State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bilotta v. Connecticut Natural Gas Corp.

CASE NO. 4106 CRB-01-99-08

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 5, 2000

ALFRED BILOTTA

CLAIMANT-APPELLEE

v.

CONNECTICUT NATURAL GAS CORP.

EMPLOYER

and

TRAVELERS PROPERTY & CASUALTY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Joseph P. Quinn, Jr., Esq., Furniss & Quinn, P.C., Stoneleigh Building, 248 Hudson Street, Hartford, CT 06106.

The respondents were represented by Robert S. Cullen, Esq., c/o Law Offices of Scott B. Clendaniel, 300 Windsor Street, P. O. Box 2138, Hartford, CT 06145-2138.

This Petition for Review from the August 4, 1999 Finding and Award of the Commissioner acting for the First District was heard May 19, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Donald H. Doyle.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the August 4, 1999 Finding and Award of the Commissioner acting for the First District. They argue on appeal that the trier’s award of benefits for the loss of function of an unscheduled body part pursuant to § 31-308 C.G.S. (Rev. to 1973) was excessive and based upon insufficient evidence. We find no legal error, though we do modify the trier’s award of interest under § 31-300.

The claimant suffered a compensable left inguinal hernia on January 10, 1973, and had surgery to correct the resulting problems in 1982 and 1990. He testified that, following the second surgery, his groin pain was intense enough to prevent him from working “on call” overtime hours, thereby lessening his overall wages and leading to his retirement at age 62 on March 1, 1993. In February 1997, Commissioner Waller directed the respondents to pay the claimant’s medical bills, but dismissed his request for a scarring award and temporary partial disability benefits beyond March 31, 1993, having found the claimant’s retirement to be voluntary. The trier refrained from deciding claims for a permanent partial impairment rating and temporary partial disability benefits from April 6, 1990 through March 1, 1993, as further evidence was needed on both of those matters. This board affirmed that decision on appeal. Bilotta v. Connecticut Natural Gas, 3536 CRB-1-97-2 (May 26, 1998).

Formal hearings were subsequently held before Commissioner Marcarelli on the previously undecided issues, and on the respondents’ failure to pay medical bills. The trier found that, following the 1997 award, the claimant had made numerous requests for reimbursement of his medical costs before finally receiving a check for $1,445.44 over a year later. The trier sanctioned the respondents for undue delay by awarding the claimant interest and attorney’s fees as per § 31-300. The parties settled the outstanding evidentiary issue in the temporary partial disability claim by agreeing that the claimant’s compensation rate was $310 per week. See Nov. 3, 1998 Transcript, p. 7. Also, the claimant sought a 10% permanent partial disability award of his left leg based on Dr. Donaldson’s February 14, 1995 rating. The respondents did not seek an independent medical examination, nor did they object to the 10% permanency award.

The respondents did, however, object to a § 31-308 discretionary award that the claimant sought in addition to his specific indemnity benefits. According to Dr. Rizzo, the claimant’s treating physician, his patient suffered from a 30% impairment to his whole person (under the AMA guidelines) based upon chronic pain in the territory of his ilioinguinal nerve and scrotum, which pain could not be controlled by treatment and severely limited his physical activities. Dr. Rizzo analogized the pain to “a good kick in the groin 2 or 3 times a day,” and explained that a simple adduction of his left leg (a movement or inward contraction of its muscles) would elicit that sensation. Findings, ¶ 12; Claimant’s Exhibit R. The respondents argued that the 10% left leg rating encompassed this claim, while the claimant urged that these symptoms justified a further award under the version of § 31-308 in effect on the date of his injury.1 Commissioner Marcarelli found that the claimant’s nerve damage caused him to suffer from burning pain that greatly interfered with his “physical, social, vocational, recreational and sleep activities,” and awarded him 200 weeks of compensation for a permanent partial impairment of his scrotum and groin area with a maximum medical improvement date of February 14, 1995. Findings, ¶¶ 15, D. That portion of the trier’s ruling has inspired the respondents’ appeal to this board.

