State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Barton v. Ducci Electrical Contractors, Inc.

CASE NO. 4374 CRB-6-01-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 25, 2002

THOMAS F. BARTON

CLAIMANT-APPELLEE

v.

DUCCI ELECTRICAL CONTRACTORS, INC.

EMPLOYER

and

HARTFORD INSURANCE GROUP

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Robert Carter, Esq., Carter & Civitello, Woodbridge Office Park, One Bradley Road, Suite 301, Woodbridge, CT 06525.

The respondents were represented by James Pomeranz, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the March 29, 2001 Findings of Facts and Award of the Commissioner acting for the Sixth District was heard October 5, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the March 29, 2001 Findings of Facts and Award of the Commissioner acting for the Sixth District. They contend on appeal that the trier erred by assigning an excessive permanency rating to each of the claimant’s body parts that was affected by his compensable injury. We find error, and remand this matter to another trial commissioner1 for further proceedings.

As detailed in a February 28, 1997 ruling (an award in part, and a dismissal in part), the claimant was severely burned in a propane fire during the course of his employment on October 7, 1993. He suffered damage to his face, hands, arms and torso, and was forced to undergo extensive skin grafts from both of his lower extremities. The respondents accepted the injury, and paid for medical and surgical treatment, temporary total disability compensation, and a compromised disfigurement award of 150 weeks.

At the time of the 1997 decision, the claimant had been assigned a 33.1% loss of the right master hand and a 40.6% loss of the left hand. Among the issues raised in the ruling was the claimant’s entitlement to compensation for the loss of use of his skin. The previously mentioned scarring award had been approved, and the claimant had released further claims in that regard. Yet, the claimant continues to suffer from skin lesions, which require the daily application of salves, and preclude the claimant from exposing his skin to the sun. In accordance with a report by the claimant’s treating dermatologist, Dr. Alter, the trier found that the claimant had sustained a 20% permanent partial impairment of the skin based on the loss of function of that organ, in addition to the scars and disfigurement contemplated by § 31-308(c). However, because the skin is not listed as a body part for which permanency is payable under § 31-308(b), the trier held that he had no jurisdiction to order the payment of compensation for that impairment.

The claimant had argued that this exclusion of the skin as a body part is unconstitutional, as it denies members of the claimant’s class equal protection of the law. The trier lacked jurisdiction to consider this issue, as did this board on appeal. We thus reserved the constitutional question to the Appellate Court, which in turn relinquished it to the Supreme Court for determination. See Barton v. Ducci Electric, 3569 CRB-8-97-3 (March 26, 1998). Our Supreme Court held that § 31-308(b) does not violate the equal protection clause of either the United States or the Connecticut Constitutions by failing to provide compensation to injured employees for permanent impairment of unscheduled body parts or organs such as the skin. Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793 (1999). In so doing, however, the court noted that “an injured employee could receive compensation for injury to an unscheduled body part or organ under the amended version of § 31-308(b), to the extent that the injury related to the loss of or loss of use of a scheduled body part or member. . . .” Id., 809 (emphasis in original).

The claimant then requested compensation for the loss of use of his skin on that ground, and the trier re-addressed the issue after a formal hearing on November 15, 2000. The trier noted that Dr. Alter “found that the injuries to the claimant’s skin caused the claimant to suffer permanent partial disability of certain body parts of which his damaged skin forms an integral part and to which his damaged skin relates, namely 20% disability of the claimant’s thighs, nose, forehead, eyelid, cheeks, jaw and lower abdomen.” Findings, ¶ 11. This rating was not based on the AMA Guides to the Evaluation of Permanent Impairment, but instead on Dr. Alter’s medical opinion that a “whole person” skin rating can be transferred to the various affected body parts. The trier found this assessment reasonable. Among the claimant’s listed skin disabilities are chronic cyst formation, blocked pores, mechanical fragility, susceptibility to temperature and sunlight, and damage to perspiratory, secretory and sensory functions.

