State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Schenkel v. Richard Chevrolet, Inc.

CASE NO. 4639 CRB-8-03-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MARCH 12, 2004

NOEL SCHENKEL

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

RICHARD CHEVROLET, INC.

EMPLOYER

and

UTICA MUTUAL INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by Neil Johnson, Esq., AAAA Legal Services, 96 Webster Street, Hartford, CT 06114.

The respondents were represented by Mark H. Pearson, Esq., Mullen & McGourty, Counselors at Law, 60 Trumbull Street, New Haven, CT 06510.

These Petitions for Review from the February 25, 2003 Finding and Award/Dismissal of the Commissioner acting for the Eighth District were heard September 26, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant and the respondents have each petitioned for review from the February 25, 2003 Finding and Award/Dismissal of the Commissioner acting for the Eighth District. Though their claims of error differ, both parties challenge certain credibility determinations that were made by the trier, as well as his application of the law to the facts found in this case. On the claimant’s appeal, we affirm in part, finding error only with regard to the claimant’s entitlement to interest on unpaid permanency. We also clarify certain language that was used in denying any future request for benefits by the claimant. With regard to the respondents’ appeal, we remand for further findings on the issue of apportionment.

The claimant suffered an accepted compensable back injury on June 16, 2000, that occurred while lifting a tire. A prior back injury dated August 29, 1995 had resulted in an approved stipulation specifying an 18% permanent partial disability. To date, the claimant has undergone three back surgeries, the most recent being a fusion procedure on January 21, 2001. Following the February 21, 2003 formal hearing, the trial commissioner credited only part of the claimant’s testimony. He found that the claimant was significantly amplifying his symptoms, and was not persuaded that the claimant remained totally disabled beyond November 4, 2002. However, the trier did find that Dr. Krompinger, a treating physician, linked the claimant’s disability, medical prescriptions, and other treatment modalities to the June 16, 2000 injury. The trier relied on Dr. Krompinger’s diagnosis of the claimant’s temporary total and partial disability claims through the November 4, 2002 maximum medical improvement date. Findings, ¶ e. He also approved Dr. Krompinger’s medical bills and his prescriptions for medication, pain management, and a health club membership, as they constituted reasonable and necessary treatment through November 4, 2002.

Effective as of that date, the trier confirmed a Form 36 that had been approved by an earlier commissioner. No further benefits were awarded other than a prescription for Elavil, which medication had been recommended by Dr. Druckemiller, a § 31-294f commissioner’s examiner. Dr. Druckemiller reported on August 21, 2002 that the claimant had reached maximum medical improvement for the June 2000 injury, and that no additional medical treatment was needed other than an attempt to alleviate symptoms with the aforementioned Elavil. The trier specifically stated that the claimant would be eligible for no future temporary disability benefits or medical treatment, and that he was entering his award “with prejudice.” Findings, ¶ j.

With respect to a permanent partial disability percentage, the trier rejected Dr. Druckemiller’s 20% rating on the ground that he had incorrectly noted a prior 12% of the back for previous herniations and surgeries. Dr. Krompinger had awarded the claimant an 18% permanent partial disability prior to the June 2000 injury. The trial commissioner proceeded to adopt Dr. Krompinger’s diagnosis of a 38% permanent partial disability of the lumbar back, with the respondents being entitled to a credit for the 18% that had already been paid on account of the 1995 injury. Both the claimant and the respondents have filed petitions for review from the trier’s ruling.

CLAIMANT’S APPEAL

The claimant argues on appeal that the trier erred by finding that he was no longer totally disabled, by failing to find that he suffered from incurable imbecility or mental illness within the meaning of § 31-307(c), by failing to award interest on permanency pursuant to § 31-295(c), and by finding that the claimant no longer required medical treatment other than the prescription of Elavil—and would not require such treatment in the future.

