CASE NO. 4080 CRB-05-99-07
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
OCTOBER 20, 2000
WHITE OAK CORPORATION
LIBERTY MUTUAL INSURANCE CO.
SECOND INJURY FUND
The claimant did not appear at oral argument.
The respondents White Oak Corporation and Liberty Mutual Insurance were represented by James Moran, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.
The Second Injury Fund was represented by Michael J. Belzer, Esq., Office of the Attorney General, P.O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.
This Petition for Review from the June 24, 1999 Finding of the Commissioner acting for the Fifth District was heard April 14, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.
JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the June 24, 1999 Finding of the trial commissioner acting for the Fifth District. In that decision, the trial commissioner found that the respondents White Oak Corporation and Liberty Mutual Insurance (“respondents”) provided proper notice under § 31-349 for the transfer of the claimant’s right knee injury which occurred on November 6, 1986. The trial commissioner thus ordered that the claim be transferred to the Fund in accordance with § 31-349. In support of their appeal, the Fund makes two arguments. First, the Fund argues that the respondents failed to provide timely notice to the Fund as the trial commissioner erroneously calculated the 104-week period under § 31-349. Secondly, the Fund argues the liability which may be transferred to the Fund is limited due to the fact that the claimant sustained a third injury in 1992. We find no error.
This case has a long history, which we will briefly set forth here. On October 4, 1994, the trial commissioner issued a Finding and Award in which he concluded that the claimant sustained a compensable injury to his right knee on November 6, 1986 while working for the respondent White Oak Corporation. The trial commissioner found that while working for another employer, the claimant had sustained a prior compensable injury to his right knee on July 7, 1981, and that he sustained a subsequent compensable injury to his right knee while working for a third employer on April 20, 1992. In his decision, the trial commissioner also addressed the issues of periods of total disability caused by the November 6, 1986 injury, medical bills, increased permanent partial disability, and liability for recommended surgery to the claimant’s right knee. The trial commissioner found that the 1986 injury exacerbated the claimant’s underlying arthritic condition and was an equal and concurrent cause, along with the 1981 injury, of the need for surgery which was performed on January 5, 1987. (Finding ¶ G).
The trial commissioner further found that due to the 1986 injury, the claimant was temporarily totally disabled from November 7, 1986 to March 1, 1987. The trial commissioner found that the claimant reached maximum medical improvement on October 14, 1992, with an overall permanent partial disability of the right knee of forty-seven percent, of which the trial commissioner found 7.5 percent was attributable to the July 7, 1981 injury, 17.5 percent to the November 6, 1986 injury, five percent to the April 21, 1992 injury, “and 17 percent permanent partial disability attributable to the aggravation of the underlying pre-existing arthritic condition by the 1981, 1986, and 1992 injuries equally.” (Finding ¶ I).
In Gillis v. Waterbury Construction, 15 Conn. Workers’ Comp. Rev. Op. 131, 2182 CRB-5-94-10 (Jan. 17, 1996), the board remanded the matter to the trial commissioner in order for him to articulate his reason for disregarding the opinion of Dr. Fisher, who had conducted a § 31-294f examination. Pursuant to that remand, on April 18, 1996, the trial commissioner issued an Amended and Articulated Finding and Award in which he added one finding and three conclusions to his original October 4, 1994 decision. The respondents White Oak Corporation and Liberty Mutual Insurance appealed that decision to the board, which affirmed the trial commissioner’s decision in Gillis v. White Oak Corporation and Waterbury Construction, 3337 CRB-5-96-5 (July 15, 1997), aff’d., 49 Conn. App. 630 (1998), cert. denied 247 Conn. 919 (1998).
We now turn to the Fund’s appeal to this board from the June 24, 1999 Finding. In that decision, the trial commissioner found that on December 14, 1994, the respondents filed a timely notice of intent to transfer the 1986 injury pursuant to § 31-349, and also filed proper re-notice pursuant to § 31-349(e). We note that the Fund accepted that the claimant’s 1986 injury qualified medically for transfer pursuant to § 31-349. (5/26/99 TR. at 4). In support of its appeal, however, the Fund argues that the trial commissioner incorrectly determined the ninetieth day prior to the 104 weeks of disability. The trial commissioner found the first 104 weeks of disability as follows:
Temporary total disability from November 6, 1986 through March 1, 1987 (16 3/7 weeks);
Permanent partial disability from October 14, 1992 through November 5, 1993 (55 3/7 weeks);
Temporary total disability from September 8, 1998 through April 20, 1999 (32 1/7 weeks).
In accordance with the above, the trial commissioner found that the 104th week ended on April 20, 1999, and thus the December 14, 1994 notice to the Fund was properly filed more than 90 days prior to the first 104 weeks of disability. The trial commissioner specifically found that for the period from March 1, 1987 through October 13, 1992 and November 6, 1993 through December 14, 1994, there was “no evidence of medical or physical limitations or impairments attributable to the November, 1986 injury and therefore such period is not included in the calculation of timely notice under § 31-349(a).” (Finding ¶ D).
Section 31-349 (Rev. to 1985) provides in relevant part:
As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier must, 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 and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire.
In Innocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998), the court held that the claimant was disabled during the period that she returned to work full time, at regular pay, but was medically restricted to light duty work. The court explained that a claimant’s rate of pay and the number of hours she works are not determinative of the time period of her disability. Id., at 513. “Rather, the determinative factor as to whether the time period is to be included in calculating the 104-week period of disability . . . is whether the claimant is medically impaired as a result of his or her work-related injury.” Id; see also Karutz v. Feinstein and Herman, P.C., 59 Conn. App. 565 (2000).
