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Malz v. State/University of Connecticut Health Center

CASE NO. 4701 CRB-6-03-7



AUGUST 20, 2004













The claimant was represented by Paul Ranando, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., Westgate Office Center, 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The respondent State of Connecticut/UConn Health Center was represented by Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

The respondent insurer/administrator Berkley Administrators was represented by Jason M. Dodge, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

This Petition for Review from the July 7, 2003 Finding and Award of the Commissioner acting for the Sixth District was heard April 30, 2004 before a Compensation Review Board panel consisting of Commissioners A. Thomas White, Jr., Amado J. Vargas and Ernie R. Walker.


A. THOMAS WHITE, JR., COMMISSIONER. The respondent Berkley Administrators, in its capacity as administrator for the insurer ACE Financial Solutions, has petitioned for review from the July 7, 2003 Finding and Award of the Commissioner acting for the Sixth District. It contends on appeal that the trial commissioner erred by failing to order an apportionment of liability for the claimant’s total disability between Berkley/ACE, the insurer now on the risk for a 1994 compensable cervical injury that occurred at the state-owned University of Connecticut Health Center, and the state of Connecticut itself, which retained liability as the self-insured entity for a 1990 accepted low back and cervical injury at the UConn Health Center. The appellant also argues that the trier misinterpreted the terms of an approved agreement that compromised the claimant’s total disability claim, leading him to improperly order Berkley/ACE to pay cost-of-living adjustments (COLAs) under § 31-307a(c) C.G.S. We affirm the trial commissioner in part, and reverse in part.

The trial commissioner included the following factual findings in his written decision. The claimant was working in the housekeeping department of the UConn Health Center on November 15, 1990, when she sustained an injury to her back and neck while lifting and carrying trash. Dr. Krompinger, her treating physician, performed a lumbar decompression and fusion at the L4-L5 level on October 14, 1991. After reaching maximum medical improvement with a 20% permanency of the back, the claimant returned to work. Thereafter, she began complaining of neck pain and headaches, and was working on a limited duty basis as of October 9, 1992, when an MRI showed a small central disc protrusion at the C6-C7 level.

From that point forward, the claimant did not see Dr. Krompinger until August 30, 1994. On the previous day, she had again suffered an injury lifting a garbage bag during the course of her employment with the UConn Health Center. She was referred to Dr. Rossi, a neurosurgeon, with complaints of pain in her head, cervical spine and neck. Dr. Rossi diagnosed a herniated disc at C6-C7 on September 16, 1994, and recommended physical therapy and work hardening. On March 4, 1996, Drs. Krompinger and Rossi jointly performed a discectomy and fusion at the C6-C7 level. Dr. Krompinger ascribed a 15% permanency to the cervical spine with 7% being due to the 1990 injury and 8% due to the 1994 injury. He opined that the claimant’s back and neck injuries contributed roughly equally to the claimant’s disability, with non-occupational factors being significant as well. Dr. Krompinger further opined that, from an orthopedic perspective alone, the claimant had a sedentary work capacity. He also stated that her back injury alone would not have prevented her from performing light duty work.

The parties disputed the claimant’s entitlement to temporary total disability benefits from October 27, 1997 to March 21, 2000, but resolved this issue via a stipulated compromise, of which the trier took administrative notice. The claimant had been receiving total disability benefits since March 21, 2000 from Berkley/ACE, which at the formal hearing sought to apportion liability for those benefits between itself and the state. The claimant, meanwhile, sought to receive COLAs dating back to November 15, 1990.

