CASE NO. 4441 CRB-8-01-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 18, 2002
CAROL A. LANEVE-ANNINO
RELIANCE INSURANCE CO.
The claimant was represented by Edward Dodd, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.
The respondents Intracorp and Ace USA were represented by David Schoolcraft, Esq., Duhamel & Schoolcraft, L.L.C., 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.
The respondents U.S. Healthcare and Reliance Insurance Co. were represented by Andrew Hern, Esq., Gordon, Muir & Foley, 10 Columbus Boulevard, Hartford, CT 06106.
This Petition for Review from the September 13, 2001 Finding and Award of the Commissioner acting for the Eighth District was heard May 31, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Jesse M. Frankl.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the September 13, 2001 Finding and Award of the Commissioner acting for the Eighth District. She contends on appeal that the trier erred by declining to award her partial disability benefits pursuant to § 31-308a beyond the 74.8 weeks equivalent to the length of her 20% permanent partial disability award, and by failing to award her temporary partial disability benefits pursuant to § 31-308(a). We find no error, and affirm the trial commissioner’s decision.
The claimant suffered a compensable back injury on September 24, 1993, while working for the respondent Intracorp, and sustained further back injuries on July 19, 1995 and May 7, 1996, while employed by the respondent U.S. Healthcare. At the time of her first injury, she was earning $743.48 per week. She received compensation for a 20% permanent partial impairment to her back from Intracorp’s insurance carrier at a $400.06 weekly compensation rate, with the duration of those benefits lasting 74.8 weeks. In addition, Intracorp’s carrier paid her 74.8 weeks of benefits pursuant to § 31-308a, which ended on or about October 20, 1998.
As a result of her 1993 injury, the claimant aggravated a pre-existing condition, spondylolisthesis, which is painful and disabling. Following layoffs at Intracorp that resulted in her being laid off, the claimant made sincere efforts to secure employment, and has since worked for several different employers, including the respondent U.S. Healthcare. Both her July 1995 and May 1996 injuries while in the course of her employment with U.S. Healthcare resulted in little lost time from work, though she required medical treatment. These injuries have not resulted in additional permanent disability beyond the 20% she was rated for in 1995 (with a maximum medical improvement date of August 28, 1995), for which Intracorp and its insurer remain liable. However, the claimant does continue to have permanent limitations and restrictions. According to Dr. Becker, her primary treating physician, her condition reached a plateau as of October 3, 1997, meaning that her injuries have not since healed further.
At trial, the claimant contended that she is entitled to benefits pursuant to § 31-308(a), as she has not attained maximum medical improvement for her back condition, and in the alternative, additional § 31-308a benefits. She also contended that she had suffered a compensable neck injury on May 7, 1996. The trial commissioner found that there was no credible medical evidence that her neck injury claim was causally related to the May 1996 incident, and dismissed that claim. He commended the claimant for being an “honorable and decent individual” who used her best efforts in obtaining and maintaining employment, and who had suffered a diminution in her earning capacity. Findings, ¶ 31. Nonetheless, she was not entitled to further benefits under § 31-308a because the respondents had already paid 74.8 weeks of benefits under that section of the Workers’ Compensation Act, reaching the limit allowed under § 31-308a(a). He added that the claimant may be entitled to § 31-308(a) benefits from May 7, 1996 through February 3, 1997, following further discussion of that issue between the parties. No other temporary partial disability benefits were awarded, as the trier did not believe that the 1995 and 1996 injuries had substantially worsened the claimant’s condition. The claimant has filed a petition for review from that decision.
The first argument raised in the claimant’s brief is her claim that the trier erred by not awarding her temporary partial disability benefits pursuant to § 31-308(a) in light of her 1995 and 1996 injuries. She states that the evidence indisputably shows that her earning capacity and physical abilities decreased as a result of those two injuries, particularly the most recent injury, after which she was restricted to light duty and part-time work. The parties both recognize in their briefs that this board of appeal does not have the authority to override the trial commissioner’s determinations regarding the credibility of both lay and expert witnesses, as well as other evidence. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195-96 (1999), cert. denied, 251 Conn. 929 (1999); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). The trier cannot be made to rely on any particular witness or medical report, even if it appears to be uncontradicted. Goldberg v. Ames Department Stores, 4160 CRB-1-99-2 (Dec. 19, 2000). We may not disturb his findings unless they are wholly without support in the evidence, or if they omit material and undisputed facts. Warren v. Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). Despite this deferential standard of review, the claimant alleges that reversible error has occurred in this case.
