State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Perun v. City of Danbury

CASE NO. 5650 CRB-7-11-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 3, 2012

ROBERT PERUN

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

CITY OF DANBURY

EMPLOYER

and

CONNECTICUT INTERLOCAL RISK MANAGEMENT AGENCY (CIRMA)

INSURER

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

APPEARANCES:

The claimant was represented by Paul J. Garlasco, Esq., 83 Park Lane Road, New Milford, CT 06776.

The respondents were represented by Colette S. Griffin, Esq., Howd & Ludorf, LLC, 65 Wethersfield Avenue, Hartford, CT 06114-1190.

This Petition for Review from the May 2, 20111 Finding of the Commissioner acting for the Seventh District was heard October 28, 2011 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Christine L. Engel and Daniel E. Dilzer.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant and respondent have both taken appeals from a Finding by the trial commissioner in this matter awarding permanent partial disability benefits to the claimant and apportioning said benefits against the respondent. The claimant appeals arguing the trial commissioner should not have relied on an expert witness that a different commissioner had chosen not to rely on when she considered this injury at an earlier hearing. The respondent’s appeal argues that they should not be responsible for the share of disability potentially attributable to an injury decades earlier; although the claimant did not file a claim at that time. We find neither argument persuasive and conclude the trial commissioner reached an appropriate decision based on the facts and the law. We affirm the Finding and dismiss both appeals.

The trial commissioner reached the following factual findings in her Finding which are relevant to this appeal. She took administrative notice of several back claims filed by the claimant on January 11, 2005 (WCC File No. 700139086); September 2, 2007 (WCC File No. 700147245); and February 16, 2010 (WCC File No. 700155423); but noted the 2010 claim was not at issue in the proceeding. She also noted the claimant also suffered a back injury in 1993 while working for the State of Connecticut at the Garner Correctional Facility. The claimant said he received medical treatment for his 1993 back injury and missed two months from work after the injury. He also developed recurrent back symptoms in 2002. No evidence was entered into the record to show that the claimant ever filed a claim for any back injury with any employer prior to the 2005 claim filed against the present respondent. The commissioner also took administrative notice of all legal documents on file with the Workers’ Compensation Commission including, but not limited to, the June 24, 2008 and February 9, 2009 formal hearing transcripts and the November 6, 2009 “Finding and Award/Dismissal” [sic] rendered by Commissioner Gregg. That decision found that the claimant’s September 2, 2007 back injury (WCC File No. 700147245) was compensable as a separate and distinct injury, rather than a recurrence of the January 11, 2005 back injury (WCC File No. 700139086). The commissioner also noted the respondent claims a credit for past permanent partial disability ratings “paid or payable” on account of back injuries suffered prior to 2005.

The trial commissioner noted that the claimant had been employed as a police officer by the City of Danbury for seven years prior to 2008. On May 13, 2008, Dr. W. Jay Krompinger performed a respondent’s examination on the claimant. He reviewed a number of diagnostic films, including MRI’s from 2001, 2002, 2003, two from 2005 and one from 2007. These films evidence that the claimant had a foraminal disc on the right side at the L3-L4 level starting in 2001, which also appears in the 2007 MRI. Dr. Krompinger notes the 2005 films show a rather prominent central protrusion of the L4-L5 disc and that it appears to be a little less pronounced in the 2007 MRI. He noted that the plain films from October of 2007 were unremarkable. The claimant underwent a lumbar discectomy at the L3-L4 segment in September of 2007, which surgery Dr. Krompinger attributes to the 2005 date of injury. Dr. Krompinger states that the patient was significantly improved after this procedure and returned to work after approximately one month. He has had some residual symptoms of back pain but he has been markedly improved and does not take any medication.

Dr. Krompinger said that the claimant’s films showed disc herniations were documented well before the 2005 and 2007 dates of injury. Accordingly, he assessed a 15 percent permanent partial disability overall to the claimant’s low back condition. He apportioned 7.5 percent of his rating to low back injuries occurring prior to 2005 and 7.5 percent of his rating specifically to the 2005 event. Dr. Krompinger did not assign any permanent partial disability rating to the 2007 low back as there were no changes in the claimant’s MRIs from 2005 to 2007 that would warrant an increased rating.

The trial commissioner also considered evidence from the claimant’s treater, Dr. Cameron C. Brown. Dr. Brown treated the claimant for back problems in 2002 and for the claimant’s 2005 and 2007 back claims. Dr. Brown acknowledged that around April 25, 2002, the claimant had “smoldering symptoms in his back” and that an MRI revealed an L1-2 disc protrusion, moderate sized right intraforaminal L3-4 disc protrusion with a slightly increased right-sided L3 nerve root impingement and a posteriorly central L4-L5 disc protrusion. Dr. Brown states that these old disc herniations “dried up”; that the claimant “got all better and was thereafter asymptomatic.” Findings, ¶ 15. Dr. Brown also acknowledged that he treated the claimant in 2003 for symptomotology associated with rolling a rock at home. Dr. Brown also corroborated Dr. Krompinger’s earlier observations that, at the time of the claimant’s 2005 injury, he had an L3-L4 and an L4-L5 disc herniation. In fact, Dr. Brown recommended that the claimant undergo a two level micro discectomy at that time, which the claimant declined to do.

