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Smith v. John’s Tree Service, Inc.

CASE NO. 4272 CRB-3-00-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JUNE 19, 2001

EVERETT SMITH

CLAIMANT-APPELLEE

v.

JOHN’S TREE SERVICE, INC.

EMPLOYER

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Steven DeFrank, Esq., Jacobs, Grudberg, Belt & Dow, P.C., 350 Orange Street, New Haven, CT 06503-0606.

The respondent employer was represented by Julia Nugent, Esq., Law Offices of Nugent & Bryant, 236 Boston Post Road, Orange, CT 06477.

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

This Petition for Review from the July 11, 2000 Supplemental Finding and Award of the Commissioner acting for the Third District was heard March 30, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Ernie R. Walker and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund has petitioned for review from the July 11, 2000 Supplemental Finding and Award of the Commissioner acting for the Third District. The trier therein found that, consequent to a compensable amputation suffered while splitting wood, the claimant lost the tip of his right little finger and about half of his right ring finger. He sustained a 17% permanent partial impairment of the master hand as a result of this injury, as per a February 16, 2000 report by Dr. Thomson. This 17% rating entitled the claimant to 28.56 weeks of permanency benefits at a base weekly rate of $206.17. On appeal, the Fund wishes to “gently remind” this board that the trier should have instead awarded the claimant a 50% permanency of the fourth finger (for one lost phalanx) and a 90% permanency of the third finger (for two lost phalanges), as § 31-308(b) contains discrete rating systems for the fingers and the hand. See Fund’s Brief, p. 4. Using this statutory method, the claimant would be entitled to 27.4 weeks of benefits, rather than 28.56, or $239.16 less than he is entitled to now.

Looking at the evidence, we observe that Dr. Thomson’s report initially assigned the claimant 91% and 39% impairments of the ring and little fingers, which he converted to a total hand impairment of 17% based upon (a) the partial loss of the two digits and (b) a 5% additional impairment for increased cold intolerance of the hand. Claimant’s Exhibit F. The doctor stated that this diagnosis relied upon the AMA guidelines. The Fund did not depose Dr. Thomson in order to clarify his rating, nor did it offer a competing diagnosis. In terms of its evidentiary competence as a medical opinion, Dr. Thomson’s report would suffice to support an award of permanency to either the fingers or the hand. Struckman v. Burns, 205 Conn. 542, 554-55 (1987) (articulating meaning of “reasonable degree of medical probability” standard).

We do not believe that § 31-308(b) precludes one from taking into account the impact of the loss of a claimant’s fingers on the use of his hand as a whole. Much as a factfinder may consider the effect of an injury on a person’s overall ability to function in determining the percentage loss of or loss of use of function of a specific organ or body part; Piscitelli v. Connecticut Coke/Eastern Gas & Fuel Associates, 6 Conn. Workers’ Comp. Rev. Op. 94, 96, 575 CRD-3-87 (Jan. 26, 1989); she may account for the impact that the loss of one body part has on another body part, if there is a logical relationship between the two. Duplicate compensation for the loss of interrelated body parts such as the fingers and the hand would then be avoided by offsetting the permanency paid for a single injury to the fingers from the permanency paid for the entire hand, or vice-versa. See Bowman v. Jack’s Auto Sales, 16 Conn. Workers’ Comp. Rev. Op. 223, 3384 CRB-1-96-7 (June 18, 1997), aff’d, 54 Conn. App. 296 (1999) (where trier made separate permanency awards for hands and for skin on hands, respondents were entitled to a credit). The trier chose to award benefits for the hand disability here. The medical evidence adequately supports that decision, and we find no error.

The trial commissioner’s decision is hereby affirmed.

Commissioners Ernie R. Walker and Stephen B. Delaney concur.

Workers’ Compensation Commission

Page last revised: December 21, 2004

Page URL: http://wcc.state.ct.us/crb/2001/4272crb.htm

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