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Milewski v. Town of Stratford

CASE NO. 5483 CRB-4-09-7



JULY 20, 2010











The claimant was represented by Eric Chester, Esq., Ferguson & Doyle, P.C., Attorneys at Law, 35 Marshall Road, Rocky Hill, CT 06067.

The respondents were represented by Matthias DeAngelo, Esq., The Cotter Law Firm, 2563 Main Street, Stratford, CT 06615.

This Petition for Review from the July 10, 2009 Finding and Denial of the Commissioner acting for the Fourth District was heard January 29, 2010 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Jack R. Goldberg and Christine L. Engel.


JOHN A. MASTROPIETRO. CHAIRMAN. The claimant in this matter has appealed from a Finding and Denial issued by the trial commissioner who decided this matter. The claimant maintains he is entitled to interest and penalties from the respondent as the result of an allegedly late payment of permanent partial disability benefits. The trial commissioner concluded that the parties had not reached a full agreement on what benefits were due the claimant within the terms of the Voluntary Agreement the claimant sought to enforce. We believe the trial commissioner reached a reasonable conclusion based on the record presented and the law governing this situation. We affirm the Finding and Denial and dismiss this appeal.

The trial commissioner reached the following findings of fact. He noted the claimant sought penalties under C.G.S. § 31-303 and § 31-300; and a payment of interest under § 31-295(c). The claimant, Daniel Milewski, worked as a fire fighter for the respondent from July 1968 to January 1996. He had suffered a compensable knee injury in April of 1986. The respondents had accepted this injury and paid benefits. Dr. Walter Shanley is the claimant’s authorized treating physician.

In March of 1999 the claimant presented to the respondents’ expert, Dr. Peter Jokl. Dr. Jokl, an orthopedic surgeon, determined the claimant had light or sedentary work capacity. Dr. Jokl recommended the claimant undergo a functional capacity evaluation and did not offer an opinion as to maximum medical improvement.

The claimant presented to Dr. Shanley on November 9, 2000 for an evaluation of his right knee. Dr. Shanley’s medical report opined the claimant had a 25% permanent partial disability of the right knee as a result of the April 1986 injury. The report indicated the claimant had “worsened and increased symptoms" and suggested a knee replacement would become necessary. The report did not state the claimant had reached maximum medical improvement.

The claimant testified he received his first check for permanent disability benefits on March 21, 2001. The respondents testified they issued a check on that date for $3,076.75 as an advance for “7.75” weeks of benefits. The respondents also had the claimant examined by Dr. Dante Brittis, an orthopedic surgeon, on June 27, 2002. Dr. Brittis recommended a repeat MRI of the claimant’s right knee. He did not offer a permanency rating and did not indicate the claimant reached maximum medical improvement.

On October 3, 2002, Dr. Shanley evaluated the claimant’s right knee again. He found the knee had gotten “progressively worse” and that the claimant was a candidate for knee replacement surgery. Dr. Shanley raised the claimant’s disability rating to 40% for the knee and did not opine the claimant had reached maximum medical improvement. The claimant returned to Dr. Brittis on January 21, 2003 with updated diagnostic studies. Dr. Brittis opined the claimant needed a knee replacement to treat his “meniscal tear” and “underlying arthritis”. On February 18, 2003, Dr. Brittis opined that the Claimant has a “25%” impairment of his right knee. He had not determined whether the claimant had reached maximum medical improvement.

A Voluntary Agreement was approved by Commissioner George Waldron on November 22, 2004. The Agreement provided for Dr. Shanley to be the authorized treating physician; set a compensation rate of “$396.61” and established a date of maximum medical improvement as “11/9/00”. The Agreement did not establish a percentage of disability of the claimant’s right knee associated with the stated date of maximum medical improvement.

On April 13, 2005 the respondents issued a check to the claimant in the amount of $27,631.20. The check represented it was for “77.35 WEEKS OF COMPENS.” The claimant testified that the percentage of disability had been disputed, but had been resolved by the parties prior to the hearing held before Commissioner Waldron on November 25, 2003. The trial commissioner took administrative notice of the Commissioner’s notes for the various formal and informal hearings held before this commissioner. In Finding, ¶ 23 the commissioner documented this history, which indicated that while the parties appeared to agree on a 32.5% rating on November 25, 2003; the actual agreement on this point was not fully resolved until a hearing on May 11, 2005. Indeed on November 17, 2004 the Commissioner’s notes stated “PPD issue to be discussed and worked out prior to next hearing.”

