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Holmes v. G.A. Masonry Corp.

CASE NO. 4375 CRB-6-01-4

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 4, 2002

DONALD HOLMES

CLAIMANT-APPELLEE

v.

G.A. MASONRY CORP.

EMPLOYER

and

EMPLOYERS INSURANCE OF WAUSAU

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was not represented at oral argument. Notice sent to Scott N. Roberts, Esq., 349 Mitchell Street, P. O. Box 883, Groton, CT 06340.

The respondents were represented by David Davis, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

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

This Petition for Review from the March 30, 2001 Findings of Facts and Articulation on Remand 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 Second Injury Fund has petitioned for review from the March 30, 2001 Findings of Facts and Articulation on Remand of the Commissioner acting for the Sixth District. The Fund argues on appeal that the trier erred by finding that the claimant was not disabled within the meaning of § 31-349 C.G.S. during a three-year period when he was allegedly manifesting symptoms of physical impairment, thereby rendering timely a § 31-349 notice to the Fund that would otherwise have been late. We affirm the trial commissioner’s decision.

As this board explained in its previous decision on this matter, Holmes v. G.A. Masonry Corp., 4027 CRB-5-99-4 (Nov. 7, 2000) [hereinafter Holmes III], the trier found in an April 1, 1999 Finding and Award that the claimant sustained a compensable back injury on January 15, 1988, and that he was disabled through February 15, 1988, when he returned to his regular employment. The claimant continued to perform his usual and customary work from February 16, 1988 through May 13, 1991, when his treating physician pronounced him temporarily totally disabled. This disability, and the claimant’s concurrent need for medical care, were one-third due to the January 15, 1988 injury, and two-thirds due to subsequent repetitive trauma that occurred during the following three-plus years.1 Still, the 1988 compensable injury had permanently aggravated the claimant’s formerly asymptomatic spondylolisthesis and degenerative disc disease (a pre-existing permanent impairment), and had rendered his overall disability materially and substantially greater.

The respondents notified the Second Injury Fund of their intent to transfer liability for this claim on June 24, 1991, pursuant to § 31-349. Though the Fund has stipulated that this case medically qualifies for transfer under § 31-349, it alleges that the June 24, 1991 notice was not filed in a timely manner. The Fund contends that the claimant was continuously disabled (as that term is used in the notice provision of § 31-349) following the January 15, 1988 back injury, based primarily on the claimant’s testimony that he continued to experience low back pain. In his 1999 award, the trial commissioner rejected the Fund’s argument. He described the claimant as being medically disabled only through February 15, 1988. “Experiencing low back pain is not a medical restriction as contemplated in Section 31-349. . . . The claimant’s testimony concerning his back pain is irrelevant.” April 1, 1999 Findings, ¶¶ E-F. Likewise, the trier found that neither Dr. Becker nor Dr. Ballon restricted the claimant from performing his usual work despite his aches and pains—at least not before May 15, 1990, which would still leave the respondents’ notice to the Fund timely. Id., ¶ I. The trier ordered that the Fund accept liability for the claimant’s back injury effective February 9, 1993, which marked the completion of the 104th week of disability payments.

On appeal, this board held in Holmes III that the case would have to be remanded for further findings because the trial commissioner had partially relied upon the fact that the claimant returned to his usual employment duties in determining that he was not disabled between February 16, 1988 and May 13, 1991. We explained that, in the recent case of Karutz v. Feinstein and Herman, P.C., 59 Conn. App. 565 (2000), our Appellate Court had addressed a case which is similar to the instant matter, and had reversed the CRB’s affirmance of the trier’s ruling that the claimant’s disability did not commence until she became unable to work. The Karutz trier had found that the claimant’s disability period did not begin on her date of injury, even though she was suffering from persistent pain and was treating with a physician, as she was able to perform her regular job duties, was paid her regular salary, and lost no time from work. The Appellate Court explained that the issue of timeliness of notice centered on the meaning of the word “disabled” in § 31-349. It reviewed Williams v. Best Cleaners, Inc., 237 Conn. 490 (1996) and Innocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998), and stated that “a person can be disabled for the purposes of § 31-349 even though he or she can carry on all the facets of his or her employment. The test is whether a claimant is physically impaired, not whether there exists a de facto inability to earn a wage.” Karutz, supra, 570. Thus, the Karutz commissioner had incorrectly applied the law by basing the claimant’s periods of disability on her ability to perform her job duties rather than on the date of her “medical impairment.” Id., 572. As a comparable finding had been made in the trier’s decision in the instant matter, we held that further proceedings were necessary.

The trial commissioner held a formal hearing on February 13, 2001, and made the following relevant findings.

5. While the undersigned’s April 1, 1999 Finding and Award does reflect that the claimant performed his usual and customary work from February 16, 1988 through May 13, 1999, other portions of said Finding and Award clearly indicate that the claimant was found to have no medically imposed physical restrictions or impairment during that time frame. (4/1/99 F&A, Paragraphs B through I).
6. In accordance with the direction of the Compensation Review Board, remanding the claim to the undersigned to clarify the April 1, 1999 Finding and Award, I find that the respondents’ notice to the Second Injury Fund was timely since there is no credible evidence which was presented that the claimant was medically restricted between February 16, 1988 and May 13, 1991.
7. Claimant’s ability to perform his usual labor between February 16, 1988 and May 13, 1991, does not provide a basis supporting the conclusion of timely notice, except insofar as it flows from the fact that claimant was not physically impaired during said period. It is so found.

