CASE NO. 4519 CRB-6-02-4
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 16, 2003
STATE OF CONNECTICUT/DEPARTMENT OF MENTAL RETARDATION
The claimant did not appear. Notice sent to Ralph E. Wilson, Esq., 137 South Main Street, Middletown, CT 06457.
Respondent State of Connecticut was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141.
Respondents CW Group and CHAWCT were represented by Kristen Sotnik Falls, Esq., Letizia, Ambrose & Falls, One Church Street, New Haven, CT 06510.
This Petition for Review from the April 4, 2002 Finding and Award of the Commissioner acting for the Sixth District was heard October 18, 2002 by a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
JOHN A. MASTROPIETRO, CHAIRMAN. The claimant in this matter sustained a number of injuries over the course of his years of employment. The various injuries arose out of and in the course of his employment with three employers. Claimant’s work related injury history for purposes of the consideration of this matter began with his employment at Conrail. In May 1982 while employed by Conrail the claimant seriously injured his back. As a result of that injury the claimant underwent two surgeries on the lumbar aspects of his spine, and was totally disabled for a significant period of time. In 1998 the claimant was granted a disability retirement from his railroad employment as a result of his back injury.
In 1994 the claimant had an employment relationship with the respondent-appellant, State of Connecticut. On May 29, 1995 the claimant sustained an injury to his right knee which arose out of and in the course of his employment with the respondent State. Following that injury the claimant underwent surgery to repair the resulting torn medial meniscus in his right knee and on March 25, 1996 underwent a second knee surgery performed by Dr. John P. Fulkerson. Ultimately, Dr. Fulkerson rated the claimant as having a 40% permanent partial disability to his right knee.
On October 1, 1995 the claimant sustained injuries to his neck, back and left foot. The injuries arose out and in the course of his employment with the respondent State. As a result of this incident the claimant was temporarily totally disabled through September 1996. In 1997 again while employed by the State, the claimant received an injury to his right thumb which also arose out of and in the course of his employment. In 1997 the claimant retired from State employment.
In 1997 the claimant began employment with CW Group. On October 15, 1997 the claimant sustained a back sprain that arose out of and in the course of his employment. Three days later the claimant returned to work with the respondent CW Group in a light duty capacity. Following this injury Dr. Becker rated the claimant as having a 3% permanent partial disability to his back as a result of this injury and the respondent CW Group paid the claimant accordingly. Finding, ¶ J.
On February 25, 1998 the claimant sustained a knee injury arising out of and in the course of his employment with the respondent CW Group. In April 1998 the claimant underwent arthroscopic knee surgery and was released for light duty in September 1998. Thereafter, the claimant resigned his position with CW Group in October 1998. The claimant now resides in Florida and suffers from Parkinson’s Disease.
In the proceedings before the trial commissioner, the claimant sought Workers’ Compensation benefits in the form of temporary total disability benefits from August 1, 1998, permanent partial disability benefits and reimbursement for travel expenses. The claimant also claimed interest and attorney’s fees pursuant to § 31-300 on the basis of the respondent State’s unreasonable contest.
In his April 4, 2002 Finding and Award, the commissioner acting for the Sixth District concluded the claimant was entitled to (1) temporary total disability benefits from January 6, 1999 forward and subject to a credit for any other benefits paid by the State (2) 40% permanent partial disability for the loss of use of his right knee, and (3) a 15% permanent partial disability to his back. Additionally, the trier awarded interest and attorney’s fees pursuant to §31-300 to be paid by the respondent State.
The respondent State filed this appeal and presents the following issues for review; (1) whether the trier erred in dismissing the claim for temporary total disability benefits against the employer, CW Group and in failing to apportion liability for the trier’s awards of permanent partial disability between the appellant and the respondents CW Group and CHAWCT (2) whether the trier erred in finding an unreasonable contest pursuant to §31-300.
In its appeal the appellant contends that the injuries sustained by the claimant while in the employ of CW Group are a substantial factor in the claimant’s resulting disability. The appellant contends that this tribunal’s opinion in Hatt v. Burlington Coat Factory, 4326 CRB-2-00-12 (Dec. 19, 2001), appeal docketed No. SC 16737 is applicable and controlling1. However, before we apply the holding in Hatt we must establish there is a sufficiently analogous fact pattern between the instant matter and those in Hatt. We disagree with the appellant’s argument that Hatt is sufficiently analogous to direct a reversal of the trier’s conclusion.