The commissioner ruled that, aside from the forehead and cheeks, the body parts named by Dr. Alter were translatable to scheduled body parts (the nose, jaw, eye, lower abdomen and the lower extremities above the knee). He held that the “claimant’s damaged skin is a part of and integral to each of these affected body parts . . . within the meaning of Section 31-308(b) as interpreted by the Supreme Court in its [Barton] opinion . . . ;” Findings, ¶ A; and awarded a total of 159.4 weeks of permanency benefits. He also found that the claimant’s claim was not barred by the doctrines of res judicata and collateral estoppel because the treating physician had not assessed “the permanent partial disability of the affected body parts of which the claimant’s damaged skin forms an integral part” at the time of the prior formal hearing, for the Court had not yet issued the Barton ruling interpreting § 31-308(b) with regard to such body parts. Findings, ¶ D. The respondent has appealed that decision to this board.

We begin by addressing the legal theory of res judicata, as the respondents seek to apply it to this case. The doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion) are designed to protect the finality of judgments, and to discourage wasteful relitigation. Dowling v. Finley Associates, Inc., 248 Conn. 364, 373 (1999); Owen v. Diversified Hospitality Group, Inc., 4204 CRB-3-00-3 (July 25, 2001). Res judicata prevents the reassertion of a claim that has been denied on its merits, while collateral estoppel eliminates the retrial of issues that were litigated and determined as essential matters in a prior suit that involved the same parties or those in privity with them on a different claim. Id. “An issue is considered litigated if it was raised in the pleadings or otherwise submitted for resolution, and was in fact determined by the presiding judicial authority.” Id. We must be careful, however, not to deny a party due process by applying these preclusive doctrines in an overaggressive manner. Calinescu v. CFD Associates, 4144 CRB-8-99-11 (Nov. 7, 2000).

We disagree with the respondents assertion that the issue raised by the claimant here should be barred because of the permanent partial disability claim that was addressed by our Supreme Court in Barton, and by the trier in his 1997 decision. The claimant had obtained a permanent partial disability rating of his skin, and had sought compensation accordingly. The statute appeared not to allow it. Our Supreme Court ruled that it was permissible for § 31-308(b) to omit a category of compensation for permanent partial disability to the skin. The Court also explained that such an injury could be compensated insofar as the skin affects body parts that are scheduled by the statute.

The claimant then sought clarification of his skin rating in light of the Supreme Court’s decision. He had not previously obtained a rating for each separate body part as it was affected by his skin damage, because it was not clear that the law contemplated this route to compensation for the permanent partial disability caused by his skin burns. We would be ignoring the humanitarian purpose of the Workers’ Compensation Act if we were to penalize the claimant for not having anticipated the decision of the Supreme Court during the first trial, and for failing to initially obtain a different type of disability rating that separately accounted for the skin on each scheduled body part. We thus hold that the issue before us here is not precluded by either res judicata or collateral estoppel.

Next, we consider the respondents’ contention that Dr. Alter’s reports do not provide a sufficient basis to establish that the claimant is entitled to a 20% permanent partial disability rating for each scheduled body part that sustained skin damage (the eye/eyelid, lower extremities, nose, jaw, and abdomen, according to ¶ 16 and ¶ E of the trier’s award). On September 15, 1995 and July 19, 1996, Dr. Alter had written letters stating that the claimant’s skin disorder had left him with a 20% permanent partial disability. Claimant’s Exhibit B. Though neither letter assigned that disability to a specific organ of the body, Dr. Alter later confirmed that he was rating the skin as a whole. Claimant’s Exhibit D, p. 8. Shortly after the Supreme Court’s Barton decision, the claimant’s attorney wrote a letter to Dr. Alter. In a response dated June 22, 1999, Dr. Alter stated that “it is entirely reasonable to translate [the claimant’s] skin disability to disability of the structures that his skin covers.” Claimant’s Exhibit C. After noting the scarring areas on his thighs, abdomen, right arm, and face, Dr. Alter explained that the claimant’s lesions were being controlled with the constant application of ointments. He estimated that the claimant had a 20% disability of his thighs, hands, nose, forehead, eyelid, cheeks, jaw and lower abdomen. He did not further explain this rating.

