Opinion
CASE NO. 1113 CRD-3-90-9
JANUARY 23, 1992
The claimant was represented at the trial level by Albert Annunziata, Esq., Annunziata and Grillo, and on appeal by Sharyn N. D'Urso, Esq.
The respondent Employer, Dunkin Donuts, and Liberty Mutual was represented by Scott Wilson Williams, Esq., Maher Williams. At the trial level Jonathan Reik, Esq., McGann, Bartlett Brown represented Sentry Insurance and Brewster Blackall, Esq., Assistant Attorney General. Both respondents Sentry Insurance and Second Injury Fund did not participate in the instant appeal.
This Petition for Review from the September 19, 1990 Finding and Award of the Commissioner for the Third District was heard August 16, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Andrew Denuzze.
OPINION
Respondents' appeal contests the award of benefits for claimants November 4, 1985 injuries to his lumbar and cervical spine. Before the 1985 injury at Dunkin Donuts claimant had had another compensable injury while employed at Leon's Bakery September 4, 1981. As a result of the 1981 injury he incurred a seven and one half (7 1/2%) per cent permanent partial disability of the back and five (5%) per cent disability of the right arm. The Third District found that claimant now had a twenty five (25%) per cent permanent partial disability of the back, seventeen and one half (17 1/2%) per cent attributable to the Dunkin Donuts injury and seven and one half (7 1/2%) per cent attributable to the 1981 incident. The commissioner also found that claimant had a five (5%) per cent disability of the cervical spine due only to the 1985 injury. In addition he concluded claimant was totally disabled from February 4, 1987 until February 20, 1989 due to the Dunkin Donuts 1985 injury.
The parties had entered into a Voluntary Agreement approved by the Third District November 9, 1989 acknowledging compensability for a back disability arising out of the Dunkin Donuts 1985 incident. However respondents contest the additional seventeen and one half (17 1/2%) per cent disability of the back and deny that any cervical disability was the result of the 1985 injury. They premise their arguments mainly on the fact that the earlier treating physicians, Dr. Jeffrey Sumner, an orthopedist, and Dr. James Sabshin, a neurosurgeon, had not noted the neck condition in their first reports. The claimant did not see Dr. James Merikangas, a neurologist and pain specialist until February 4, 1987, and it was his evidence which formed the principal basis for the findings with respect to the cervical spine and the subsequent total disability periods.
The issues argued by the respondents are dependent on the factual determinations of the trier and the weight and credibility he accords to the evidence. Rivera v. Guida's Dairy 167 Conn. 524 (1975). Appellate review may only determine whether the commissioner's conclusions were without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988).
The evidence was in conflict as to the causation of the claimant's neck injury. The claimant testified that he experienced pain in his neck after the November, 1985 injury. There was evidence relating neck symptoms to the 1981 work incident and medical evidence from which the commissioner could have concluded that the cervical disability was related to November, 1985. The pain experienced in November 1985, claimant stated, went from the back of his head to his lower back and was worse than the neck pain experienced after the 1981 accident. (TR., May 17, 1990, pp. 17, 20, 35.) See also, May 10, 1990, February 19, 1990, and February 4, 1987 Reports of Dr. James R. Merikangas, M.D., (Claimant's Exhibit D)
In support of the trier's conclusions on the amount of permanent partial partial disability of the back and the cervical spine are the March 17, 1986, and September 11, 1987 reports of Dr. Jeffrey M. Sumner, and the February 4, 1987 report of Dr. James Merikangas, (Claimant's Exhibit B and Claimant's Exhibit D) Respondents, in their brief, appear to argue that as no finding was made as to a date of maximum medical improvement it was erroneous as a matter of law to order permanent partial disability benefits.
In his March 17, 1986 report Dr. Sumner states, "At this time, I have had a negative myelogram, a negative cat scan, and with no hard neurologic findings I am not going to continue any further exhausted (sic) tests at this point in time." This report together with others would support an inference that claimant had reached a state of maximum medical improvement. Therefore the trier's conclusion cannot be said to have been found without evidence nor is it erroneous as a matter of law.
The next point is that which claims error in the conclusion of total disability from February 4, 1987 through February 20, 1989. Again the evidence in the medical reports of Dr. James Merikangas, Claimant's Exhibit D, supports that conclusion. Granted there was also evidence from which the trier could have as reasonably have concluded that claimant was not totally disabled. But as the determination is a factual one we may not disturb the conclusion reached unless so unreasonable as to justify appellate interference. Bailey v. Mitchell, 113 Conn. 721 (1931); Fair, supra.
One of respondents' objections to the award for total disability benefits was that it followed a period in which permanent partial benefits were awarded. Osterlund v. State, 129 Conn. 591 (1943) held that even if a claimant reached maximum medical improvement it was within a commissioner's discretion whether a claimant should be permitted to continue on temporary total incapacity. Further, we have held that a period of specific indemnity may be interrupted where claimant is found to be entitled to temporary total. Kevorkian v. Peter Paul, Inc., 2 Conn. Workers' Comp. Rev. Op. 26, 121 CRD-5-82 (1983), aff'd, 3 Conn. App. 335 (1985)
Finally, one of the errors claimed was the commissioner's failure to grant all parts of the Motion to Correct. As noted in Benham v. Edgerton, Inc., ___ Conn. Workers' Comp. Rev. Op. ___, 977 CRD-4-90-2 (July 17, 1991) "This tribunal cannot set aside a commissioner's factual findings unless they are without evidence or fail to include material facts which are admitted or undisputed. Grady v. St. Mary's Hospital, 179 Conn. 662 (1980) (citation omitted). Also we need not consider corrections the granting of which would not alter the legal outcome. Hill v. Pitney Bowes, Inc., 8 Conn. Workers' Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990)"
Our review is not a de novo review. While we may have reached an entirely different conclusion as to the issues raised, of the conclusions reached are supported by evidence, and not contrary to law we cannot set aside the trial commissioner's conclusions. Fair, supra.
We therefore affirm the September 19, 1990 Finding and Award.
Commissioners Gerald Kolinsky and Andrew Denuzze concur.