CASE NO. 4645 CRB-6-03-3
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 22, 2004
THAMES VALLEY SANITATION
The claimant was represented by Stanley Falkenstein, Esq. of Marte, Plepler, Falkenstein, Keith, Meggers & Paul, P.C., 113 East Center Street, Manchester, CT, 06040.
The respondents were represented by David A. Kelly, Esq., of Montstream and May, P.O. Box 1087, Glastonbury, CT, 06033.
This Petition for Review from the March 11, 2003 Finding and Award of the Commissioner acting for the Sixth District was heard December 19, 2003 before a Compensation Review Board panel consisting of Commissioners James J. Metro, Howard H. Belkin and Ernie R. Walker.
HOWARD H. BELKIN, COMMISSIONER. The respondents appeal from the March 11, 2003 Finding and Award of the Commissioner acting for the Sixth District.1 In his Finding and Award the trial commissioner awarded the claimant a 35% permanent partial disability for the claimant’s loss of use of his left knee. Additionally, the trial commissioner found the respondents unreasonably contested/delayed the claim and awarded the claimant attorney’s fees in the amount of $4,893.73.
The pertinent facts are as follows. The claimant sustained a compensable left knee injury on or about May 8, 2000. The claimant had a pre-existing left knee injury that was not related to a compensable injury under the Workers’ Compensation Act. The claimant’s treating physician opined claimant suffered a 50% permanent partial disability to his left leg. Claimant then underwent an IME performed by Dr. John J. Mara. In his March 30, 2001 report Dr. Mara rated the claimant as having a 10% permanent partial disability of the left knee.
The claimant was then directed to submit to a commissioner’s examination to be performed by Dr. Carl Nissen. In his December 10, 2001 report Dr. Nissen opined that claimant suffered a 35% permanent partial disability of the left knee of which 25% percent was attributable to the claimant’s May 2000 injury. Stated another way, 8.75% of the permanent partial disability ascribed by Dr. Nissen was attributable to the May 2000 work related injury. The remaining 26.25% was attributable to the claimant’s non work related injury.
The trial commissioner awarded the claimant a permanent partial disability benefit for the 35% loss of use of his left knee. The respondents filed this appeal in which they present the following issues; (1) whether the trial commissioner erred in awarding the claimant permanent partial disability benefits for a 35% loss of use of his left knee, (2) whether the trial commissioner erred in awarding the claimant attorney’s fees on the basis of unreasonable contest or delay.
We first consider the respondents’ challenge to the commissioner’s award for a 35% loss of use to claimant’s left knee. The crux of the respondent’s argument is that the medical opinion upon which the commissioner relied only supports a finding that the claimant sustained an 8.75% loss of use of the left knee. The respondents contend they are only liable for that portion of the claimant’s permanent partial disability which is causally related to the May 2000 work injury.
The legal basis for the respondents’ argument is predicated on § 31-275(1)(D). Section 31-275(1)(D) provides, “For aggravation of a preexisting disease, compensation shall be allowed only for that proportion of the disability or death due to the aggravation of the preexisting disease as may be reasonably attributed to the injury upon which the claim is based.” The respondents contend we are to apply the plain language of the statute and apply the statute consistent with our Supreme Court’s holding in Gartrell v. Dept. of Correction, 258 Conn. 137 (2001)[hereafter Gartrell I]. In Gartrell I, the Supreme Court construed the term “preexisting disease” to include any pre-existing disease regardless of its etiology. In so doing the Court deviated from its long standing interpretation of that term as declared in Cashman v. McTernan School, Inc., 130 Conn. 401 (1943). In Cashman, the term “preexisting disease” was construed as “preexisting occupational disease”.
Following its Gartrell I opinion, the Supreme Court was asked to reconsider its opinion. The Supreme Court granted the Motion For Reconsideration and issued a superceding opinion, Gartrell v. Dept. of Correction, 259 Conn. 29 (2002)[hereafter Gartrell II]. In Gartrell II, the Supreme Court concluded that Cashman was applicable and while at some future date the Court may be asked to readdress it’s holding in Cashman, Gartrell II did not present the Court with that opportunity. Until such time as the Supreme Court reconsiders Cashman, and issues a different holding, we are bound by the precedent established. Thus, we affirm that part of the trial commissioner’s decision awarding the claimant permanent partial disability benefits for the 35% loss of use of his left knee.