The trial commissioner concluded that apportionment was inappropriate in this case, as the 1990 and 1994 injuries were separate traumas. He noted that Hatt v. Burlington Coat Factory, 263 Conn. 279 (2003), firmly establishes that apportionment is not available where two separate compensable injuries contribute to subsequent disability. The trier also ruled that the claimant was entitled to COLAs because she had been totally disabled for a period of five years or more, as required by § 31-307a(c) (as amended by Public Act 98-104). As noted above, the parties agreed that the claimant had been totally disabled from March 21, 2000 through the June 30, 2003 closing of the record. The trier reasoned that, when the above period of three-plus years was added to the period of time covered by the approved stipulation (a span of approximately two years and five months), the claimant had established five years of total disability. The commissioner therefore ordered the payment of COLAs by the respondent Berkley/ACE, with reimbursement rights from the Second Injury Fund pursuant to § 31-307a. Berkley/ACE has petitioned this board to review both of those rulings.

In a workers’ compensation appeal, the factual findings and credibility determinations of a trial commissioner may not be disturbed unless they are without evidentiary support in the record, or unless they omit material and undisputed facts. Burse v. American International Airways, Inc., 262 Conn. 31, 37 (2002); Phaiah v. Danielson Curtain (C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002); Warren v. Federal Express Corp., 4163 CRB-2-99-12 (February 27, 2001). This board does not have the authority to retry the facts by second-guessing the inferences drawn from the evidence by the trial commissioner. Burse, supra; Duddy v. Filene’s (May Department Stores Co.), 4484 CRB-7-02-1 (October 23, 2002). With regard to a trial commissioner’s legal conclusions, this board may intercede only where said conclusions result from an incorrect application of the law to the subordinate facts, or from an inference illegally or unreasonably drawn from them. Burse, supra; Mazzone v. Connecticut Transit Co., 240 Conn. 788, 792 (1997); Warren, supra.

The appellant first argues in its brief that the evidence in the record was insufficient to support the trial commissioner’s finding that the August 29, 1994 cervical injury alone was responsible for the claimant’s ongoing total disability. “Dr. Krompinger clearly implicated the November 15, 1990 accident as the cause of the claimant’s lumbar condition and determined that it was a substantial factor in the ongoing disability. Pertaining to the neck condition, however, Dr. Krompinger was unclear as to the cause of the present neck condition.” Appellant’s Brief, p. 7.

Our review of the evidence reveals that, in an April 23, 2002 medical report, Dr. Krompinger described the claimant as having a 15% cervical permanent disability rating, with 8% of that being due to the 1994 injury, and 7% to the 1990 injury. Respondent’s Exhibit 1. He also wrote, “The patient purely from her spinal standpoint would only have the capability of doing office work. Although I do not know her educational background or functional capabilities from a vocational standpoint, I would suspect that she would be unable to find gainful employment . . . .” Id. In a May 16, 2001 report, he had also stated that the claimant would have light duty work capabilities if her back were the only issue, but that the combination of her problems renders her totally disabled. Looking back, Dr. Krompinger expressed a similar opinion in reports dated February 23, 1998, October 27, 1997, and February 28, 1995.

The claimant first saw Dr. Krompinger with increased neck complaints on August 30, 1994, when he noted that her symptoms were similar to those she displayed in 1992. We note that an August 29, 1994 report from an emergency room attending physician reflects that the claimant was working as a housekeeper at John Dempsey Hospital when she felt sharp pain in her shoulder and back, as well as an occipital headache. Id. We also note that Dr. Krompinger’s more recent reports remain consistent with his December 22, 1992 opinion, where he diagnosed the claimant with a 7% permanency of the neck after identifying a small central disc protrusion at C6-C7. Respondent’s Exhibit 3. In a July 24, 1992 report that was prepared prior to her complaints of neck pain, Dr. Krompinger had released the claimant to light duty with a 15-pound lifting restriction. He had also stated that custodial work would probably be too strenuous for the claimant because of the required bending and lifting. Id.

