ALGIERE v. NORWICH FREE ACADEMY, NO. 4775 CRB-2-04-1 (4-27-2005)


APRIL 27, 2005

The claimant was represented by Amy M. Stone, Esq., O’Brien, Shafner, Stuart, Kelly Morris, P.C., 475 Bridge Street, P.O. Drawer 929, Groton, CT 06340.

The respondent employer and insurer were represented at the trial level and initially on appeal by Mark H. Pearson, Esq., Mullen McGourty, 60 Trumbull Street, New Haven, CT 06510. Attorney Pearson was replaced on appeal by Robert Bystrowski, Esq., Morrison Mahoney LLP, One Constitution Plaza, 10th Floor, Hartford, CT 06103.

The respondent Second Injury Fund was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, Fifth Floor, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 5, 2004 Finding and Award of the Commissioner acting for the Second District was heard January 21, 2005 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Stephen B. Delaney and Michelle D. Truglia.


This appeal arises from the January 5, 2004 Finding and Award of the Commissioner acting for the Second District. The only issue on appeal is whether the trial commissioner erred in failing to award the claimant §31-308(a) benefits for the period between January 2, 2002 to November 24, 2002. While the claimant underwent a number of consultations and examinations in relation to her claim for benefits we have limited our discussion to those factual circumstances we believe pertinent.

The claimant began employment with the respondent Norwich Free Academy in 1974. She was hired as a pottery assistant. Between 1974 and 1982, the claimant’s assistance to the pottery teacher required her to prepare and maintain supplies relative to pottery instruction. Part of the claimant’s tasks was the recycling of fifty pounds of clay per day. This particular task put pressure on the claimant’s palms and thumbs. Between 1974 and 1982, the claimant recycled clay for approximately one hour per day.

In 1982 the respondent hired a new pottery teacher. The new instructor’s methods required claimant to recycle clay for approximately four hours per day. In 1984, the pottery instructor left her teaching position. The respondent decided not to hire another pottery instructor but to assign the general art teachers to teach pottery classes. Because the general arts teachers were less familiar with the process of pottery instruction the claimant, in effect, assumed the duties of her own job as well as directly instructing students in pottery methods.

In 1998, the claimant began to experience pain in her hands. She was initially diagnosed with carpal tunnel syndrome, deQuervain’s disease and epicondylitis. The claimant underwent nerve conduction studies and on March 19, 1999 had carpal tunnel surgery on her right hand. On April 6, 1999, a nerve conduction study was performed which indicated claimant had carpal tunnel of the left hand.

In July 1999, Dr. Cherry examined the claimant. Dr. Cherry noted significant carpal tunnel symptomatology in the left hand. Claimant informed him that she did not want to undergo surgery on her left hand as she had not fully regained strength in her right hand following her carpal tunnel surgery. In September 1999 the claimant again complained of symptoms in her right hand. She stated that her symptoms were worse at the end of her work day and so severe that after concluding a day’s work she was unable to hold a pen. The claimant and Dr. Cherry attributed her increase in symptoms to her clay recycling tasks.

In January 2000 the claimant underwent surgery on her left hand. Initially she experienced improvement. On February 28, 2000 Dr. Cherry noted claimant’s complaints as to her left hand and right elbow. Dr. Cherry informed the claimant she could return to work but should refrain from such tasks as recycling clay and throwing pots. As these tasks were significant components of claimant’s work tasks, Dr. Cherry opined, “it was medically probable that she would not be able to return to those work duties.” Finding ¶ 26.

Thereafter, the respondent employer provided the claimant with light duty at her regular pay in the day care center. Subsequently, the respondent eliminated the day care center. On August 28, 2000 Dr. Cherry noted the claimant was returning to work part-time at Three Rivers Community College. That position did not require the claimant to recycle clay. On October 23, 2000, Dr. Cherry stated claimant’s most recent nerve conduction studies reflected abnormalities but her condition was stable. He also noted claimant’s complaints of pain in her thumbs. He further opined that the claimant was at maximum medical improvement and he believed her thumb problem was unrelated to her carpal tunnel problem but could not provide an explanation for her thumb issues.

