Stefenski v. C. Raimondo & Sons

The claimant was represented by Richard Joaquin, Esq., Asselin & Associates, 307 Ash Street, Willimantic, CT 06226.

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

This Petition for Review from the April 10, 1995 Finding and Award of the Commissioner acting for the Second District was heard May 24, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the April 10, 1995 Finding and Award of the Commissioner acting for the Second District. The Fund argues on appeal that the trial commissioner erroneously determined that the claimant was entitled to total disability benefits through the date of his decision, and that he erred in awarding § 31-308a benefits as well. We reverse the trial commissioner’s decision.

The claimant sprained his back on March 10, 1986, resulting in a 17.5 percent permanent partial disability of the back with a maximum medical improvement date of October 14, 1987. The injury was accepted as compensable pursuant to a voluntary agreement between the claimant and the respondent insurer; on March 10, 1988, liability for the injury was transferred to the Second Injury Fund. The Fund continued to pay the claimant either compensation for temporary total disability or additional compensation pursuant to § 31-308a C.G.S. through the time of the Finding and Award. However, on May 18, 1993, the Fund filed a Form 36 notice of intent to discontinue or reduce payments to the claimant. Attached was a copy of an April 1993 medical report by Dr. Thompson, a Groton orthopedist, stating that the claimant had no objective impairment and that he was capable of light and selective work.

The commissioner examined Dr. Thompson’s reports, as well as reports by Dr. Browning, the treating physician, who believed that the claimant was totally disabled because of his pain, a loss of motion due to rigidity in his back, gout and psoriasis. The commissioner noted that Dr. Thompson found that the claimant was capable of light duty work from a purely objective point of view, but that he had so convinced himself that he could not work that his psychological condition reinforced his pain symptoms to the point where it was unlikely the claimant could actually work. He recommended a pain management program, as surgery would probably not help in this situation due to the primary psychological component to the claimant’s pain.

The commissioner concluded that there was insufficient evidence to indicate that the claimant was totally disabled, but that the impact of the compensable injury on the claimant impacted him far in excess of the specific indemnity that he collected, and that it severely limited his work activities. He thus approved the Form 36 effective “on the date hereof” as to temporary total compensation, but found the claimant entitled to 26 weeks of additional benefits pursuant to § 31-308a due to the significant reduction in his work capacity. He also ordered the claimant to be evaluated by a pain management specialist. The Fund has appealed that decision.

Section 31-307 C.G.S. governs the payment of total disability benefits. “When Form 36 procedure is considered in conjunction with § 31-307, it becomes evident that the legislature intended that a claimant should stop receiving total disability benefits as soon as possible after his or her incapacity ceases, effective on the date the incapacity ceases. . . . [I]n granting a Form 36, a trial commissioner should discontinue or reduce benefits effective on the date the Form 36 was filed, unless extenuating circumstances dictate that a later date is more appropriate.” Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 34, 1765 CRB-2-93-6 (May 4, 1995); see also Crowe v. DBD, Inc., 14 Conn. Workers’ Comp. Rev. Op. 283, 285, 1941 CRB-7-93-12 (Sept. 11, 1995). The claimant argues in his brief that there are extenuating circumstances in this case that support the commissioner’s use of the date of his decision as the date total disability benefits were discontinued, such as the finding that the claimant had a minimal work capacity, and the elapsed time between the date the Form 36 was filed and the issuance of a final decision.

As we discussed in Stryczek, a Form 36 should be ruled on very soon after it is filed to avoid undue delay, using the procedure outlined in that case. Id., 35. However, allowing a Form 36 to become effective after the close of overly lengthy proceedings would only compound the injustice of such a delay by providing the claimant with an unwarranted windfall. Id., 34-35. Furthermore, the commissioner here found that there was “insufficient evidence to indicate that the claimant is totally disabled,” meaning that he did not meet § 31-307’s burden of proof. There is no finding, therefore, that would support the use of a date later than the filing date of the Form 36 as the severance date for total disability benefits. Certainly, this claimant’s total incapacity could not effectively cease subsequent to the date of the last formal hearing. See Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 100, 725 CRD-6-88-4 (Oct. 20, 1989). Thus, we reverse and remand for the entry of an appropriate order.

As for the claimant’s § 31-308a benefits, that statute gave the commissioner discretion to award additional compensation benefits for a permanent partial disability “equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age . . . .” The Fund argues that the commissioner failed to consider the statutory criteria in making his award.

Neither party disputes that the claimant has a 17.5 percent permanent partial disability of his back. In applying § 31-308a, the commissioner noted the claimant’s age (48), his work history as a carpenter in heavy construction, and his periodic episodes of gout. He referred to the claimant’s testimony as to the extensive limitations he now experiences as a result of his injury, and the conflicting opinions of the doctors regarding the causes of the claimant’s disability (insofar as it went). After concluding that the impact of the claimant’s compensable injury affected him beyond the amount of his specific indemnity award, leaving him severely limited in his work activities, he found that his work capacity “has been reduced to such an extent that earnings would be insignificant in terms of the average weekly wage that he was earning at the time of the compensable injury, $698.38. Therefore, I find that the amount of compensation to which he is entitled is the base rate of $407.00.”

Two things stand out regarding these findings in the context of our review here. First, they do not reach a clear conclusion as to the cause or degree of the claimant’s current disability. Although they indicate that the claimant’s work activities are extremely limited, it is unclear whether this is so due to gout, the physical effects of the compensable injury, or psychological manifestations of pain. The commissioner expressly found that the claimant’s objective signs of pathology are very limited. Further explanation will be necessary regarding the cause of the claimant’s condition before a § 31-308a award can be properly supported by the findings.

Second, the actual extent of the claimant’s disability as it affects his earning capacity is not properly explained. We cannot tell exactly how limited the claimant now is from working, nor did the commissioner make a finding as to how much someone currently working in the claimant’s former job now makes. See Wrighten v. Burns International Security, 13 Conn. Workers’ Comp. Rev. Op. 173, 176, 1659 CRB-2-93-2 (March 10, 1995); Farina v. Tony’s Auto Sales, 11 Conn. Workers’ Comp. Rev. Op. 96, 97-98, 1282 CRD-5-91-8 (May 14, 1993). Therefore, in addition to our remand of this case for entry of an earlier effective date on the Form 36, we also order the trial commissioner to reconsider this § 31-308a award based upon the criteria set forth in the statute.

The trial commissioner’s decision is reversed and remanded for further proceedings consistent with this opinion.