Francis v. Rushford Centers, Inc.

The claimant was represented by Douglas L. Drayton, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.

The respondents were represented by Neil J. Ambrose, Esq., Letizia, Ambrose & Falls, P.C., One Church Street, 4th Floor, New Haven, CT 06510.

This Petition for Review from the January 26, 2009 Finding and Award of the Commissioner acting for the Eighth District was heard August 28, 2009 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioner Peter C. Mlynarczyk and Randy L. Cohen.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. This case requires us to consider the applicability of the apportionment statute, § 31-349 C.G.S. in a case where the claimant’s initial injury occurred in another state. The claimant was injured again in Connecticut and the trial commissioner has ordered the respondents to pay the full value of the claimant’s permanent partial disability. The respondents have appealed from the trial commissioner’s Finding and Award. They argue that the compensation for the claimant’s initial injury was “payable” from that prior injury and therefore, they should not be responsible for any permanency benefits attributable to that prior injury. Our review, however, indicates that the claimant does not have as of this date any clear right to compensation for permanent partial disability from that initial injury. Since there was no prior award which would be “payable” under the terms of Chapter 568, we affirm the trial commission’s decision on this issue. We do however, find the respondents had a reasonable basis to contest this matter, and reverse the trial commissioner’s order of sanctions. In all other respects, we dismiss this appeal.

The trial commissioner found the following facts which are pertinent to our appellate review. The commissioner found that the claimant, Marie Francis, sustained an injury to her lumbar spine on August 6, 2006 while employed by the respondent, Rushford Centers, Inc. The parties have reached a voluntary agreement for this injury approved on February 5, 2007. The claimant had suffered an earlier lumbar spine injury on June 29, 1998 while employed in the State of Arizona. The claimant has been treating with Dr. W. Jay Krompinger. In 2001 Dr. Krompinger opined “I believe that her work injury sustained on June 29, 1998 predominantly caused exacerbation of the degenerative changes and internal disc structure…” and opined that the claimant had reached maximum medical improvement with a 20% permanent partial impairment of the lumbar spine.

The claimant filed a claim in Arizona for her 1998 injury. Under Arizona law, unlike Chapter 568, the lumbar spine is not among the enumerated body parts which constitute a “scheduled injury.” On February 12, 2002, the Industrial Commission of Arizona concluded the claimant was not entitled to receive permanent partial disability benefits for this lumbar injury.

Following her injury in Arizona the claimant returned to full time employment as a psychiatric nurse. She treated with Dr. Krompinger following her 2006 injury. On December 20, 2006 Dr. Krompinger issued a report discussing the claimant’s various lumbar spine injuries and concluded . . . I think for all practical purposes, I would consider her pain complex at present to be an exacerbation of her previous lumbar fusion.” Dr. Krompinger referred the claimant to Dr. Pietro Memmo. Dr. Memmo opined on September 18, 2007 that the claimant had suffered a disc herniation at the L3-4 level, a separate level than her previous injury. As a result of this injury, Dr. Memmo opined “she qualifies for an additional 7% permanent partial impairment rating of her lumbar spine as indicated in my notes dated July 18, 2007, for a total impairment rating of 27% when combined with two surgeries.” Dr. Krompinger opined upon a functional capacity examination of the claimant on February 26, 2008 that it appeared the claimant could not do the full-time duties of a nurse. He related the restrictions to the “combined effect of the patient’s two injuries sustained in June of 1998 and on August of 2006.”

The claimant sought a 27% permanent partial disability rating for her lumbar spine, as well as sanctions for unreasonable delay. The respondents acknowledged it had paid 7% permanent partial disability, and denied any obligation for the remainder and also denied it had unreasonably delayed paying what the claimant was entitled. Based on the record presented the trial commissioner found the claimant was entitled to compensation for an additional 20% permanent partial disability rating of the lumbar spine. He determined that this amount, although attributable to the prior injury, “has not been paid nor is it payable under the Arizona Workers’ Compensation system”. He further determined the August 6, 2006 injury substantially contributed to the preexisting injury of June 29, 1998. The trial commissioner awarded the claimant sanctions under § 31-300 C.G.S., finding the respondents unreasonably contested liability.

The respondents filed a Motion to Correct, which was denied in its entirety. They have thus decided to prosecute this appeal. Originally the respondents pursued three avenues of appeal. They argued that the prior decision of the Industrial Commission of Arizona governed the 20% of the claimant’s permanency which was attributed to her first injury. They also challenged the trial commissioner’s award of sanctions. Finally, they argued that the precedent in Deschenes v. Transco, 284 Conn. 479 (2007) governed the claimant’s injury.

