State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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Fenn v. Hospital of St. Raphael

CASE NO. 3444 CRB-3-96-10



FEBRUARY 25, 1998














The claimant, who did not appear at oral argument, proceeded pro se on this appeal.

The respondents were represented by Neil J. Ambrose, Esq., Letizia & Ambrose, 1764 Litchfield Tpke., Suite 106, Woodbridge, CT 06525.

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.

These Petitions for Review from the September 23, 1996 Finding and Dismissal and the April 4, 1997 Amended Finding and Award of the Commissioner acting for the Third District were heard May 23, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.


JESSE M. FRANKL, CHAIRMAN. The respondent employer and insurer have petitioned for review from the September 23, 1996 Finding and Dismissal of the Commissioner acting for the Third District. There is also an Amended Finding and Award dated April 4, 1997, from which an additional appeal was taken. The respondents argue on appeal that the trier failed to issue his original decision in a timely manner pursuant to § 31-300 C.G.S., that he had no jurisdiction to vacate his initial decision and substitute in its place the Amended Finding and Award, that he erroneously concluded that § 31-325 did not permit transfer of liability for the instant claim to the Second Injury Fund, and that the trier mistakenly denied their Motion to Correct. We affirm the trial commissioner’s decision.

The first issue we must address on appeal is the jurisdictional matter of the timeliness of the trier’s initial Finding and Award. There was a formal hearing in this case on June 14, 1995, after which briefs were scheduled to be filed. On February 14, 1996, the trial commissioner scheduled a second formal hearing for the resubmission into evidence of a 1993 medical report that apparently had been lost or misplaced by this Commission. The hearing was eventually held on May 9, 1996. On June 6, 1996, the First District office issued a notice for the scheduling of a June 10 “proformal hearing” for the submission of briefs. Attendance by the parties would not be required. The briefs of both parties involved in the § 31-325 transfer issue were received on June 7, 1996. The trier’s Finding and Dismissal was issued on September 23, 1996, 108 days later.

The respondents suggest in their brief that the operative date for the running of the 120-day time period pursuant to § 31-300 C.G.S. is June 14, 1995, the date of the initial formal hearing at which most of the evidence was introduced and the arguments took place. We do not agree. The trier was entitled to schedule a second formal hearing for the readmission of the misplaced exhibit into evidence if he thought it necessary for the proper rendering of a decision. This power is expressly vested in a commissioner pursuant to § 31-278 (enumerating the power to direct the production of records) and § 31-298 (requiring the trier to make inquiry in a manner best calculated to ascertain the substantial rights of the parties). Considering the continuing jurisdiction of this Commission over the life of a claim, it would seem appropriate for the trier to schedule another hearing if it were necessary to recover misplaced evidence. See Dichello v. Holgrath Corp., 15 Conn. Workers’ Comp. Rev. Op. 441, 444, 2249 CRB-5-94-12 (Sept. 5, 1996).

Further, we do not believe that the 120-day period begins running until the parties file their briefs, which occurred on June 7, 1996 in this case. This is true irrespective of whether or not a pro forma hearing1 is officially held. The purpose of the time limit in § 31-300 is to require that, absent waiver, the trier issue his decision within four months of the date the parties have finished presenting their cases. See Stewart v. Tunxis Service Center, 237 Conn. 71 (1996). Trial briefs are a crucial part of any workers’ compensation case, as they generally contain a thorough description of the parties’ legal arguments and proposed findings of fact on which the trial commissioners often rely in making their decisions. By holding that the 120-day period begins running before such briefs were filed, one would be penalizing the trier of fact for waiting until he has had an opportunity to consider those briefs before writing his decision.

