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Karutz v. Feinstein & Herman

CASE NO. 3698 CRB-07-97-08



DECEMBER 18, 1998














The claimant was not represented at oral argument. Notice sent to Donald Cousins, Esq., Cousins & Johnson, 2563 Main Street, Stratford, CT 06497.

The respondents were represented by David Kelley, Esq., Montstream & May, L.L.P., Salmon Brook Corporate Park, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033-6087.

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

This Petition for Review from the September 26, 1997 Finding and Order of the Commissioner acting for the Seventh District was heard May 29, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.


JESSE M. FRANKL, CHAIRMAN. The Second Injury Fund has petitioned for review from the September 26, 1997 Finding and Order of the Commissioner acting for the Seventh District. The Fund argues on appeal that the trier erred by finding that the respondents provided the Fund with timely notice of their intent to transfer liability for the claimant’s injuries under § 31-349 C.G.S. The Fund contends that the claimant’s actual periods of medical impairment establish that notice was late in this case. We affirm the trial commissioner’s decision.

The claimant, an attorney, injured her back on September 27, 1990 while attempting to hold up a file cabinet. The compensability of this injury was acknowledged by a voluntary agreement approved on September 24, 1993, while a subsequent voluntary agreement rated the claimant with a 15% permanent partial disability and a maximum medical improvement date of July 12, 1994. In ¶ 7 of his findings, the trier observed that “[w]hile the claimant may have been suffering from persistent pain and stiffness and treating with Dr. Stovell [an orthopedist] from November 12, 1990, until November 25, 1991, she was able to perform her regular job duties at her place of employment, and was paid her regular salary.” He notes that none of the claimant’s treating doctors “confirmed with reasonable medical probability that the Claimant was temporarily totally disabled or even temporarily partially disabled” during that period. ¶ 19, Findings. While treating with Dr. Stovell during this time period, the claimant was prescribed a home exercise program, physical therapy and anti-inflammatory drugs, and underwent X-rays and CT scans. ¶ 8. Both of the voluntary agreements note that the claimant’s incapacity began on September 28, 1990.

The claimant was temporarily totally disabled by Dr. Stovell from November 25, 1991 through November 30, 1992. She sought temporary partial disability benefits from that point in time through July 12, 1994. The respondent insurer initially denied her claim, but after negotiation, agreed to pay her 36 weeks of benefits for the 19-month period in question. This stipulation was approved on August 7, 1995. The commissioner noted that, during this disputed period, “the medical reports are conflicting as to the Claimant’s work capacity and her ability to perform her normal job duties . . . .” ¶ 21.

The insurer notified the Fund of its intent to transfer the case on August 2, 1993, and perfected notice on October 12, 1993. Based on his findings regarding disability, the trier ruled that the claimant had only been disabled for 89 weeks and one day as of the date notice was perfected. He found that the 104th week of benefits was not paid until October 23, 1994, making the respondents’ notice timely under § 31-349.1 The Fund has appealed that decision.

The outcome of this cases hinges upon the meaning of the word “disability” as used in § 31-349. This subject has recently been discussed several times by our Supreme Court. In the often-cited decision of Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993), the Court held that the term “disability” in § 31-349 refers to the first one hundred four weeks of the claimant’s disability rather than the number of weeks he has been receiving benefits. In Williams v. Best Cleaners, 237 Conn. 490 (1996), the Court explained that “disability” refers to a claimant’s degree of medical impairment instead of a limitation in his ability to work. Most recently, the Court explained in Innocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998), that a claimant’s rate of pay and the number of hours she works are not determinative of the time period of her disability. Id., 513. “Rather, the determinative factor as to whether the time period is to be included in calculating the 104 week period of disability . . . is whether the claimant is medically impaired as a result of his or her work-related injury.” Id.

As noted above, the trier explicitly found in this case that there was no medical evidence that the claimant was either temporarily totally disabled or temporarily partially disabled before November 25, 1991. ¶ 19, Findings. He also found that the medical reports were conflicting as to the claimant’s work capacity between November 1992 and July 1994. The Fund argues that this analysis misses the point of the legal test enunciated in Innocent and Williams. According to the Fund, this case should be reversed and remanded so that the trier can consider “the periods of medical impairment regardless of their effect on the injured workers’ wages or ability to perform [their] customary work.” Brief, p. 6-7. We do not agree that this formula fully captures the essence of the law as it applies to this case.