We may deal expeditiously with two of the claims of error. The respondents failed to brief any arguments pertaining to the applicability of Deschenes to this case. We therefore deem this issue abandoned on appeal. Christy v. Ken’s Beverage, Inc., 5157 CRB-8-06-11 (December 7, 2007). As for the applicability of sanctions to this matter, while we generally must extend deference to the fact finding prerogative of the trial commissioner, Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006), such discretion is not unlimited and an appellate panel may reverse a judgment when it is inconsistent with the facts on the record. Caraballo v. Specialty Foods Group, Inc./Mosey’s Inc., 5082 CRB-1-06-4 (July 3, 2007).

A review of the legal issues presented herein indicate that to a great extent they are dependent on ascertaining whether the law of the State of Arizona is applicable to the issues at hand. While the trial commissioner may well have concluded that at the conclusion of the formal hearing this was an unpersuasive argument, we cannot glean from the Finding and Award or from the evidence on the record any affirmative finding that these arguments were irrelevant, unreasonable, or interposed for the purpose of delay. This matter is therefore inconsistent with Duffy, supra, where “the trial commissioner also made an affirmative finding of ‘incredulity’ on the part of the respondents.” Id. Given the complex legal issues herein, we believe this matter is congruent with cases such as Wierzbicki v. Federal Reserve Bank of Boston, 4147 CRB-1-99-11 (December 19, 2000), appeal dismissed, A.C. 21533 (2001) and Ghazal v. Cumberland Farms, 5397 CRB-8-08-11 (November 17, 2009) where we determined that liability was not “. . .ever so clear as to be indisputable by a reasonable person.” Id. We therefore vacate the order of sanctions against the respondents.

On the substantive arguments herein, we agree with the trial commissioner that the respondents’ case is unpersuasive. The respondents argue that the award the claimant received under the laws of Arizona constitutes a “payable” obligation to the claimant compensating her for the amount of permanent loss she sustained in the 1998 injury. Therefore, under the terms of § 31-349 C.G.S., the initial award was “payable” to the claimant by her Arizona employer and her Connecticut employer should bear no responsibility for that share of disability attributable to the prior accident.

The difficulty herein, which respondents clearly acknowledged in their brief and in oral argument, is that the workers’ compensation laws of Arizona differ in a number of material aspects from Chapter 568. Pursuant to A.R.S. § 23-1044 (C) the claimant was found to have an “unscheduled” permanent partial disability. Scheduled injuries, such as are enumerated in Connecticut under § 31-308(b) C.G.S., are addressed under A.R.S. § 23-1044 (B). This list of enumerated injuries does not include injuries to the lumbar spine, while such an injury is a scheduled injury in Connecticut. As a result, the claimant was not automatically entitled under Arizona law to obtain an immediate permanency award.

Under Arizona law, a claimant who suffers an unscheduled injury that results in permanent disability cannot obtain an award for permanency benefits until he or she suffers an actual loss in earning capacity. Our reading of A.R.S. § 23-1044 (C) indicates that it is framed in terms of wage differential payments. As a result, we conclude that it is far more congruent with § 31-308a C.G.S. than § 31-308(b) C.G.S., with the exception being that the respondent argues there is no fixed time limitations on receipt of such benefits under Arizona law.

The claimant received an award from the Industrial Commissioner of Arizona dated February 13, 2002. Respondents’ Exhibit 1. The Award stated, in part “IT IS ORDERED that no further compensation be awarded for the reason that the applicant has suffered no reduction in earning capacity by reason of the injury on June 29, 1998 or the general physical functional disability resulting therefrom.” The Award permitted the parties to petition at a later date “for the purpose of altering, amending or rescinding its finding and award . . . ,” upon a showing of a change in the applicant’s physical condition or earning capacity. The claimant did receive payment for temporary total disability and temporary partial disability resultant from the 1998 accident. She executed a Stipulation re: Temporary Disability Compensation Benefits approved by the Industrial Commission of Arizona on January 18, 2001, wherein she received the sum of $3,257. Claimant’s Exhibit C.

We find these circumstances akin to the circumstances we dealt with in Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009). In Alvarez the respondents noted that the claimant had settled a stipulation for a prior injury for $9,500. We reviewed the respondents’ argument that this sum “settled” the alleged prior disability.

Unlike Alvarez, it is clear the claimant in this case did sustain a prior disability. But similar to Alvarez, the claimant did not obtain any compensation at that time attributable to a prior permanent impairment, and similar to Alvarez, the stipulation she executed did not reference permanent disability. We addressed a somewhat similar situation in Ouellette v. New England Masonry Company, 5424 CRB-7-09-2 (January 14, 2010). In Ouellette the claimant argued that while he had executed a stipulation acknowledging he was receiving a full and final settlement of his permanent partial disability award, the amount of offset attributable to the prior award should be limited to the actual cash amount the claimant received, not that stated percentage of disability asserted at the time the stipulation was executed. We disagreed, pointing out that pursuant to DiGrazio v. CBL Trucking, 3479 CRB-8-96-11 (February 18, 1998) that if compensation was “payable” for the initial disability, that was the relevant point of inquiry, rather than determining if the compensation had actually been paid. In Ouellette we determined the entire 20% rating was “payable” at the time of the initial stipulation, and therefore, was properly credited by the trial commissioner.

