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Martinez v. Danbury Hospital

CASE NO. 3784 CRB-07-98-03



MAY 13, 1999











The claimant was represented by Douglas J. Lewis, Esq., Evans & Lewis, 93 Greenwood Avenue, Bethel, CT 06801.

The respondents were represented by James L. Sullivan, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.

This Petition for Review from the February 26, 1998 Finding and Award of the Commissioner acting for the Seventh District was heard October 9, 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 respondents have petitioned for review from the February 26, 1998 Finding and Award of the Commissioner acting for the Seventh District. They argue on appeal that the trier erred by finding facts that contradicted the claimant’s admissions in a separate stipulation, and by overstating her percentage of permanent partial disability. We affirm the trial commissioner’s decision.

The trier found that the claimant was employed by Danbury Hospital as a patient care technician on August 9, 1991, when she slipped while attempting to assist a patient. She struck her back and shoulder on the bathroom wall, and inadvertently pulled the patient down on top of her as she fell to the floor. Later that day, she complained of pain and dizziness, and lost consciousness. She was taken to the emergency room, where she was diagnosed with L4-5 radicular pain.

A July 1992 MRI revealed “a moderately large central L4-5 disc herniation with disc degeneration at L4-5 and L5-S1,” as reported by Dr. Foster. Findings, ¶ 8. This herniation did not exist in September 1987, when Dr. Foster treated the claimant for a June 1987 work-related back injury. She was totally disabled for four months following that mishap. The doctor issued a January 23, 1995 report that assessed the claimant with a 34% permanent impairment, though he did not specifically apportion that percentage among the 1987 injury, the 1991 injury, and the claimant’s degenerative disc disease.

The claimant ceased her employment with Danbury Hospital in January 1993, and began working for Lord & Taylor. There, she suffered a slip and fall injury on October 15, 1995 for which she made a workers’ compensation claim. Dr. Malloy likewise diagnosed a herniated disc at L4-5 and L5-S1, this time due to the 1995 injury. He assessed a 16% permanent partial disability of the lumbar spine at the time of his October 11, 1996 medical report. Pursuant to a stipulation approved on April 2, 1997, the claimant received $22,500 in settlement of her claim against Lord & Taylor. That agreement referenced Dr. Malloy’s 16% permanent partial disability assessment.

The claimant underwent an independent medical examination by Dr. Fish on March 19, 1997. He was not provided with a history of the 1995 injury. Dr. Fish opined that the claimant had degenerative disc disease and herniations as described above, but did not believe that Dr. Foster’s 34% permanency rating was accurate. He assessed a 22% permanency rating, with 7% due to the 1987 herniation, and the remaining 15% to the 1991 injury.

The trier concluded that the respondents were responsible for a 34% permanent partial disability rating to the claimant’s lumbar spine. However, in accordance with Dr. Fish’s report and the permanency rating given by Dr. Foster following the 1995 injury, the commissioner assigned the respondents a 7% credit for sums payable on the 1987 injury, and a 16% credit for permanency caused by the 1995 injury. Thus, he ordered the respondents to pay only the benefits corresponding to the 11% remainder of unpaid permanency. The respondents have appealed that decision.

The respondents argue that the stipulation between the claimant and Lord & Taylor constitutes a judicial admission on her part that she only suffered a 16% loss of use of the back—which has already been paid, of course. See Respondents’ Exhibit 1. In his report of March 25, 1997, Dr. Malloy acknowledged that Dr. Foster had calculated a different residual physical impairment based on his evaluation in January 1995. Respondents’ Exhibit 3. It is logical to presume that the 16% figure agreed to in the stipulation arises from Dr. Malloy’s opinion. This does not mean, however, that the trier was bound to disregard Dr. Foster’s opinion, and find only a 16% permanent partial disability in this case.

A stipulation in a workers’ compensation case falls under the general penumbra of § 31-296 voluntary agreements. It is a compromise and release type of agreement, similar to a settlement in a personal injury case, where a claim is settled with a lump sum payment accompanied by a release of the adverse party from further liability. Duni v. United Technologies Corp./Pratt & Whitney Aircraft Division, 239 Conn. 19, 30-31 (1996). Once approved, the stipulation has the force of an award. Although the facts recited in the stipulation necessarily bind the contracting parties with respect to that action, they are not facts found by a trial commissioner, and do not carry the same weight in a related proceeding involving parties that were not signatories to the agreement.

By settling her claim against Lord & Taylor, the claimant did not concede for the purpose of unrelated claims arising out of earlier injuries that her permanent partial disability was only 16%. Judicial admissions are tantamount to unequivocal concessions of fact. See Spears v. Spears, 2082 CRB-2-94-6 (Oct. 30, 1997). In this case, the stipulation was evidence, nothing more, and the trier was entitled to weigh it in the same fashion he would weigh the credibility of the testimony and medical reports introduced by the parties. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (Jan. 24, 1997); Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). It follows that the trial commissioner correctly allowed the claimant to introduce medical reports that diagnosed her with a greater percentage of impairment.

Insofar as he relied on Dr. Foster’s 1995 report in assigning a 34% permanent partial disability of the low back, the commissioner did not commit legal error as described in Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). He could reasonably have concluded that the 16% permanent partial disability diagnosis by Dr. Malloy was not as credible as Dr. Foster’s opinion, even though Dr. Malloy’s opinion provided the basis of a settlement in another case. Despite the implied invitation in the respondents’ brief, this board cannot retry the facts of the case and reexamine the circumstances of the claimant’s treatment following her 1991 injury; that was an issue of credibility that fell upon the trial commissioner to evaluate. Webb, supra; Pallotto v. Blakeslee Prestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Similarly, we cannot draw our own conclusions as to the veracity of the claimant herself. Jusiewicz, supra. That has already been done as well.

The trial commissioner’s decision is hereby affirmed.

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

Workers’ Compensation Commission

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State of Connecticut Workers' Compensation Commission, Stephen M. Morelli, Chairman
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