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CASE NO. 4707 CRB-3-03-8
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
JULY 27, 2004
NORTHEAST GRAPHICS, INC.
TRAVELERS INSURANCE CO.
The claimant was represented by Judith Mauzaka, Esq., Weinstein, Weiner, Ignal, Napolitano & Shapiro, P.C., P.O. Box 9177, 350 Fairfield Avenue, Bridgeport, CT 06601.
The respondents were represented by Marie E. Gallo-Hall, Esq., Montstream & May, P.O. Box 1087, 655 Winding Brook Drive, Glastonbury, CT 06033.
This Petition for Review from the August 1, 2003 Finding and Award of the Commissioner acting for the Third District was heard February 27, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White and Charles F. Senich.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Northeast Graphics, Inc. and Travelers Insurance Company have appealed from the August 1, 2003 Finding and Award of the Commissioner acting for the Third District. We remand the case to the trial commissioner for an articulation and/or further proceedings consistent with this opinion.
The pertinent facts are as follows. On February 10, 2001 during the course of his employment with the employer-respondent the claimant sustained an injury of his L4-5 disc which was accepted. A March 14, 2001 MRI revealed a herniation at L4-5 which impinged the L5 nerve root and a small herniation at L3-4 that may have been abutting the right L3 root, which was asymptomatic. Respondent’s Exhibit 3. At the time the claimant’s treating physician, Dr. Isaac Goodrich, noted the L3-4 abnormalities however, he opined they were insignificant and did not call for treatment. The claimant therefore did not seek, nor was he offered any medical treatment for the L3-4 herniation. The claimant returned to his work duties in May 2001 and Dr. Goodrich released him from care on a prn basis on January 2, 2002.
The claimant did not experience any further significant pain until March 2002 when he suffered progressive pain in his low back. He failed to identify any incident that would have triggered such pain. On April 3, 2002 Dr. Goodrich evaluated the claimant. An MRI taken on that date revealed a large, right paracentral disc herniation at the claimant’s L3-4 which was impinging on the right L4 nerve root. On April 10, 2002 Dr. Goodrich performed surgery at L3-4. Dr. Goodrich opined the added stress on the spine caused by the L4-5 injury led to the subsequent worsening of the herniation at L3-4.
In April 2002 the claimant made a claim for benefits for the herniation at the L3-4. The respondents denied the L3-4 herniation was causally related to the initial L4-5 herniation and therefore issued a Form 43. Dr. Michael Karnasiewicz conducted a respondent’s medical examination of the claimant on July 3, 2002. He opined the herniation at L3-4 was not causally related to the February 10, 2001 injury at the L4-5 and that it was more likely a result of pre-existing degenerative disc disease.
The trial commissioner found Dr. Goodrich’s opinion more persuasive than Dr. Karnasiewicz. He found the claimant entitled to temporary total benefits from February 22, 2002 through the present, with a credit given to weeks already paid. He found the respondent unreasonably contested and unduly delayed the claimant’s claim for benefits for the L3-L4 herniation, therefore he ordered reasonable attorney’s fees and interest in an amount to be determined at a future hearing.
Compensability was not been appealed in this case. The respondents first contend there was no evidence to support the trial commissioner’s finding that the claimant was totally disabled from February 22, 2002 through the date of the trial commissioner’s August 1, 2003 Decision. A trial commissioner’s award of temporary total disability benefits must be supported by the medical evidence. Gagliardi v. Raimondo Maintenance, LLC, 4012 CRB-1-99-4 (July 20, 2000). While a trial commissioner may order temporary total benefits beyond the date of the formal hearing that right is limited to situations in which there is no need for further evidence regarding the claimant’s present medical status. Morris v. A & A Acoustics, 3429 CRB-7-96-9 (August 8, 1997) citing Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 725 CRD-6-88-4 (October 20, 1989) and Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (January 13, 1989).
The evidence indicates the last date the claimant worked was March 8, 2002. See August 1, 2002 Transcript, p. 17. There does not appear to be evidence in the record that the claimant was permanently disabled prior to March 8, 2002. Furthermore, it is unclear from the evidence what the claimant’s work capacity was as of the date of the final hearing and continuing. The claimant testified that his doctor had not released him back to work yet. Id., 20. Additionally, he testified he was not currently working because he believed that his employer would not let him back to work until he was “a hundred percent.” Id., 21. The claimant’s surgeon, Dr. Goodrich, testified via a deposition on October 1, 2002. At that time he had last seen the claimant in July 2002 and was not going to see him again for three months. Respondent’s Exhibit 12, October 1, 2002 Deposition of Dr. Goodrich p. 36. Dr. Goodrich expressed a concern regarding the claimant going back to the manual labor he previously performed. Id. He stated that the claimant would have limitations regarding the work he could do, but was not specific as to what those limitations were. Id., 39. Dr. Karnasiewicz’s report dated July 3, 2002 indicated that the claimant then had a light duty work capacity. Respondent’s Exhibit 10. This is the only evidence that appears in the record that discusses the claimant’s work capacity. For these reasons we remand the case for an articulation and/or further proceedings in order to provide the requisite factual basis for findings regarding temporary total disability benefits.
The respondents finally contest the award of attorneys’ fees and interest under § 31-300 C.G.S. for unreasonable contest and/or undue delay. Although an award under § 31-300 is discretionary, it must be a factual finding based on the evidence in the case. Hudson v. State/Dept. of Correction, 4582 CRB-3-02-11 (October 31, 2003). The Finding and Award in this case does not contain any factual findings which support the trial commissioner’s conclusion that the respondents unreasonably contested and/or unduly delayed the claimant’s claim for benefits regarding the L3-L4 herniation.
Therefore, we remand the August 1, 2003 Finding and Award of the Commissioner acting for the Third District for an articulation and/or further proceedings consistent with this opinion.
Commissioners A. Thomas White and Charles F. Senich concur.