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Holmes v. G.A. Masonry Corp. et al.

CASE NO. 4027 CRB-05-99-04

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

NOVEMBER 7, 2000

DONALD HOLMES

CLAIMANT-APPELLEE

v.

G.A. MASONRY CORP.

EMPLOYER

and

EMPLOYERS INSURANCE OF WAUSAU

INSURER

and

KEIWITT & SONS

EMPLOYER

and

AETNA LIFE & CASUALTY

INSURER

and

L.G. DeFELICE, INC.

EMPLOYER

and

LIBERTY MUTUAL INSURANCE CO.

INSURER

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Scott N. Roberts, Esq., 349 Mitchell Street, P. O. Box 883, Groton, CT 06340.

The respondents G.A. Masonry Corp. and Employers Insurance of Wausau were represented by David Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

The Second Injury Fund was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120

This Petition for Review from the April 1, 1999 Finding and Award of the Commissioner acting for the Eighth District was heard November 19, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the April 1, 1999 Finding and Award of the Commissioner acting for the Eighth District. The Fund argues on appeal that the trier erred by ordering it to accept liability for the claimant’s injury pursuant to the transfer provisions of § 31-349. Specifically, the Fund argues that the trial commissioner erroneously relied upon the claimant’s ability to perform his usual work duties in determining that the claimant was not disabled for purposes of the § 31-349 notice provision from February 16, 1988 through May 13, 1991.

The trial commissioner found that the claimant sustained a compensable back injury on January 15, 1988, and was disabled through February 15, 1988, when he returned to his regular employment. He continued performing his usual and customary work from February 16, 1988 through May 13, 1991, when his treating physician pronounced him temporarily totally disabled. This disability, and the claimant’s need for medical care, were one-third due to the January 15, 1988 injury, and two-thirds due to subsequent repetitive trauma that occurred during the following three-plus years.1 Still, the compensable injury had permanently aggravated the claimant’s formerly asymptomatic spondylolisthesis and degenerative disc disease, and rendered his disability materially and substantially greater.

The respondents notified the Second Injury Fund of their intent to transfer liability for this claim on June 24, 1991, pursuant to § 31-349. They also renotified the Fund as required by § 31-349(e)2 on July 7, 1995. Though the Fund has stipulated that this case medically qualifies for transfer under § 31-349, it alleges that the June 24, 1991 notice was not filed in a timely manner. The Fund contends that the claimant was continuously disabled (as that term is used in the notice provision of § 31-349) following the January 15, 1988 back injury, based primarily on the claimant’s testimony that he continued to experience low back pain.

The trial commissioner did not accept the Fund’s argument. He described the claimant as being medically disabled only through February 15, 1988, after which he returned to his usual employment. “Experiencing low back pain is not a medical restriction as contemplated in Section 31-349. . . . The claimant’s testimony concerning his back pain is irrelevant.” Findings, ¶¶ E-F. Likewise, the trier found that neither Dr. Becker nor Dr. Ballon restricted the claimant from performing his usual work despite his aches and pains—at least not before May 15, 1990, which would still make the respondents’ notice to the Fund timely. The trier ordered that the Fund accept liability for the claimant’s back injury effective February 9, 1993, which marked the completion of the 104th week of disability payments. The Fund has appealed that decision to this board.

The parties do not dispute that § 31-349 as it existed at the time of the claimant’s injury applies to the instant case.3 At the time of the claimant’s injury, § 31-349(a) provided that the employer and/or its insurance carrier were liable for “all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund [for the remainder], the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case . . . .” The Fund’s sole contention on appeal is that the respondents’ notice was not timely pursuant to § 31-349. Specifically, the Fund argues that the trial commissioner erroneously relied upon the fact that the claimant returned to his employment in concluding that the claimant was not disabled from February 16, 1988 through May 13, 1991.

Recently, in Karutz v. Feinstein and Herman, P.C., 59 Conn. App. 565 (2000), our Appellate Court addressed a case which is similar to the one now before us, and held that this board improperly accepted a trial commissioner’s conclusion that the claimant’s disability did not commence until she became unable to work. In Karutz, supra, the trial commissioner found that the claimant’s disability period did not begin on the date of injury, even though she was suffering from persistent pain and was treating with a physician, as she was able to perform her regular job duties, was paid her regular salary, and lost no time from work. The court explained that the issue of timeliness of notice centered on the meaning of the word “disabled” in § 31-349. The court reviewed Williams v. Best Cleaners, Inc., 237 Conn. 490 (1996) and Innocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998), and stated that “a person can be disabled for the purposes of § 31-349 even though he or she can carry on all the facets of his or her employment. The test is whether a claimant is physically impaired, not whether there exists a de facto inability to earn a wage.” Karutz, supra, at 570. The court held that the trial commissioner incorrectly applied the law by basing his finding of periods of disability on the claimant’s ability to perform her job duties rather than on the date of “medical impairment.” Id. at 572.