Accordingly, the trier reached the same legal conclusion regarding the timeliness of notice as he did in his earlier decision. The Fund has now appealed that ruling to this board, maintaining that the trier’s conclusion remains inconsistent with the law.2

At the time of the claimant’s injury and the delivery of notice to the Second Injury Fund on June 24, 1991, § 31-349 required that an employer’s notice of intent to transfer liability be provided to the Fund at least ninety days prior to the expiration of the “first one hundred four weeks of disability.” Based upon the Appellate Court’s holding in Karutz, supra, and our Supreme Court’s holdings in Innocent, supra, and Williams, supra, the issue before us on appeal is whether the trier’s factual findings support a conclusion that the claimant was not physically impaired between February 16, 1988 and May 13, 1991. In making that determination, we must respect the fact that the trial commissioner is entitled to gauge the credibility of the evidence and testimony offered by the parties, including all expert medical evidence. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). The trier has the sole authority to decide which, if any, of the exhibits are reliable, and during our adjudication of an appeal, this board may not second-guess a commissioner’s decision to accept or reject a particular item of evidence. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999); Warren, supra.

In his 1999 award, the trial commissioner found insufficient evidence upon which he could conclude that the claimant was medically restricted as a result of his 1988 injury beyond February 15, 1988, until the point when he was declared totally disabled by his treating physician in 1991. He stated that neither the claimant’s complaints of low back pain nor the reports of Drs. Becker and Ballon that reflect those complaints established such a medical restriction, at least not before May 15, 1990. In his 2001 articulation, he explained that his award indicates the absence of any medically imposed physical restriction or impairment during that time frame. The question we must answer, therefore, is whether complaints of pain necessarily constitute a disability/medical impairment as a matter of law. We lack the authority on appeal to reassess the medical reports, and to interpret them ourselves as establishing the existence of any symptoms beyond those found by the trier, for the trier had the right to ignore all or part of any of those reports in the first instance.

The Fund asserts that pain is a sign of a physical abnormality, which must be construed as a medical impairment. The fact that § 31-349 contemplates a 104-week period of disability before making notice due to the Fund (in cases of permanent disability that was materially worsened by the effects of a prior injury), rather than simply ticking off 104 weeks after the date of a second injury, indicates that the legislature did not believe that the occurrence of an injury necessarily would be followed by continuous disability. Though it is fair to say that, in any case that would qualify for transfer, some physical trace of the injury must be present in the injured employee’s body in order for it to eventually produce a permanent impairment, certain symptoms and/or effects must not be significant enough to constitute “disabilities” or “medical impairments” within the meaning of § 31-349 as interpreted by the controlling cases of Williams, Innocent and Karutz. Otherwise, the 104-week period would always commence running at the moment of the second injury, and continue forward unbroken unless and until the injury had resolved itself. The statute does not enumerate which symptoms are severe enough to amount to a disability, though it is clear from the Innocent decision that a doctor’s restriction of a claimant to light duty employment would qualify.

In his 1999 and 2001 decisions, the trier stressed that the claimant did not have a medical impairment or restriction during most of the time span relevant to the calculation of the 104-week disability period set forth in § 31-349. Ultimately, it was for the trial commissioner to decide whether the claimant’s back pain was severe enough to amount to a physical impairment, and a medical impairment, during that period. The trier found that it was not severe enough to constitute such an impairment, at least not until May 1990. We do not have the legal authority to overturn that finding on review, even if the evidentiary record might also have supported a contrary finding. We do have the power to take notice of the finding in the record that the claimant was “arguably” restricted to light duty employment as of May 15, 1990. Indeed, the trier’s apparent acceptance of that report as credible would leave the claimant medically impaired within the meaning of our law as of May 15, 1990. See April 1, 1999 Findings, ¶ I. However, this finding does not change the outcome of the case before us, as the respondents’ notice to the Fund would still be timely under § 31-349. Therefore, the crucial part of the trier’s finding must stand, and with it, the consequent legal conclusion that he reached regarding the timeliness of the respondents’ notice to the Second Injury Fund.

The trial commissioner’s decision is accordingly affirmed.

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

1 We noted in Holmes III that, in an earlier decision concerning the proper apportionment of liability in this case, this board vacated a ruling of the trial commissioner that divided responsibility equally between the compensable injury of January 1988 and all subsequent trauma. Holmes v. G.A. Masonry Corp., 12 Conn. Workers’ Comp. Rev. Op. 369, 1588 CRB-5-92-12 (Aug. 11, 1994). The matter was remanded for further proceedings on apportionment, as well as the timeliness of the workers’ compensation claim stemming from the subsequent trauma. In a second appeal, Holmes v. G.A. Masonry, 3338 CRB-8-96-5 (Dec. 16, 1997), this board ruled that the claimant’s repetitive trauma claim with a subsequent employer, L.G. DeFelice, was filed in an untimely manner as a matter of law. The apportionment issue appears to have been resolved as per the commissioner’s May 10, 1996 decision. BACK TO TEXT

2 In its brief, the Fund also argued that the trier lacked jurisdiction to make any findings on remand given the language of § 31-349h. In light of our Supreme Court’s recent decision in Giaimo v. New Haven, 257 Conn. 481 (2001), the Fund has withdrawn that contention. BACK TO TEXT

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