Opinion
CASE NO. 5096 CRB-3-06-5CLAIM NO. 300063919
JUNE 19, 2007
This Petition for Review from the May 18, 2006 Finding and Award of the Commissioner acting for the Third District was heard March 30, 2007 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Amado J. Vargas and Nancy E. Salerno.
We note that a postponement was granted during the pendency of this appeal.
The claimant was represented by Clayton Quinn, Esq., The Quinn Law Firm, LLC, 204 S. Broad Street, Milford, CT 06460.
The respondents were represented by Heather Porto, Esq. and Richard Aiken, Esq., Pomeranz, Drayton Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
OPINION
This appeal involves a single issue. The claimant herein had already been granted an award for permanent partial disability when he underwent another surgery. He then sought and was awarded temporary partial disability benefits. The respondents have argued that this award was inconsistent with Commission precedent, and that the claimant was required to exhaust his permanency award prior to obtaining additional temporary benefits. Upon review of the facts herein we are not persuaded that the trial commissioner's order was in derogation of established law, therefore we affirm his Finding and Award.
Both parties generally agree as to the facts. The trial commissioner found the claimant sustained a work related injury on March 2, 2003 while in the respondents' employ. This injury was accepted by the respondent but a voluntary agreement has not issued. The claimant's treating physician, Dr. Thomas Arkins, performed lumbar disc surgeries in September and December 2003. On September 17, 2004 Dr. Arkins determined the claimant had reached maximum medical improvement and opined the claimant had a 15% permanent partial impairment due to the injury. The parties stipulated that the claimant achieved MMI on September 17, 2004 and the claimant received 17 weeks of specific benefits from September 17, 2004 to January 13, 2005.
On January 13, 2005 Dr. Arkins examined the claimant and determined the claimant had recurrent disc herniation, and disabled the claimant from work. Following an MRI, Dr. Arkins diagnosed a moderately large disc herniation at L5-S1 and recommended a third lumbar spine operation. Dr. Arkins performed this operation on the claimant on April 14, 2005. The claimant was released to light duty status on May 26, 2005, but no light duty position was proffered to the claimant. Since January 13, 2005 the claimant's specific benefits had been reclassified as temporary total benefits.
On June 17, 2005 the respondents filed a Form 36 seeking to change the temporary total disability benefits back to specific benefits for the 15% permanent partial disability. It was approved on July 12, 2005 but only reclassified the benefits as temporary partial disability benefits. As of the date of the formal hearing on December 15, 2005 the claimant had been performing job searches and as of that date Dr. Arkins had not indicated the claimant had achieved maximum medical improvement from his last surgery. The issue was whether to reclassify the benefits since June 17, 2005 as specific benefits or to classify them as benefits under § 31-308(a) C.G.S.
Based on those foregoing facts the trial commissioner concluded in his Finding and Award of May 18, 2006 that in the absence of the claimant achieving maximum medical improvement from his most recent surgery that the claimant remained eligible for § 31-308(a) benefits. He also denied the respondents' request to reclassify the benefits as permanent partial disability. The respondents filed a Motion to Correct which was granted in part, but denied as to the requested correction concerning the 2005 surgery.
For the reason we discuss in greater detail later in this opinion, we uphold the trial commissioner's denial of the respondents' Motion to Correct. The requested corrections would not have changed the outcome of this case. See Donahue v. Veridiem, Inc., 5074 CRB-6-06-3 (March 28, 2007).
The respondents appealed and claim it was legal error to award temporary partial benefits to the claimant after he had received an award for permanent partial disability. They cite two CRB cases,Angell v. Guida Seibert Dairy, 14 Conn. Workers' Comp. Rev. Op. 7, 1836 CRB-1-93-9 (April 28, 1995) and Antonucci v. Hartford, 5 Conn. Workers' Comp. Rev. Op. 151, 511 CRD-1-86 (July 29, 1988) for the proposition that once the claimant ends his status of total disability, the specific award must resume. The claimant disagrees, and argues that the Angell and Antonucci cases involved the commutation of a specific award to a lump sum pursuant to § 31-302 C.G.S which did not occur in this case. We find the claimant's perspective more persuasive.
Our review of the Angell and Antonucci cases indicate that in both instances the original award for permanent disability had been commuted to a lump sum in accordance with § 31-302 C.G.S. The issue on appeal was how to account for the subsequent award under § 31-307 C.G.S. when the claimants in those cases later were adjudged totally disabled due to the original compensable injury. In Antonucci we directed the trial commissioner to "find out how many weeks of temporary total benefits are necessitated because of the change of condition and how great the permanent partial disability now is." Id. Citing Antonucci the panel inAngell held that following the period of temporary total disability (which overlapped the commutation period) the unpaid balance of the permanent partial award would be "tacked on" and payable at that time.
The panel in Angell denied the claimant's request in that matter to receive four weeks of § 31-308(a) C.G.S. benefits. This decision does not enunciate its legal reasoning besides reliance onAntonucci. We therefore believe it is necessary to consider other legal precedent that deals with the situation herein: an injured worker who has not returned to maximum medical improvement following a subsequent injury.
We believe the case of Boccuzzi v. Norwalk Courtyard Marriott, 4123 CRB-7-99-9 (October 11, 2000) is pertinent to the issue at hand. InBoccuzzi, the claimant suffered a re-injury to his back and shoulders. The respondents appealed an award asserting this situation impaired them from seeking apportionment against prior injuries. We pointed out that it would have been premature to seek apportionment as the claimant had not reached maximum medical improvement.
In the instant case, because the claimant had not yet reached maximum medical improvement, no determination of a permanent partial disability award could have been made. Thus, when the claimant reaches maximum medical improvement and an assessment of permanency is made, the physician may assess whether any of the impairment was due to the prior injuries, and if so, a determination may be made as to whether any benefits were paid or payable for such pre-existing impairment. Id.
Following the logic of Boccuzzi, due to the subsequent surgery, the previous permanent partial disability rating has been superseded by the need to establish a new permanency rating for the claimant once he attains maximum medical improvement from that subsequent surgery. As the subsequent surgery and resultant recovery acts as a "stay" against continuing the specific award, the claimant is entitled to whatever temporary benefits the trial commissioner deems justified until he attains maximum medical improvement. We are not persuaded that an award for temporary total disability under these circumstances should be treated differently than an award for temporary partial disability. The intervening surgery requires the trial commissioner to reconsider the issue of permanent partial disability.
In Green v. General Dynamics Corporation/Electric Boat Division, 13 Conn. Workers' Comp. Rev. Op. 113, 1651 CRB-2-93-2 (January 31, 1995), rev'd on other grounds, 44 Conn. App. 112 (1996), rev'd, 245 Conn. 66 (1998) the Supreme Court distinguished a permanency award from a temporary award "[i]n the case of permanent disability, it is the loss of earning capacity rather than the actual wage loss that is considered. Id., 72.
Given the subordinate facts herein: a) the claimant was not provided with light duty work and; b) the previous finding of maximum medical improvement is no longer supported by competent medical evidence; the logic of the Boccuzzi opinion compels us to uphold the trial commissioner. As a result we affirm the Finding and Award of the trial commissioner and dismiss this appeal.
In McCurdy v. State, 227 Conn. 261, 269 (1993) the Supreme Court described a permanent partial disability award as having "all the earmarks of a statutory award of liquidated damages for the loss of a body part or its use." At this point, the original "liquidated damages" for the claimant must be recalculated based on the potential increase in permanency rating following the most recent surgery.
Commissioners Amado J. Vargas and Nancy E. Salerno concur in this opinion.