The commissioner noted Dr. Brown’s testimony on apportionment of permanency. In an October 22, 2008 office note Dr. Brown assigned an unapportioned 24 percent permanent partial disability rating to the claimant’s low back. Dr. Brown later said he had never been asked to comment upon an apportionment of permanency for two separate injuries where he has only treated one of the injuries and Dr. Brown initially testified that he could not render an opinion on apportionment because the claimant “got all better” after his epidural injections following his prior injuries. Thereafter, Dr. Brown testified that he could not apportion the claimant’s permanent partial disability rating without re-examining the claimant and without speaking with the claimant, but later he would be willing to subtract the claimant’s prior ratings from the 24 percent rating if the claimant “was in agreement with that.” He further testified that he liked the claimant and, therefore, “I’m going to stand up for this guy.” Findings, ¶¶ 21-22.

On March 24, 2009, the respondent paid out to the claimant 7.5 percent permanent partial disability benefit on the claimant’s low back injury but requested that the claimant’s treating physician apportion liability because of the chronology of back injuries. Based on Dr. Brown’s deposition testimony, the claimant would need to return to see him to enable Dr. Brown to apportion the disability. On December 17, 2009, Dr. Brown rendered an unapportioned 24 percent permanent partial disability rating to the claimant’s low back condition. He stated that this rating is on account of the claimant’s back pain, disc herniation, limited range of motion and radiating pain. However, despite numerous requests, the trial commissioner found there had not been documentation of a further examination of the claimant by Dr. Brown on the issue of apportionment. She found on April 8, 2010 Dr. Brown apportioned 9 percent of his 24 percent permanent partial disability rating to the claimant’s 2007 low back condition; but it was not clear when this opinion was forwarded to counsel of record.

Based on these factual findings the trial commissioner found that while Commissioner Gregg had not found Dr. Krompinger credible on the issue of whether the 2007 back injury constituted a separate injury or an exacerbation of the earlier 2005 injury, this determination did not confer an obligation on succeeding commissioners in this claim to find that Dr. Krompinger is lacking credibility on other issues, such as the apportionment of permanent partial disability. The trial commissioner found Dr. Krompinger’s opinions on the apportionment of permanent partial disability were credible in that they are based upon objective evidence contained in the various MRIs taken between 2001 and 2007, as well as the claimant’s medical chart. The trial commissioner accepted Dr. Krompinger’s opinion that 7.5 percent of the disability rating was related to the 2005 injury and 7.5 percent of the disability rating was attributed to events predating 2005. Further, Dr. Krompinger’s failure to assign any permanent partial disability rating to the 2007 injury is soundly based upon the objective evidence which shows no change in pathology at the L3-L4 and L4-L5 disc levels on account of the 2007 date of injury. The commissioner noted Dr. Krompinger reached this assessment in May of 2008, eight months after surgery on the claimant’s L4-L5 disc level, and where the claimant had returned to work without medication.

The trial commissioner explained her rationale for not relying on the opinion of the treating physician, stating that she found his opinion “appears to be lacking in objectivity and, therefore, credibility.” She also noted the claimant had recovered promptly from his last surgery and returned to his original occupation. She found that Dr. Brown’s statement he would “stand up for this guy” reflected “excessive bias in favor of the claimant.” Conclusions, ¶ F. Therefore, the trial commissioner found the 2007 injury did not create any additional permanent disability and allocated the 15 percent permanent partial disability to the 2005 date of injury, minus the 7.5 percent previously paid. The trial commissioner further found that there had never been a workers’ compensation claim filed as a result of the claimant’s 1993 injury at the Department of Correction, or any other work-related injuries predating 2005. Since, in order to apply the “payable or paid” standard to the present case, there must be some evidence that the claimant had a claim from which to seek payment on permanency; there was no prior claim against which the permanency award could be apportioned and the respondent took the claimant “as it found him.”

The respondent filed a Motion to Correct which was denied in its entirety. The claimant did not file a Motion to Correct. Both parties filed timely Reasons for Appeal. The claimant argues the trial commissioner should not have found Dr. Krompinger credible and persuasive when the last trial commissioner who ruled on this claimant’s injury did not find him credible and persuasive. The respondent argues that the trial commissioner erred in concluding that there was no means to apportion the present award against a prior employer. We will deal first with the merits of the claimant’s appeal.