In his deposition testimony, Dr. Krompinger was asked whether the claimant’s continued orthopedic restrictions were due to her low back condition as well as her neck condition. Respondent’s Exhibit 2, p. 14. He replied that she had had a big problem over the years with headaches, whose etiology was unclear. However, he still put “a big onus on her neck.” Id. He went on to explain that he would divide responsibility for her disability into thirds among her degenerative disc disease, her compensable lower back condition, and her neck injuries. Id., p. 15. Setting aside the nonoccupational factors, he would divide responsibility for the claimant’s current disability evenly between the back and neck conditions. Id. He acknowledged having assigned an additional 8% permanency to the claimant’s neck based on the August 29, 1994 date of loss, but did not have much specific information on the mechanism of injury. Id., pp. 16-17. Based on a comparison of MRI reports that showed a worsened cervical condition in 1994, he assumed that there had been an exacerbation, but couldn’t rule out repetitive trauma, as he didn’t have “a firm handle” on the history. Id., pp. 17-18.

Berkley/ACE did not file a Motion to Correct the trial commissioner’s findings pursuant to Admin. Reg. § 31-301-4. By foregoing such a motion, the appellant did not ask the trier of fact to reassess the medical evidence, which may have been amenable to other readings. See Sellers v. Sellers Garage, Inc., 4391 CRB-5-01-5 (April 26, 2002)(absence of motion to correct limits CRB’s ability to scrutinize facts found by trier). We are instead requested to rule as a matter of law that there is insufficient evidence to support this finding, i.e., that no physician stated within a reasonable degree of probability that the claimant’s 1994 injury was a substantial cause of her current disability. See Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 151 (1972); Duddy, supra. This we cannot do.

The record contains documentation of a workplace injury to the claimant’s neck on August 29, 1994, such as the report from John Dempsey Hospital. The trier was entitled to credit this evidence by finding that a new injury occurred on that date, and that it led to the need for cervical fusion surgery in 1996. Though Dr. Krompinger was not familiar with the exact mechanism of injury at the time of his deposition, he did opine that the events of 1994 were responsible for the 8% increase in the claimant’s neck permanency. Taken in its entirety, this evidence is sufficient to support the trial commissioner’s finding that the 1994 injury was a substantial cause of the claimant’s current disability. As it is not our place to second-guess the inferences drawn by the trier from this evidence, we must uphold his finding on appeal. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195-96 (1999), cert. denied, 251 Conn. 929 (1999); Warren, supra.

The appellant next argues that Hatt, supra, does not require that liability for the claimant’s disability benefits remain solely with Berkley/ACE, and offers two lines of reasoning to support this view. First, it posits that the claimant’s ongoing back and neck complaints make this case analogous to the fact pattern and legal precedent of Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952). In its Hatt opinion, our Supreme Court construed Mund as a repetitive trauma case that “served as part of the genesis of § 31-299b, not § 31-349.” Hatt, supra, 306 (emphasis in original). Second, the appellant contends that this matter is distinguishable from Hatt because Hatt dealt with successive injuries to the same body part, while this case concerns two separate body parts whose combined loss of use renders the claimant incapable of working.

Where two separate injuries involving different body parts (such as the lower back and cervical spines) combine to render a claimant totally disabled, the employer or insurer on the risk at the time of the second injury does not have a right to apportion liability under a theory of concurrent or shared responsibility. This is demonstrated by cases as venerable as Mages v. Alfred Brown, Inc., 123 Conn. 188 (1937), in which a claimant suffered a compensable spine injury in January 1935 and then a compensable left shoulder and back injury one year later. Both injuries were substantial factors in the claimant’s final incapacity. Our Supreme Court held that, where an initial injury has caused partial incapacity, and a second injury then occurs that leaves a claimant totally disabled, the second employer and its insurer are responsible to pay full compensation for the disability. Id., 194-95.

