed to the Compensation Review Board pursuant to section 31-301. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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