The claimant argues that the trial commissioner deprived the claimant of his constitutional right to rely on the previous decision of Commissioner Gregg. Claimant’s Brief, p. 2. He cites Conclusions A and B of Commissioner Gregg’s November 6, 2009 Finding as evidence for this position. In that decision, Commissioner Gregg found the claimant’s treating physician more credible than Dr. Krompinger as to the compensability of the claimant’s 2007 injury. Having reviewed the record herein, we are not persuaded by this argument.

We are mindful of the “law of the case” doctrine as promulgated in such cases as Waterbury Hotel Equity, LLC v. Waterbury, 85 Conn. App. 480 (2004). The Appellate Court held as follows:

In considering the law of the case doctrine, our Supreme Court has recognized that ‘‘[a] judge should hesitate to change his own rulings in a case and should be even more reluctant to overrule those of another judge.’’ Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982). Nevertheless, ‘‘[t]he law of the case is not written in stone but is a flexible principle of many facets adaptable to the exigencies of the different situations in which it may be invoked. . . . Our Supreme Court has recognized that the law of the case doctrine is not one of unbending rigor . . . . A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision. . . . In essence [the law of the case] expresses the practice of judges generally to refuse to reopen what has been decided and is not a limitation on their power. . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance.’’

Id., 489-490.

Had the trial commissioner in the present matter sought to revisit the issue of compensability decided in the claimant’s favor by Commissioner Gregg, a serious issue would exist as to whether res judicata and collateral estoppel would bar such a decision. See Bailey v. Stripling Auto Sales, Inc. d/b/a Willimantic Dodge/Nissan, 4516 CRB-2-02-4 (May 8, 2003). However, in Schenkel v. Richard Chevrolet, Inc., 5302 CRB-8-07-12 (November 21, 2008), aff’d, 123 Conn. App. 55 (2010) we pointed out that the concepts of claim preclusion were inapplicable when a trial commissioner was asked at a later date to consider an issue that had not been decided by another trial commissioner in their earlier rulings. The decision herein by the trial commissioner did not disturb the relief previously ordered by Commissioner Gregg. It is acknowledged Commissioner Gregg did not rule in her November 6, 2009 Finding on the issue of permanent partial disability. We are unable to apply the concept of collateral estoppel to an issue that had not been addressed in a prior interlocutory ruling.

We note the claimant has not filed a Motion to Correct the trial commissioner’s Findings. Accordingly, the trial commissioner’s factual findings must be given conclusive effect. Stevens v. Raymark Industries, Inc., 5215 CRB-4-07-4 (March 26, 2008), appeal dismissed, A.C. 29795 (June 26, 2008). The claimant therefore must establish that the trial commissioner’s decision to rely on Dr. Krompinger’s opinion as to permanent partial disability and apportionment of liability amounted to an abuse of discretion. See In re Shaquanna M., 61 Conn. App. 592 (2001) and O’Reilly v. General Dynamics Corp., 52 Conn. App. 813 (1999). The trial commissioner cited substantive reasons for finding Dr. Krompinger’s opinions persuasive and reliable. See Findings, ¶¶ 8-11. We have set a clear standard for determining when to uphold such an opinion “[i]f on review this board is able to ascertain a reasonable diagnostic method behind the challenged medical opinion, we must honor the trier’s discretion to credit that opinion above a conflicting diagnosis.” Strong v. UTC/Pratt & Whitney, 4563 CRB-1-02-8 (August 25, 2003). We do not find Dr. Krompinger’s opinions herein unreasonable. We must defer to the trial commissioner’s evaluation of medical evidence, Williams v. Bantam Supply Co., 5132 CRB-5-06-9 (August 30, 2007).2 Therefore, we find no error and dismiss the claimant’s appeal.3

We turn to the merits of the respondent’s appeal. The respondent argues that the trial commissioner erred in determining there was no award which was “paid or payable” for the claimant’s pre-2003 injuries, and therefore, there was no means under § 31-349(a) C.G.S. to apportion the permanency award.4 As the respondents view the law, there was a “claim” for benefits for the claimant’s 1993 injuries at the Department of Correction and that this claim is “present and enforceable.” Respondent’s Brief, p. 13. The trial commissioner decided to the contrary and denied the respondent’s Motion to Correct on this issue. As per our precedent in Anderson v. Target Capital Partners, 5615 CRB-6-10-12 (January 3, 2012) we conclude she found the respondent’s evidence on this point was not probative or persuasive. We concur in this judgment.