We begin by reiterating our standard of review for a trial commissioner’s factual findings. A claimant has the burden of proving every element of his claim at trial, such as the onset and continuation of disability, and the relationship between a compensable injury and a subsequent permanent partial impairment. Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (Oct. 23, 2002). In evaluating the evidence presented by the parties to the case, the trial commissioner has the sole authority to decide which, if any, of the evidence is reliable, and is free to rely on all, part or none of a doctor’s opinion, as well as select portions of a claimant’s testimony. Safford v. Owens Brockway, 262 Conn. 526, 536 (2003); Maitland v. Home and Buildings Control, 4623 CRB-3-03-2 (Jan. 13, 2004); Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). A trier may also disregard evidence he finds unpersuasive, even if there is no evidence that is expressly contradictory. Duddy, supra. This board cannot second-guess determinations of credibility on review. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Duddy, supra. Our role is to review the trier’s findings to determine whether there is evidence in the record to support them, and whether undisputed material facts have been omitted. Id.; Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). We may also correct a commissioner’s misinterpretations of the law, or misapplications of the law to the subordinate facts found. Carroll v. Flattery’s Landscaping, Inc., 4499 CRB-8-02-2 (March 25, 2003), citing Fair, supra.

Here, there is evidence directly supporting the cessation of total disability benefits. Dr. Druckemiller’s August 21, 2002 report reflects that the claimant was presenting signs of significant symptom amplification, an opinion the trier explicitly found persuasive. Findings, ¶ i; Claimant’s Exhibit A. Dr. Druckemiller stated, “From the pure standpoint of a two level instrumented fusion he should not do any repetitive bending and lifting, and no lifting over 20 lbs. With his subjective complaints of pain, [the claimant] feels that he is totally disabled.” Like Dr. Druckemiller, the trial commissioner was not required to accept the claimant’s self-assessment as to work capacity. Dr. Druckemiller thought that the claimant had reached maximum medical improvement in his back, and identified no continuing symptoms of noteworthy back pain. All severe pain complaints were related to the legs. It was reasonable for the trier to determine that the claimant was no longer able to meet his burden of proof that he was totally disabled due to his June 16, 2000 compensable injury. We cannot override that decision on review by drawing contrary inferences from the evidence.1

There is no evidence in the record that the claimant suffers from incurable imbecility or mental illness, and we are puzzled by the claimant’s inclusion of that argument in his brief. Though some of the medical reports indicate that the claimant is struggling with symptoms of depression, there is no indication that his condition is either incurable or untreatable. We need address this argument no further.

With regard to the claimant’s entitlement to ongoing medical treatment, we must clarify the trier’s order. Absent the execution and approval of a full and final settlement, an accepted workers’ compensation claim theoretically remains open for the duration of a claimant’s lifetime. Though a commissioner may determine that current circumstances at the time of a formal hearing do not warrant further benefits or ongoing treatment such as pain management therapy, a claimant always retains the right to seek medical treatment or benefits for future time periods should circumstances change. Given this limit on the trier’s authority, we read ¶ o of his findings as stating that the claimant’s current claims for compensation beyond November 4, 2002 were all denied, save for the 20% permanency award and the prescription for Elavil.2

Finally, the claimant raises his alleged entitlement to interest pursuant to § 31-295(c). The statute provides that an employee entitled to receive permanency benefits under § 31-308(b) shall be paid such compensation beginning no later than thirty days following the maximum medical improvement date, and, if compensation is not so paid, “the employer shall, in addition to the compensation rate, pay interest at the rate of ten per cent per annum on such sum or sums from the date of maximum improvement.” (Emphasis added.) This provision makes the payment of interest mandatory rather than discretionary, and we have held that it obligates a commissioner to grant interest on any due and unpaid permanency benefits. Moxon v. State, 12 Conn. Workers’ Comp. Rev. Op. 246, 1485 CRB-1-92-8 (March 29, 1994), aff’d on other grounds, 37 Conn. App. 648 (1995). Thus, insofar as the claimant was entitled to permanency benefits that remained unpaid as of thirty days after the November 4, 2002 maximum medical improvement date, interest would be owed on any payments that were not made in a timely manner.

RESPONDENTS’ CROSS-APPEAL

The respondents contend that the trial commissioner erred in finding Dr. Krompinger’s opinion on permanent partial disability more persuasive than that of Dr. Druckemiller. They object that Dr. Krompinger stated in a November 21, 2000 report, “at least 75% to 80% of [the claimant’s] need for surgery does stem from his original work injury [at the L4-L5 level],” yet failed to take his diagnosed 20% increase in overall back permanency and apportion it between the claimant’s pre-existing condition and his June 16, 2000 injury to the L5-S1 region. Respondents’ Exhibit 1.