As the Hatt Court noted, the Mages decision reflected a guiding principle of workers’ compensation law: “If the injury is the cause of the disability, it is compensable even though such an injury might not have caused the disability if occurring to a healthy employee or even an average employee.” Hatt, supra, 300-301, quoting Mages, supra, 192. After distinguishing “single progressive occupational disease” cases (including repetitive trauma) from cases involving separate and distinct injuries, the Hatt Court concluded that “common-law apportionment between employers and insurers simply did not exist [historically] in a case of separate and distinct second injuries . . . [and] no such apportionment is available in the present case.” Hatt, supra, 306; see also, Kelly v. Dunkin’ Donuts, 4621 CRB-4-03-2 (April 5, 2004)(CRB discussed holding in Hatt). The Court also cited Fimiani v. Star Gallo Distributors, Inc., 248 Conn. 635 (1999), in which it held that a first employer or insurer bears no responsibility for the consequences of a second injury under § 31-349 C.G.S. Hatt, supra, 307-308.

If, on the other hand, this case were one involving repetitive trauma to the claimant’s neck, § 31-299b1 might apply, and Berkley/ACE would be eligible to seek apportionment from the state for the portion of the claimant’s disability attributable to the 1990 injury. However, a similarity between the instant case and Mund is not enough to establish a repetitive trauma claim. Even though Mund was part of the backdrop for the enactment of § 31-299b, the statute itself is not worded in a manner that would readily encompass Mund’s facts (two separate L4-L5 injuries, in which the second reopened an old rupture caused by the first). As our Court went on to explain in Hatt, the words “injury or disease” in § 31-299b apply only to single instances of occupational disease or repetitive trauma that result from multiple exposures, and not to the consequences of separate injuries on separate occasions. Id., 312, 315. “The legislature did not intend the scope of § 31-299b to include the very different situation that was addressed already by second injury legislation.” Id., 316. “Common sense dictates that apportionment between various insurers or employers, as provided under § 31-299b, is unnecessary when the time and place of an accidental injury may be pinpointed.” Id. See, e.g., Kelly v. Dunkin’ Donuts, 4278 CRB-4-00-8 (Nov. 1, 2001)(discrete accidental injury claims involving two identifiable sets of injuries not covered by § 31-299b).

The trial commissioner did not find that the mechanism of injury in the instant case was repetitive trauma, nor did Dr. Krompinger declare it to be such in his reports or deposition testimony. It is not our place on appeal to draw a different inference from any ambiguity that might be present in the evidence. Therefore, we uphold the trier’s determination that apportionment was not available to the respondent Berkley/Ace in the case before us.

The respondents’ final appellate argument is a challenge to the trier’s award of COLAs. We agree with its claim of error on this count. To begin, we stress that the operative date of injury for the instant total disability claim is August 29, 1994. This date pertains regardless of whether the use of a November 15, 1990 injury date would be more beneficial to the claimant in terms of her compensation rate. This case has not been determined to be a § 31-307b recurrent injury claim, and we cannot recast it as such here on appeal. See, e.g., Mikula v. First National Supermarkets, Inc., 3754 CRB-3-97-12 (May 11, 1999)(trier decides factual question of whether incident is new injury or recurrence), aff’d, 60 Conn. App. 592 (2000). Thus, the fact that the claimant’s compensation rate might ultimately have been higher under a 1990 date of injury due to her potential COLA entitlement has no legal bearing on this issue.

On the claimant’s injury date of August 29, 1994, COLAs were no longer available under § 31-307b C.G.S. However, Public Act 97-205, § 4, reinstated COLAs for totally incapacitated employees injured on or after July 1, 1993 who have been adjudicated to be totally incapacitated permanently or who are “totally incapacitated permanently due to the fact that the employee has been totally incapacitated by such an injury for a period of five years or more.” With respect to claimants injured after July 1, 1993 but before October 1, 1997, COLAs are awarded retroactive to the commencement of total disability once the five-year qualification period has been satisfied. Hasselt v. Lufthansa German Airlines, 262 Conn. 416, 425 (2003).

