John Arcudi, Chairman, Gerald Kolinsky, Commissioner, Andrew Denuzze, Commissioner

FINDING AND AWARD

1. Pursuant to proper notice to all parties, a Formal Hearing in the above captioned matter was held at the Waterbury Fifth District Office December 22, 1981.

2. On June 10, 1976 the Claimant suffered a compensable injury to his back arising out of and in the course of his employment.

3. Based on a rating by treating or examining physicians the parties reached a Voluntary Agreement establishing that Claimant had achieved maximum improvement December 6, 1978.

4. That same Voluntary Agreement declared Claimant to have a forty per cent (40%) permanent partial disability of the back as of December 6, 1978 entitling him to 208 weeks of specific indemnity.

5. The Claimant executed the Voluntary Agreement February 6, 1981.

6. The Agreement was submitted to the Fifth District and was approved by the Fifth District Commissioner June 10, 1981.

7. Subsequent to its approval, the Claimant alleged that he was in fact totally disabled.

8. At the December 22, 1981 hearing the Claimant presented the evidence of his treating physician, Dr. Robert W. Ferraro, a Waterbury orthopedic surgeon.

9. The doctor concluded that the Claimant may have been able to try to do some work between 1977 when the doctor first treated him and 1981 when the doctor was testifying.

10. The doctor was also of the opinion that Claimant's back situation was so fragile in June, 1981 that he could not work.

11. Claimant's orthopedist and the neurosurgeon to whom he referred the Claimant early in his treatment had considered a surgical excision of a possible ruptured disc as a probable solution to Claimant's back problem.

12. Both doctors however reconsidered and did not pursue the surgical remedy.

13. In fact in 1981 Claimant although he was taking muscle relaxants experienced such severe pain on the average of three days a week that he had to lie down for an hour or two hours during the day until the pain passed.

14. Claimant was able in 1981 to perform some light household duties but nothing so heavy as shoveling snow or mowing grass.

15. Claimant's physical capacity as of June 18, 1981 was so restricted by the limitations due to his back injury that he was not then employable.

IT IS THEREFORE ORDERED, ADJUDGED AND AWARDED that:

A. Respondents pay Claimant temporary total disability benefits from June 18, 1981 to January 5, 1982 and beyond until his condition changes.

B. Respondents interrupt their weekly payment of specific indemnity agreed upon in the Voluntary Agreement approved June 10, 1981 as of June 18, 1981, but they are to pay all weeks due until June 18, 1981.

C. A further hearing is to be assigned and held to determine Claimant's continuing status.

OPINION

Basic compensability in the instant matter is undisputed. Claimant-Appellee, aged 59 at the time of the December 22, 1981 hearing, injured his back in the course of his employment with Respondent-Appellant June 10, 1976. The Claimant apparently worked after that date, but as of August 5, 1977 became totally disabled from work due to the June 10, 1976 injury. The Insurer-Respondent paid temporary total benefits for some time thereafter. According to one medical opinion Claimant reached maximum improvement December 6, 1978, but at that time he had a forty percent (40%) permanent partial disability of the back entitling him to two hundred and eight (208) weeks of specific indemnity at $126.00 per week, his compensation rate.

The conclusions of this particular medical opinion concerning the Claimant's December 6, 1978 condition were not accepted until February 6, 1981 when Claimant signed a Voluntary Agreement, Form 11-76, incorporating that information Some time thereafter the Travelers Insurance Company Respondent submitted the Voluntary Agreement to the Fifth District Commissioner who approved it.

Within days after the June 10, 1981 approval by the Commissioner, Claimant requested resumption of temporary total disability benefits. The Respondents denied the request and a Formal Hearing was held December 22, 1981. On January 5, 1982 the Commissioner issued a Finding and Award, the subject of this appeal, in which he held that Claimant was totally disabled from June 18, 1981 to the date of the decision and thereafter. The net result of the January 5, 1982 ruling subsequent to the June 10 approval of the Voluntary Agreement was that (1) Claimant was entitled to receive some 132 weeks of specific indemnity from December 6, 1978 through June 17, 1981, (2) temporary total payments thereafter, and (3) payment of the 72 weeks remaining on the specific was indefinitely postponed while temporary total was being paid as the Law prohibits payment of double benefits. Smith v. State of Conn., 1 Conn. Workers' Comp. Review Op. 95 (1982), rev'd on another issue, 38 Conn. Sup. 648 (1983). Scalora v. Dattco, Inc., 1 Conn. Workers' Comp. Rev. Op. 203 (1982).

