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Ouelette v. New England Masonry Company

CASE NO. 5424 CRB-7-09-2



JANUARY 14, 2010











The claimant was represented by Ross T. Lessack, Esq., The Dodd Law Firm, LLC, Ten Corporate Center, 1781 Highland Avenue, Suite 105, Cheshire, CT 06410.

The respondents were represented by Lynn M. Raccio, Esq., Law Offices of Jack V. Genovese II, 200 Glastonbury Boulevard, Suite 301, Glastonbury, CT 06033.

This Petition for Review from the January 26, 2009 Finding and Award of the Commissioner acting for the Seventh District was heard July 24, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Peter C. Mlynarczyk and Randy L. Cohen.


JOHN A. MASTROPIETRO, CHAIRMAN. This appeal requires us to resolve a single question. Did the trial commissioner err in determining that the respondents were entitled to a 20% credit against the claimant’s present 32.5% permanency rating? The claimant argues that he did not receive sufficient monetary compensation against the permanent partial disability rating he received after his first injury. Therefore, the claimant believes there should be a smaller credit applied against what the respondent is obligated to pay for permanent partial disability after the subsequent injury. We have reviewed the claimant’s pleadings and the law governing this issue. We conclude that the trial commissioner’s decision is consistent with the evidence presented and the precedent on this issue. There is no error and the Finding and Award is herein affirmed.

The following facts are pertinent to our consideration of this matter. The claimant has sustained a number of compensable back injuries; two injuries incurred in 1999 and a subsequent injury which occurred on February 11, 2003. Prior to the more recent injury, the claimant and the respondent settled the claims for the initial injuries via a Stipulation to Date dated February 6, 2002. This stipulation called for the claimant to receive the sum of $37,500 as compensation for his prior injuries. The stipulation also recited the claimant’s position that he had sustained a 20% permanent partial disability to his low back as a result of the compensable injuries.

During the formal hearing on the present claim, the claimant asserted that he had received $12,889.32 for temporary total disability benefits from the $37,500 award, leaving a balance against the permanency award of $24,600.68. The claimant stated that his compensation rate at the time was $584.20 and based on this rate he had received 41.94 weeks of permanency benefits. He stated that a 20% permanency rating for the lower back entitled him to a considerably longer period of benefits and that the 41.94 weeks that he did receive compensated him for only an 11.25% permanency rating. The claimant argued that having only paid the equivalent of an 11.25% rating for the prior accident, that percentage should be the credit the respondents would receive against the new permanency rating. The respondents argued that the prior agreement recited it was compensating the claimant for a 20% disability rating, and therefore, that should be the amount of the credit against the new injury and disability rating.

The trial commissioner found that the claimant had suffered a subsequent back injury in 2003 which was accepted by the respondents. The claimant had undergone a bilateral decompression on April 21, 2003 and a subsequent fusion of the claimant’s back on February 13, 2004. One of the claimant’s treating physicians, Dr. Michael Karnasiewicz, rated the claimant with a 35% permanent partial disability of the low back. Another physician, Dr. Phillip S. Dickey, rated the claimant with a 30% permanency rating. The parties have stipulated that the claimant reached maximum medical improvement on June 1, 2005. They have further agreed to a compromised 32.5% permanent partial disability rating of the low back.

The respondent argued that it was now obligated to pay to the claimant an additional 12.5% permanent partial disability or, the difference between 20% permanent partial disability recited in the February 6, 2002 Stipulation to Date on the 12/01/99 date of injury and the 32.5% compromised rating from the February 11, 2003 date of injury. In support of this position, the respondents pointed to these terms of the Stipulation to Date.

The payment as stated above, shall be made and accepted as a full and final settlement for all temporary total, temporary partial and permanent partial disability indemnity, to the date of the approval of this agreement, resulting from such injury.

Based on these foregoing facts, the trial commissioner concluded the respondent is entitled to a credit for the prior 20% permanent partial disability rating recited in the February 6, 2002 Stipulation to Date, even though the $37,500 consideration did not compensate the claimant fully for the 20% permanency rating. The claimant filed a Motion to Correct seeking to reverse this conclusion, which was rejected by the trial commissioner. The claimant has therefore, pursued this appeal.

The claimant argues that the result in this matter is inconsistent with § 31-349(a) C.G.S. and therefore must be overturned by this panel. The terms of § 31-349(a) read as follows.

(a) The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. 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.

In reviewing the “plain meaning” of this statute we note that it is written in disjunctive fashion. Following a second disability, the claimant is entitled to receive the amount due under the new disability rating “less any compensation payable or paid with respect to the previous disability.” (Emphasis added). Therefore, the question for the trial commissioner to consider is not the amount of compensation the claimant actually received, but to ascertain what was the level of compensation which was payable to the claimant at that time.

This interpretation of the statute is consistent with the precedent governing this issue. The leading case on this matter is Mann v. Morrison-Knudsen/White Oak, 14 Conn. Workers’ Comp. Rev. Op. 79, 1918 CRB-1-93-12 (May 12, 1995). In Mann the trial commissioner found the respondents were not entitled to a credit against a prior award to the claimant and appealed to this board. The prior award in Mann was the result of a settlement reached in Missouri resolving an injury sustained in that state. We concluded that the purpose of § 31-349(a) C.G.S., as amended by P.A. 93-228, was to prohibit double recoveries and reversed the decision of the trial commissioner.

