Sharkey v. City of Stamford

The claimant was represented by Gwendolyn Field Noto, Esq., and Stewart M. Casper, Esq., Casper & de Toledo, 1111 Summer Street, Stamford, CT 06905.

The respondents were represented by Maureen Driscoll, Esq., Maher & Williams, 1300 Post Road, Fairfield, CT 06430.

This Petition for Review from the June 8, 1999 Finding and Award of the Commissioner acting for the Seventh District was heard May 19, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Jesse M. Frankl.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the June 8, 1999 Finding and Award of the Commissioner acting for the Seventh District. In that decision, the trial commissioner determined that pursuant to § 7-433c, the claimant sustained a compensable heart and hypertension claim on June 25, 1995 when he was diagnosed with heart disease. The trial commissioner found that the claimant sustained a 37% permanent partial disability of the heart. In support of his appeal, the claimant contends that the trier erred by deducting a prior permanent partial disability award of 4.5% for hypertension from the 37% permanent partial disability of the heart. Additionally, the claimant contends that the trier erred by not finding undue delay or unreasonable contest on the part of the respondents. We find no error.

The trial commissioner found that the claimant was employed as a police officer with the respondent employer and successfully passed a pre-employment physical before commencing employment in 1973. The claimant has an accepted 1980 hypertension claim, and a 4.5% permanent partial impairment of the heart resulting from said hypertension was paid to the claimant pursuant to a July 13, 1997 Finding and Award. On June 25, 1995, the claimant went to the emergency room of the Stamford Hospital, complaining of shortness of breath. The claimant was found to be in atrial fibrillation with evidence of congestive heart failure. During the claimant’s hospitalization, Dr. Labarre conducted a full cardio-catherization study, which revealed an idiopathic dilated cardiomyopathy. Dr. Labarre opined that the claimant’s cardiomyopathy and atrial fibrillation were not caused by his hypertension diagnosed in 1980, but that the hypertension was a separate and distinct illness or disease process.

At the request of the respondents, the claimant was examined by Dr. Lebowitz, a board certified cardiologist, who also opined that the claimant’s cardiomyopathy and atrial fibrillation were not caused by his hypertension. Both Dr. Lebowitz and Dr. Labarre agreed that the claimant had a 37% permanent partial impairment. The claimant reached maximum medical improvement on July 1, 1996. The trial commissioner concluded that the claimant’s heart disease diagnosed on June 25, 1995 constituted a compensable injury under § 7-433c. The trial commissioner further concluded that the permanent partial award of 4.5% of the heart had to be deducted from the 37% permanent partial impairment in order to prevent a double recovery. The claimant’s main contention on appeal is that the trier erred by deducting the 4.5% from the 37% permanent partial disability award.

Section 31-349(a) provides that when an employee who has previously incurred a disability incurs a second disability, he shall receive compensation for “the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability....” Sec. 31-349(a) (emphasis added). In P.A. 93-228 the legislature amended § 31-349(a) to add the following: “For purposes of this subsection, ‘compensation payable or paid with respect to the previous disability’ includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.”

Section 31-349(a) has consistently been applied to cases such as the one now before us, in order to prevent a double recovery by deducting from a permanency award any compensation paid or payable due to a prior permanent partial impairment of the same body part. See Bowman v. Jack’s Auto Sales, 16 Conn. Workers’ Comp. Rev. Op. 223, 3384 CRB-1-96-7 (June 18, 1997), aff’d., 54 Conn. App. 289 (1999); Digrazio v. CBL Trucking, 3479 CRB-8-96-11 (Feb. 18, 1998); Johnson v. Manchester Bus Service, Inc., 3472 CRB-1-96-11 (April 1, 1998); Mann v. Morrison-Knudsen/White Oak, 14 Conn. Workers’ Comp. Rev. Op. 79, 1918 CRB-1-93-12 (May 12, 1995). Accordingly, the trial commissioner properly deducted the 4.5% permanent partial disability award from the 37% permanent partial disability award.

We note that the claimant argues on appeal that the claimant had a 4.5% permanent partial disability due to hypertension plus a 37% permanent partial disability due to heart disease, for a total of 41.5%. However, the claimant does not cite any medical opinion which indicates a 41.5% rating. It has repeatedly been held that it is “the trial commissioner’s function to assess the weight and credibility of medical reports and testimony.” Ferrara v. Hospital of St. Raphael, 54 Conn. App. 345, 349 (1999) (citations omitted). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it.” Id. Here, Dr. Labarre testimony indicated that the 37% impairment rating included both the hypertension and the heart disease diagnosed on June 25, 1995. (9/18/97 TR. at 45).

In further support of his appeal, the claimant contends that the 4.5% permanent partial disability award should not have been deducted because said award was made “without prejudice” pursuant to the June 13, 1997 Finding and Award. The claimant also argues that it was improper for the trial commissioner to rely upon the June 13, 1997 Finding and Award because it was not entered into evidence. We disagree. The trial commissioner took administrative notice (which was not objected to by either party) of said award. (Finding ¶ 9; 9/18/97 TR. at 6). Contrary to the claimant’s argument, the language in the June 13, 1997 award does not require that the 37% award be made in addition to the 4.5%, as it merely states: “This award is without prejudice to either party’s position with regard to the claimant’s claim for disability to his heart for the June 25, 1995 date of injury.” (June 13, 1997 Finding and Award, page 2, ¶ 4).

Finally, we will address the claimant’s contention on appeal that the trial commissioner erred in denying his request for interest and attorney’s fees based upon unreasonable contest and undue delay. “We have repeatedly held that whether to award attorney’s fees and interest for unreasonable delay and/or unreasonable contest pursuant to § 31-300 is a discretionary decision to be made by the trial commissioner.” McMullen v. Haynes Construction Co., 3657 CRB-5-97-7 (Nov. 12, 1998), citing Ruiz-Dugue v. Greenwich Hospital, 16 Conn. Workers’ Comp. Rev. Op. 208, 3267 CRB-7-96-2 (May 22, 1997); Wheeler v. Bender Plumbing Supply of Waterbury, Inc., 10 Conn. Workers’ Comp. Rev. Op. 140, 1186 CRD-5-91-3 (June 5, 1992). In the instant case, the trial commissioner specifically found that in light of the complex legal and medical issues, the respondents’ contest was reasonable, and that the respondents did not unduly delay the claim. (Findings ¶ 51 and 52). We find no abuse of discretion.