State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Johnson v. East Haven Hay & Grain Supply, Inc.

CASE NO. 4075 CRB-03-99-07

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 10, 2000

JEFFREY JOHNSON

CLAIMANT-APPELLEE

v.

EAST HAVEN HAY & GRAIN SUPPLY, INC.

EMPLOYER

and

AMERICAN MANUFACTURERS MUTUAL INSURANCE. CO.

RESPONDENTS-APPELLANTS

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was not represented at oral argument, and did not retain counsel for purposes of this appeal.

The respondents were represented by Polly Orenstein, Esq., Law Office of Tracey Green Cleary, 2750 Dixwell Avenue, P. O. Box 187289, Hamden, CT 06518.

The Second Injury Fund was represented by Mee Carolyn Wong, Esq., and Michael J. Belzer, Esq., Assistant Attorneys General, 55 Elm Street, P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 30, 1999 Finding and Dismissal of the Commissioner acting for the Third District was heard March 10, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Leonard S. Paoletta and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the June 30, 1999 Finding and Dismissal of the Commissioner acting for the Third District. They contend on appeal that the trier erred by determining that the instant claim did not medically qualify for transfer to the Second Injury Fund under § 31-349 C.G.S. We hold that the trial commissioner’s decision was based upon a reasonable interpretation of the § 31-349(c) medical panel’s report, and affirm her order.

The claimant sustained a compensable back injury on July 31, 1990, which was accepted by a voluntary agreement approved on November 21, 1990. The respondents notified the Second Injury Fund of their intent to transfer liability for that injury on December 5, 1990, and issued timely re-notification of that intent on September 15, 1995, as required by § 31-349(e). The respondents’ pursuit of transfer is based on their contention that the claimant suffered from a pre-existing permanent partial impairment as a result of a December 2, 1981 low back injury, which materially and substantially increased his subsequent disability from the 1990 injury. The Fund rejected the assertion that the claimant suffered from such an impairment, thus creating a controverted issue regarding the existence of a previous disability within the meaning of § 31-349c(a).1 Accordingly, the case was submitted to the three-physician medical panel established by that statute.

The trial commissioner quoted a portion of the panel’s findings in her decision. “[I]t is our opinion that the accident, which occurred on July 31, 1990, is in part related to the symptoms described. It is our expert professional opinion that the claimant’s past history of lumbar disc problem has not caused a materially and substantially greater disability combined with the injury of July 31, 1990, than that which would have occurred due to the subsequent injury alone. . . . Based on today’s examination, we believe that 90% of the disability is due to the present injury . . . and 10% is due to the previous lumbosacral injury of 1982.” Findings, ¶ 13 (emphasis added by trial commissioner). After considering the parties’ arguments, the trier ruled that the Medical Panel’s finding was not internally inconsistent, and accepted it as determinative pursuant to § 31-349c. She thus denied the respondents’ claim for transfer, which judgment they have appealed to this board.2

The respondents initially assert that the trial commissioner is the ultimate arbiter of the eligibility of a case to transfer to the Fund, whereas the medical panel is merely empowered to make a limited factual determination regarding the presence of a preexisting physical impairment and its role in the subsequent disability. With this, we essentially agree. Section 31-349c(a) was enacted as part of P.A. 95-277, a legislative attempt to salvage the Second Injury Fund by quantifying its current debt and by making § 31-349 inapplicable to claims based on injuries occurring on or after July 1, 1995. See Coley v. Camden Associates, Inc., 243 Conn. 311, 319 (1997) (discussing purpose of P.A. 95-277). As mandated by § 31-349c(a), a medical panel was appointed to consider “all controverted issues regarding the existence of a previous disability under section 31-349” that might arise during the process of resolving the residual transfer claims that were still pending.

The extent to which § 31-349c(a) grants the medical panel authority over related questions concerning the medical eligibility of claims for transfer has now become a point of contention. There is little doubt that the phrase “regarding the existence of a previous disability” is inherently imprecise. These words can be taken to mean that the medical panel is only empowered to decide the binary “yes or no” question of whether or not a previous disability exists. They can be interpreted to mean that the panel may decide any medical question of fact that implicates the presence of, or the effects of, a previous disability. They can also be read to mean that the panel has been delegated the additional authority to answer the legal question of whether a preexisting impairment has caused a material and substantial increase in a claimant’s disability status, thereby creating the factual predicate for a respondent to transfer liability for that injury to the Fund. In order to apply § 31-349c, we must find a way to resolve this ambiguity, if possible.