In his July 7, 2003 decision, the trial commissioner found that the claimant had been totally disabled from October 27, 1997 forward, and accordingly awarded the payment of COLAs retroactive to that date. As evidence of the claimant’s disability from October 27, 1997 through March 21, 2000, the commissioner took into account an approved settlement agreement dated June 8, 2000, that states in relevant part, “For the period from 10/27/97 to the start of TT in the year 2000, for those weeks when the state paid 31-308a benefits or any other benefits, the state will pay 2/3 of the difference between her TT rate of $260.81 and the actual 31-308a or other rates she was paid for those weeks; for the weeks when the claimant did not receive any benefit, the state will pay 2/3 of her TT rate of $260.81. This will settle fully and finally the claimant’s claim for TT for said period of time.” In the trier’s opinion, this settlement established that the claimant was effectively totally disabled from October 27, 1997 forward, which put her over the five-year disability mark and qualified her for COLAs.

We disagree with the trier’s reading of this agreement as an establishment of total disability status. It is true that the claimant was making a temporary total disability claim, and that some of Dr. Krompinger’s reports were supportive of that claim. However, the agreement did not constitute an acceptance of that disputed claim by the claimant’s employer. Rather, the parties chose to compromise and settle the matter by paying the claimant for two-thirds of her total disability rate through “the start of TT in the year 2000,” as opposed to the full amount of the total disability rate she would have been entitled to under § 31-307(a) C.G.S had she been acknowledged to qualify for temporary total disability benefits.

A stipulated agreement regarding workers’ compensation benefits “is a compromise and release type of settlement similar to settlements in civil personal injury cases 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), quoting Muldoon v. Homestead Insulation Co., 231 Conn. 469, 479-80 (1994). Such a contractual release of claims in exchange for a monetary payment is condoned and even encouraged, as our legal system prefers parties to settle disputes with a minimum of litigation. Allstate Insurance Co. v. Mottolese, 261 Conn. 521, 531 (2002). Given this public policy, an offer to compromise or settle a doubtful or contested claim is not admissible as evidence of liability. Tomasso Bros., Inc. v. October Twenty-Four, Inc., 221 Conn. 194, 198 (1992); Tuite v. Stop and Shop Companies, Inc., 45 Conn. App. 305, 313 (1997). The relevant question is instead whether the party allegedly making the admission has represented that a disputed fact actually exists. Tomasso, supra; Evans Products v. Clinton Building Supply, Inc., 174 Conn. 512, 517 (1978); Riccio v. Montano, 93 Conn. 289, 293-94 (1919). In construing the written terms of an agreement, we similarly must decide what facts have been stipulated to exist.

Here, the respondents merely agreed to a compromise of the instant claim for total disability. This did not equate to an acceptance of liability, in light of the language of the settlement agreement that draws a clear distinction between the claimant’s “start of TT in the year 2000” and the disputed period of alleged total disability that preceded it. See, e.g., Owen v. Diversified Hospitality Group, Inc., 4204 CRB-3-00-3 (July 25, 2001)(for collateral estoppel purposes, employment status was not adjudicated where settlement did not rely upon admission that such a relationship existed). Despite the other evidence in the record, the trier was not free to look beyond the terms of the approved compromise in order to resolve whether or not the claimant was totally disabled during the period of time covered by the contract. To reopen the underlying controversy and decide this issue would render the parties’ full and final settlement “a mere idle ceremony.” Warner v. Warner, 124 Conn. 625, 634 (1938)(citation omitted). The stipulation evinces no intent to leave open any further liability on account of the total disability claim against the respondents, such as that which would ensue if the claimant were now classified as having been totally disabled from October 27, 1997 through March 21, 2000. Thus, we must reverse the award of COLAs insofar as it relies on that period of disability.

The trial commissioner’s decision is accordingly affirmed in part, and reversed in part.

Commissioners Amado J. Vargas and Ernie R. Walker concur.

1 Section 31-299b states in relevant part, “If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. The commissioner shall, within a reasonable period of time after issuing an award, on the basis of the record of the hearing, determine whether prior employers, or their insurers, are liable for a portion of such compensation and the extent of their liability. If prior employers are found to be so liable, the commissioner shall order such employers or their insurers to reimburse the initially liable employer or insurer according to the proportion of their liability. . . .” BACK TO TEXT


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