Opinion
CASE NO. 83-CRD-5-81
DECEMBER 8, 1981
The appellee-claimant was represented by John F. Nagle, Esq.
The appellant-respondent was represented by Edward T. Dodd, Jr., Esq.
This Petition for Review from the July 30, 1981 Supplemental Finding of the Commissioner for the Fifth District was argued October 23, 1981 before a Compensation Review Division panel consisting of Commissioners John Arcudi, A. Paul Berte' and Gerald Kolinsky.
FINDING AND AWARD
1. The parties entered into a Voluntary Agreement approved by the Fifth District Commissioner February 20, 1981 reciting that the claimant had suffered a compensable injury to her back sometime before November 14, 1980.
2. This Agreement set down the compensation rate to which claimant was entitled.
3. The respondents paid and claimant received compensation at this rate for temporary total disability for some time at least until November 14, 1980.
4. On November 14, 1980 Dr. Myron Shafer, an orthopedic surgeon of Hartford, who examined the claimant concluded she had reached maximum improvement in the condition of her back but was still disabled from employment.
5. Claimant's treating orthopedic surgeon, Doctor ______ Bouillon reached the same conclusions on March 7, 1981.
6. It is found that claimant, based on the medical evidence presented in the parties Stipulation of Facts, as of May 5, 1981 remained totally incapacitated from work.
7. The claimant is therefore eligible to receive temporary total disability payments at least until May 5, 1981.
WHEREFORE IT IS DECREED, ADJUDGED, AWARDED AND ORDERED;
A. That Respondents continue to pay temporary total disability payments weekly to May 5, 1981 and beyond while such condition persists at claimant's compensation rate.
B. The matter be remanded to the Commissioner below for further proceedings to determine claimant's status after May 5, 1981.
OPINION
This matter comes before the Compensation Review Division in a truncated form. The parties have apparently agreed that at some time prior to November 14, 1980 the claimant suffered a compensable injury to her back arising out of and in the course of her employment with the respondent employer. She then became eligible and received temporary total disability benefits for some unspecified time before November 14, 1980. It would have been helpful to the panel if the Commissioner in his Finding set down the date of the compensable injury by which workers' compensation jurisdiction attaches. It also would have been helpful if the Commissioner addressed the fact of compliance or non-compliance with Sec. 31-296 in his Finding. In addition, the Finding should have included the compensation rate of the claimant.
None of these omissions is necessarily fatal however as the parties only asked the Commissioner to decide a single legal issue on the basis of a very brief stipulated facts statement. It was stipulated that Dr. Myron Shafer, a Hartford orthopedist on November 14, 1980 concluded claimant had reached maximum improvement but was still disabled from employment. It was further stipulated that on March 7, 1981 the treating orthopedist, one Dr. Bouillon (apparently, the parties failed to accord the unlucky surgeon even the formal dignity of a first name) reached the same conclusions as Dr. Sharer. The issue which the parties submitted to the Commissioner for resolution on this set of facts was, "Whether or not the claimant is now entitled to a specific award or a continuation of temporary total benefits?"
The question thus put does not allow much dispute. Sec. 31-307 provides that an employee who suffers a compensable injury and consequent total incapacity for work is entitled to receive his compensation rate weekly during the entire period of that incapacity from work. Sec. 31-307a provides that such an employee shall have cost of living increments added to the basic compensation rate every October 1.
The appellant-respondent assumes here that because the doctors have found maximum improvement, the claimant has reached a plateau of physical improvement where she has suffered only a certain percentage of loss of use of the back, less than one hundred percent. However, the facts stipulated by the parties do not include any such conclusion on the part of the doctors. And in oral argument, the Attorneys seemed to concede that no such percentage evaluation was ever conclusively made by either of the two surgeons.
The mere fact of maximum improvement does not necessarily connote any ability to do even light work. In fact the statute contemplates many cases of maximum improvement where the employee remains totally disabled by statutory definition, i.e. blindness, the loss of two limbs, incurable imbecility or mental illness. The respondent apparently agrees that this is so with total disability cases as statutorily defined. But it seems to argue these are the only cases where total incapacity to work remains after maximum improvement has been reached.
The Connecticut Supreme Court in Osterlund v. State of Conn. (1943) 129 Conn. 591 answered this argument directly. The Court there reversed a Commissioner's finding which had proceeded on the premise that once maximum improvement had been reached there was no alternative but to issue an award for specific compensation. That case holds that even where a doctor has made an evaluation that maximum improvement has been reached and a certain percentage of loss of a part of the anatomy is sustained, it is still in the Commissioner's discretion whether to continue total or partial incapacity payments or to award specific compensation. Here, there is not even any quantification of what loss of function to the back exists.
Admittedly the Osterlund rationale only applies in a very limited number of cases. But in those cases where it does apply the Commissioner may exercise discretion. The Commissioner's decision is affirmed, but the matter is remanded for further proceedings and the taking of further medical testimony to determine whether claimant's status has changed.