The trial commissioner could schedule a pro forma hearing for the submission of briefs in order to technically satisfy the language of § 31-300 (“as soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion”), but requiring the parties’ attorneys to appear simply to hand in their briefs serves no useful function in the resolution of the case. We prefer to interpret the law to meet the goals the legislature set out to accomplish without compromising the dignity of this Commission’s proceedings. The most appropriate procedure is to allow the parties to submit briefs shortly after the close of the last evidentiary formal hearing without significantly delaying the resolution of the case. Speedy and thorough decisions can be ensured by requiring all parties to submit their trial briefs within 30 days after the transcript(s) of the hearing(s) have become available. We expressly hold here that the 120-day period in § 31-300 begins running on the date the last trial brief is seasonably filed. The trier’s decision was therefore timely in this case.2

We now turn to the merits of the respondents’ appeal. The trial commissioner found that the claimant and respondents entered into a voluntary agreement concerning a September 5, 1991 compensable injury that affected the claimant’s right arm and shoulder and caused a torn rotator cuff. Approximately two years earlier, the claimant hurt his right shoulder while playing softball and treated with Dr. Gibson, who performed an MRI that showed a questionable right rotator cuff tear. The claimant saw Dr. Gibson again in June 1990 for another softball injury, which turned out to be a grade III separation of the claimant’s acromioclavicular (A/C) joint. Dr. Gibson described that injury as a “grade III AC separat[ion] (healed)” in a Certificate of Acknowledgment of Physical Defect that Commissioner Waldron approved on July 31, 1990.

After the claimant tore his rotator cuff at work, Dr. Gibson performed surgery to repair the tear. The claimant was left with a 15% permanent partial disability of the shoulder. Dr. Gibson opined on October 29, 1993 that the right shoulder rotator cuff tear was made “materially and substantially greater by virtue of his underlying physical condition.” See Respondents’ Exhibit 1. In the next paragraph of his decision, however, the commissioner cites Exhibit 1 of the Second Injury Fund, a November 18, 1993 report by Dr. Gibson explaining that the injury to the claimant’s A/C joint had nothing to do with the status of the claimant’s rotator cuff tear, and that the claimant did not have an acknowledged condition that impacted his rotator cuff in a material degree. Instead, the A/C joint injury only contributed to the decrease in the claimant’s overall shoulder function, according to Dr. Gibson’s reports.3

The respondents contended that liability for the compensable injury should transfer to the Fund because the overall impairment of the claimant’s shoulder was made materially and substantially worse by the pre-existing condition described in the acknowledgment. The trier found differently, however, concluding that the medical evidence clearly indicates that the compensable injury was not attributable in a material degree to the acknowledged condition. He also noted that the acknowledgment itself failed to specify which shoulder had suffered the grade III A/C separation. He thus denied the respondents’ request for transfer, from which ruling the respondents appealed.

At the time of the claimant’s 1991 injury, § 31-325 allowed a person with a preexisting physical condition to execute a written acknowledgment of that condition. Such an acknowledgment has no legal effect unless it “plainly describes the physical condition,” and only affects injuries “found to be attributable in a material degree to the particular condition described in the acknowledgment.” A compensation claim based on a work-related injury that falls within the terms of a valid acknowledgment is entirely payable from the Second Injury Fund pursuant to § 31-349(d).

In past cases, this board has stated that the defect or condition listed in an Acknowledgment need not directly cause the accident resulting in the compensable injury in order for that injury to fall within the scope of the acknowledgment. McGhee v. UTC/Pratt & Whitney Div., 4 Conn. Workers’ Comp. Rev. Op. 60, 271 CRD-1-83 (May 6, 1987); Shea v. Cly-Del Mfg. Co., 4 Conn. Workers’ Comp. Rev. Op. 37, 390 CRD-5-85 (March 19, 1987). Where the direct results of the injury are attributable to the acknowledged defect, liability may be transferred to the Fund. Domijan v. New Britain, 15 Conn. Workers’ Comp. Rev. Op. 288, 290, 2067 CRB-6-94-6 (June 20, 1996); see also Gagnon v. United Aircraft Corp., 159 Conn. 302, 304 (1970).