Based on these facts found by the trial commissioner and the applicable statutes the trial commissioner concluded that the various medical reports on the record were insufficient to establish the attainment of maximum medical improvement by the claimant which would trigger an obligation to pay benefits under § 31-295(c) C.G.S. Finding, ¶ N. The commissioner found that the disability rating remained substantially in dispute until the hearing of April 13, 2005, Finding, ¶ O and had been the subject of ongoing litigation. Finding, ¶ P. The trial commissioner found insufficient evidence the respondents had delayed payment due to fault or neglect, nor any evidence the respondents had unreasonably contested the payment of benefits. See Findings, ¶ Q & R. The trial commissioner found that the parties agreed to a date of maximum medical improvement in the Voluntary Agreement, Finding, ¶ S, but did not list the percentage of disability as required by § 31-303 and that this omission relieved the respondents of an obligation to pay permanency benefits, Finding, ¶ T. Therefore, the claimant failed to sustain a burden of proof that the respondents had failed to make timely payments under a voluntary agreement pursuant to C.G.S. § 31-303, Finding, ¶ U.

The claimant has appealed from the Finding and Denial. He claims the trial commissioner erred by failing to follow the applicable law herein. He also argues the failure of the respondents to present their own exhibits at the formal hearing should weigh against their arguments. The appellant did not file a Motion to Correct in this matter. As a result, pursuant to Corcoran v. Amgraph Packaging, Inc., 4819 CRB-2-04-6, 4948 CRB-2-05-5 (July 26, 2006) and Crochiere v. Board of Education, 227 Conn. 333, 347 (1993), we must accept the validity of the facts found by the trial commissioner, and that this board is limited to reviewing how the commissioner applied the law. See Admin. Reg. § 31-301-4 and Stevens v. Raymark Industries, Inc., et al. 5215 CRB-4-07-4 (March 26, 2008).

The gravamen of the claimant’s appeal is contained on page 4 of his brief. “The Claimant-Appellant reached MMI on November 9, 2000.” The trial commissioner concluded to the contrary in Finding, ¶ N. We must determine “whether the facts found are supported by competent evidence and are legally consistent with the ultimate outcome of the case.” Christensen v. H & L Plastics Co., Inc., 5171 CRB-3-06-12 (November 19, 2007).

While the claimant vehemently argues there is no reasonable basis to conclude the date of MMI was not November 9, 2000; the trial commissioner pointed out in detailed fashion that there are no affirmative findings anywhere in the record which stated that the claimant had in fact reached MMI on that date, or indeed, at any date prior to the execution of the Voluntary Agreement. See Claimant’s Exhibit D and Findings, ¶¶ 8, 16, and 19. The trial commissioner also cited evidence that the claimant’s condition deteriorated after the November 9, 2000 date. See Findings, ¶ 15 and ¶19. As we held in Ben-Eli v. Lowe’s Home Improvement Center 5006 CRB-3-05-10 (November 16, 2006) “[o]ne can only expect the trier of fact to render a decision based on what evidence actually says, not what it should have said.” We agree with the respondents that the facts herein are consistent with our precedent in Maddaloni v. State/University of Connecticut, 4679 CRB-2-03-6 (June 4, 2004), and the trial commissioner did not err in concluding the medical reports did not establish a MMI date.

We do not know what factors led the parties to place the November 9, 2000 MMI date on the Voluntary Agreement. As we will discuss further, the Voluntary Agreement appears to represent an incomplete meeting of the minds which makes it unenforceable in the manner sought by the claimant.

The claimant argues that once the Voluntary Agreement was approved on November 22, 2004 the respondents became obligated to pay benefits within twenty days in accordance with § 31-303 C.G.S. The difficulty herein is the amount of such an award is incapable of being ascertained from the four corners of the document. The agreement contains no reference as to the agreed percentage of partial disability or the number of weeks of compensation owed to the claimant. The Voluntary Agreement did contain a weekly compensation rate, but in the absence of any other information one would be forced to seek parol evidence to ascertain the duration of such benefits. Beyond establishing jurisdiction we cannot conclude such an agreement, lacking material terms thereof, is enforceable against the respondents by virtue of § 31-303 C.G.S. While an “award” must be paid to the claimant in a timely fashion one cannot ascertain what the amount of the “award” actually is from this agreement.

The respondents point to Melendez v. Valley Metallurgical 4178 CRB-2-00-1 (May 1, 2001), appeal dismissed, A.C. 23921 (May 14, 2003), cert. denied, 266 Conn. 904 (2003) as governing the facts in this case. As we pointed out in that case “there is a key element of § 31-303 absent.” In Melendez, it was “an award, stipulation or agreement making it clear that the respondents had an obligation to pay back COLAs and interest prior to the date of the trial commissioner’s January 14, 2000 decision.” Id. In the present case while the respondent may have entered into an obligation to pay some sum of money, the actual amount was left indeterminate. In Melendez, we said the receipt of an approved Voluntary Agreement created “definite notice of one’s obligation to pay an amount specified by the agreement or award.” Since the amount of the award herein cannot be specified by the agreement, we decline to extend § 31-303 C.G.S. to this situation. Simply put, this document was not properly executed by the parties and does not comport with the statute.