Having affirmed the trial commissioner as to his award of permanent partial disability benefits and percentage loss of function, we next consider the respondents argument that the trial commissioner erred in awarding the claimant attorney’s fees and interest for unreasonable contest/delay pursuant to § 31-300. The respondents contend that the trial commissioner erred in his conclusion the claim was unreasonably contested and/or delayed and incorrectly based his conclusion on his finding the respondents relied upon inapplicable case law and their failure to present evidence of having paid the claimant the 8.75% permanent partial disability. The respondents challenge both of these findings and the commissioner’s conclusion.
As part of the respondents appeal they allege that the trial commissioner erred in failing to grant their Motion to Correct as they requested. In point of fact the trial commissioner did consider the respondents Motion to Correct and altered his findings so that Paragraph (e) was deleted and amended to read, “I find and conclude that the Respondent failed to offer any evidence of payments of any permanency benefits for the Claimant’s knee thru date. This fact, and Respondent’s continued reliance on inapplicable case law, lead to the undisputable conclusion that the Claimant is entitled to interest and attorney’s fees.”
The respondents argue the trier’s reference to the respondents’ reliance on inapplicable case law is incorrect. The respondents contend that although Gartrell II, supra, did not overrule Cashman, supra, the Supreme Court merely concluded that the factual circumstances in Gartrell II were such that revisiting their holding in Cashman was not necessary to their consideration of the appeal. The respondents refer to that part of the Gartrell II opinion in which the Court stated:
It may be that the comprehensive 1993 legislative reform of the Workers’ Compensation Act; see generally Public Acts 1993, No. 93-228; casts doubt on our holding in Cashman, especially in regard to diseases, such as mental or emotional impairments, for which the legislature has sought to limit compensability. The parties, however, did not address that issue until after the opinion in this case initially was released and, consequently, this court has not received the full benefit of adversarial argument regarding that issue. Thus, we are not persuaded that the present case is an appropriate one for reconsideration of our holding in Cashman. (footnotes omitted)
The respondents contend that the above is an invitation by the Court for cases which present an opportunity to re-visit Cashman in the wake of the 1993 legislative reform of the Workers’ Compensation Act. We are not persuaded by the respondents’ argument. We note the Supreme Court issued its opinion in Gartrell II on January 15, 2002. As the formal hearing proceedings in this matter commenced on August 19, 2002 and were continued to December 2, 2002, there can be no question that the respondents were aware that the holding of Cashman was left standing by the Court. To claim that their contest of the permanent partial disability benefits owed to the claimant is based on a Supreme Court “invitation” to challenge case law strikes us an inappropriate attempt to excuse the delay in paying the award of the trial commissioner.
The second part of the respondents’ claim of error on this issue contends that on or about June 24, 2002 they paid a sum of money representing an 8.75% permanent partial disability award to the claimant. The respondents note that in the claimant’s objection to their motion to correct, the claimant conceded that the respondents paid the 8.75% permanent partial disability benefits. See Claimant’s Objection To Motion To Correct filed March 21, 2003. Thus the respondents argue that since they paid the claimant permanency benefits (equal to the amount not in dispute), the trial commissioner’s finding of unreasonable delay is without support. It does appear to us that there is no dispute that the respondents did, in fact, pay the claimant the 8.75% permanency benefits; and therefore, that the finding should be corrected to reflect that payment. The remaining question is whether this partial payment of permanent partial disability benefits obviates a finding of unreasonable delay.
Whether a respondent has unreasonably delayed or contested liability is a matter to be determined by the trial commissioner. As we noted in Murray v. Mass Mutual Life Ins. Co., 4590 CRB-1-02-11 (Nov. 20, 2003):
As the fact finder who has presided over a contested case, the trial commissioner is in the best position to decide whether a respondent has reasonably conducted its defense, and possesses a considerable amount of discretion in making such a finding. Prescott v. Community Health Center, Inc., 4426 CRB-8-01-8 (Aug. 23, 2002). On appeal from a determination regarding unreasonable contest, the scope of this board’s review is usually quite limited. Regan v. Torrington, 4456 CRB-5-01-11 (Oct. 25, 2002).