Therefore, our precedent makes clear that the fact the claimant did not receive compensation at an earlier date is not dispositive. The dispositive question is whether the claimant had a “payable” claim. The term “payable” is not a defined term under Chapter 568. The parties to this proceeding have not proffered a proposed definition of this term. Therefore, we must rely on the “plain meaning” rule as promulgated by § 1-2 z C.G.S. As held in Potvin v. Lincoln Service & Equipment, 5258 CRB-3-07-8 (November 12, 2008), appeal pending, A.C. 18357.

The term “payable” is defined in Black’s Law Dictionary (5th Edition). This definition does not, in our opinion, include inchoate and unperfected rights such as the claimant currently enjoys in Arizona.

At the present moment, the claimant would need to reopen the prior award to obtain any compensation in Arizona for permanent partial disability. Therefore, as of this juncture the claimant’s rights to payment are no more perfected than the rights of the claimant in a Connecticut proceeding prior to filing a motion pursuant to § 31-315 C.G.S. to reopen a Finding and Award reached under our statutes. We do not believe this constitutes a “payable” obligation of the original employer. On page 11 of the respondents’ brief the claimant’s rights in Arizona are described as “. . . a potential check in the bank, always available upon further administrative action . . . .” While the respondents may believe this constitutes a “payable” right, we must defer to the plain meaning of this term which clearly denotes “payable” defines a right which is already present and enforceable, not potential in nature.1

Citing Fimiani v. Star Gallo Distributors, 248 Conn. 635 (1999), the respondents argue that this result constitutes an impermissible “double recovery.” We disagree. As noted, we have determined that since the claimant has no ascertainable right to benefits in Arizona, as of this date there is no compensation “payable” to her for the permanent disability resulting from her injury in that state. In the event the claimant were to receive additional benefits from Arizona for her 1998 injury, such benefits would be subject to being applied as an offset against her Connecticut permanency benefits McGowan v. General Dynamics Corporation/Electric Boat Division, 15 Conn. App. 615 (1988), aff’d, 210 Conn. 580 (1989)(per curiam). See also Mann v. Morrison-Knudsen/White Oak, 14 Conn. Workers’ Comp. Rev. Op. 79, 1918 CRB-1-93-12 (May 12, 1995).

While the claimant may be financially better off by virtue of having incurred a subsequent injury in Connecticut rather than Arizona, clearly there is no reason Connecticut laws cannot compensate the claimant in the fashion sought in this matter. See Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980), which held that one state’s limitation on workers’ compensation benefits cannot bind the home state of the claimant if it is determined the claimant is entitled to additional benefits. The respondents’ position is essentially inconsistent with the holding in Thomas, as it seeks to limit the claimant’s recovery to only what was permitted in her prior home state.

The claimant still must present evidence that in order to apply § 31-349(a) C.G.S. her overall permanent disability now was materially and substantially greater as a result of her prior injury. See Levanti v. Dow Chemical Company, 218 Conn. 9 (1991) and Neville v. Baran Institute of Technology, 5383 CRB-8-08-10 (September 24, 2009).2 We have reviewed the medical opinions of Dr. Krompinger and Dr. Memmo. Dr. Krompinger has described the pain complex the claimant suffered following the subsequent injury as “an exacerbation of her previous lumbar fusion.” Dr Krompinger also opined to the “combined effect” of the two injuries in discussing the claimant’s functional capacity. Dr. Memmo increased the claimant’s disability rating from 20% to 27%. Unlike Neville, it is undisputed the claimant’s condition was permanently made worse by the subsequent injury. We have long held “it is the trial commissioner’s function to assess the weight and credibility of medical reports and testimony. . . .’” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999). Considering the totality of evidence presented, we believe that sufficient probative evidence was presented to the trial commissioner to enable him to infer the requirements of § 31- 349 (a) C.G.S. were met in this instance.

We herein reverse the finding of sanctions in this matter. In all other respects, we affirm the Finding and Award and dismiss this appeal.3

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

1 Counsel for the claimant asserts in his reply brief that Arizona law would preclude reopening the prior award to the claimant, citing Stainless Specialty Manufacturing Co. v. Industrial Commission, 114 Ariz. 12. (1985). Since we conclude under the respondents’ construction of Arizona law the claimant does not have a “payable” right to compensation for permanent disability, we need not address this issue. BACK TO TEXT

2 We note that in Levanti v. Dow Chemical Company, 218 Conn. 9 (1991) our Supreme Court clearly delineated that under Connecticut law; someone may incur a permanent impairment and be entitled to a specific indemnity award of compensation without having an ascertainable loss in earnings. Id., at 13. This is not the case under Arizona law. BACK TO TEXT

3 We uphold the trial commissioner’s denial of the respondents’ Motion to Correct. This motion sought to interpose the respondents’ 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 (2002). BACK TO TEXT