The next year in Rodriguez v. Remington Products, 3069 CRB-4-95-5 (November 25, 1996) we addressed the issue of an ambiguous stipulation which resolved a claim. The claimant received $19,000 in January 1983 in compensation for a 1978 injury in which she asserted a “25 to 30 percent permanent partial disability of her shoulder.” The claimant later experienced a herniated cervical disc and the respondents were ordered to pay benefits against this injury. At that time, the respondents argued they should receive a credit for the prior disability payments. The trial commissioner rejected that contention and this board upheld his determination.1

We pointed out in Rodriguez that when a party seeks a credit, they have the burden of establishing the claimant has been partially compensated for a disability. We also noted that the alleged disability rating was for the claimant’s shoulder, and not her cervical spine. Noting the stipulation’s ambiguity in Rodriguez we found “[w]e cannot speculate on review as to the nature of the $19,000 payment made to the claimant in 1983”. Id.2

In the present case, we find there is a certain level of ambiguity in the stipulation. While it clearly breaks out which parties are to pay the $37,500 received by the claimant, the agreement fails to itemize how the benefits are allocated against the various forms of compensation due to the claimant. What we find is not ambiguous is the agreement clearly was intended to be a full and final settlement of the claimant’s permanent partial disability claim as of 2002. We note the agreement stated it was in payment of “all . . . permanent partial disability indemnity, to the date of the approval of this agreement.’

On this issue, we find the reasoning in DiGrazio v. CBL Trucking, 3479 CRB-8-96-11 (February 18, 1998) on point. In DiGrazio we pointed out that a trial commissioner must consider whether permanency benefits were payable to the claimant from a prior injury, and the receipt of such benefits was not the critical issue to consider.

Whether the claimant actually received compensation on account of that permanent partial impairment (and we note that he does not suggest that such compensation was not received) is immaterial under § 31-349(a); if compensation was payable for such disability, it must be considered in any subsequent award for permanent partial disability to the same body part. (Emphasis in original).

Later that year we decided Johnson v. Manchester Bus Service, Inc., 3472 CRB-01-96-11 (April 1, 1998). In Johnson we restated our analysis in DiGrazio as to the central issue in determining permanency credits; which is to ascertain what was “payable” from a prior injury.

In the instant case, the record and the findings indicate that the claimant sustained a work-related injury in 1977 which resulted in a permanent impairment to his back. Even if the claimant did not receive compensation for said impairment, it nevertheless appears that it was “paid or payable” and thus must be deducted from the fifteen percent permanent partial disability award.

Johnson, Id.

In considering the trial commissioner’s conclusions herein we must defer to his conclusions unless the commissioner made an error of law, improperly applied the law to the facts, or reached a conclusion in the absence of probative evidence. Berry v. State/Dept. of Public Safety, 5162 CRB-3-06-11 (December 20, 2007). We find the trial commissioner’s conclusion that the entire 20% prior disability rating was “payable” at the time of the 2002 stipulation to be a reasonable conclusion based on the four corners of the document itself. While the claimant argues that his temporary total disability award depleted the amount he should have received for his permanency award, we must presume that at the time he executed this agreement he believed the net sum of $37,500 offered fair and just compensation for all his injuries. Had the claimant sought to protect his right to receive full payment of the entire 20% permanency rating the document should have been drafted so as to accomplish this goal, and it was not. Since the precedent in DiGrazio and Johnson makes actual receipt of funds secondary in considering credit for prior injuries we find the trial commissioner properly found such benefits were “payable” in 2002 and properly calculated the credit due.3

On appeal, this panel must provide “every reasonable presumption” supportive of the Finding and Award. Torres v. New England Masonry Company, 5289 CRB-5-07-10 (January 6, 2009). Based on the record herein and the precedent governing this issue, we conclude the trial commissioner could have reasonably concluded the respondents’ were entitled to a credit against a 20% permanent partial disability award. The Finding and Award herein reflects that conclusion, and since it is grounded in evidence the trial commissioner found probative, we cannot overturn this decision on appeal.

We affirm the Finding and Award and dismiss this appeal.

Commissioners Peter C. Mlynarczyk and Randy L. Cohen concur in this opinion.

1 There is no dispute in the present case that the permanency ratings in question pertain to the same body part. The claimant argues that Rodriguez v. Remington Products, 3069 CRB-4-95-5 (November 25, 1996) supports his position, asserting that “the respondent has not met their burden of proof” the 20% impairment after the initial injury was paid or payable. Claimant’s Brief, p. 7. We disagree, as there was no evidence cited in the record, or in claimant’s brief, that the claimant’s disability following the prior injury was not 20%. Given that the Stipulation to Date references only the 20% number, and represents the stipulation is a final settlement of the permanency claim, we believe probative evidence supports the commissioner’s conclusions. BACK TO TEXT

2 We followed similar reasoning in Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009) where in the absence of a disability rating we concluded there was no means of determining whether any of the prior settlement’s benefits were paid against permanency. BACK TO TEXT

3 We uphold the trial commissioner’s denial of the claimant’s Motion to Correct. This motion sought to interpose the claimant’s conclusions as to the law and the facts presented. Liano v. Bridgeport, 4934 CRB-4-05-4 (April 13, 2006) and D’Amico v. Dept. of Correction, 73 Conn. App 718, 728 (2002). BACK TO TEXT


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