State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Santora v. A.C.E.S.

CASE NO. 2299 CRB-3-95-11



FEBRUARY 26, 1997














The claimant was not represented at oral argument. Notice sent to Stuart Margolis, Esq., 132 Temple St., New Haven, CT 06510.

The respondents were represented by Joseph Passaretti, Esq., Law Offices of Christine L. Harrigan, 18 Asylum Avenue, Hartford, CT 06103.

The Second Injury Fund was represented by Michael Giammatteo, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the November 7, 1995 Finding and Award of the Commissioner acting for the Third District was heard August 16, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.


JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the November 7, 1995 Finding and Award of the Commissioner acting for the Third District. They argue on appeal that the commissioner erred by denying their Motion to Reopen and portions of their Motion to Correct, and by denying their requested transfer of liability under § 31-349 C.G.S. The approved voluntary agreement indicates that the claimant fractured both wrists, his right knee, and his left rib on January 23, 1992, after falling off a ladder at work. An orthopedist, Dr. Luchini, treated the claimant throughout 1992 and 1993, during which time the claimant received total and partial incapacity benefits. The claimant also began complaining of stiffness and pain in his neck to Dr. Luchini on July 7, 1992. The doctor believed that these symptoms were related to the accident, and that the claimant had strained his neck when he fell. Neck pain was still noted in September and December 1992, although the claimant’s total disability was mainly due to carpal tunnel surgery and pain in both wrists. In March, 1993, the doctor opined that the claimant could be given a disability rating of the neck along with his wrists. The respondents initially contested liability for the cervical injury.

The claimant continued to be disabled because of pain in his hands and wrists through July 13, 1993, when Dr. Luchini noted that the claimant’s main problem was now stiffness and pain in his neck. Treatment for carpal tunnel syndrome and hand pain continued through December 1993, when the doctor opined that he had reached maximum medical improvement with 30 percent permanent partial disabilities in both hands. Dr. Luchini also noted that the claimant had ongoing cervical complaints, and referred him to a neurosurgeon, Dr. Sabshin. The claimant first visited Dr. Sabshin on January 24, 1994, and was diagnosed with spinal cord encroachment at several locations along his cervical spine. Dr. Sabshin opined that the claimant was totally disabled from his cervical condition, and performed surgery on May 23, 1994 at each level between C3 and C7. He continued to treat the claimant through December 5, 1994.

The respondent insurer sent notice of its intent to transfer liability for the hand, wrist, knee and rib injuries to the Second Injury Fund on October 21, 1993. Included was a copy of the voluntary agreement and medical reports supporting transfer. A few days later, the insurer sent a second notice of intent to transfer that mentioned a potential claim for transfer of the neck which had been disclaimed and then recently accepted. No voluntary agreement was included with this notice, although it did refer to the prior request for transfer. The Fund claimed that notice was defective under § 31-349 because it lacked the proper supporting documents, was late by two days, and because the respondents had not paid 104 weeks of compensation on behalf of the cervical spine.

The commissioner found that the respondents paid compensation continuously from the date of the injury through May 2, 1994, and that notice to the Fund was due under § 31-349 by October 25, 1993, the very day the Fund received that notice. Thus, it was timely. Further, the combination of the second notice of intent to transfer and the voluntary agreement included with the first notice was sufficient to inform the Fund that an agreement existed regarding the compensability of the cervical spine injury. The commissioner also found that the compensation paid through January 24, 1994 was for the claimant’s wrist injuries and rehabilitation. Because Dr. Sabshin did not disable the claimant on account of his neck injury until January 24, 1994, no benefits could have been paid for the cervical spine until afterward. The commissioner added that the reports of Dr. Luchini indicated a pre-existing arthritic condition in the claimant’s cervical spine, although the doctor offered no opinion as to whether that condition made the resulting disability from the neck injury materially and substantially greater.

In his order, the commissioner “dismissed without prejudice” the respondents’ claim for relief against the Fund, subject to two conditions: that the parties stipulate that medical causation regarding the claimant’s cervical spine was not at issue, and that the respondents “have paid 104 weeks of disability on behalf of the cervical spine.” The commissioner then proceeded to grant three of the corrections advanced by the respondents, including one providing that the claimant was disabled due to all of the injuries he suffered on January 23, 1992, and that he remained so even though he would have been released for light duty with respect to his hand injuries. He also denied a Motion to Reopen that was filed by the respondents in light of the “without prejudice” dismissal. The respondents have appealed from both the Finding and Award and the denial of their Motion to Reopen.