In his findings, the trial commissioner observed that the claimant was earning $942.14 per week from the respondent U.S. Healthcare at the time of her July 19, 1995 injury. He added that she “did not miss much time from work” as a result of either that injury or the May 7, 1996 injury. Findings, ¶¶ 15, 17. While finding that (1) neither of these injuries contributed to any additional permanent back disability, and (2) there was insufficient evidence to establish a compensable neck injury claim, the trier also noted that the claimant’s earning capacity had since decreased due to her permanent limitations and restrictions. The claimant describes the 1996 injury as “the straw that broke the camel’s back,” and states that she suffered a 50% loss of income because of her restrictions. Brief, p. 5. In her view, she should receive continuing temporary partial disability benefits because she has not yet been rated with any permanent partial disability as a result of her second and third injuries.
A claimant’s physical condition, the origin of her disability, and her resultant work capacity are matters usually established by reliance on testimonial and competent medical evidence, which the trier of fact must evaluate by canvassing the record and choosing among the inferences that a reasonable person could draw from it. Struckman v. Burns, 205 Conn. 542, 554-55 (1987). Ryba v. West-Con, 3196 CRB-2-95-10 (Feb. 27, 1997). Thus, in order for the claimant to qualify for compensation pursuant to § 31-308(a), she would have had to establish to the trier’s satisfaction that her 1995 and 1996 injuries substantially caused the diminishment of her earning capacity. Here, there is evidence showing that the claimant’s earnings declined from $48,991.04 ($942.14 weekly) during the year preceding her 1996 injury to $31,327.49 (or about $602 per week) during the calendar year 1998, and only $25,606.62 for the calendar year 1999 (about $492 per week). Claimant’s Exhibits L, M, N. However, some of the medical reports suggest that this diminution in earnings is not directly related to her 1995 and 1996 compensable back injuries.
When one reviews the reports of Dr. Becker, one sees that he ascribed her back and leg pain to spondylolisthesis on August 23, 1996, and stated that she would probably require surgery for it. Claimant’s Exhibit F. He also stated that “pain primarily at the current time is in her lower back.” Id. As of October 3, 1997, he stated that she had “returned to baseline level from prior to the motor vehicle accident of May 1996.” On December 15, 1997, he revised his recommendation to discourage surgery, and stated that her pain was now in her neck as well as her lower back, resulting from aggravation of a degenerative disk disease. He restricted her to six hours of work per day. Then, in a detailed report dated February 26, 1999, Dr. Becker explained, “It appears from the records that there is indeed no relationship between the initial work injury of 1993 and her neck pain. . . . She does, however, have considerable degenerative disc disease involving multiple levels in her neck. I am not able to attribute the neck condition to any specific injury and would attribute it to the natural aging process, and definitely not as the result of the motor vehicle accident of 5/7/96, because of lack of medical documentation and such.” Id. The claimant’s neck pain remains a focal point in all medical reports from 1998 through 2000, and it is readily apparent that these difficulties have played a major role in the development of her work restrictions.
We also note the reports of two other doctors that address the medical significance of the 1995 and 1996 injuries. Dr. Calogero’s August 31, 1996 report states, “On examining my notes of March, 1996 and June, 1996, it would appear that Ms. Laneve’s complaints underwent worsening or were of exactly the same kind. It would appear that the automobile accident which falls between those did not contribute significantly to the findings.” Respondent’s Exhibit 1. Dr. Hornblow’s July 16, 1996 report, meanwhile, had difficulty identifying causes of various symptoms due to the complexity of the history provided by the claimant. He stated, “As best as I can vaguely judge, her present symptoms, however severe they may really be, are probably equally attributable to her automobile accident of 1996 and her lifting injury of 1995. Underlying them both, of course, is her congenital spondylolisthesis which makes her present difficulty materially and substantially worse than it otherwise would be.” Claimant’s Exhibit I. When one considers information that came to light afterward, i.e., the subsequent opinion of Dr. Becker regarding the transitory nature of the effects of the 1995 and 1996 accidents and the claimant’s return to “baseline” in 1997, one can understand how the trier might not have been persuaded by Dr. Hornblow’s hesitant opinion attributing her symptoms to her 1995 and 1996 injuries.
