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Bowman v. Jack’s Auto Sales et al.

CASE NO. 3622 CRB-08-97-06

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 26, 1998

RICHARD BOWMAN

CLAIMANT-APPELLEE

v.

JACK’S AUTO SALES

EMPLOYER

and

AMERICAN MUTUAL LIABILITY INSURANCE CO.

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 Street, 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 not represented at oral argument. Notice sent to Lucas Strunk, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, 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 Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 5, 1997 Finding and Award of Compensation by the Commissioner acting for the Eighth District was heard January 23, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents Jack’s Auto Sales and Helmsman Management Services1 have petitioned for review from the June 5, 1997 Finding and Award of Compensation of the Commissioner acting for the Eighth District. They argue on appeal that the trier erred by reopening an April 30, 1993 Finding and Award under § 31-315, by awarding the claimant permanent partial disability benefits for hypertension, and by awarding the claimant further benefits under § 31-308a. We affirm the trial commissioner’s decision in part, and reverse in part.

Many of the facts surrounding the claimant’s October 27, 1977 hand injury and resulting disability are enumerated in two previous opinions of this board. See Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 1721 CRB-1-93-5 (March 22, 1995); Bowman v. Jack’s Auto Sales, 16 Conn. Workers’ Comp. Rev. Op. 223, 3384 CRB-1-96-7 (June 18, 1997). The facts found by the trial commissioner that are relevant to the issues pending before us on appeal here are as follows: the claimant suffered a 10 percent permanent partial impairment of the hands from his compensable 1977 injury, as per a voluntary agreement. In an April 30, 1993 decision, the claimant was awarded § 31-308a compensation for the permanent partial disability, along with benefits for a 10 percent permanent partial impairment of the skin. The trier did not accept the claimant’s allegation that epicondylitis resulted from the use of steroids to treat his condition, stating that there was insufficient evidence to establish a causal connection. He also denied a claim for hypertension. See April 30, 1993 Finding and Award of Compensation, ¶ 24. Subsequent to this board’s remand of this case after the first CRB appeal, the claimant moved to reopen the 1993 Finding and Award to offer further evidence concerning his epicondylitis and hypertension claims.

The trial commissioner observed that Dr. Cherniak only suspected a connection when he first testified about the causal relationship of the compensable injury to the claimant’s epicondylitis, because he did not have enough information to draw a reasonable medical conclusion. The doctor testified that a patch test performed in November 1994 showed that the claimant had become allergic to the steroids he had been taking, and that this sensitization probably took place in the 1990’s because he had responded well to steroids beforehand. According to Dr. Cherniak, the information concerning the causal relationship between steroid use and sensitization that he relied on in making his diagnosis of compensable epicondylitis was not available in 1993. Dr. Cherniak also documented high diastolic blood pressure readings in the claimant, and concluded that he had hypertension due to steroid use. He rated the claimant with a 7.5 to 15 percent permanent cardiovascular impairment based on hypertension.

The trier also found that the claimant was 52 years old with third-grade reading skills and second-grade math skills. His work experience involves exclusively physical labor, and the only trade he knows is auto repair, which he cannot pursue because of his compensable injury. He testified that his hands feel worse than they did in 1990 because he cannot take topical steroids any longer, and his physical ailments have left him unable to look for work. He has applied for vocational rehabilitation, but has been unable to pursue it because he cannot pass his G.E.D. test. A vocational expert has also found that the claimant has very limited skills and work capacity.

The trial commissioner concluded that, given the claimant’s limited education and skills, the impact of his injury on him is greater than it would be on the average person. He ruled that the claimant was entitled to 58.5 weeks of further compensation under § 31-308a. The commissioner also ruled that the information regarding the patch test constituted new evidence that was not available to Dr. Cherniak at the time he originally gave his opinion. He found that to be a basis for reopening the 1993 award regarding the causal relationship between the 1977 injury and the claimant’s bilateral epicondylitis. The trier also accepted the opinions of Drs. Cherniak and Koyomatsa that the claimant had hypertension caused by the steroid treatments the claimant was receiving for the compensable injury. He found that the claimant had an 11.25 percent permanent partial impairment of the cardiovascular system. The respondents Jack’s Auto Sales and Helmsman Management Services have appealed that decision.

Significantly, each one of the respondents’ arguments on appeal asserts that the evidence in the record in some way does not support the factual findings of the trial commissioner. The respondents did not file a Motion to Correct in conjunction with their appeal, however, which prevents this board from reviewing the factual findings made by the trial commissioner. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). Under Admin. Reg. § 31-301-4, such a motion is a necessary prerequisite to changing the trier’s findings. The only question we may now answer is whether the law was correctly applied to the facts found. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

The factual findings discussed above regarding the causal relationship between the claimant’s injury and his epicondylitis and hypertension directly support an award of benefits. The findings regarding the claimant’s work limitations also support the legal conclusion that he is entitled to § 31-308a benefits, especially in light of our first Bowman decision, which explain that a job search is not the only evidentiary means by which a claimant can qualify for a discretionary award of benefits. Bowman, 13 Conn. Workers’ Comp. Rev. Op. 195. Thus, we must affirm the commissioner’s conclusions on those matters, as the factual findings directly support his legal conclusions.

