CASE NO. 1307 CRD-3-91-9
COMPENSATION REVIEW BOARD/DIVISION
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 22, 1993
WELLS FARGO ALARM SYSTEM
AMERICAN INTERNATIONAL ADJUSTMENT COMPANY
The claimant was represented by Victoria M. DiSesa, Esq., 246 Church Street, New Haven, CT 06510.
The respondents were represented by James H. Hughes, Esq., McNamara and Kenney, Brewster Station, P.O. Box 8187, Bridgeport, CT 06605.
This Petition for Review from the September 23, 1991 Finding and Award of the Commissioner for the Third District was heard October 30, 1992 before a Compensation Review Board panel of the Commission Chairman Jesse Frankl and Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr.
JESSE FRANKL, CHAIRMAN. The respondents petitioned for review from the September 23, 1991 Finding and Award of the Commissioner for the Third District. In that Finding and Award, the commissioner found that the claimant sustained a significant permanent partial disability to her temporomandibular joints and awarded the claimant 234 weeks of permanent partial disability benefits pursuant to General Statutes Sec. 31-308(d).1 On appeal, the respondents claim that the commissioner improperly (1) determined the claimant’s permanent partial disability award based on a finding of a 30% disability of the whole person, (2) failed to apply the criteria for such an award set forth in General Statutes Sec. 31-308(a), and (3) admitted into evidence an article recommending a method to evaluate the extent of permanent injuries to the temporomandibular joint and (4) relied on factual findings not supported by the evidence. We affirm the commissioner’s Finding and Award.
The claimant sustained work-related injuries on October 25, 1984 while in the employ of the respondent-employer. A voluntary agreement was thereafter approved by the Third District which listed injuries to the chin, elbow, right arm and knee, and jaw. The claimant developed temporomandibular joint syndrome (TMJ), which encompasses a myriad of possible symptoms associated with the dysfunction of the joints that attach the lower jaw to the skull. The parties stipulated that the claimant’s TMJ condition was compensable under the October 25, 1984 work injury but disputed what rating should be assigned to that permanent partial disability.
The claimant presented the testimony of Robert Sorrentino, D.M.D., in support of her claim that she suffers from a 30% disability of the whole person. The respondents presented the testimony of Richard Resnick, D.M.D., in support of their claim that the claimant had a 25% disability to the jaw and that her award should be based on the non-scheduled loss for the jaw at the rate of 52 weeks.
The trial commissioner found that “the claimant has sustained significant permanent partial disability to her temporomandibular joints which, according to her treating physician, has caused permanent partial disability and had a significant disabling effect upon the claimant.” The claimant’s treating physician, found credible by the trial commissioner, opined that the claimant sustained a permanent partial loss of use of the function of her temporomandibular joints which causes the claimant to suffer headaches, earaches and facial pain, affects her ability to chew, talk, sleep, swallow, causes her vocational stress and affects physical activities. Based on these and other considerations, the trial commissioner awarded the claimant 234 weeks of permanent partial disability pursuant to General Statutes Sec. 31-308(d).
In their first two claims, the respondents contend that the trial commissioner’s award was improper under General Statutes Sec. 31-308(d). The respondents first argue that the commissioner improperly based the claimant’s award on a 30% disability of the whole person. The respondents further argue that the commissioner did not use the criteria set forth in Sec. 31-308(d) in making his award. We disagree.
The respondents correctly point out that Sec. 31-308 provides benefits for permanent loss or loss of use of some part or function of the body and not for whole body impairment and, therefore, the Workers’ Compensation Act does not provide for an award of benefits on the basis of a whole person rating. Repasi v. Jenkins Brothers, 4 Conn. Workers’ Comp. Rev. Op. 82, 227 CRD-4-83 (1987), appeal dismissed, 16 Conn. App. 121, cent. denied, 209 Conn. 817 (1988). The Act, however, does provide in Sec. 31-308(d) that the commissioner is authorized to award discretionary specific compensation up to a sum equivalent to compensation for 780 weeks for “the loss or the loss of the use of the function of any organ or part of the body not otherwise provided for [in Sec. 31-308]” after giving proper weight to certain conditions set forth in the statute. Id., 85. The award here was not for a whole person impairment. Rather, it was for the partial loss of use of the function of the claimant’s temporomandibular joints, parts of the body not included in the schedule of specific and anatomical impairments listed in Sec. 31-308. The respondents’ claims to the contrary notwithstanding, the challenged award was simply not for a whole person impairment.