Though the claimant no doubt believes that her current condition is entirely work-related, there was competent medical evidence in the record that exhibited uncertainty as to the origin of her neck condition, and that dismissed the effects of the 1995 and 1996 compensable back injuries. On review, this board cannot second-guess the trial commissioner’s decision to rely on that evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Warren, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Therefore, we find no legal error in the trier’s dismissal of the claimant’s request for § 31-308(a) benefits.
We next turn to the claimant’s second allegation of error. She contends that the trier erred by concluding that § 31-308a 1 was not available as an avenue for the claimant to obtain further compensation based upon the effects of her 1993 compensable injury, insofar as he concluded that subsection (b) “does not confer additional discretion to award additional benefits.” She contends that the trier’s interpretation of this part of the statute effectively nullifies its meaning and renders it superfluous, contrary to well-established principles of statutory interpretation. See, e.g., Giaimo v. New Haven, 257 Conn. 481, 493 (2001); Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 303 (1997). In her view, § 31-308a(b) plainly and unambiguously confers discretion on the trier to award additional benefits “when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation,” regardless of the durational limitation in § 31-308a(a) that precludes an award of discretionary benefits from exceeding the length of an employee’s permanent partial disability award.
This board recently addressed a virtually identical argument in McEnerney v. U.S. Surgical Corp., 4252 CRB-3-00-6 (Oct. 16, 2001), where the claimant argued that § 31-308a allows a commissioner to make an award based on the factors of subsection (a), while also allowing an additional award under subsection (b) if the nature of the injury and its effect on the claimant’s earning capacity warrant further compensation. She contended that a contrary reading of § 31-308a(b) would render the language of that provision meaningless. We disagreed with her, and reasoned:
. . . Rather than requiring the commissioner to “needlessly repeat a step in his analysis;” Brief, p. 7; the language of § 31-308a(b) implements another restriction on benefits: it instructs a commissioner to compensate claimants who technically meet the criteria in § 31-308a(a) only when the circumstances—i.e., the nature of the injury and its effect on the claimant’s earning capacity—actually warrant this form of additional compensation.
Ironically, the statutory interpretation suggested by the claimant would be the one more likely to render certain language meaningless, as the durational and in-state work provisions of § 31-308a(a) would be effectively rendered a nullity by construing § 31-308a(b) as a “manual override” provision of sorts. Our construction of § 31-308a(b) is also far more consistent with the overall philosophy behind Public Act No. 93-228, which enacted that subsection into law as part of a larger effort to reform the Workers’ Compensation Act by significantly reducing workers’ compensation costs for employers. See, e.g., Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 815 (1999) (legislative purpose of 1993 reforms discussed). Thus, we are unpersuaded by the claimant’s argument, and decline to hold that the commissioner erred by not reevaluating the claimant’s request for benefits separately under § 31-308a(b).
Id. We remain satisfied with our reasoning in McEnerney, as we believe that our reading of § 31-308a(b) achieves a reasonable and rational construction of that subsection given its language and its relationship to the rest of § 31-308a. (We do note that, as of this writing, McEnerney is on appeal before the state Appellate Court.) Therefore, we find no error in the trier’s dismissal of the claimant’s request for further benefits under this statute.
The trial commissioner’s decision is accordingly affirmed in its entirety.
Commissioners Donald H. Doyle, Jr. and Jesse M. Frankl concur.
1 Section 31-308a provides: “(a) In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to seventy-five per cent of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, after such wages have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, and the weekly amount which such employee will probably be able to earn thereafter, after such amount has been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act in accordance with section 31-310, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner, but in no event shall the duration of such additional compensation exceed the lesser of (1) the duration of the employee’s permanent partial disability benefits, or (2) five hundred twenty weeks. Additional benefits provided under this section shall be available only to employees who are willing and able to perform work in this state.
(b) Notwithstanding the provisions of subsection (a) of this section, additional benefits provided under this section shall be available only when the nature of the injury and its effect on the earning capacity of an employee warrant additional compensation.” BACK TO TEXT