It is clear from the findings of fact that the trial commissioner in the instant case based, at least in part, his determination that the claimant was not disabled from February 16, 1988 through May 13, 1991, upon the fact that the claimant had returned to his usual employment duties. In his findings, the trial commissioner indicated that the evidence in the record, including the claimant’s testimony, the deposition of Dr. Becker, and the medical report of Dr. Ballon, merely indicated that the claimant suffered from back pain. The trial commissioner concluded that “Experiencing low back pain is not a medical restriction as contemplated in Section 31-349.” (Finding ¶ E). It is unclear, based upon the holding in Karutz, supra, whether the trial commissioner’s conclusion is correct.4 However, because the trial commissioner here relied upon the fact that the claimant returned to his usual employment duties in determining that the claimant was not disabled between February 16, 1988 and May 13, 1991, and because the determination of the 104 week disability period requires a factual determination (Karutz, supra, at 571), which this board may not make, we must remand this matter to the trial commissioner in accordance with the above.

The trial commissioner’s decision is reversed, and remanded to the trial commissioner for further proceedings.

Commissioners George A. Waldron and Stephen B. Delaney concur.

1 In an earlier decision concerning the proper apportionment of liability in this case, this board vacated a decision of the trial commissioner that divided responsibility equally between the compensable injury of January 1988 and all subsequent trauma. Holmes v. G.A. Masonry Corp., 12 Conn. Workers’ Comp. Rev. Op. 369, 1588 CRB-5-92-12 (Aug. 11, 1994). The matter was remanded for further proceedings on apportionment, as well as the timeliness of the claim. Presumably, these issues have since been resolved. BACK TO TEXT

2 In 1995, § 31-349 was significantly amended by P.A. 95-277. Among the changes was the addition of a provision stating, “All claims for transfer of injuries for which the fund has been notified prior to July 1, 1995, shall be deemed withdrawn with prejudice, unless the employer or its insurer notifies the custodian of the fund by certified mail prior to October 1, 1995, of its intention to pursue transfer pursuant to the provisions of this subsection.” BACK TO TEXT

3 Regarding revisions to § 31-349, the date of injury rule is normally applied (Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635, 636, f.n. 1 (1999)); however, because the notice provisions of P.A. 95-277 would be meaningless if the date of injury rule were used, P.A. 95-277 must be applied retroactively. See Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282 (1997); Szedlmayer v. Moore Special Tool Co., 3764 CRB-4-98-1 (March 25, 1999); Bass v. Chesebrough-Ponds, USA, 3709 CRB-3-97-10 (November 27, 1998). BACK TO TEXT

4 We note that the Appellate Court’s decision in Karutz, supra, may be read to indicate that a person is necessarily disabled as of the date of his injury for purposes of the notice period under § 31-349, even where he continues working his normal job, and does not seek medical attention. If the legislature had intended such a result, however, it could have merely required that the 104-week notice period be based solely upon the date of injury, without regard to the number of weeks of subsequent disability. The Fund argues in its appeal that if a claimant is not considered to be “disabled” then he would not be entitled to any benefits under the Act, including medical benefits. (Fund’s Brief at 10). We find no merit to this argument, as there has never been a requirement that a claimant be “disabled” in order to obtain benefits, including medical treatment. See § 31-294d and 31-275(16)(A); see also Doe v. Stamford, 241 Conn. 692 (1997).

The Fund further argues that there is a need for consistency in interpreting the word “disability” in § 31-349. However, the Fund conveniently ignores the fact that interpreting “disability” for the 104 week notice provision without regard to a claimant’s employment is in direct contravention to the Fund’s interpretation of the 104 week period in § 31-349 for purposes of determining the date of transfer to the Fund. In determining the date of transfer, it has consistently been the practice of the Fund to not accept transfer until 104 weeks of indemnity payments have been paid by the respondents. See Finding ¶ A (“transfer effective at the 104th week, February 9, 1993). BACK TO TEXT

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