Shanklin v. UTC/CTVIP

The claimant was represented by C. Thomas Furniss, Esq., Furniss & Quinn, 248 Hudson St., Hartford, CT 06106.

The respondents were represented by Margaret Corrigan, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

This Petition for Review from the February 7, 1997 Finding and Award of the Commissioner acting for the Fifth District was heard October 17, 1997 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the February 7, 1997 Finding and Award of the Commissioner acting for the Fifth District.1 They argue on appeal that the trier erred by refusing to specify the body part to which the claimant’s permanency was attributable, and by granting part of the claimant’s Motion to Correct. We remand this case to the trial commissioner for further findings.

The claimant was injured in the course of her employment when she fractured her left ankle on July 18, 1990. After the claimant’s cast was removed, she was diagnosed with Reflex Sympathetic Dystrophy. She underwent a sympathectomy in 1992. Dr. Rubin, the claimant’s treating physician, described this procedure as “an abdominal incision or flank incision that goes around the back and they cut the sympathetic nerve, [which] lies anterior to the muscles of the back.” Dr. Rubin stated that the claimant’s back pain related to her leg injury, but was probably of muscular origin. At his March 28, 1995 deposition, the doctor testified that the claimant had periodic episodes of sciatica dating back to the first year of her difficulties. Dr. Flynn, a § 31-294f examiner, stated that the claimant had a 20% impairment of the left ankle and a 10% impairment based on her left side sciatica, half of which could be ascribed to the ankle injury in the sense that the claimant’s altered gait aggravated her back condition.

The trial commissioner concluded that the claimant had a 10% permanent partial disability because of her sciatica, half of which was assigned to the ankle injury. She also noted that the claimant’s injury caused her to develop back pain, “for which there is no permanent partial disability ascribed.” The claimant filed a Motion to Correct that finding, stating that her sciatica would continue to flare up throughout her lifetime, and that “if the back condition was aggravated, it is the back which is being given a permanent partial disability.” Those corrections were granted.2

A hearing was subsequently held on March 26, 1997, at which the commissioner tried to explain what she meant by her findings and corrections. She thought that the claimant would suffer from recurring back pain permanently, but that Dr. Flynn did not ascribe the permanency rating to the claimant’s back. March 26, 1997 Transcript, p. 10. Instead, the impairment was “of the left sciatic [nerve],” half of which the doctor attributed to the altered gait caused by the claimant’s ankle injury. Id., 12. The sciatic nerve, the largest nerve in the body, is actually a group of nerves that extend from the lower back (the sacral plexus), merge in the pelvis, and branch out down the back of each thigh, continuing to the tips of the toes. Taber’s Cyclopedic Medical Dictionary, 12th Ed. 1973, p. S-18; Respondent’s Exhibit 3 (Deposition of Dr. Flynn), p. 22. An injury anywhere along that nerve can cause sciatica, according to Dr. Flynn. Despite the trial commissioner’s efforts to explain her findings, she did not identify which body part listed in § 31-308(b) should be deemed impaired based on the claimant’s sciatica.

The findings, as corrected, establish that the claimant’s compensable injury was significantly responsible for the 10% permanent partial disability found by the trial commissioner in her Finding and Award. This finding is adequately supported by the testimony of Dr. Flynn. Id., pp. 15-17. The problem here lies in the fact that there is an ambiguity in the findings concerning the body part to which the sciatica is attributable. Dr. Flynn testified that the claimant is tender over the sciatic nerve behind the hipbone, and that her condition is actually located in the part of the buttock where the sciatic nerve passes outside the pelvis. Id., 23-24, 28. Again, the commissioner’s examiner explained that the ankle injury itself did not directly cause the sciatica, but that the claimant’s abnormal gait aggravates that condition. Id. Dr. Rubin also discusses the nature of the claimant’s sciatica in his deposition. Claimant’s Exhibit A.

The trial commissioner did not pinpoint the location of the claimant’s 10% permanent partial disability on the basis of this evidence, and the parties have admittedly been unable to resolve this ambiguity. As we have often stated, this board does not have the power to make factual findings from the evidence. See Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). Instead, it must be the trial commissioner who identifies the body part, if any, with which the claimant’s sciatica is associated. Section 31-308(b) offers separate categories of impairment for injuries to the leg, foot, and back. The trial commissioner must determine which of these, if any, best applies to the disability suffered by the claimant here. An award cannot be made until that is done.

The case is remanded for further proceedings consistent with this opinion.

Commissioners James J. Metro and John A. Mastropietro concur.

1 The claimant also filed a petition for review that was withdrawn on September 25, 1997. BACK TO TEXT

2 There was no error in the commissioner’s consideration of the claimant’s Motion to Correct. Admin. Reg. § 31-301-4 allows the commissioner to extend beyond two weeks the time within which a party may file a Motion to Correct, and the trier’s choice to rule on the motion here acts as an implied waiver of its tardiness. See Cooper v. Sisters of Mercy, 3218 CRB-6-95-11 (decided Dec. 10, 1996). BACK TO TEXT