HOLMES v. G.A. MASONRY CORP., NO. 04027 CRB-05-99-04 (11-7-2000)

CASE NO. 04027 CRB-05-99-04 CLAIM NO. 500114504Workers’ Compensation Commission
NOVEMBER 7, 2000

The claimant was represented by Scott N. Roberts, Esq., 349 Mitchell Street, P.O. Box 883, Groton, CT 06340.

The respondents G.A. Masonry Corp. and Employers Insurance of Wausau were represented by David Davis, Esq., McGann, Bartlett Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

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

This Petition for Review from the April 1, 1999 Finding and Award of the Commissioner acting for the Eighth District was heard November 19, 1999 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Stephen B. Delaney.

OPINION
JOHN A. MASTROPIETRO, CHAIRMAN.

The Second Injury Fund has petitioned for review from the April 1, 1999 Finding and Award of the Commissioner acting for the Eighth District. The Fund argues on appeal that the trier erred by ordering it to accept liability for the claimant’s injury pursuant to the transfer provisions of § 31-349. Specifically, the Fund argues that the trial commissioner erroneously relied upon the claimant’s ability to perform his usual work duties in determining that the claimant was not disabled for purposes of the § 31-349 notice provision from February 16, 1988 through May 13, 1991.

The trial commissioner found that the claimant sustained a compensable back injury on January 15, 1988, and was disabled through February 15, 1988, when he returned to his regular employment. He continued performing his usual and customary work from February 16, 1988 through May 13, 1991, when his treating physician pronounced him temporarily totally disabled. This disability, and the claimant’s need for medical care, were one-third due to the January 15, 1988 injury, and two-thirds due to subsequent repetitive trauma that occurred during the following three-plus years.[1] Still, the compensable injury had permanently aggravated the claimant’s formerly asymptomatic spondylolisthesis and degenerative disc disease, and rendered his disability materially and substantially greater.

The respondents notified the Second Injury Fund of their intent to transfer liability for this claim on June 24, 1991, pursuant to §31-349. They also renotified the Fund as required by § 31-349 (e)[2]
on July 7, 1995. Though the Fund has stipulated that this case medically qualifies for transfer under § 31-349, it alleges that the June 24, 1991 notice was not filed in a timely manner. The Fund contends that the claimant was continuously disabled (as that term is used in the notice provision of § 31-349) following the January 15, 1988 back injury, based primarily on the claimant’s testimony that he continued to experience low back pain.

The trial commissioner did not accept the Fund’s argument. He described the claimant as being medically disabled only through February 15, 1988, after which he returned to his usual employment. “Experiencing low back pain is not a medical restriction as contemplated in Section 31-349. . . . The claimant’s testimony concerning his back pain is irrelevant.” Findings, ¶¶ E-F. Likewise, the trier found that neither Dr. Becker nor Dr. Ballon restricted the claimant from performing his usual work despite his aches and pains — at least not before May 15, 1990, which would still make the respondents’ notice to the Fund timely. The trier ordered that the Fund accept liability for the claimant’s back injury effective February 9, 1993, which marked the completion of the 104th week of disability payments. The Fund has appealed that decision to this board.

The parties do not dispute that § 31-349 as it existed at the time of the claimant’s injury applies to the instant case.[3] At the time of the claimant’s injury, § 31-349 (a) provided that the employer and/or its insurance carrier were liable for “all awards of compensation and all medical expenses provided by this chapter for the first one hundred four weeks of disability. As a condition precedent to the liability of the second injury fund [for the remainder], the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case. . . .” The Fund’s sole contention on appeal is that the respondents’ notice was not timely pursuant to § 31-349. Specifically, the Fund argues that the trial commissioner erroneously relied upon the fact that the claimant returned to his employment in concluding that the claimant was not disabled from February 16, 1988 through May 13, 1991.

Recently, in Karutz v. Feinstein and Herman, P.C., 59 Conn. App. 565
(2000), our Appellate Court addressed a case which is similar to the one now before us, and held that this board improperly accepted a trial commissioner’s conclusion that the claimant’s disability did not commence until she became unable to work. In Karutz, supra, the trial commissioner found that the claimant’s disability period did not begin on the date of injury, even though she was suffering from persistent pain and was treating with a physician, as she was able to perform her regular job duties, was paid her regular salary, and lost no time from work. The court explained that the issue of timeliness of notice centered on the meaning of the word “disabled” in § 31-349. The court reviewed Williamsv. Best Cleaners, Inc., 237 Conn. 490 (1996) and Innocent v. St. Joseph’sMedical Center, 243 Conn. 513 (1998), and stated that “a person can be disabled for the purposes of § 31-349 even though he or she can carry on all the facets of his or her employment. The test is whether a claimant is physically impaired, not whether there exists a de facto inability to earn a wage.” Karutz, supra, at 570. The court held that the trial commissioner incorrectly applied the law by basing his finding of periods of disability on the claimant’s ability to perform her job duties rather than on the date of “medical impairment.” Id. at 572.

It is clear from the findings of fact that the trial commissioner in the instant case based, at least in part, his determination that the claimant was not disabled from February 16, 1988 through May 13, 1991, upon the fact that the claimant had returned to his usual employment duties. In his findings, the trial commissioner indicated that the evidence in the record, including the claimant’s testimony, the deposition of Dr. Becker, and the medical report of Dr. Ballon, merely indicated that the claimant suffered from back pain. The trial commissioner concluded that “Experiencing low back pain is not a medical restriction as contemplated in Section 31-349.” (Finding ¶ E). It is unclear, based upon the holding in Karutz, supra. whether the trial commissioner’s conclusion is correct.[4] However, because the trial commissioner here relied upon the fact that the claimant returned to his usual employment duties in determining that the claimant was not disabled between February 16, 1988 and May 13, 1991, and because the determination of the 104 week disability period requires a factual determination (Karutz, supra, at 571), which this board may not make, we must remand this matter to the trial commissioner in accordance with the above.

The trial commissioner’s decision is reversed, and remanded to the trial commissioner for further proceedings.

Commissioners George A. Waldron and Stephen B. Delaney concur.

CERTIFICATION THIS IS TO CERTIFY THAT a copy of the foregoing was mailed this 7th
day of November 2000 to the following parties:

DONALD HOLMES

SCOTT N. ROBERTS, ESQ. 7099 3400 0009 0437 6768

DAVID DAVIS, ESQ. 7099 3400 0009 0437 6775

KEIWITT SONS c/o AETNA LIFE CASUALTY

L.G. DeFELICE, INC. c/o LIBERTY MUTUAL INSURANCE CO.

YINXIA LONG, ESQ. 7099 3400 0009 0437 6805

Lorraine Lockery Administrative Hearings Lead Specialist Compensation Review Board Workers’ Compensation Commission