The one ground for appeal that we may address in detail is whether the commissioner properly reopened the 1993 award under the standards of § 31-315, which allows an award to be modified where a claimant’s degree of incapacity has changed, or where “changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer . . . .” An award may also be modified where the original decision was obtained through fraud, accident or mistake. See Marone v. Waterbury, 244 Conn. 1, 16-17 (1998); Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 187 (1923). The respondents contend that the commissioner erred by reopening the award simply because the steroid patch test was not available when Dr. Cherniak formed his opinion in 1993. They argue that the claimant should have also demonstrated that this evidence could not have been discovered through the exercise of due diligence, which point was not discussed in the commissioner’s award.

There is no dispute that the claimant failed to meet his burden of proof regarding the compensability of his epicondylitis at the initial proceedings. His condition has not changed since that time. See Loehn v. Vallerie Transportation Service, 12 Conn. Workers’ Comp. Rev. Op. 267, 270-71, 1544 CRB-7-92 10 (June 2, 1994). We do not believe that the claimant should now be permitted to reopen his claim because his doctor has changed his mind regarding causation, especially where he has not shown that there was no other way causation could have been proved in 1993. Although modification of an award is certainly available under § 31-315, the interest of finality in workers’ compensation decisions is also an important consideration in our law. See Marone v. Waterbury, 244 Conn. 1, 18-19 (1998). Allowing a claimant—or a respondent—to reopen an award because new types of medical evidence have become available subsequent to the resolution of the case would result in an indefinite life span for the majority of workers’ compensation cases. The claimant’s case as a whole may still be pending, but the issue that was reopened by the claimant had been settled. It should not have been revived by the trial commissioner.

The trial commissioner’s decision is thus affirmed in part, and reversed with respect to the granting of the Motion to Correct.

Commissioner Donald H. Doyle, Jr., concurs.

MICHAEL S. MILES, COMMISSIONER, DISSENTING IN PART: With respect to the Motion to Reopen, I would affirm the trier’s decision. Where, as here, a commissioner is asked to reopen an award based on the discovery of new evidence, the movant must satisfy four criteria. He “must demonstrate, by a preponderance of the evidence, that: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial.” Besade v. Interstate Security Services, 212 Conn. 441, 452 (1989). Generally, the decision to open and modify an agreement or award under § 31-315 falls within the discretion of the trial commissioner, and this board will not disturb his decision unless he has arbitrarily reached an unreasonable result. Id., 453; Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541-42 (1992); Hines v. Linc Scientific Imaging, 3037 CRB-8-95-3 (May 14, 1997).

As noted by the majority, the respondents did not file a Motion to Correct, thus preventing us from reviewing the evidence supporting the factual findings. See Seltenreich, supra. The findings in the commissioner’s award, standing unchallenged, contain enough information to satisfy the criteria listed in Besade. Dr. Cherniak clearly indicated that the steroid patch test results caused him to conclude that the claimant had become allergic to steroids, and was thus able to link the claimant’s epicondylitis with his compensable injury. Such evidence is patently material in this case, and has an obvious effect on its result. Moreover, the commissioner found in ¶¶ 4-6 of his findings and conclusions that this medical information was not available in 1993, and that it constituted new evidence that was unavailable to the doctor when he first formed his opinion. Those findings can be read to establish that the steroid patch tests could not have been obtained by the exercise of due diligence at the time of the initial proceedings.

This board is required to give deference to a trial commissioner’s conclusions if they are reasonably based on the evidence before him. Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). If the findings can be interpreted to either support or contradict the trier’s decision, this board must not disturb the commissioner’s conclusion by drawing its own inference from the findings. Six, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995); see also Mazzone v. Connecticut Transit Co., 240 Conn. 788, 796 (1997) (“a lower court or administrative decision may be affirmed on any available alternate ground”). Here, the findings can be read to support the trier’s decision to grant the Motion to Reopen. We therefore should not reverse that decision on appeal. I also do not agree with the majority’s contention that reopening this issue would result in an indefinite life span for most workers’ compensation cases. As they noted themselves, this case is still pending, and it is only one issue that has been reopened.

1 American Mutual Liability Insurance Co. became insolvent sometime after the claimant’s injury. The instant claim is apparently being handled by Helmsman Management Services. BACK TO TEXT

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