The available legislative history to P.A. 95-277 offers scant guidance on this particular issue. There are a pair of cursory statements in the record remarking that the panel would be assembled “to resolve any disputes;” 38 S. Proc., Pt. 15, 1995 Sess., p. 5488 (Sen. Kissel); and that it would “resolve [] disputes in a speedy fashion;” 38 H.R. Proc., Pt. 16, 1995 Sess., p. 5951 (Rep. O’Rourke); but the only arguably specific comment about the scope of the panel’s authority was made by Jesse M. Frankl, a commissioner and the then-Chairman of this agency, at the Joint Standing Committee Hearings. Commissioner Frankl was asked by a representative whether the doctors on the medical panel would actually sit as a group while reviewing cases. He responded, “They’re going to sit as a panel in that they’re going to get . . . the medical sent to them, and they’re [going to] then vote whether or not it’s transferable or not. And by a majority it will be binding on the commission.” Conn. Joint Standing Committee Hearings, Labor and Public Employees, Pt. 1, 1995 Sess., pp. 1062-63. Though one might be tempted to emphasize this comment in support of an argument that the medical panel was being delegated the broad authority to decide whether cases are transferable, we are of the opinion that it was an isolated remark that should not be taken out of context. The legislator had not been asking about the panel’s decisionmaking authority, and the description that the commissioner provided of their role lacks the precision to be given great weight as a clarification of the panel’s fact-finding purview. As no further discussion of the scope of the panel’s authority was held, we do not find this comment to be a strong indicator of legislative intent. Compare Green v. General Dynamics, Corp., 245 Conn. 66, 81-82 (1998) (isolated statement by nonlegislator at public hearing was too weak to establish intended retroactive application of statute).

To date, the appellate courts of this state have yet to define the boundaries of the medical panel’s license to make findings under § 31-349c(a). The only decision dealing directly with that statute is Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 293-94 (1997), where our Supreme Court ruled that the medical panel provision applied retroactively to cases in which the claimant’s second injury occurred before July 1, 1995. This board, conversely, has had occasion to contemplate the breadth of the panel’s authority, which we discussed in considerable detail in Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999). Our analysis there reads as follows:

There is little question that, by passing P.A. 95-277, § 4(a), the legislature intended to expedite the resolution of disputes concerning medical qualification for transfer to the Fund. Hall, supra, 303-304. There is also little doubt that the medical panel procedure curtails many of the rights previously granted to parties seeking transfer, including the right to appeal findings regarding the existence of a previous disability to the CRB, and the right to present oral argument. . . . In the instant case, there are issues surrounding the claimant’s disability subsequent to the second injury involving questions of fact and law which are not the subject of medical panel review. It would be inappropriate to cede these determinations to the medical panel, which, as noted above, reaches its conclusions without offering parties the opportunity for oral argument or appeal, when full procedural rights can be afforded to the parties by presenting this matter to a trial commissioner. Arguably, the fundamental nature of due process in our legal system counsels that the construction of “previous disability” in § 31-349c must be limited to disputes regarding the existence of a preexisting physical impairment only . . . . The medical panel was not granted the authority by § 31-349c to determine the effect of the claimant’s subsequent injury on her preexisting disability.

An integral principle of the Fish decision was the duty of this board to read § 31-349c as consistently as possible with constitutional guarantees of due process. Because the streamlined medical panel protocol sacrifices a great deal of process in honor of speed, we opined that the ambiguous language of the statute should be narrowly construed in order to contain the number of issues that would be resolved without the traditional procedural safeguards of the workers’ compensation forum.

