Opinion
CASE NO. 953 CRD-3-89-12
MAY 24, 1991
The claimant was represented by Carl Porto, Esq., and Louis H. Federici, Esq., both of Parrett, Porto, Parese, Colwell Giulietti, P.C.
The respondents-New Hampshire Insurance Company and American Fidelity Insurance Company were represented by James M. Hughes, Esq., McNamara and Kenney. The respondents Hanover Insurance Company represented by Edward F. Piazza, Esq., Del Sole Del Sole.
This Petition for Review from the November 28, 1989 Finding and Award of the Commissioner of the Eighth District acting for the Third District was heard November 30, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and Donald Doyle.
OPINION
The claimant employee and the respondents, employer and insurer, have all appealed the decision in which the trial commissioner awarded total incapacity benefits for claimant's occupationally related lung disease beginning January 1, 1987.
In July, 1982 claimant was scheduled to have back surgery for the 1981 injury. A pre-operative x-ray indicated a suspected lung abnormality. For that reason he was referred to Dr. Daniel Fisher of Hamden, a family practitioner, in November, 1982. Dr. Fisher tentatively diagnosed the condition as pneumonia. Eventually, he was treated for the lung problem by Dr. Brett J. Gerstenhaber of New Haven and Dr. David H. Bushell of Bridgeport, both pulmonary specialists.
At the beginning of June, 1984 claimant had filed an occupational lung disability claim with the Third District, the respondent employer and the respondent insurer. In the proceedings below he sought total incapacity benefits for the lung disability beginning in January, 1987 as that was the date when the back injury settlement was reached. The commissioner found that the 1984 notice of claim satisfied the provisions of Sec. 31-294 which provide that an occupational disease claim must be filed within three years, and he awarded temporary total benefits beginning January 6, 1987 at a weekly compensation rate of $310.00, the amount set in the 1982 Voluntary Agreement.
Respondents contend that Dr. Thomas Godar's March 31, 1988 report and his testimony of December 20, 1988 establish maximum medical improvement was reached March 31, 1988; thereafter they argue claimant was no longer totally disabled. They refer to Dr. Godar's statements that claimant was capable of returning to light sedentary type work in a clean environment without smoke or other chemical agents. See Transcript, December 20, 1988, at 30, 31, 46 47. Therefore they contend the commissioner's conclusion of total incapacity after March 31, 1988 was so unreasonable as to justify reversal.
We have long held that a claimant's total incapacity entitlement does not necessarily end upon reaching maximum medical improvement. Osterlund v. State, 129 Conn. 591, 600 (1943) held that a commissioner may continue total incapacity benefits despite a claimant's reaching maximum medical improvement. Further, the very reports and testimony upon which respondents rely indicate the extent of claimant's problems. "One is the lung scarring (interstitial lung disease) and asthma which have now caused the claimant to have a greater than 50% impairment for both lungs and for the whole person . . . ." Brief of Respondents/Appellants at 4. Even if we were to consider only the evidence urged by the respondents, we still could not conclude that the conclusion below was so unreasonable as to justify our interference. That evidence clearly supports the commissioner's finding that claimant's lung disease problems resulted in a class 4 impairment. The American Medical Association Guides to the Evaluation of Permanent Impairment classify this as more than 50% impairment of both lungs. See Paragraph #21. Such an impairment for an employee with only a seventh grade education is a reasonable basis for a finding of total incapacity.
Moreover, the remaining testimony by Dr. Godar gives additional reasons for such a conclusion. He stated as follows:
Q. And did you also at that time make some comments with regard to his capacity or ability to even work at a sedentary job?
A. Yes. But, it's customary for me, I guess, to take the side exit on that issue. I feel that as a physician I have to estimate the capacity of an individual, how much disease is present and if possible, what is its nature and can it be treated.
In then determining whether a person with that given impairment is employable or not is really a social decision. In other words, if someone has no capacity for the language and could work in a perfect environment, but we don's know of any, I'm not in a position to say the person's employable. I think the Commissioner decides that what I'm describing is really not valid employability and it's out of my hands as an M.D.
Q. You did seem to indicate though that in your opinion, understanding that caveat and with that being on the record, that it was unlikely that he would be able to return to any gainful employment either in the near or the long-term future.
A. That's correct. My experience with these kinds of patients is that I can see them on certain days when they look reasonably comfortable.