By a full and final stipulation dated August 29, 2001, the claimant received payment for all compensation benefits due on account of his August 29, 1995 injury. Though the stipulation itself does not specify a percentage of back permanency, the parties at the approval hearing reportedly agreed that the claimant’s disability rating was 18%. See Respondents’ Exhibit 2. Section § 31-349 C.G.S. requires the employer or insurer on the risk at the time of a second injury to compensate a claimant for all necessary disability benefits and medical care that stem from the combined effects of that injury and a prior compensable injury. Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003). However, with respect to benefits for permanent disability, § 31-349 allows the second injury employer/insurer an offset for any “compensation payable or paid with respect to the previous disability.”

Looking at Dr. Krompinger’s reports; Respondents’ Exhibit 1; we see that the 1995 injury caused a right-sided L4-L5 disc protrusion that initially produced “intractable symptoms of right buttock and right thigh pain.” Id., October 13, 1995 report. Following his lumbar decompression on January 29, 1996, the claimant continued to suffer from pain symptoms in his central back, and experienced a recurrence of symptoms in the back and right extremity on April 28, 1997. An MRI showed a recurrent herniation at L4-L5, and the claimant underwent a lumbar discectomy on June 4, 1997. A June 16, 1998 report by Dr. Krompinger reflects an 18% lumbar permanency figure, and describes “a recurrent episode of central back pain without real radiation into the extremity.” Id. When back spasms and right leg pain reappeared in July 1999, Dr. Krompinger noted disc space narrowing at the L4-L5 level. Id., July 27, 1999 report.

The claimant then suffered the June 16, 2000 compensable injury at issue here. This was described by Dr. Krompinger as a new problem, insofar as the claimant had begun experiencing a left-sided pain component, with spasms radiating into the left leg from the lower back. “The pain is a bit different than he has had in the past, [in] that it involves his opposite extremity and the character of the pain appears to be more severe.” Id., June 21, 2000 report. The MRI revealed a new disc herniation at L5-S1, which the doctor described as “secondary to his more recent employment [and] probably not related to a great extent to his previous employment.” Id., July 7, 2000 report. Pain increased in response to an epidural injection as of July 27, 2000, but some improvement was noted on August 29, 2000, with residual pain and tightness in the low back area.

When his discomfort again increased to the point of intractability, the claimant expressed interest in lumbar fusion surgery. The doctor noted, “What concerns me at this point is he is developing more right-sided pain, where his last injury predominantly involved the L5-S1 disc on the left.” Id., October 6, 2000 report. Another MRI revealed that the L4-L5 disc herniation had recurred. Id., October 25, 2000 report. Dr. Krompinger recommended a lumbar fusion encompassing L4 to S1, given the claimant’s three herniations at the L4-L5 level and the presence of “significant disease” at L5-S1, though the herniation at that level had largely resolved. Id. “I think his predominant need for surgery does reflect his injury at the L4-L5 level which is the original back injury sustained in 1995. There has been some contribution from the injury to the L5-S1 region, which was caused by the events of June 16, 2000. At least 75% to 80% of his need for surgery does stem from his original work injury.” Id., November 21, 2000 report.

After surgery was performed on January 22, 2001, the claimant primarily complained of bilateral pain and numbness (dysesthesia), with particular focus on the left anterior thigh. Symptoms increased in both legs in 2002. In a December 16, 2002 report, Dr. Krompinger stated that the claimant was at maximum medical improvement for all practical purposes. When he saw the claimant on January 21, 2003, he reviewed the most recent MRI, and identified postoperative changes at L4-L5 and L5-S1, with no signs of a recurrent disc herniation. Minor disease was also shown at L1-L2 and L3-L4. Dr. Krompinger explained that the claimant had been assigned an 18% permanency prior to undergoing lumbar fusion in 2001. The doctor rated the claimant with an additional 20% permanency of the lumbar spine “specifically referable to his L4 to S1 fusion for an overall permanency of 38%.” In that final report, he did not try to differentiate causes of the fusion surgery and the 20% additional permanency that resulted from it.