There is no dispute that the claimant never filed a Form 30C for his injuries while employed by the Department of Correction in 1993.5 The respondent argues that pursuant to § 31-294c(c) C.G.S. the claimant received medical care paid for by his employer subsequent to this accident, and this conferred jurisdiction over the injury. While the respondent offers rhetoric that this in and of itself establishes a “payable” claim, they fail to offer any precedent whatsoever supporting this point. In the absence of any indicia the claimant affirmatively sought Chapter 568 benefits at that time, or the Department of Correction accepted compensability of that injury, we cannot ascertain how this created a means for the claimant to obtain permanency benefits two decades later.

The respondent’s argument also does not address the precedent in Kalinowski v. Meriden, 5028 CRB-8-05-11 (January 24, 2007). In Kalinowski we pointed out that if a right is not exercised within a reasonable period of time, the doctrine of laches could serve to bar recovery, citing Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 379 (2004). One would anticipate the claimant’s former employer would argue that a claim today adjudicating a permanency rating for a decades old injury would not be consistent with “the public interest in the prompt and comprehensive resolution of workers’ compensation claims.” Duni v. UTC/Pratt & Whitney, 239 Conn. 19, 28 (1996). Any claim today against the Department of Correction would almost certainly be vigorously contested. We simply cannot see how pursuant to a “plain meaning” interpretation of the term “paid or payable” (see § 1-2z C.G.S.) the claimant’s rights against the Department of Correction for a permanent partial disability award rise to a “paid or payable” standard. The plain meaning of this term clearly describes a right which has fully vested in the claimant. The trial commissioner’s conclusion (see Findings, ¶¶ 3-4, and Conclusion, ¶ G) that it had not comports with a reasonable interpretation of the statute and the evidence.

The trial commissioner cites Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009) as governing this situation. We concur. Indeed, in Alvarez there had actually been a stipulation between the claimant and a prior employer, but as it had not specified any disability rating, we found none of that award could be judged as “paid or payable” against the claimant’s present disability rating. In the present case, there has been no formal claim even commenced. In addition, we find Francis v. Rushford Centers, Inc., 5428 CRB-8-09-2 (February 8, 2010) stands for an entirely different proposition than the respondent asserts. In Francis we found that notwithstanding the claimant’s prior claim against an Arizona employer none of the permanency award could be attributed to that award. We believe our rationale there is completely supportive of the trial commissioner’s decision herein.

“as of this juncture the claimant’s rights to payment are no more perfected than the rights of the claimant in a Connecticut proceeding prior to filing a motion pursuant to § 31-315 C.G.S. to reopen a Finding and Award reached under our statutes. We do not believe this constitutes a “payable” obligation of the original employer. On page 11 of the respondents’ brief the claimant’s rights in Arizona are described as “. . . a potential check in the bank, always available upon further administrative action . . . .” While the respondents may believe this constitutes a “payable” right, we must defer to the plain meaning of this term which clearly denotes “payable” defines a right which is already present and enforceable, not potential in nature.”

Id.

No permanent partial disability award could be levied against the Department of Correction without further proceedings before this Commission. We find the precedent in Francis indistinguishable from the facts and law governing this case. The trial commissioner appropriately determined that apportionment under § 31-349(a) C.G.S. was unavailable to the respondent. The trial commissioner’s conclusion that the respondent “took the claimant as it found him” and must accept responsibility for the entire permanent partial disability award is consistent with the law.

We find no error and affirm the Finding. The appeals herein are dismissed.

Commissioners Christine L. Engel and Daniel E. Dilzer concur in this opinion.

1 We note that extensions of time were granted during the pendency of this appeal. BACK TO TEXT

2 While the claimant argues that the trial commissioner should not have found Dr. Krompinger credible and persuasive when Commissioner Gregg chose not to rely on his opinions, we have long held “… that it is within the discretion of the trial commissioner to accept some, but not all, of a physician’s opinion.” Lopez v. Lowe’s Home Improvement Center, 4922 CRB-6-05-3 (March 29, 2006). See also, Williams v. Bantam Supply Co., 5132 CRB-5-06-9 (August 30, 2007). We find no error in the trial commissioner finding Dr. Krompinger a reliable witness on the issues herein. BACK TO TEXT

3 The respondent filed a Motion to Dismiss the claimant’s appeal on the day of the hearing before this tribunal. The respondent argues that the claimant’s failure to file a Motion to Correct mandates the dismissal of the claimant’s appeal as a matter of law. In light of the untimely nature of this pleading and the absence of prejudice to the respondent in the manner in which this appeal was pursued, we deny the motion to dismiss and have considered this appeal on the merits. BACK TO TEXT

4 The text of this statute reads as follows:

Sec. 31-349. Compensation for second disability. Payment of insurance coverage. Second Injury Fund closed July 1, 1995, to new claims. Procedure. (a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this subsection, “compensation payable or paid with respect to the previous disability” includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation. BACK TO TEXT

5 The Commission database contains no information that a claim was ever acknowledged for the claimant’s 1993 injury. BACK TO TEXT

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