The evidence before the trial commissioner was that as of the date the Voluntary Agreement was approved the parties had not yet resolved the level of permanency benefits due the claimant. See Findings, ¶ 20 and ¶ 23. An appellate board such as ours cannot find there was a meeting of the minds on this material issue when the trier of fact found to the contrary.

We applied similar reasoning in two cases earlier this year dealing with benefits due to the claimant. In Ouellette v. New England Masonry Company, 5424 CRB-7-09-2 (January 14, 2010), the claimant argued that when he was paid only the equivalent of an 11.25% permanency rating when the Stipulation to Date in question recited a 20% permanency rating; that a subsequent permanency award should be paid based on the lesser percentage. We pointed out that the agreement in question was ambiguous and “[h]ad 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.” We concluded “[w]e 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”. Id.

Similar reasoning governed our decision in Francis v. Rushford Centers, Inc., 5428 CRB-8-09-2 (February 8, 2010). Francis involved a conflict of laws question involving a previous injury in Arizona. We concluded that based on Arizona law the claimant did not have a “payable” claim for permanent partial disability and any effort to ascribe a prior stipulation payment against permanent disability would be, as per Alvarez v. Wal-Mart Stores, Inc., 5378 CRB-5-08-9 (July 27, 2009), “grounded in speculation or conjecture.” The trial commissioner in the present case did attempt to determine if there had been an agreement between the parties on the amount of the award as of the date the Voluntary Agreement was executed. He could not find support for this conclusion from the Commissioner’s Notes on the record. Finding, ¶ 23.1

In Ouellette and Francis we upheld a determination by the trial commissioner that what constitutes a “payable” obligation must be determined from the agreements that document the award or agreement. The trial commissioner determined herein that the amount of permanency benefits payable to the claimant in this situation was left unresolved within the terms of the Voluntary Agreement.2 We cannot find this conclusion “clearly erroneous” Berube v. Tim’s Painting, 5068 CRB-3-06-3 (March 13, 2007).

The claimant finally argues that he should receive an award of attorney’s fees pursuant to § 31-300 C.G.S. The claimant acknowledges such awards are discretionary Duffy v. Greenwich-Board of Education, 4930 CRB-7-05-3 (May 15, 2006), but that the trial commissioner’s denial of this award was an abuse of discretion as defined In re Shaquanna M., 61 Conn. App. 592, 603 (2001). We do not accept the claimant’s argument that the trial commissioner’s legal conclusions as to the date of MMI in this matter vitiated logic. The trial commissioner made affirmative findings that the date stated in the Voluntary Agreement was unsupported by probative medical evidence. See Claimant’s Exhibit D and Findings, ¶¶ 8, 16 and 19. In addition, in contesting this matter we do not believe the respondent’s conduct herein rose to a level where sanctions were warranted as a matter of law, especially as the respondent prevailed before the trial commissioner. Christy v. Ken’s Beverage, Inc., 5157 CRB-8-06-11 (December 7, 2007).

For the foregoing reasons we affirm the Finding and Denial and dismiss this appeal.

Commissioners Jack R. Goldberg and Christine L. Engel concur in this opinion.

1 We agree with the claimant that Schenkel v. Richard Chevrolet, Inc., 4639 CRB 8-03-3 (March 12, 2004) holds that ¶ 31- 295(c) C.G.S., mandates that interest shall run on an unpaid permanency award. We disagree that such an award became “payable” prior to an agreement between the parties acknowledging the amount of permanency or an award from a commissioner setting a disability rating. As we held in Abrahamson v. State/Department of Public Works, 5280 CRB-2-07-10 (February 26, 2009), “[t]he conditional language of this passage would seem to suggest that the provision is implicated only after the issue of permanent partial disability is no longer the subject of litigation.” The record herein documents the parties continued to litigate this issue following the approval of the Voluntary Agreement. BACK TO TEXT

2 The claimant argues that Abrahamson v. State/Department of Public Works, 5280 CRB-2-07-10 (February 26, 2009), would require the respondent to pay the lower of the two permanency ratings under consideration at the time the Voluntary Agreement was executed. We disagree since none of these reports establishing the conflicting ratings were referenced in the Voluntary Agreement. Nor would these reports, had they been considered as parol evidence, have confirmed the stated date of maximum medical improvement. As the permanency rating was still being litigated, presumably a Respondent’s RME could still have been conducted which might have yielded a third, lower percentage. There simply was no meeting of the minds documented herein. BACK TO TEXT


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   Connecticut Workers' Compensation Commission.

   Forms, publications, statutes, and most other
   information is now located at our NEW site: