CASE NO. 3918 CRB-07-98-10
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 7, 2000
SAKS FIFTH AVENUE
AIG CLAIM SERVICES
SECOND INJURY FUND
The claimant was represented by Louis Ciccarello, Esq., Lovejoy, Hefferan, Rimer & Cuneo, 65 East Avenue, P.O. Box 390, Norwalk, CT 06852-0390.
The respondents were represented by Michael M. Buonopane, Esq., Montstream & May, 655 Winding Brook Drive, P.O. Box 1087, Glastonbury, CT 06033.
The Second Injury Fund was represented by Michelle Truglia, Esq., Assistant Attorney General, P.O. Box 120, 55 Elm Street, Hartford, CT 06141-0120, who did not appear at oral argument.
This Petition for Review from the October 19, 1998 Finding and Award of the Commissioner acting for the Seventh District was heard May 21, 1999 before a Compensation Review Board panel consisting of the then Commission Chairman, Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
JESSE M. FRANKL, COMMISSIONER. The respondent employer and its insurer (“respondents”) have petitioned for review from the October 19, 1998 Finding and Award of the trial commissioner acting for the Seventh District. In that decision, the trial commissioner found that the claimant was temporarily totally disabled, and awarded benefits pursuant to § 31-307 from March 28, 1994 through September 11, 1997.1 In support of their appeal, the respondents contend that the medical evidence indicates that the claimant had a light duty capacity, and thus the trial commissioner erred in concluding that the claimant was totally disabled.
The trial commissioner found the following relevant facts. On July 16, 1993, the claimant was employed as a clothing salesman with the respondent employer at its Stamford store. On that date, the claimant slipped and fell, sustaining a compensable injury to his right knee and right shoulder. A voluntary agreement was approved for the claimant’s right knee and right shoulder injuries. Dr. Polifroni, an orthopedic surgeon, found that as a result of the fall, the claimant had sustained an extensive tear of the medial meniscus of his right knee and a complete tear of his rotator cuff. On March 28, 1994, the claimant underwent surgery by Dr. Foster on his right shoulder; and underwent surgery by Dr. Tietjen on his right knee. In October of 1994, Dr. Tietjen noted that the claimant would likely require a total knee replacement in the future.
Reports by Dr. Foster and Dr. Tietjen regarding work capacity indicate that the claimant was “in all likelihood unable to return to the job market.” (Finding ¶ 14). On March 3, 1995, the claimant was seen by Dr. Staub, an independent medical examiner, who noted that neither the shoulder operation nor the knee operation appeared to be very successful and that the claimant was still suffering from significant pain and restriction in his shoulder and knee. Dr. Staub wrote that the claimant’s right shoulder was “definitely worse than it was a year ago. . .” (Finding ¶ 16). Dr. Staub opined that the claimant would be eligible for either light duty work or a sedentary job, but that depending on the job description the claimant might not be able to tolerate ongoing work. (Finding ¶ 17). On November 30, 1995, the claimant underwent a second operation on his right shoulder by Dr. Daigneault. In a report dated August 22, 1996, Dr. Daigneault found that the claimant had reached maximum medical improvement and had a twenty-five percent permanent partial disability of his left shoulder.
The trial commissioner found that at the time of the formal hearing, the claimant could not raise his arm above his shoulder, could only write for a short period of time, had constant pain in his shoulder and arm along with weakness in his right arm and hand, and could not lift with his right arm. The trial commissioner further found that the claimant suffered from ongoing pain in his right knee and severe restriction in the use of his right leg, and could only walk for a short distance. The trial commissioner found that the claimant had reached maximum medical improvement on both his knee and shoulder, but concluded that the claimant was temporarily totally disabled from March 28, 1994 to September 11, 1997 (the date of the last formal hearing) because of the continuing pain, restrictions, and other limitations.
In support of their appeal, the respondents contend that all of the evidence indicates that the claimant has reached maximum medical improvement and that the claimant has a light duty work capacity. The respondents thus argue that it was error to award temporary total disability benefits. We disagree.
Whether a claimant is totally disabled is a question of fact for the trial commissioner to determine. Hidvegi v. Nidec Corporation, 3607 CRB-5-97-5 (June 15, 1998); Meredina v. Anderson Insurance Co., 3460 CRB-3-96-11 (April 8, 1998). Similarly, the question of whether a claimant has a light work capability and has adequately pursued that capability is a factual decision for the commissioner. Rose v. Hartford Hospital, 14 Conn. Workers’ Comp. Rev. Op. 249, 1980 CRB-1-94-3 (Aug. 30, 1995). Upon review of the factual issues underlying this determination, we will only disturb the commissioner’s decision if his conclusions were contrary to law, or based on impermissible or unreasonable factual inferences. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
Contrary to the respondents’ assertions, a claimant may have some type of light duty capability and still be totally disabled under § 31-307. Hidvegi, supra, citing Gerena v. Rockbestos Company, 14 Conn. Workers’ Comp. Rev. Op. 394, 395, 1986 CRB-5-94-3 (Oct. 17, 1995).2 Indeed, In Osterlund v. State, 135 Conn. 498 (1949), our Supreme Court stated that “[a] finding that an employee is able to work at some gainful occupation within his reasonable capacities is not in all cases conclusive that he is not totally incapacitated. If, though he can do such work, his physical condition due to his injury is such that he cannot in the exercise of reasonable diligence find an employer who will employ him, he is just as much totally incapacitated as though he could not work at all.” Osterlund, supra, 506. Moreover, a claimant may continue to be temporarily totally disabled after reaching maximum medical improvement. Hidvegi, supra.
In the instant case, the trial commissioner concluded that although the claimant may have reached maximum medical improvement, because of the continuing pain, restrictions, and other limitations he was temporarily totally disabled from March 28, 1994 to the date of the last formal hearing. The trial commissioner further concluded that the claimant was unemployable based upon his injuries, age, and restricted employment history. The trial commissioner’s conclusion that the claimant was totally disabled is fully supported by the record, including the opinions of Dr. Daigneault and Dr. Lynch. As the record amply supports the factual findings and conclusions of the commissioner, we will not disturb them. Fair, supra.
Finally, we will address the respondents’ contention that the trial commissioner erred in awarding temporary total disability benefits during the period when the claimant voluntarily retired and began collecting social security benefits at age 65. The claimant testified that even though he retired at age 65 and began collecting regular social security benefits, were it not for the injuries sustained in the 1993 fall, he would still be working. The trial commissioner, as the trier of fact, was entitled to find this testimony to be credible. However, the trial commissioner appears to have overlooked § 31-307(e) which provides that:
compensation paid to an employee for an employee’s total incapacity shall be reduced while the employee is entitled to receive old age insurance benefits pursuant to the federal Social Security Act. The amount of each reduced workers’ compensation payment shall equal the excess, if any, of the workers’ compensation payment over the old age insurance benefits.
Accordingly, we must remand this matter to the trial commissioner for an order reducing the payment of benefits in accordance with § 31-307(e).
This matter is remanded to the trial commissioner limited to the § 31-307(e) issue; in all other respects the trial commissioner’s decision is affirmed.
Commissioners Angelo L. dos Santos and Stephen B. Delaney concur.
1 We note that the only issue in the present appeal is the trial commissioner’s award of temporary total disability benefits from March 28, 1994 through September 11, 1997. Thus, we will disregard the Fund’s brief filed on March 23, 1999, in which the Fund addresses the claimant’s disability status prior to March 28, 1994. The Fund filed its March 23, 1999 brief because the respondents’ brief in the instant matter discusses the claimant’s disability status prior to March 28, 1994, and the Fund is concerned that such discussion could “impact” the board’s decision in a related appeal from a separate decision by another trial commissioner regarding transfer under § 31-349. To the contrary, this board is treating the appeals separately, and in each appeal the board is limited to hearing the appeal “on the record of the hearing before the commissioner.” § 31-301(b). BACK TO TEXT
2 In Hidvegi, the board affirmed that trial commissioner’s award of temporary total disability benefits pursuant to § 31-307. In that case, although the claimant may have had a theoretical light duty capability, the commissioner found that her physical restrictions, age, limited education, and other factors severely curtailed her employability. The commissioner also found that the claimant had no readily transferable skills, and that these factors rendered her labor unmarketable when combined with the physical restrictions resulting from her injuries. BACK TO TEXT