If a claimant is unable to work at his customary employment because of a compensable injury, one can safely presume that he is a) “disabled” within the meaning of § 31-349 and b) suffering from the physical effects (or psychological consequences) of a physical injury. However, the reverse is not necessarily true: a claimant may still be working at his normal employment, but experiencing some degree of physical impairment. This concept approaches the factual circumstances—and the point—of Innocent. The claimant there had been placed on light duty by her physician, but despite this limitation, was able to work the same number of hours per week and for the same pay that she did prior to her injury. The Court held that the period of light duty, even though unaccompanied by any lost wages, constituted a period of “disability” under § 31-349 due to the concomitant medical restrictions. Id., 521. Take also the decision of the Court in Williams. The claimant there suffered from a pre-existing lung disease that caused his subsequent, compensable obstructive airway disease to be materially and substantially worse than it otherwise would have been. Id., 496. The Court held that “disability” refers throughout § 31-349 to the degree of physical impairment rather than to an inability to work. Id., 498-99. Because the preexisting physical impairment increased the severity of the claimant’s lost lung capacity, that case was transferable to the Second Injury Fund.

The relationship between “disability” and permanent physical impairment discussed in Williams and Innocent does not reduce to an irrelevant aside the ability of a claimant to perform her regular job, however. In neither of those cases was the claimant medically able to perform his or her regular employment duties. Indeed, the finding that a physical impairment existed in Innocent was based in large part upon a doctor’s declaration that the claimant had light duty work restrictions. The same is true for Williams, albeit in a less pronounced manner, as the existence of lung disease was undisputed on appeal.

Contrarily, in the instant case, the trial commissioner did not find that a credible diagnosis of work disability existed for either of the two disputed time periods (1990-91 and 1992-94). ¶¶ 19-21, Findings. It appears from those findings that he did review the medical evidence. As we have often stated, issues regarding the credibility of medical testimony are solely for the trier of fact. Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). He is free to accept or ignore any medical opinion in evidence, even one that is uncontradicted. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997). On review, we cannot label as error his refusal to find that the claimant was suffering from a medical impairment at any given time, where such a conclusion is dependent on disputed evidence. We also do not believe that the trier was required to construe the “date[s] when incapacity began” on the claimant’s voluntary agreements as admissions that disability actually began the day after her injury. As the respondents noted at oral argument, interpreting those simple notations as affirmations of disability would be an exercise of dubious reliability at best.

Thus accepting the trier’s finding that there was no evidence of disability during the disputed periods of time, we must also infer that he found no credible evidence of permanent medical impairment during those intervals. As discussed in Six v. Thomas O’Connor & Co., 235 Conn. 790, 801 (1996), where there is ambiguity in a finding, it should be interpreted in the manner most consistent with the trial commissioner’s conclusions. Although the trier repeatedly mentioned the claimant’s work capacity while elaborating on the medical reports, his findings also imply that he was not persuaded that the claimant was suffering from a medical impairment within the meaning of Williams or Innocent during the two time periods at issue. The reports do not uniformly describe a claimant who suffered from significant physical symptoms immediately after her injury and for an unbroken period of time. Instead, they are, as the trier observed, conflicting and unclear regarding the claimant’s physical condition at various times. See Respondent’s Exhibit 4; Second Injury Fund’s Exhibits 6, 7. Regardless, we could not declare any one of those reports legally binding on review. See Webb, supra, 70.

Section 31-349(a) uses the word “disability.” This board will not construe that term so broadly as to include as a matter of law any symptoms that have not yet ripened into either a permanent partial impairment or a condition that affects the claimant’s ability to perform her job. Some measurable disability must be found by the trier of fact before the threshold of “medical impairment” is met. The trier did not find such an impairment here, and we must affirm his decision on review.

The trial commissioner’s decision is hereby affirmed.

Commissioners Donald H. Doyle, Jr., and Michael S. Miles concur.

1 Until July 1, 1995, § 31-349 required notice to be filed with the Fund at least ninety days prior to the expiration of the 104th week of disability. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382 (1993). More specifically, the version of the statute in effect at the time of the claimant’s injury provided in part that “[i]f an employee who has previously incurred, by accidental injury, disease or congenital causes, total or partial loss of, or loss of use of, one hand, one arm, one foot or one eye, or who has other permanent physical impairment, incurs a second disability by accident or disease arising out of and in the course of his employment, resulting in a permanent disability caused by both conditions which is materially and substantially greater than that which would have resulted from the second injury alone, he shall receive compensation for the entire amount of disability, including total disability, less any compensation benefits payable or paid with respect to the previous disability, and necessary medical care, . . . notwithstanding the fact that part of such disability was due to prior accidental injury, disease or congenital causes. The employer . . . shall in the first instance pay all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case and shall furnish to said custodian a copy of the agreement or award together with all information purporting to support his claim as to the liability of the second injury fund, and shall make available to the custodian all medical reports as the custodian shall desire.” BACK TO TEXT

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