Johnson v. Park Avenue Restoration

The claimant was represented by William Rodie, Jr., Esq., Rodie & Connolly, 3380 Main Street, P. O. Box 254, Stratford, CT 06497.

The respondents were represented by David R. Bull, Esq., Chabot & Green, 9 Washington Ave., P. O. Box 5035, Hamden, CT 06518.

This Petition for Review from the May 24, 1993 Finding and Award of the Commissioner acting for the Fourth District was heard June 10, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Nancy A. Brouillet.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the May 24, 1993 Finding and Award of the Commissioner for the Fourth District. Their sole claim on appeal is that the commissioner improperly determined that the claimant was entitled to temporary total disability payments until July 10, 1992 despite evidence that the claimant reached maximum medical improvement on January 15, 1992. We affirm the trial commissioner’s decision.

The claimant suffered a compensable injury to the left side of her head on May 2, 1986. Liability for that injury was accepted in a voluntary agreement dated September 8, 1986. A second voluntary agreement established that the claimant had sustained an eight percent permanent partial disability to her brain and a two percent permanent partial disability to her hearing. The claimant subsequently alleged that headaches and blackouts caused by the compensable injury resulted in her falling on four occasions, and that these falls caused hip damage ultimately necessitating a hip replacement.

The commissioner found that the falls had aggravated a formerly asymptomatic degenerative hip condition, and found that the claimant had suffered a twenty percent permanent partial disability of the right leg. No date of maximum medical improvement was specified in the findings. The commissioner ordered that the respondents pay 52 weeks of temporary total disability from July 10, 1991 to July 10, 1992, along with 47.6 weeks of permanent partial disability benefits. The respondents have appealed from that decision.

The respondents argue that the medical evidence accepted at trial clearly established a maximum medical improvement date of January 15, 1992, and that there was no clear evidence that disability continued until July 10, 1992. We disagree. Although the claimant’s treating physician did state on January 15, 1992 that he felt the claimant had reached maximum medical improvement, it is also true that the respondent’s medical examiner testified that the claimant probably could have returned to work by July of 1992 based on the average time for rehabilitation needed by hip replacement patients. The commissioner was entitled to credit the latter testimony even though he may have accepted the opinion of the claimant’s treating physician on other issues. See Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Colello v. Dresser Industries, 1691 CRB-4-93-4 (decided Nov. 3, 1994). Thus, there is evidence to support the conclusion that the claimant remained totally disabled until July 10, 1992.

In light of our conclusion regarding the date of temporary total disability, the respondents’ contention that the date of maximum medical improvement was January 15, 1992 becomes unimportant. “An injured worker has a right to a permanent partial disability award once he or she reaches maximum medical improvement. . . . Yet, a person may reach maximum medical improvement, have a permanent partial impairment, and be temporarily totally disabled from working, all at the same time. . . . Under such circumstances, a trial commissioner has discretion to continue total disability payment to the injured worker notwithstanding the workers’ entitlement to the permanency award.” Hall v. Gilbert & Bennett Mfg. Co., 12 Conn. Workers’ Comp. Rev. Op. 146, 147, 1449 CRB-7-92-7 (April 7, 1994) (citations omitted).

Whether the date of maximum medical improvement was January 15, 1992 or July 10, 1992, the claimant is still entitled to 52 weeks of temporary total disability benefits and 47.6 weeks of permanent partial disability benefits by virtue of the commissioner’s award. There is no suggestion that the claimant requested the payment of her specific indemnity award before July 10, 1992 so as to implicate the respondents’ potential entitlement to an offset. See McCurdy v. State, 227 Conn. 261, 269 n.9 (1993); Hall v. Gilbert & Bennett Mfg. Co., supra, 12 Conn. Workers’ Comp. Rev. Op. 147-48. The commissioner was thus not required to grant the part of the respondents’ motion to correct addressing the date of maximum medical improvement because that correction would have had no impact on the ultimate outcome of the case. Plitnick v. Knoll Pharmaceuticals, 1699 CRB-8-93-4 (decided Nov. 7, 1994).