On October 27, 2000 the claimant informed Dr. Cherry that she was unsatisfied with his explanation of her thumb symptom etiology. The claimant then saw Dr. Zeppieri for an evaluation of her thumb problems. Due to his impending retirement, Dr. Zeppieri referred the claimant to Dr. Ashmead. Voluntary agreements were approved July 13, 2001 providing claimant with a 10.5% loss of use of the master wrist and 8.5% of the non-master wrist.

On November 27, 2001, the claimant was examined by Dr. Ashmead who opined the claimant suffered from bilateral wrist and CMC joint degeneration with her left hand being more problematic. Dr. Ashmead recommended tendon suspension arthroplasty. In a follow up visit, Dr. Ashmead indicated the claimant’s degenerative problem with her thumbs was not work related but was a “condition [that] is sufficiently common in women of her age bracket that even her hand-intensive work may have had nothing whatsoever to do with the development of arthritis.” See Finding ¶ 39. Claimant testified she was unable to provide Dr. Ashmead with specific details of her job. Finding ¶ 40.

Thereafter both parties agreed to refer the claimant to Dr. Marvin Arons for an independent medical examination to evaluate her thumbs and hands. Unfortunately, in his November 25, 2002 examination Dr. Arons was only authorized to evaluate the claimant’s hands. When first evaluated by Dr. Arons the claimant provided details as to her clay recycling activities associated with her job as a pottery assistant. Claimant was again seen by Dr. Arons on January 20, 2003 for the purpose of evaluating her thumbs. Dr. Arons diagnosed the claimant as having Stage IV pantrapezial joint arthritis with a fractured trapezium carpal bone. At that time Dr. Arons also recommended that the claimant’s right carpal tunnel surgery be re-done.

Dr. Arons opined that claimant’s work activities were 50% responsible for the degenerative arthritis in her thumbs and that she was not at maximum medical improvement. On or about April 11, 2003 the claims adjuster informed Dr. Arons that she had not authorized his examination of the claimant. Dr. Arons was ultimately authorized to be the claimant’s treating physician and on May 21, 2003 again evaluated the claimant. He noted claimant was experiencing pain from her forearms into her elbows. He diagnosed the claimant as suffering a cumulative trauma disorder of her upper extremities along with her carpal tunnel syndrome and arthritis. On August 21, 2003 Dr. Arons operated on claimant’s left thumb at which time she was deemed totally disabled.

On July 31, 2003 an order for § 31-308a was issued for 30.82 weeks of benefits starting on May 28, 2001. No appeal was taken of this order, nor were benefits paid. The trial commissioner ordered the respondent’s to pay penalties pursuant to § 31-303 on the basis of respondent’s failure to pay § 31-308a benefits ordered July 31, 2003.[1] The trial commissioner also concluded in his January 5, 2004 Finding and Award, inter alia, that the respondents pay temporary partial benefits pursuant to § 31-308(a) benefits from November 25, 2002 through August 21, 2003 based upon claimant’s earnings at Three Rivers Community College. However, the trial commissioner failed to award these benefits for the period from January 2, 2002 to November 24, 2002.

On appeal, the claimant contends that given the factual findings of the trial commissioner the trial commissioner must award the claimant §31-308(a) benefits for the period from January 2, 2002 to November 24, 2002. We agree with the claimant insofar as the need for the trial commissioner to articulate the basis for his denial of the benefits in dispute.

Specifically, we note the commissioner found the testimony of the claimant credible. He also credited the opinion of Dr. Arons. See Finding ¶¶ A-B. In this case we are unable to infer the basis of the trier’s denial of benefits between January 2, 2002 and November 24, 2002 in light of the credibility he accords the testimony of the claimant and Dr. Arons. As we cannot properly review the legal appropriateness of the trier’s dismissal of the claim for benefits between January 2, 2002 and November 24, 2002 without the trial commissioner’s articulation, we are remanding this matter.

We therefore remand the instant matter for the trial commissioner’s articulation of the basis of his dismissal of § 31-308(a) benefits for the period between January 2, 2002 through November 24, 2002.

Commissioners Stephen B. Delaney and Michelle D. Truglia concur.

[1] We note the claimant filed a Motion to Direct Judgment Pending Appeal Pursuant to Sec. 31-301(d). We also note during the course of the appeal respondents changed counsel and thus the instant matter was postponed from its original scheduled date for oral argument.