The respondents argue on appeal that the “without prejudice” dismissal is not a final adjudication of their claim, and that a remand is necessary to address the outstanding issues of medical causation and the amount of payments that have been made for the cervical spine-related disability. One of the items they raise in their brief is the granting of part of their Motion to Correct, and its effect on this case. As the respondents point out, the commissioner granted a correction that accepts as fact Dr. Luchini’s May 31, 1994 opinion that the claimant’s initial disability was due to all of his injuries, including the ones to the cervical spine. In the original Finding and Award, conclusion #4 states that the claimant was not disabled because of the cervical injury until January 24, 1994, three days after treatment began for that condition, and that no disability was paid on behalf of the spine before that date. These findings plainly contradict one another. Where there are inconsistent factual findings and conclusions, this board is often compelled to order a remand, as we are not empowered to make our own findings from contradictory facts. Bowman v. Jack’s Auto Sales, 13 Conn. Workers’ Comp. Rev. Op. 192, 196, 1721 CRB-2-93-5 (March 22, 1995); see also Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

It is clear from the commissioner’s original conclusions that he did not believe that the respondents had met their burden of proving their entitlement to relief under § 31-349. Two necessary elements of their claim for transfer were lacking: proof of a substantial contribution by pre-existing arthritis to the cervical spine disability, and payment by the respondents of 104 weeks of benefits on behalf of that injury. See Hernandez v. Gerber Group, 222 Conn. 78, 85-86 (1992). Instead of simply dismissing their claim, however, the commissioner seemingly attempted to leave the matter open by issuing a “dismissal without prejudice.” Presumably, he envisioned that once the parties agreed that medical causation requirements had been met, and 104 weeks of benefits had been paid on the cervical spine, the respondents would be able to transfer liability for their claim to the Fund.

In Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 2150 CRB-3-94-9 (Dec. 7, 1995), a trial commissioner left open a claim for benefits so that the claimant might have a second chance to offer medical evidence regarding disability after a certain date. This board said that “a party is not entitled to present his case in a piecemeal fashion, with a second bite at the apple forthcoming after failing to meet his burden of proof on the first try. . . . In the interest of finality and judicial economy, it is important that a claimant offer all available evidence the first time his claim is being considered.” Id., 84 (citations omitted). There appeared to be no good reason why the claimant had not obtained the needed evidence, so we ruled that the commissioner should have rendered a decision on all total disability benefits through the date of the hearing. “If the claimant cannot meet his burden of proof, he is not entitled to have the issue put aside until he can gather further evidence in the future.” Id., 85.

This case stands on a similar footing. The respondents were unable to meet their burden of proving their claim for transfer under § 31-349, and the trial commissioner attempted to avoid rendering a binding decision by making his dismissal of their claim “without prejudice.” Although such decisions may be rendered occasionally in other venues, a dismissal “without prejudice” is not an appropriate type of decision after a formal hearing in workers’ compensation proceedings. If the respondents were unable to prove their case, the commissioner should have dismissed their claim unconditionally. There was no reason why the respondents could not have resolved the issue of medical qualification for transfer by simply obtaining a doctor’s report that linked the preexisting condition to the claimant’s current disability in some way. The “dismissal without prejudice” not only failed to clearly resolve the case; it also left the parties uncertain as to the effect of the decision, and the proper course of action to take thereafter.

To complicate matters further, the respondents filed a Motion to Reopen the file in order to submit additional evidence or engage in another hearing. This motion was denied by the commissioner without explanation. As motions to reopen a Finding and Award are governed by § 31-315 C.G.S., and the respondents alleged neither changed conditions of fact nor fraud, accident, or mistake in the judgment, it is likely that the commissioner did not believe that the Motion to Reopen was legally sufficient under the statute. In practice, it was not. See Hayden v. Wallace & Sons Mfg. Co., 100 Conn. 181, 186 (1923). The problem is, by issuing a ruling that was ambiguous about the final disposition of the instant claim, the commissioner has left the respondents and the Fund with wide room to take opposing positions as to the effect of his decision. This does not suffice as a meaningful disposition of this case.

Although we are tempted to dismiss the respondents’ claim for failure to meet their burden of proof, a situation now exists where there are inconsistent findings of fact with respect to the payment of benefits for a cervical disability, and an unclear ruling on the commissioner’s view of the medical causation element of the respondents’ claim. The course of action that we believe is most appropriate is to remand this matter to the trial commissioner for clarification of his findings regarding the past payment of benefits, and more definitive findings on the issue of medical qualification for transfer. We note that the attorney for the respondents stated at the formal hearing that “the cervical injury that has been sustained by Mr. Santora has been noted as being a pre-existing condition materially and substantially greater.” (May 24, 1995 transcript, p. 5-6). No attempt was made by either attorney at the end of the hearing to hold the record open for the introduction of further evidence. The commissioner is thus instructed to consider only the evidence in the record in explaining his findings, as the respondents have had a chance to present their case.

Commissioners George A. Waldron and Robin L. Wilson concur.

Workers’ Compensation Commission

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