Opinion
CASE NO. 1102 CRD-3-90-8
JANUARY 13, 1992
The claimant was represented by Charles Douthat, Esq., Gallagher, Gallagher Calistro.
The respondent was represented by Michael Belzer, Esq., Assistant Attorney General.
This Petition for Review from the August 15, 1990 Finding and Award of the Commissioner for the Third District was heard June 28, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Angelo dos Santos.
OPINION
Claimant suffered a compensable back injury December 23, 1982 while employed by Allegheny Ludlum Steel Corp. Voluntary Agreements between the parties were entered into January 21, 1983 and August 16, 1985. The last Agreement provided that claimant had reached maximum medical improvement July 1, 1985 and was thereafter entitled to receive 117 weeks of permanent partial benefits for a 22.5% disability of the back. Liability for payment was transferred to the Second Injury Fund as of March 16, 1986. Permanent partial disability benefits pursuant to the August 16, 1985 Agreement were paid by the primarily liable employer and the Fund from July 1, 1985 until September 15, 1987.
Actually 117 weeks after July 1, 1985 would have ended September 30, 1987, but we have chosen to use the dates indicated in the commissioner's ruling.
The Fund's appeal arises because the Third District August 15, 1990 ruling reopened the 1985 Agreement and awarded total disability benefits from July 1, 1985 until the date of the ruling. In doing so the commissioner ordered the Fund to pay the weekly differential between total 31-307 benefits and the partial 31-308 benefits paid between July 1, 1985 and September 15, 1987. He also ordered payment of total benefits from September 15, 1987 benefits until August 15, 1990. Essentially the appeal relies on three arguments: (1) the August 1985 Agreement was a binding stipulated judgment entered into knowingly by the claimant on advice of competent counsel, (2) claimant refused reasonable medical treatment in 1984 and 1985 and therefore all payments should have been suspended under Sec. 31-194(c), (3) the Second Injury Fund liability for payment began March 16, 1986 and it could not be ordered to pay for periods before that date.
If valid, the Fund's second point about refusal of reasonable medical treatment would call into question not only the payments ordered in the 1990 award but even those made under the 1985 Agreement. Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154 (1989) emphasizes that when a claim that medical treatment has been refused is made, the commissioner must decide whether the treatment refused was reasonable. In evidence before the commissioner was the June 19, 1990 deposition of Dr. Robert McDonnell and an October 24, 1984 medical report of Dr. Robert Margolis. At page 39 of the Depositions Dr. McDonnell said, "The possibility of surgery is not really a reasonable alternative . . . (T)he chances of it not helping him or making him worse are probably greater than his chances of getting significantly better . . ." Dr. Margolis' report stated "I don't believe that further surgery on either side of the mid-line of the lumbar spine will appreciably improve this patient."
Based on that evidence the commissioner found that claimant had not refused reasonable medical treatment. On appeal we may only determine whether the trier's conclusion was contrary to law, without evidence or based on unreasonable or impermissible factual inferences, Bailey v. Mitchell, 113 Conn. 721 (1931). The testimony we have cited from those two medical specialist certainly furnish sufficient support for the commissioner's conclusion, and as appellate reviewing body we may not disturb it.
The trial commissioner's failure to find that the claimant refused reasonable medical treatment is evidenced by his December 26, 1990 denial of Paragraphs 2-24 of the Respondent's Motion to Correct.
On the Fund's first point listed above, the contention is that there was not a sufficient change of circumstances to permit a modification under Sec. 31-315. The factual situation in this matter is sufficiently analogous to that in Vetre v. New Britain, 3 Conn. Workers' Comp. Rev. Op. 20, 221 CRD-6-83 (1985). There a claimant's Voluntary Agreement for specific benefits for various body parts was executed July 10, 1979. A formal hearing was held January 6, 1983 and thereafter the trial commissioner held that the Voluntary Agreement should be modified and the claimant awarded total disability benefits beginning January 12, 1982. Critical to the CRD's analysis were the following facts:
It is true that the attending surgeon, Dr. Filewicz had said in 1978 as he said again in 1981 that he did not think claimant could ever obtain gainful employment, but Dr. Raycroft in 1977 seemed to be saying that possibly claimant might be able to return to something other than his usual occupation. The City of New Britain possibly basing actions on Dr. Raycroft's statements or for whatever reasons left Vetre on full employment status as of July 10, 1979. That status did not end until November, 1981 shortly before the claimant first requested modification of the 1979 Agreement. The very language employed by the City in that termination of status and its reliance on Filewicz's latest reiteration of his 1978 assertion about incapacity illustrate the City's view that the condition claimant's capacity for gainful employment had changed. Besides, the fact that more than two years had passed and claimant had not obtained employment also constituted circumstance changed from those existing July 10, 1979.
Vetre, supra at 21-22.
In the present case the record indicates that at the time of the 1985 Agreement approval it was not an unreasonable inference that the claimant was anticipating returning to work. Therefore, applying the Vetre rationale, we conclude that the August 15, 1990 Award should be affirmed.
However, the Fund's point that it cannot be ordered to pay benefits for periods occurring before the transfer of liability to it pursuant to Sec. 31-349 is valid. Cf. Haluschak v. J.F. Barrett Sons, Inc., 9 Conn. Workers' Comp. Rev. Op. 93, 925 CRD-3-89-10 (1991)
We therefore affirm the trial commissioner but remand the matter to determine which respondent is liable for the various periods of benefits ordered.
Commissioners Andrew Denuzze and Angelo dos Santos concur.