In his deposition testimony, which was taken on February 23, 2000, Dr. Alter was questioned regarding the steps he had taken to rate these various body parts for permanent disability. He explained that his ratings were based exclusively on the loss of the use of the skin in each body part, rather than on the overall function of the implicated body part. Essentially, Dr. Alter took the 20% rating of the skin and reasoned that each body part affected by the burns and skin grafts would also have a 20% rating. He did not take into account the various functions of the nose, eye, jaw, leg, or abdomen as a whole. When asked to do so, he stated that he could not provide an opinion based upon a reasonable degree of medical probability regarding the level of impairment that the claimant had when one took into account all of the functions of each implicated body part. Claimant’s Exhibit D, pp. 21-22.

In order for a trial commissioner to rely on the medical opinion of a doctor, that opinion “must be based upon reasonable probabilities rather than mere speculation or conjecture . . . ,” given the entire substance of the doctor’s testimony and reports. Struckman v. Burns, 205 Conn. 542, 554-55 (1987); Perrelli v. Yale University, 4350 CRB-4-01-1 (Dec. 20, 2001). Dr. Alter admits in his testimony that his permanency ratings were little more than a simple extrapolation of his 20% skin rating to various body parts. He did not try to assess the degree to which the claimant had permanently lost, or lost the use of, the implicated members and organs on account of his skin damage, as contemplated by § 31-308(b) C.G.S, and by our Supreme Court in Barton. Though no doctor is required to adhere to the AMA Guides to the Evaluation of Permanent Impairment that are commonly used in the medical field, his diagnosis of permanency must reflect some analysis of the function of the entire body part in question. Safford v. Owens Brockway, 4335 CRB-4-00-12 (Jan. 9, 2002) (20% shoulder rating was not interchangeable with 20% upper extremity rating under AMA guidelines, but record contained alternate theory of assigning ratings following rotator cuff repair, which trier was entitled to accept). One cannot rate the permanent impairment of a claimant’s stomach or eye by looking only at the skin covering the abdomen or the eyelid; rather, one must assess the impact that said skin damage has on the function of the stomach region as a whole, and on the function of that eye as a whole (recognizing that the eyelid is properly considered to be part of the eye under § 31-308(b), as the trier concluded). Thus, it is reasonable to include the skin covering one’s nose as part of that organ; but it is not reasonable to state that the nose itself is nothing more than the skin that protects it. Dr. Alter admittedly took the latter route, which means that his method of assigning permanency was insufficient to support the commissioner’s award.

It appears to this board that, following the Supreme Court decision, neither the claimant nor the commissioner was clear on the degree of proof necessary in order to establish a permanency rating for the skin as it affects certain scheduled body parts. The claimant was never re-evaluated by a doctor to determine the loss of function of his eyes, nose, jaw, stomach or upper extremities, even though the evidence establishes skin damage that may be compensable. Whereas the epidermis of the human body is an unscheduled organ under § 31-308(b), it is necessary under Barton to evaluate the role that the skin plays in the function of the several members and organs listed in § 31-308(b). The parties’ actions suggest that they were unaware that more than a legal re-characterization of the previous evidence was necessary. As this is a workers’ compensation case in which the claimant has clearly suffered compensable injuries and some level of permanent partial impairment, it would be improper for us to dismiss this claim when, in our opinion, through inadvertence or otherwise, the facts have not been sufficiently found to render a just judgment. Cormican v. McMahon, 102 Conn. 234, 238-39 (1925). Therefore, our reversal of the trier’s decision is accompanied by an order that this case be remanded to another commissioner for further evidentiary proceedings.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 The trial commissioner who presided over this matter below is no longer available to sit as a Workers’ Compensation Commissioner due to his appointment to the Superior Court bench. BACK TO TEXT

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