However, in the instant case the trier’s determination that the respondents unreasonably delayed is largely predicated on two factual findings; (1) the respondents paid no permanency benefits and (2) the respondents’ reliance on inapplicable case law. Given the claimant’s post Finding and Award acknowledgment of the partial payment of permanency benefits, the factual foundation for the trier’s conclusion is severely compromised. Having revised a part of the factual basis for the trier’s conclusion, we cannot infer whether the trial commissioner would reach the same conclusion based on the remaining factual findings, either separately or in combination. Therefore, we believe a remand to the commissioner is appropriate. Pursuant to the remand we anticipate that the trial commissioner will review the evidence in light of the respondents’ partial payment and determine if he reaches the same conclusion as to the respondents’ unreasonable delay/contest. If in fact the trial commissioner does reach the same conclusion we look forward to an articulation of the factual findings supporting his conclusion.
We therefore affirm the March 11, 2003 Finding and Award of the Commissioner acting for the Sixth District insofar as it awards the claimant permanent partial benefits for the 35% loss of use of his left knee. However, we remand for further action consistent with this opinion on the issue of whether the respondents unreasonably delayed/contested this matter.
Commissioner Ernie R. Walker concurs.
JAMES J. METRO, COMMISSIONER, DISSENTING IN PART. I respectfully dissent from the majority opinion in this matter as I believe the commissioner’s determination of unreasonable delay/contest requires a reversal.
At the outset let me state that I am troubled by what I perceive as the imposition of a sanction on a respondents’ right to contest liability, or more specifically, the extent of disability. In the instant matter it does not appear that there was a dispute as to the claimant’s entitlement to permanent partial disability benefits. What was at issue was the extent of the disability. The trial commissioner’s findings reflect that there were three (3) separate medical opinions. In sequence the first permanent partial disability assessment was that of the treating physician in which the doctor opined claimant suffered a 50% permanent partial disability of the left leg. On March 30, 2001, an IME was performed by Dr. John Mara in which he opined that the claimant had a 10% permanent partial disability of the left knee. Ultimately, there was the opinion of the commissioner’s examiner Dr. Carl Nissen who opined on or about December 10, 2001 the claimant had a 35% permanent partial disability of the left knee. It was Dr. Nissen’s opinion upon which the trier relied as to the amount of permanent partial disability to which the claimant was entitled. I concur as to the majority’s affirming of this part of the Finding and Award.
Furthermore, I recognize that Cashman v. McTernan School, Inc., 130 Conn. 401 (1943) continues to be binding precedent and that any arguable confusion resulting from the Supreme Court’s opinion in Gartrell I, was rectified by the Court’s opinion in Gartrell II. The respondents had the benefit of Gartrell II and the court’s failure to overturn Cashman well in advance of the formal proceedings in this matter, and prior to the date that the respondents paid the 8.75% permanent partial disability. However, the respondents still maintain the right to defend their liability on both factual and legal grounds.
I cannot reconcile myself to a determination of unreasonable contest/delay where, as in the instant matter, all of the physicians offered different assessments of the claimant’s permanent partial disability to the left knee. I appreciate a trial commissioner’s impatience with a respondents’ seeming excessive use of process in an instance where there is no dispute as to claimant’s entitlement to permanent partial disability merely the amount. However, the respondents are still permitted to defend the amount of permanent partial disability due the claimant. The trier’s ultimate conclusion as to unreasonable contest/delay rests on two premises. The first is his finding that the respondents paid no permanency benefits. The second is the respondents claim that Gartrell II may be read as justifying their claim that they are not liable for the entire 35% permanent partial disability.
I concur with the majority’s assessment that following the revelation that some part of the permanency benefits were paid, the factual support upon which the trier based his conclusion is without support and what facts now support his conclusion is unclear. I merely differ on what I believe should be the effect of correcting that factual finding as to respondents partial payment.
I do not view the respondents claim that their contest to the claim is based, in part, on the Supreme Court’s opinion in Gartrell II in the same low esteem as my colleagues. The respondents have an ethical obligation to zealously advocate on behalf of their client. We may view Cashman as well settled law, however, we cannot presume that our Supreme Court would not consider a challenge to its holding in Cashman. Thus, concluding, at least in part, that the respondents unreasonably delayed payment or unreasonably contested the amount of their liability on the basis of their desire to challenge existing, albeit well-settled case law flies in the face of our traditional notions of due process and appellate advocacy. I would therefore reverse that part of the March 11, 2003 Finding and Award on the issue of unreasonable contest/delay.
For these reasons, I respectfully dissent.
1 The consideration of this appeal was postponed at the request of the claimant. span class="back">BACK TO TEXT