In support of its appeal, the Fund relies on Innocent, supra, and argues that the trial commissioner should have found that the claimant was disabled from January 27, 1987 onward in accordance with the trial commissioner’s prior Finding and Award of October 4, 1994.1 (Fund’s Reply Brief at p. 7). In its appeal, the Fund fails to explain why the January 27, 1987 date is determinative, and the Fund does not cite any specific finding or any medical evidence.2 Indeed, the Fund has failed to file a Motion to Correct, and thus we are limited to the facts as found by the trial commissioner in his June 24, 1999 decision. Spindler v. Med-Center Home Health Center, 12 Conn. Workers’ Comp. Rev. Op. 130, 132, 1474 CRB-7-92-7 (Feb. 28, 1994); see also Vanzant v. Hall, 219 Conn. 674, 681 (1991). Moreover, we note that in its trial brief filed with the commissioner, the Fund made no specific arguments or proposed findings regarding the dates of the claimant’s disability for the purposes of determining the 104 weeks.3 We thus find the Fund’s arguments on appeal to this board to be an unseasonable attempt to litigate an issue which it chose not to litigate before the trial commissioner.
Despite the above inadequacies of the Fund’s appeal, we will nevertheless review4 the trial commissioner’s determination of the 104-week period under § 31-349. In the instant case, the trial commissioner specifically found that for the period from March 1, 1987 through October 13, 1992 and November 6, 1993 through December 14, 1994, there was “no evidence of medical or physical limitations or impairments attributable to the November, 1986 injury and therefore such period is not included in the calculation of timely notice under § 31-349(a).” (Finding ¶ D). Apparently, (it is not explained in its brief) the Fund in its appeal has chosen the January 27, 1987 date based upon the trial commissioner’s finding in his October 4, 1994 decision that Dr. Taylor assessed a twenty-five percent permanent partial disability of the claimant’s right knee on January 27, 1987. (10/4/94 Finding and Award; Finding ¶ 21-23).
The Fund conveniently overlooks, however, that in the October 4, 1994 decision the trial commissioner awarded all permanent partial disability benefits based upon an October 14, 1992 date of maximum medical improvement. In the instant case, the trial commissioner in his October 4, 1994 decision, chose to rely upon the October 14, 1992 date of maximum medical improvement as the date of the claimant’s permanent partial disability. This was a factual determination for the trial commissioner to make,5 and we will not allow the Fund to retry the facts before this board, especially where it has not filed a Motion to Correct. Here, the trial commissioner was presented with a complex history of right knee injuries, the claimant having sustained three right knee injuries while working for three separate employers, and adding to the complexity the fact that the claimant suffered from a pre-existing degenerative arthritic condition and the fact that the claimant underwent several surgeries. We will thus not second-guess the trial commissioner’s decision that the claimant’s date of maximum medical improvement was October 14, 1992. As the trial commissioner’s decision regarding the calculation of the 104 weeks under § 31-349 is fully supported by the record, and did not “result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them” that decision must stand. Innocent, supra, citing Six v. Thomas O’Connor & Co., 235 Conn. 790, 798-99 (1996).
Finally, we will address the Fund’s argument that the liability which could be transferred to the Fund was limited due to the fact that the claimant sustained a third injury in 1992. The Fund contends that because the claimant sustained an injury to his right knee on April 21, 1992, while employed with a different employer, that therefore the “only liable party” from April 21, 1992 onward was the 1992 employer and its insurer. (Fund’s Brief at p. 6-7). In support of this argument, the Fund relies solely upon Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999), and contends that under Fimiani, “once the claimant incurred his 1992 right knee work injury, the only proper legal liability of the 1986 carrier was the permanancy (sic) attributable to the 1986 injury.” (Fund’s Brief at p. 6). We find no merit to this argument. In the instant case, the trial commissioner specifically found that the claimant’s 1992 right knee injury (a patella fracture) was a “temporary” and “self limiting” injury. (Finding ¶ 11). We note that the record does not indicate that the 1992 employer or its insurer sought transfer to the Fund, and there was no evidence presented that the 1992 injury caused a permanent disability which was “materially and substantially greater” than that which would have resulted from the 1986 injury alone. We see no basis for the Fund’s legal argument that the 1992 injury limits the liability which may be transferred to the Fund under § 31-349 for the 1986 injury.
The trial commissioner’s decision is affirmed.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
1 Although in support of its appeal, the Fund relies upon the October 4, 1994 decision, the Fund also argues that the trial commissioner improperly relied upon said decision. Significantly, during the formal hearing on May 26, 1999, the Fund made no objection to the trial commissioner’s statement that he would take administrative notice of his prior October 4, 1994 decision. (5/26/99 TR. at 4). We find no error. BACK TO TEXT
2 At the formal hearing on May 26, 1999, the Fund’s representative asked if the Fund could introduce medical reports at the next hearing, and the trial commissioner replied, “Sure.” (5/26/99 TR. at 8). BACK TO TEXT
3 The Fund states in its June 16, 1999 trial brief that the trial commissioner must “(d)etermine if the 1986 injury employer’s § 31-349 [notice] was timely. This necessarily requires the commissioner to review the claimant’s entire medical record from the 1986 date of injury onward, not just the employer’s record of compensation payments, and make factual findings as to periods of disability so that he can then make legal conclusions as to whether the notice was timely perfected.” (6/16/99 Trial Brief at p. 6). The Fund’s trial brief cites no proposed dates of disability, and cites no medical evidence. BACK TO TEXT
4 The Fund has provided this board with only the transcript from the May 26, 1999 formal hearing, but has not provided a transcript from the June 16, 1999 formal hearing, thus limiting our review. BACK TO TEXT
5 The “calculation of the date that notice of intent to transfer liability to the fund is due must be determined by the commissioner on the basis of all of the evidence placed before him.” Innocent, supra, at 521. BACK TO TEXT