As the factfinder, the trial commissioner was free to rely on Dr. Krompinger’s opinion that, as a result of the fusion surgery, the claimant was left with a 38% permanent partial disability of the back. The trier was also within his rights to disregard Dr. Druckemiller’s disability rating on the ground that his 12% baseline disability rating was inconsistent with Dr. Krompinger’s past diagnosis. The question is, was the trier required to then take the further step of apportioning liability for that 20% permanency increase between the effects of the June 16, 2000 injury and the claimant’s 1995 compensable injury? The respondents filed a Motion to Correct in which they challenged the trier’s failure to so apportion liability, asserting that the claimant’s fusion surgery was necessitated at least to some degree by the 1995 injury and the 1997 recurrence of that injury. That correction was denied by the commissioner. We can assume, then, that the issue has been brought to the trier’s attention, and his omission of any findings regarding apportionment is not due to pure inadvertence. See Christoforo v. Christoforo’s Northford Gardens, 4260 CRB-3-00-6 (July 2, 2001)(denial of requested correction implied trier did not find movant’s evidence persuasive).

In Prioleau v. Larosa Construction Co., 12 Conn. Workers’ Comp. Rev. Op. 140, 1432 CRB-8-92-6 (April 7, 1994), this board reviewed a commissioner’s award of a 7.5% permanent partial back disability that had been based on a doctor’s determination of 15% permanent partial disability. The trier had split the disability percentage in half because the doctor had attributed only half of the permanency to a 1989 compensable injury, while attributing the other 7.5% to pre-existing conditions that may or may not have included the effects of a 1987 compensable back injury. The commissioner had made no determination as to whether the first-injury insurer was responsible for the residual back disability, leaving the question for resolution at a future hearing. This board held that § 31-349 obligated the trier to award the full 15% permanent partial disability under § 31-349. As a next step, the trier should have determined whether any portion of that disability was attributable to the first injury, thereby relieving the second-injury insurer of liability for compensation benefits paid or payable with respect to that part of the disability. Thus, we remanded the case to the trial commissioner in order to complete the factfinding process needed to make the full permanency award.

A similar approach is necessary here. In denying the respondents’ Motion to Correct without elaboration, the trier left unaddressed an issue of apportionment that is significant in light of the reports by Dr. Krompinger that directly preceded the claimant’s January 2001 surgery. Much of the responsibility for the claimant’s lumbar fusion is attributed in those reports to the 1995 injury and its sequelae. This Commission is required to resolve that question under § 31-349. Prioleau, supra; see also, Johnson v. Manchester Bus Service, Inc., 3472 CRB-1-96-11 (April 1, 1998). Despite the trial commissioner’s denial of the respondents’ Motion to Correct, the fact remains that he specifically relied on a report by Dr. Krompinger in assessing the claimant’s permanency rating. This leaves an unexplained inconsistency in the factual findings. We do not have the authority to interweave our own supplemental findings into the decision, nor would it be proper for this board to assume that zero weight was placed on Dr. Krompinger’s assessment of relative responsibility for the lumbar fusion surgery. As the respondents would be entitled to a reduction in permanency benefits for any amounts attributable to the 1995 compensable injury, we must remand this matter to the trier so that he may determine the proportion of additional permanency, if any, that is attributable to that injury.

The trial commissioner’s decision is accordingly affirmed in part, and remanded for further findings as provided above.

Commissioners James J. Metro and Stephen B. Delaney concur.

1 We also note that determinations of disability by the Social Security Administration are nonbinding in this forum. Krajewski v. Atlantic Machine Tool Works, Inc., 4500 CRB-6-02-3 (March 7, 2003). This commission uses a different standard to determine disability than does the SSA. span class="back">BACK TO TEXT

2 The claimant objects that the trier essentially authorized him to be prescribed Elavil without the corresponding necessary medical supervision. We are unsure that the trier intended such a reading of his order, but we will ease the claimant’s concerns by stating that, should he wish to attempt a course of Elavil therapy, a physician’s involvement would be permitted. span class="back">BACK TO TEXT

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