CASE NO. 4061 CRB-06-99-06
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JANUARY 17, 2001
JANAZZO HEATING & AIR CONDITIONING
TRANSAMERICA INSURANCE GROUP c/o MATHOG & MONIELLO
WAUSAU INSURANCE COMPANY
SECOND INJURY FUND
The respondent employer and Mathog & Moniello were represented by Richard Bartlett, Esq., McGann, Bartlett, & Brown, LLC, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.
The respondent employer and Wausau Insurance were represented by James Powers, Esq., Law Office of Nancy S. Rosenbaum, 655 Winding Brook Drive, Glastonbury, CT 06033, who did not appear at oral argument.
The Second Injury Fund was represented by Nancy Sussman, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the June 11, 1999 Finding and Dismissal of the Commissioner acting for the Sixth District was heard June 16, 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 respondent employer and Mathog & Moniello1 have petitioned for review from the June 11, 1999 Finding and Dismissal of the Commissioner acting for the Sixth District. In their appeal, the respondents contend that the trial commissioner erred by accepting the opinion of the § 31-349c medical panel in dismissing their request for transfer of liability to the Second Injury Fund. We conclude that the trial commissioner’s decision was based upon a reasonable interpretation of the medical panel’s report, and thus find no error.
The trial commissioner found the following relevant facts, as amended by the granting of the respondents’ Motion to Correct. The claimant injured his low back on April 29, 1991 when he stepped into a hole while working for the respondent employer. Subsequently, on February 20, 1992, the claimant sustained an injury to his back during the course of his employment with the respondent employer. A voluntary agreement was approved on November 9, 1992 wherein it is acknowledged that the claimant sustained a fifteen- percent permanent partial disability to his back. We note that the voluntary agreement lists the date of injury as February 20, 1992. The February 20, 1992 injury was covered by the insurer Transamerica, which sought to transfer its claim to the Fund.
The request for transfer was referred to the medical panel pursuant to § 31-349c “to determine whether or not there was a pre-existing disability.” (Finding ¶ 6). Section 31-349c(a), which took effect on July 1, 1995 as part of P.A. 95-277, provides:
“[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.”
In the instant case, the medical panel evaluated the claimant on December 10, 1998, and issued a seven page report on that date which concluded as follows:
It is our expert professional opinion the claimant did not have a significant pre-existing back injury, and therefore has not caused a materially and substantially greater disability, when combined with the injury of February 20, 1991, [than] could have occurred due to the subsequent injury alone.
(Finding ¶ 11).2
At the formal hearing, the respondents contended that an unidentified party had altered that report by changing the date of injury from February 20, 1991 to February 20, 1992. Indeed, our review of the record reveals that the panel’s typewritten report on page six has the date of injury typed as February 20, 1991 in three of the paragraphs, with a handwritten “2” over the “1” on each of the three errors. Furthermore, at the formal hearing the respondents argued that the medical panel’s report had the same error on page five under the section describing the claimant’s history (listing February 20, 1991 rather than 1992), and that this section incorrectly described this injury as the incident where the claimant stepped in a hole (which was in fact the incident which occurred on April 29, 1991).
The respondent thus argued at the formal hearing that the medical panel’s report was as a matter of law invalid because it was based upon an incorrect history and was “doctored” by an unidentified source (by someone who changed the 1991 to 1992 on page six). The trial commissioner, however, was not persuaded, and found that the errors in the panel’s report under the Reported History section “may or may not have been” scrivener’s errors. (Finding ¶ B, as modified by granting of Motion to Correct). On appeal to this board, the respondents again argue that the medical panel’s decision should be deemed invalid due to the errors set forth in the paragraph above. We conclude, however, that it was within the trial commissioner’s discretion to review these errors, and to determine whether they should invalidate the entire report.
In support of their appeal, the respondents cite Fish v. Caldor, Inc., 3840 CRB-7-98-6 (May 11, 1999), where the board held that a trial commissioner is only bound to accept the findings of the medical panel insofar as they establish the existence of a previous permanent partial impairment, but that the legal consequences of that injury (i.e., whether the previous injury has combined with a subsequent injury to cause a materially and substantially greater disability than would have occurred due to the second injury alone) remain within the jurisdictional purview of the trial commissioner. See also Johnson v. East Haven Hay & Grain Supply, Inc., 4075 CRB-3-99-7 (Aug. 10, 2000).
Here, the trial commissioner clearly reviewed the entire seven-page report, and he specifically made findings listing the extensive medical evidence which the panel reviewed. (Finding ¶ 13). The trial commissioner was not persuaded that the limited errors pointed out by the respondents required him to invalidate the entire report. The trial commissioner’s decision is understandable, as a seven page medical report may indeed contain some errors, but nevertheless overall constitute a reliable report. Significantly, in the medical panel’s report, prior to making the error on page six regarding the February 20, 1992 date, the report correctly referred to the date of injury as February 20, 1992 ten times. Moreover, it was within the discretion of the trial commissioner to interpret the panel’s conclusion that the “the claimant did not have a significant pre-existing back injury” (Finding ¶ 11) as indicating that the claimant did not have a pre-existing disability. We thus find no error in the trial commissioner’s reliance upon the medical panel’s report in dismissing the request for transfer.
We note that in granting the respondents’ Motion to Correct, the trial commissioner added the following finding: “The respondents have presented evidence which establishes that the claimant did have a previous disability prior to sustaining the work-related injury of February 20, 1992.” The respondents addressed this finding during oral argument before this board, but did not address it in their brief. We find no inconsistency in the trial commissioner’s findings, as the trial commissioner was “bound to accept the panel’s findings insofar as they established the physical existence of the pre-existing injury and disability.” Johnson, supra. In the instant case, the panel concluded that the claimant did not suffer from a significant prior injury, and the trial commissioner, pursuant to § 31-349c(a), was required to accept that opinion. See Johnson, supra.
Finally, we will address the Fund’s contention that this board lacks jurisdiction on the basis that the present appeal has been rendered moot by the language of § 31-349h, which provides in part, “All claims not transferred to the Second Injury Fund, on or before July 1, 1999, shall remain the responsibility of the employer or its insurer.” We will not reiterate our entire analysis regarding this contention which has been made by the Fund in prior cases, as we have already held that § 31-349h does not foreclose an employer or insurer from appealing a final judgment of a trial commissioner on the ground that said commissioner committed error in his application of the law. Weber v. Electric Boat, 4086 CRB-2-99-7 (Nov. 13, 2000), citing Zeoli v. Norwalk Hospital Association, 3974 CRB-7-99-2 (March 13, 2000) and Kuban v. Bridgeport Hospital, 3926 CRB-4-98-11 (Sept. 23, 1999), appeal dismissed, A.C. 20100 (Jan. 5, 2000). Therefore, we disagree with the Fund’s contention that this board lacks jurisdiction over the instant appeal.
The trial commissioner’s decision is affirmed.
Commissioners Robin L. Wilson and Leonard S. Paoletta concur.
1 Mathog & Moniello represented the interests of the respondent employer’s insurer Transamerica. BACK TO TEXT
2 The trial commissioner specifically took administrative notice of the medical panel’s report in Finding No. 8. We note that the trial commissioner refers to the medical panel’s report as Respondents’ Exhibit C, although the report was not formally entered as an exhibit. Rather, the report was appended to the respondents’ Proposed Findings of Fact and Order dated May 27, 1999, along with Exhibit A (Employee’s Report of Injury dated February 27, 1992) and Exhibit B (Attending Physician’s First Report of Injury dated April 29, 1991). BACK TO TEXT