From October 1, 1967 until July 1, 1993, § 31-308 gave workers’ compensation commissioners the authority to award up to 780 weeks of compensation for “the loss or the loss of the use of the function of any organ or part of the body not otherwise provided for” in the portion of the statute that enumerated permanent partial impairment benefits for scheduled body parts. Repasi v. Jenkins Brothers, 4 Conn. Workers’ Comp. Rev. Op. 82, 85, 227 CRD-4-83 (June 11, 1987), appeal dismissed on other grounds, 16 Conn. App. 121 (1988), cert. denied, 209 Conn. 817 (1988). As the list of specified body parts and functions in § 31-308 was cursory at that time—it included only the senses of sight and hearing, along with the loss of or loss of use of the arms, hands, fingers, thumbs, back, legs, feet, and toes—the legislature opted to grant commissioners the power to use their own judgment in the cases that the statute did not expressly address. Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 803-804 (1999). “At the present time if a worker [loses] a kidney because of an on-the-job injury, he receives no compensation for such permanent loss, yet the removal of a kidney reduces his chance of survival by 50%. We recognize that each organ of the body is not equally important to the human body and for this reason we have given the commissioners broad discretion to determine the values involved . . . . [W]e believe that the commissioners, guided by competent medical assistance, will apply this provision fairly.” Repasi, supra, n. 6, quoting 30 H.R. Proc., Pt. 9, 1987 Sess., p. 4040 (Rep. Pawlak). The drafters of P.A. 67-842 also provided a short set of guidelines by directing commissioners to account for “the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and necessity of the organ or complete functioning of the organ with respect to the entire body” in figuring the appropriate benefits to award.

Plainly, § 31-308 ceded a good deal of discretion to commissioners in allowing them to award unscheduled permanency benefits. Though compensation awarded under this provision conceptually mimics a specific indemnity benefit, the law fixes neither a claimant’s entitlement to an optional award, nor its amount and length. Peters v. State of Connecticut/S.C.S.U., 13 Conn. Workers’ Comp. Rev. Op. 131, 133, 1616 CRB-5-92-12 (Feb. 1, 1995). Various values may be assigned to such unscheduled losses. Piscitelli v. Connecticut Coke/Eastern Gas & Fuel, 6 Conn. Workers’ Comp. Rev. Op. 94, 96, 575 CRD-3-87 (Jan. 26, 1989). Still, experience teaches that the gift of liberty brings with it responsibility. The integrity of this system hinges upon the trier’s prudent and judicious use of his fact-finding license. He has a serious responsibility to articulate the basis of a discretionary award of benefits, so that his decision may be viewed as a legitimate product of reason. As long as the trier has done this, and has taken care to consider the aforementioned statutory guidelines, his ruling will be upheld on appellate review unless it is wholly without support in the evidence. Chialastri v. Angelo’s Trucking, 16 Conn. Workers’ Comp. Rev. Op. 239, 241, 3256 CRB-8-96-1 (June 24, 1997).

The respondents contend that the instant findings warrant appellate intervention, as the record lacks sufficient support to justify the trier’s substantial award of benefits for a permanent partial impairment of the claimant’s scrotum and groin area. They specifically object to the trier’s decision not to fully credit the reports of Dr. Donaldson, who sharply criticized the assessment of the claimant’s treating physician, and they insist that the medical records establish no loss of function other than the permanency to the claimant’s left leg. We remind the respondents that a trial commissioner’s fact-finding duty entitles him to determine the weight of the evidence presented and the credibility of testimony offered by lay and expert witnesses, such as doctors, even if such evidence is apparently uncontradicted. Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). The trier derives from this authority the right to select among conflicting medical opinions, and he need not credit the opinion of a particular doctor—even a § 31-294f commissioner’s examiner—over that of any other physician. Tartaglino v. Department of Correction, 55 Conn. App. 190, 195-96 (1999).

A series of reports by the claimant’s treating physician form the ground upon which the challenged discretionary award rests. The 30% “whole person” impairment rating given by Dr. Rizzo is premised on a subsection of the AMA guidelines that rates an individual with a 20% to 35% impairment of his whole person (“Class 3”) when “there are signs and symptoms of scrotal disease that are uncontrolled by treatment and limit the patient’s physical activities.” Claimant’s Exhibits A, B. By comparison, the same guidelines prescribe a 10% to 20% impairment of the whole person (“Class 2”) for total loss of the scrotum, or relocation of the testes coupled with discomfort during activity. Although this Commission does not provide for an award of benefits, discretionary or otherwise, on the basis of whole-person disability, it is permissible for a commissioner to consider such ratings in reaching a decision as to the percentage of loss of an organ, or loss of use of its function. Piscitelli, supra; Furrey v. Wells Fargo Alarm System, 11 Conn. Workers’ Comp. Rev. Op. 192, 194, 1307 CRD-3-91-9 (Sept. 22, 1993).

