CASE NO. 4038 CRB-02-99-04
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 27, 2000
MANAFORT BROTHERS, INC.
LIBERTY MUTUAL INSURANCE CO.
The claimant was represented by Robert M. Fitzgerald, Esq., Fitzgerald & Prucker, 212 Talcottville Road, Rte. 83, Vernon, CT 06066.
The respondents were represented by Gregory Goodstein, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033.
This Petition for Review from the April 9, 1999 Findings of Facts and Award of the Commissioner acting for the Second District was heard November 19, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and George A. Waldron.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the April 9, 1999 Findings of Facts and Award of the Commissioner acting for the Second District. He contends on appeal that the trier erred by ruling that he had previously received compensation for a permanent partial impairment to his right knee as part of a settlement he received for injuries sustained in a non-compensable automobile accident. We affirm the trial commissioner’s decision.
The claimant, a construction worker, sustained a compensable injury to his right knee on October 20, 1997. The knee had previously been injured in a January 1989 automobile accident, and had been subjected to two surgeries, including surgical reconstruction and repair of the anterior cruciate ligament. Dr. Zeppieri, the treater for the 1989 injury, had assigned the claimant a 15% permanent partial disability rating as a result of the accident. The claimant filed a personal injury suit against the driver of the vehicle that hit him, and recovered $100,000 in a settlement with the driver and his own underinsured motorist insurance carrier. At the time, the claimant submitted evidence of Dr. Zeppieri’s 15% permanency rating, which formed at least part of the basis of the $100,000 settlement. Both parties stipulated to this fact. Joint Exhibit 1, ¶ 4.
Subsequent to the claimant’s 1997 accepted knee injury, the respondents advanced the claimant payment for a 7.5% permanent partial disability of the knee. The parties stipulated that the claimant currently had a 26% permanent partial disability, and that credit for the 7.5% advance would be taken against any award made by the trial commissioner. The parties disagreed, however, as to whether the claimant had yet been paid for the 15% permanent partial disability that preexisted his 1997 injury, thereby entitling the respondents to an additional “credit” of sorts pursuant to § 31-349(a) C.G.S.1 They also disagreed as to whether 12.5% or 15% of the current disability was attributable to the 1989 injury. After examining the medical reports of Drs. Fisher and Zeppieri, the trier concluded that 15% of the claimant’s current 26% impairment rating was indeed due to the 1989 injury. He also concluded that the claimant had been compensated for that injury as part of the tort settlement, and ordered the respondents to pay the claimant the 11% permanent partial disability that had not yet been redressed (with credit for the 7.5% they had already advanced). The claimant has appealed that decision to this board.
In the context of this case, the governing law of § 31-349(a) can be stated quite simply. The claimant is not to be compensated for any benefits payable or paid with respect to his pre-existing 15% permanent partial impairment, regardless of the source of such compensation. Mann v. Morrison-Knudsen/White Oak, 14 Conn. Workers’ Comp. Rev. Op. 79, 80, 1918 CRB-1-93-12 (May 12, 1995). The claimant maintains that there is no evidence in the record that he received such compensation, and that it was purely conjectural for the trier to find that the $100,000 settlement of the claimant’s personal injury suit was somehow related to his disability rating. Brief, 4. Thus, the question before this board is, did the trial commissioner permissibly conclude that the claimant received, or was entitled to receive, financial recompense for his disability as part of the settlement? Though the claimant does not discuss it in his brief, the fact that he could have received compensation for his knee injury is also relevant. As we stated in Digrazio v. CBL Trucking, 3479 CRB-8-96-11 (Feb. 18, 1998), “Whether the claimant actually received compensation on account of that permanent partial impairment . . . is immaterial under § 31-349(a); if compensation was payable for such disability, it must be considered in any subsequent award for permanent partial disability to the same body part.” Again, the term “compensation” in § 31-349(a) refers to more than just Chapter 568 benefits. It includes compensation payable from any source.
The trial commissioner is, of course, the factfinder in a workers’ compensation case, and he is charged with drawing inferences from the evidence and making subordinate findings of fact, from which he then draws his legal conclusions. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). He is the sole judge of credibility. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). This board may not draw its own inferences from the evidence on review. Instead, we must leave the trial commissioner’s findings intact unless he has omitted undisputed material facts, or unless there is no evidence to support his findings. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995).
Here, the claimant did not introduce the stipulation itself into evidence, nor any other proof regarding the contents of said agreement. Rather, the only related exhibit is the Proposed Statement of Reimbursements, offered as Respondent’s Exhibit 1, which is helpful in this matter insofar as payment for Dr. Zeppieri’s treatment was included as part of the disbursement list. The other relevant items are Dr. Zeppieri’s December 11, 1990 report, which assigns the claimant with a 15% permanent partial disability rating of the right knee due to the January 1989 car accident; Claimant’s Exhibit A; and stipulated fact #4, which states that the permanency rating formed at least part of the basis of the $100,000 settlement. Indeed, this stipulated fact by itself comes close to admitting that compensation for the claimant’s knee permanency was “paid or payable” within the meaning of § 31-349(a).
Taken together, it was certainly reasonable for the trier to infer from these items of evidence that Dr. Zeppieri’s treatment, including his report, was taken into account during the settlement, and that the claimant either received or could have received compensation for his permanent knee impairment as part of his recovery. The respondents did not have to prove beyond a shadow of a doubt that the settlement specifically included an identifiable sum of money attributable to the claimant’s disability. Rather, they needed only to introduce enough evidence for the trier to be able to formulate a reasoned decision based on the facts before him. This was done, and we have no basis for reversing the commissioner’s decision on review.
The trial commissioner’s decision is hereby affirmed.
Commissioners George A. Waldron and Stephen B. Delaney concur.
1 Section 31-349(a) provides in relevant part, “If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, ‘compensation payable or paid with respect to the previous disability’ includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.” (Emphasis added.) BACK TO TEXT