Appellants attack the January 5 decision relying mainly on the argument that there was no change in Claimant's condition after June 10, 1981 justifying a modification of the Voluntary Agreement approved on that date. They cite Sections 31-296 and 31-315 of the Compensation Law which set forth requirements for modification of an award or agreement. This argument might have had some merit if the Voluntary Agreement in question spoke to the Claimant's situation as of June 10, 1981. That is not the case.

The Voluntary Agreement was signed by the Claimant February 6, 1981, not June 10; however neither is February 6 the date which the Voluntary Agreement addresses. The Voluntary Agreement declares what Claimant's permanent partial incapacity was December 6, 1978, the date of maximum improvement. For reasons not revealed in the record the parties delayed filing any documents concerning the 1978 situation until two and a half years later. It thus became a nunc pro tunc document in a real sense. Sec. 31-295(c) requires specific indemnity to commence not later than thirty days after maximum improvement has been reached. Comments made by counsel in oral argument indicated that at least some specific had been advanced without prejudice by the Respondents even before the Voluntary Agreement was approved, but no other explanation or justification of the delay was manifested to the Compensation Review Division panel.

At the December 22, 1981 formal hearing the Commissioner below heard testimony from Dr. Robert W. Ferraro, a Waterbury orthopedic surgeon, who had treated Claimant since 1977. The doctor gave his opinion that Claimant was essentially unemployable due to the "fragile situation" of his back. Under cross-examination by Respondents' counsel the doctor agreed that there were no significant changes in Claimant's condition between June, 1981 and December 22, 1981. Although the doctor was not asked that specific question, his testimony can be read to say that there were changes in Claimant's condition between December, 1978 and December, 1981 or at least changes in the way the doctors perceived that condition.

Dr. Ferraro's was the only medical testimony at the 1981 hearing, but that testimony alone provided a sufficient basis for the Commissioner's Finding that Claimant was totally disabled from June 18, 1981 on. We think the Commissioner's Finding would have been more complete if it had stated the subordinate facts, i.e. Dr. Ferraro's testimony, on which he based his conclusion of total disability, but the Appellants did not attack this omission either in their Motion to Correct or in their Reasons of Appeal. Nonetheless, we have included those facts in this Division's Finding.

We have also included in our Finding some of the modifications sought in Appellants' Motion to Correct. However, none of the modifications granted significantly alter the Commissioner's conclusion that Claimant was totally disabled after June 18, 1981. It was well within the Commissioner's discretion to reach that result. Osterlund v. State of Conn., 135 Conn. 498 (1949), Czeplicki v. Fafnir Bearing Co. 137 Conn. 454 (1951), La Boda v. Town of Watertown, 1 Conn. Workers' Comp. Review Op. 63 (1981), Bielek v. Scovill Mfg. Co., 1 Conn. Workers' Comp. Review Op. 110 (1982).

The authorities cited in the previous paragraph relate to another aspect of the decisional process. Percentages of anatomical impairment found by a doctor do not necessarily translate into identical percentages of disability or incapacity for employment. Rating anatomical impairments lies within the field of medical expertise. But in Compensation Law a finding of disability or incapacity is an ultimate conclusion of law and fact which only the Commissioner makes. Chief Justice Wheeler's words in another context are apropos.

". . . When the amendment uses the term disability, it manifestly uses it in the sense of incapacity, . . . And everywhere the Act uses incapacity, total or partial, in the sense of disability .

Biederzycki v. Farrel Foundry and Machine Co., 103 Conn. 701, 706 (1926)

Thus in Osterlund v. State of Conn., supra, Claimant had a sixty per cent (60%) anatomical impairment of the left foot. The Commissioner concluded that Claimant had a sixty per cent (60%) permanent partial loss of the foot and was therefore entitled to specific indemnity rather than total disability payments. The Supreme Court reversed and remanded to the Commissioner for findings as to whether Claimant was totally incapacitated in the sense that the sixty per cent (60%) anatomical impairment of the left foot made Claimant's labor unmarketable. In Reilley v. Carroll, 110 Conn. 283 (1929) Claimant had an anatomical impairment, partial loss of vision. The Supreme Court upheld the Commissioner's finding of total incapacity. Similarly in Czeplicki v. Fafnir Bearing Co., supra, Claimant's anatomical impairment was ten percent (10%) loss of use of the back, but the Supreme Court affirmed the Commissioner's ruling that Claimant was totally incapacitated.

For the reasons here stated, the Commissioner's decision is affirmed, but the matter needs further hearing to ascertain Claimant's disability status after the date of the Commissioner's January 5, 1982 Finding.