Here, Dr. Rizzo reasoned that, in addition to his 10% leg impairment, the claimant suffered from chronic pain in his scrotum because his ilioinguinal nerve had been severed, and now ended in a neuroma (a disorganized mass of nerve fibers). Exhibit A. As Dr. Donaldson notes, the ilioinguinal nerve supplies sensation to the groin and scrotal area. Respondents’ Exhibit 1. Dr. Rizzo was of the opinion that the pain that the claimant was consequently experiencing in and around his scrotum was uncontrollable by treatment, and limited his physical activities enough to constitute a 30% impairment of his whole person. In essence, then, the doctor extrapolated this broad, “bottom-line” impairment rating from the more localized impairment to the claimant’s scrotum, which was not a scheduled body part under § 31-308 in 1973.2 The trier evidently adopted this approach in awarding the claimant 200 weeks of benefits for the partial loss of use of the function of his groin and scrotal area due to nerve damage. See Furrey, supra (applying similar analysis to award for temporomandibular joint syndrome); Repasi, supra, 87 (commissioner properly considered functioning of organ with respect to entire body).

Although the respondents contend that the discretionary award was duplicative of the left leg permanency award, the medical evidence does not demand such a conclusion. Dr. Donaldson indeed equated the “whole person” impairment caused by the claimant’s ilioinguinal neuropathy and his left lateral femoral cutaneous neuropathy to a 4% “whole person” disability and to a 10% permanency of the leg. Respondents’ Exhibit 1. He then characterized the diagnostic procedure of Dr. Rizzo as “simply not valid.” Id. However, in direct response to Dr. Donaldson’s letter, Dr. Rizzo explained that his colleague’s analysis of the claimant’s condition was too conservative, as it failed to account for testicular pain:

Leaving aside the AMA guidelines, let’s pretend that a man, any man, experienced a good kick in the groin 2 or 3 times a day for 10 or 15 years. In order to minimize and avoid these occurrences, he has to stay homebound and bed bound and has to remain as still as possible. Just a simple adduction of the left leg elicits that pain. This is the kind of pain we’re talking about. No independent medical examiner is going to convince me that Mr. Bilotta has suffered any less than this. Is this “4% disabled?” My interpretation of the guidelines, “30% disabled,” seems still too low when you consider the above analogy.

Claimant’s Exhibit R. Commissioner Marcarelli accepted this description of the claimant’s condition, having quoted excerpts from this letter in ¶ 12 of his findings.

It is not within the scope of this board’s appellate purview to spontaneously reassess the soundness of Dr. Rizzo’s medical judgment, or to declare another doctor’s analysis more plausible. The mere fact that Dr. Donaldson challenges Dr. Rizzo’s opinion does not automatically invalidate the latter’s diagnostic methodology and fatally discredit his opinion. See Cabral v. Metropolitan District Employees, 3770 CRB-1-98-2 (May 13, 1999) (alternative diagnostic methods are admissible if scientifically valid). At minimum, a more detailed and incisive criticism of Dr. Rizzo’s approach would be necessary for us to even begin to question the admissibility of his medical opinion as a matter of law. Absolutely no evidence was offered to show that Dr. Rizzo based his diagnosis upon an incorrect version of the facts, or that his scientific methods were fundamentally unsound.

Having determined that Dr. Rizzo’s medical opinion was admissible, we then ask whether it sufficed to establish a considerable permanent partial impairment of the claimant’s scrotum and groin area. A review of the doctor’s reasoning and diagnosis reveal that his conclusions were legally acceptable. He described the claimant’s physical condition as he saw it, assessed the impact of that condition on his ability to function as a whole, and accordingly applied the well-established AMA guidelines to the claimant’s situation. Clearly, in the doctor’s view, the pain caused by the claimant’s neuropathy has rendered his scrotum virtually useless, and it also seriously hinders his general activities. We have no reason or basis to challenge this diagnosis on review.

The trier’s award of 200 weeks of benefits based on this medical opinion may sound excessive at first blush, but it in fact tracks the current valuation system of a complete loss of both testicles rather precisely (translated to the 780-week scale applicable to discretionary benefits in 1973). See n.2, supra. Though the trier could have articulated more specifically the reasoning for his findings in this situation, given that the award was discretionary and by its very nature susceptible to second-guessing on the part of the respondents, the 200-week award is actually quite consistent with the current law as it would apply to a literal reading of Dr. Rizzo’s ultimate diagnosis. Therefore, we disagree with the respondents’ contention that the commissioner abused his discretion by making an excessive award of discretionary permanency benefits.