However, there is a difference between a preexisting condition materially contributing to a claimant’s injury and that condition causing his overall disability to worsen, as per the transfer provision in § 31-349(a). Wright v. United Technologies Corp., 41 Conn. App. 231, 235-37 (1996). Even if the trier had accepted as a factual finding Dr. Gibson’s opinion that the claimant’s acknowledged A/C separation materially and substantially increased his overall disability, it would not prove that said separation made the compensable rotator cuff tear or the direct results of that injury any worse. Instead, Dr. Gibson stated that the A/C joint injury may have added problems to the overall shoulder function, but that it did not affect the status of the claimant’s rotator cuff. We find no error in the commissioner’s conclusion that this did not meet the causal standard of § 31-325.

Further, the statutory condition that the acknowledged defect be “plainly described” in the certificate was not satisfied in this case. According to the decisions of this board, “plainly described” is an unambiguous term that in essence requires that the trier be able to determine on the face of the certificate what the claimed physical defect or condition is, i.e., what part of the body has been affected by the previous condition. Rivera v. General Datacom Industries, 3332 CRB-5-96-4 (decided Jan. 16, 1998); Charles v. Ansonia Copper & Brass, 12 Conn. Workers’ Comp. Rev. Op. 228, 230-31, 1447 CRB-5-92-6 (March 23, 1994). The acknowledged defect here is simply described as “Grade III AC separat[ion] (healed),” without specifying which shoulder was affected by that injury, or what disability the claimant incurred because of it. See Valechko v. Connecticut Light & Power, 15 Conn. Workers’ Comp. Rev. Op. 55, 2062 CRB-6-94-6 (Dec. 1, 1995), affirmed, 43 Conn. App. 902 (1996) (per curiam). An acknowledgment form that does not tell a trial commissioner which shoulder has been affected by an acknowledged injury can hardly be said to have “plainly described” the defect within the meaning of § 31-325. See Charles, supra; Buikus v. Dunham-Bush, Inc., 3 Conn. Workers’ Comp. Rev. Op. 832, 149 CRD-1-82 (Nov. 10, 1986). Accordingly, we find no error in Conclusion B of the trier’s Finding and Award.

The trial commissioner’s decision is affirmed.

Commissioner John A. Mastropietro concurs.

JAMES J. METRO, COMMISSIONER, CONCURRING. I agree with the holdings and most of the reasoning in the above decision. I write separately only to reaffirm my position in Rivera v. General Datacom Industries, 3332 CRB-5-96-4 (decided Jan. 16, 1998), where I discussed my belief that a mere description of an injured body part without more information regarding the nature of the injury is insufficient to meet the “plainly described” standard of § 31-325.

1 Black’s Law Dictionary defines “pro forma” to mean “As a matter of form or for the sake of form.” Thus, a pro forma hearing is held in order to satisfy the requirements of procedural form rather than because an evidentiary hearing is necessary to discuss a disputed issue. BACK TO TEXT

2 The respondents contend in their Reasons of Appeal that the trier lacked jurisdiction to vacate his initial Finding and Award in favor of the Amended Finding and Award dated April 4, 1997. This issue was not briefed by the respondents, who stated at oral argument that it was raised simply to preserve their rights. Thus, we need not discuss it here. BACK TO TEXT

3 We disagree with the respondents’ contention that the trier erred in denying their Motion to Correct. Paragraphs three and four are legal conclusions that the trier need not grant unless the subordinate facts support them, paragraph two couches within its language a finding that is dependent upon the trier’s evaluation of the medical evidence, and paragraph one is significantly reflected in Finding 10 of the Finding and Award, insofar as the trier was required to adopt that portion of the medical testimony at all. The trial commissioner is not required to accept a diagnosis just because the treating physician includes it in his report. See Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997). Further, our decision on other legal issues below would make the addition of either of the first two paragraphs in the Motion to Correct irrelevant. See Hanson v. Transportation General, Inc., 45 Conn. App. 441, 447 (1997) (where ultimate conclusion would not change, corrections need not be granted). BACK TO TEXT

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