The tenets of our analysis in Fish are equally applicable to the case now before us. Section 31-349c(a) unequivocally assigned to the medical panel the duty to determine whether the claimant suffered from a previous disability as a result of a prior physical injury. Although the panel’s written opinion focuses more on the nature and effects of the claimant’s second injury than it does his prior physical history, the panel took the trouble to endorse a report by Dr. Arkins that described the claimant’s 1982 L5-S1 surgery as a preexisting condition responsible for 10% of his current disability rating. Respondents’ Exhibit 1, ¶ 26. The panel then went on to state that the claimant’s history of lumbar disc problems did not combine with the 1990 compensable injury to cause a materially and substantially greater disability than would have occurred due to the subsequent injury alone. The trier seems to have relied on both of these findings.

We do not believe that it was improper for the panel to offer additional diagnostic information as part of its review of the claimant’s medical records. If the panelists reached an opinion as to the effect of the prior injury on the claimant’s current condition, they had the option to express their viewpoint by including it in their joint opinion. However, the trial commissioner was bound to accept the panel’s findings only insofar as they established the physical existence of the pre-existing injury and disability. She was not required to accept the panel’s assessment of the legal consequences of that injury, because it remains the trier’s prerogative to apply the law to the facts, and make the ultimate legal determination as to whether a pre-existing condition rises to a legally significant level with respect to § 31-349. Fish, supra.

We also observe that the medical panel’s opinion was not subject to cross-examination in the same manner as the report of a treating physician or an independent medical examiner would be at a formal hearing. Thus, any non-essential analysis contained within that opinion, being akin to dicta, should not be given significant weight unless it were itself supported by medical reports that were properly part of the record. Here, the panel relied explicitly on a report by Dr. Arkins that was submitted into evidence. Respondents’ Exhibit 2. The trial commissioner, in turn, agreed with the panel’s assessment of that report, and held that the claimant’s disability following his 1990 back injury was not materially and substantially increased by his pre-existing condition. As the medical panel’s opinion regarding the effect of the preexisting injury on the subsequent disability was supported by other medical reports in the record, it was reasonable for the trier to cite the panel’s report in determining that issue.

The appellants argue that the panel’s assignment of causation for 10% of the claimant’s subsequent disability to the previous injury established a material contribution to said disability as a matter of law. That view, we do not endorse. The commissioner could reasonably have decided that this 10% share of responsibility did not amount to a substantial increase, especially where the remaining 90% of the claimant’s disability was entirely due to the second injury. Such an overwhelming disparity in these percentages created room for the trier to infer that the claimant would have been in the same position with or without the previous injury. We must assume she did so, and hold that she was not outside her factfinding discretion in evaluating the case in this manner.

Further, the presence of a pre-existing permanent impairment does not inevitably lead to a finding that the condition has caused a material increase in subsequent disability. Rowe v. Plastic Design, Inc., 37 Conn. App. 131 (1995), which the respondents cite in their brief, does not support such an interpretation of the law. In Rowe, the Appellate Court relied upon the canon of statutory construction that requires every part of a legislative enactment to be treated as significant. Id., 135-36. If we were to hold that the establishment of a pre-existing condition automatically satisfies the medical prerequisite for transferring a case to the Fund, we would vitiate the effect of the phrase “materially and substantially greater than that which would have resulted from the second injury alone” as it is used in § 31-349. That, we cannot do.

We hereby affirm the decision of the trial commissioner denying the respondents’ request for transfer of the instant case to the Second Injury Fund.

Commissioners Leonard S. Paoletta and Stephen B. Delaney concur.

1 Section 31-349c(a), which took effect on July 1, 1995 as part of P.A. 95-277, 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 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, 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

2 The Second Injury Fund has filed a Motion to Dismiss the respondents’ appeal, contending that § 31-349h divests this Commission of subject matter jurisdiction over any case in which transfer has not been effected as of July 1, 1999. We recently addressed this argument in Zeoli v. Norwalk Hospital Association, 3974 CRB-7-99-2 (March 13, 2000), where we held that § 31-349h did not foreclose a respondent from appealing a trial commissioner’s final judgment on the ground that transfer was denied due to legal error. The same analysis applies here. We thus deny the Fund’s Motion to Dismiss. See also Kuban v. Bridgeport Hospital, 3926 CRB-4-98-11 (Sept. 23, 1999) (§ 31-349(f) does not require final adjudication of all Fund cases by July 1, 1999). BACK TO TEXT

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