The respondents correctly point out as well that in making an award pursuant to Sec. 31-308(d), the commissioner must consider the applicable statutory criteria, namely, (1) the age of the claimant, (2) the sex of the claimant, (3) the disabling effect of the loss of or loss of function of the organ involved and (4) the necessity of the organ or complete functioning of the organ with respect to the entire body. Alger v. Rossi Corp., 9 Conn. Workers’ Comp. Rev. Op. 261, 1065 CRD-1-90-6 (1991); Smith v. United Technologies Corp., 2 Conn. Workers’ Comp. Rev. Op. 23, 142 CRD-6-82 (1983). Although the commissioner here did not state generally that he had considered these factors, a fair reading of his Finding and Award reveals that a finding pertinent to each statutory factor was made. The challenged Finding and Award notes the claimant’s age and sex, the disabling effect of her TMJ condition as well as the relationship of the impaired joints to the proper functioning of the entire body. Moreover, it is evident that the award itself was made in light of these findings. Under these circumstances, we cannot conclude that the commissioner awarded permanent partial benefits without considering elements that the statute required him to consider.
Accordingly, the respondents’ first two claims must fail.
The respondents’ remaining claims attack the evidence relied upon by the trial commissioner and the evidentiary support for the commissioner’s award.
The respondents argue that the trial commissioner should not have admitted claimant’s Exhibit B into evidence. Exhibit B is a copy of an article entitled “Recommended Guide to the Evaluation of Permanent Impairment of the Temporomandibular Joint”, which appeared in The Journal of Craniomandibular Practice, Vol. 7, No. 1, 13-20 (January. 1989). The evaluation method discussed in that article was used by the claimant’s expert to develop the 30% whole person impairment rating which he assigned to the claimant’s TMJ condition. The respondents argue that Exhibit B was improperly admitted because the journal article had not been adopted or approved by either the American Medical Association or the American Dental Association and because its six authors were dentists, not medical doctors.
We have approved of the use of an AMA publication, “Guides to the Evaluation of Permanent Impairment” (AMA, 3d. Ed., 1988), for consideration by the trial commissioner in reaching a decision pursuant to Sec. 31-308(d). See Piscitelli v. Connecticut Coke/Eastern Gas and Fuel Associates, 6 Conn. Workers’ Comp. Rev. Op. 94, 575 CRD-3-87 (1989); Repasi v. Jenkins Brothers, supra. Here, the claimant’s expert testified that the challenged journal article is generally accepted as authoritative and used by other members of his profession for purposes of making impairment ratings. Although the testimony of both the claimant’s expert and the respondents’ expert reveals that use of the guidelines suggested in the challenged article is not without professional controversy, it was up to the trial commissioner to determine the admissibility and weight to be given to the evidence under these circumstances. See Todd v. Jazlowiecki, 6 Conn. Workers’ Comp. Rev. Op. 9, 493 CRD-6-86 (1988), no error, 20 Conn. App. 805 (1989); see also Piscitelli v. Connecticut Coke/Eastern Gas and Fuel Associates, supra; Repasi v. Jenkins Brothers, supra.
Lastly, the respondents fault the commissioner’s findings in support of his award. They claim that the findings lack support in the evidence. We do not agree. The testimony of Dr. Sorrentino provided ample evidentiary support for the commissioner’s findings and for the award of 234 weeks of benefits based on the commissioner’s exercise of discretion pursuant to Sec. 31-308(d). See Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 174-76 (1974); Alger v. Rossi Corp., supra; Repasi v. Jenkins Brothers, supra.
We, therefore, affirm the trial commissioner’s September 23, 1991 Finding and Award.
Additionally, pursuant to Sec. 31-301c(b), we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners Angelo L. dos Santos and Donald H. Doyle, Jr. concur.
1 The injury involved in this case occurred prior to the effective date of Section 19 of Public Act 93-228 which amended General Statutes Sec. 31-308. BACK TO TEXT