In order for Hatt to apply we would have to overturn the trier’s findings and conclusions that the claimant’s employment with CW Group and the compensable injuries he suffered while in its employ were not a substantial factor in causing the claimant’s total disability. Whether or not the injuries the claimant suffered while in the employ of the respondent CW Group substantially contributed to his disability is a factually dependent question. It therefore falls within the province of the trial commissioner to make such factual determinations as they are dependent upon the weight and credibility the trier assigns to the evidence presented. Valletta v. State/DMR, 4543 CRB-5-02-6 (March 26, 2003). We will not disturb such conclusions unless contrary to law, without evidence or based on unreasonable or impermissible inferences. In the instant matter the trier concluded that the claimant’s employment with CW Group did not substantially contribute to the claimant’s disability.
In this matter the trial commissioner found the opinions of Dr. John Fulkerson and Dr. Gerald Becker to be more persuasive as to the issues of work capacity, permanency and apportionment. Additionally, the claimant testified that at the time of his retirement from the respondent State he was still experiencing neck, back, knee, and thumb problems.
The evidentiary record reflects a letter dated April 5, 1999 (Claimant’s Exhibit EE) in which Dr. Fulkerson stated, “I believe that the primary responsibility for the problems in his knee would date to the initial injury of May 1995.” In his June 29, 1999 letter, Dr. Gerald Becker stated, “In light of his back and knee situation I would be able to support disability as of the evaluation of 1/6/99, but definitely not before that time.” Claimant’s Exhibit K. Additionally, Dr. Becker’s letter dated October 23, 200 can reasonably be read as supporting an inference that the claimant’s numerous injuries over the years resulted in his disability. In that letter Dr. Becker opined that 95% of the claimant’s back injury related to the claimant’s October 1, 1995 injury and back problems pre-existing that injury. Dr. Becker also noted that the claimant’s knee injury was materially and substantially greater due to injuries prior to February 25, 1998. Claimant’s Exhibit P. In his June 2, 2000 letter Dr. Becker stated, “I feel that the 1997 back strain is a minimal factor with regard to his current physical condition.” Respondent’s Exhibit 2.
Furthermore, although the trier did not rely on the expert opinion provided by the IME, Dr. Steven Selden, to the same degree that he relied on certain other physicians’ opinions, that does not mean he disregarded all of Dr. Selden’s testimony. In his July 9, 2001 deposition testimony, Dr. Selden testified regarding the claimant’s knee disability and stated that prior to the incident of February 1998 the claimant had undergone two knee surgeries and the knee procedure performed after the February 1998 did not reveal any new injuries. July 9, 2001 Deposition, p. 23. A trial commissioner is free to accept or reject, in whole or in part, the testimony of an expert. Tartaglino v. Department of Correction, 55 Conn. App. 190, 195 (1999), cert. denied, 251 Conn. 929 (1999), Bourgeois v. Meadow Lawn Care, 4463 CRB-6-01-11 (November 18, 2002).
On the basis of the record presented on review we believe the trier’s findings and conclusions as to this issue are supported by the record, not contrary to law or based on unreasonable inferences and therefore, it stands. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).
The second issue presented for review is whether the trial commissioner erred in awarding attorney’s fees and interest pursuant to §31-300 on the basis of the respondent State’s unreasonable contest to this claim. Unfortunately, we are unable to discern the factual basis for the trier’s conclusion that the respondent State unreasonably contested the instant matter. There is nothing in the commissioner’s factual findings that we think sufficiently apprises the appellant of the factual basis for the trier’s conclusion that it unreasonably contested the instant matter. However, while the appellant would have us reverse the trier’s conclusion on this issue outright, we believe the better course of action is to remand this issue to the trial commissioner so that he may articulate the factual basis for his conclusion that the State unreasonably contested this matter. Melendez v. Valley Metallurgical, 4178 CRB-2-00-1 (May 1, 2001).
We therefore affirm the trial commissioner as to the first issue and remand for an articulation of the factual basis for the trier’s conclusion that the respondent State unreasonably contested this matter.
Commissioners Donald H. Doyle, Jr., and Amado J. Vargas, concur.
1 The appellant also notes that our opinion in Hatt was issued prior to the commissioner’s Finding and Award but after the record in this matter was closed. We do note that in its Motion to Correct filed April 18, 2002 the appellant referenced the Hatt decision. BACK TO TEXT