The respondents’ also contend that Commissioner Waller’s 1997 finding that the claimant voluntarily retired in 1993 collaterally estopped Commissioner Marcarelli from finding that the claimant was entitled to this substantial award of permanency benefits. We reject that assertion as well. Simply put, the issues of temporary total and temporary partial disability are not germane to the separate question of whether a claimant is entitled to a specific indemnity award under either § 31-308(b) or its discretionary counterpart. Thus, a voluntarily retired claimant may still be entitled to an award for the permanent loss of, or loss of use of, a body part because of a compensable injury upon reaching maximum medical improvement. McCurdy v. State, 227 Conn. 261, 268 (1993).

The respondents’ final contention is that the commissioner erred by adding interest to his 200-week award of discretionary benefits. We agree in part with their argument. The trial commissioner awarded 6% interest per annum dating back to the claimant’s maximum medical improvement date of February 14, 1995. Section 31-300 (Rev. to 1973) states that in cases where, through no fault of the insurer, there has been a delay in the payment of benefits, the trier may allow “interest at such rate, not to exceed six per cent per annum, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than six percent per annum to be upon employer or insurer.”

An award of such interest is a matter expressly committed to the trier’s discretion; thus, the commissioner is not compelled to award such interest at all. Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 181 (1974). If the trier does award interest under that particular clause of § 31-300, however, he is entitled to go as far back as the date of injury, for that is the date that compensation becomes fixed. Balkus, supra, 180-81. Correlatively, he may also go back to the date of maximum medical improvement in the event of a permanency award, for that is the date that a specific indemnity benefit becomes fixed. McCurdy, supra. That is what the commissioner did here, at least to a degree. The February 14, 1995 date corresponds to the date of Dr. Donaldson’s 10% permanency rating. For that portion of the interest award, we are required to presume that “[b]y allowing interest the Commissioner inferred that the employer had use of the money and that it had not met the burden [under § 31-300] of showing why that amount should be less than six percent.” Carlino v. Danbury Hospital, 5 Conn. Workers’ Comp. Rev. Op. 139, 143, 357 CRD-7-84 (July 18, 1988).

The portion of the interest award that is derived from the 30% whole person impairment rating first given by Dr. Rizzo on March 31, 1998, however, cannot reasonably date back to February 1995. The respondents could not have been aware that such an amount might arguably be due the claimant until after Dr. Rizzo provided his 1998 diagnosis. Thus, with respect to that segment of the interest award, we hold that the respondents need calculate 6% interest per annum on the § 31-308 discretionary benefits only as far back as March 31, 1998.

The trial commissioner’s award is hereby affirmed, with a modification to the award of interest as stated above.

Commissioners George A. Waldron and Donald H. Doyle concur.

1 On January 10, 1973, § 31-308 of the General Statutes provided in relevant part: “With respect to the following-described injuries the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate set forth in section 31-309 of this chapter, or less than twenty dollars weekly: . . . (c) for the loss of one leg at or above the knee, or the complete and permanent loss of the use of one leg, two hundred and thirty-eight weeks . . . . [I]f the injury results in a permanent partial loss of function, the commissioner may, in his discretion, in lieu of other compensation, award to the injured person such a proportion of the sum herein provided for the total loss of, or the loss of use of, such member or for incapacity or both as represents the proportion of total loss or loss of use found to exist . . . . In addition to compensation for total or partial incapacity for a specific loss of a member or loss of use of the function of a member of the body or for disfigurement or scarring, the commissioner may award such compensation as he deems just for the loss or the loss of the use of the function of any organ or part of the body not otherwise provided for herein, taking into account the age and sex of the claimant, the disabling effects of the loss of or loss of function of the organ involved and necessity of the organ or complete functioning of the organ with respect to the entire body, but in no case more than the sum equivalent to compensation for seven hundred and eighty weeks.” BACK TO TEXT

2 The current version of § 31-308(b) does not directly address the scrotum or the groin. The closest named organ(s) would be the testes, a major component of the scrotal sac. The statute prescribes an award of 69 weeks of compensation for the complete and permanent loss of one testis (testicle). Presumably, the total loss of both testes would entitle a man to 138 weeks of compensation. Though they provide an informative basis for comparison, these figures are technically immaterial to this case. We held in Chialastri v. Angelo’s Trucking, 16 Conn. Workers’ Comp. Rev. Op. 239, 3256 CRB-8-96-1 (June 24, 1997), that the legislature’s assignment via P.A. 93-228 of a 520-week scale (the post-amendment maximum) to a permanent brain injury did not translate into a requirement that a commissioner apply a 780-week scale (the maximum before the amendment) to a discretionary award of permanent partial impairment benefits for a brain injury that occurred in 1990, although the trier could have reasonably chosen to do so. The same principle applies here, as substantive changes in the law are presumed to have no retroactive effect. BACK TO TEXT

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