See TR, December 20, 1988, pp. 33-34.
Claimant's appeal, seeks a higher compensation rate. He contends he was actually earning $910.00 per week in 1981 and not $500.00 as the Voluntary Agreement established. With an average weekly wage of $910.00 he should be permitted the maximum benefit allowed in January, 1987, 408.00 per week. Or, he argues that as the legal maximum permissible in 1987 was $408.00, then at least he should be granted the full 66 2/3% of his $500.00 average wage, $333.00 rather than the 1981 maximum, $310.00. The commissioner found "that the claimant's contention that his average weekly wage ought to be $910.00 and that his base compensation rate ought to be the maximum of $408.00 per week as of January 7, 1987, to be without merit . . . ." See Paragraph #19. The evidence on the $910.00 average weekly wage claim had been in conflict. Given such a conflict, the trier's findings derive from the weight and credibility accorded to the evidence. We will not disturb the conclusions of a trial commissioner which depend on the weight and credibility of conflicting evidence. Wheat v. Red Star Express, Inc., 156 Conn. 245 (1968). in the instant case there was evidence from which the trial commissioner could reasonably have concluded that the claimant's average weekly wage for the twenty six weeks last worked was $500.00 per week. That evidence was in the Voluntary Agreement approved by the Third District commissioner on May 16, 1982.
As to the contentions on the maximum applicable in 1987, Section 31-307 D.G.S. provides "In the case of an occupational disease, the time of injury shall be the date of total or partial incapacity to work as a result of such disease." We dealt with a similar issue in Orcutt v. Ohmweave Company, 8 Conn. Workers' Comp. Rev. Op. 125, 822 CRD-2-89-2 (1990). Orcutt, reviewed the 1990 amendments, P.A. 90-116, Sec. 8 effective October 1, 1990. That amendment stated:
Sec. 8 For the purposes of chapter 568 of the general statutes, in the case of an occupational disease the average weekly wage shall be calculated as of the date of total or partial incapacity to work. However, in the case of an occupational disease which manifests itself at a time when the worker has not worked during the twenty-six weeks immediately preceding the diagnosis of such disease, the claimant's average weekly wage shall be considered to be equivalent to the greater of (1) the average weekly wage determined pursuant to section 31-310 of the general statutes, and adjusted pursuant to section 31-307a of the general statutes, of (2) the average weekly wage earned by the claimant during the twenty-six calendar weeks last worked by the claimant, which wage shall be determined in accordance with said section 31-310, and adjusted pursuant to said section 31-307a.
We concluded P.A. 90-116, Sec. 8 should not be applied retrospectively and the law in effect at the time of claimant's disability was the law to be applied.
The Voluntary Agreement approved May 16, 1982 established the compensation rate as $310.00, the maximum permissible November 14, 1981 when claimant injured his back. The commissioner used that rate in this proceeding. However, the present matter arises from an injury different from the November, 1981 back injury. The injury here is the occupational lung disease for which a notice of claim was filed in June, 1984. We have already noted in our decision of Orcutt that Sec. 31-307, as amended by P.A. 90-116, Sec. 8, declares the date of injury for occupational disease to be the date when that disease first caused total or partial incapacity for work.
It may very well be that the date of the lung incapacity fell between October 1, 1981 and October 1, 1982. If that is so, then the same maximum rate would apply as did apply for the November, 1981 back injury. However, the commissioner made no specific finding setting that date. He simply found inferentially that it was less than three years before June, 1984, Finding, Paragraph #10. if that date was after October 1, 1982, then the maximum permissible rate would be higher than $310.00, and claimant might be entitled to more money. In order to establish that fact, we need to remand for further proceedings.
Sec. 31-307a. Cost of living adjustment in compensation rates. (a) The weekly compensation rate of each employee entitled to receive benefits under section 31-307 as a result of an injury sustained on or after October 1, 1969, which totally disables such employee continuously or intermittently for any period extending to the following October first or thereafter shall be adjusted annually as provided herein as of the following October first, and each subsequent October first, to provided such injured employee with a cost-of-living adjustment in his weekly compensation rate as determined as of the date of the injury under section 31-309.
Therefore respondents' appeal is dismissed, claimant's appeal is sustained, and the matter is remanded for further proceedings consistent with this opinion.
Commissioners Frank Verrilli and Donald Doyle concur.