Opinion
CASE NO. 221 CRD-6-83
NOVEMBER 14, 1985
The Claimant was represented by Harold Geragosian, Esq.
The Respondents were represented by Robert E. Beach, Esq.
This Petition for Review from the April 4, 1983 Finding and Award of the Commissioner-at-Large, Acting for the Sixth District, was argued January 27, 1984 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Rhoda Loeb and Frank Verrilli.
FINDING AND AWARD
1-7. Paragraphs 1 through 7 of the trial commissioner's Finding and Award are made paragraphs 1-7 of this Division's Finding and Award.
8. As of July 10, 1979 claimant was being maintained on a full pay employment status by the City of New Britain.
9. That status was terminated November 20, 1981 when the Public Schools Administration of the City of New Britain terminated claimant.
10. The termination was based on a reiterated assertion by Dr. Stanley Filewicz that claimant's permanent impairments were such that he could no longer do any work.
11-12. Paragraphs 8 and 9 of the commissioner's Finding and Award are made paragraphs 11 and 12 of this Division's Finding and Award.
The Order and Award of the trial commissioner is adopted as the Order and Award of this Division.
OPINION
The parties here agreed that claimant, Vetre, had received an injury, fracture of both legs and internal injuries, arising out of and in the course of his employment with the City of New Britain June 3, 1976. On July 10, 1979 the employee and the employer executed a Voluntary Agreement entitling claimant to 231 weeks of specific injury benefits for permanent partial impairment of various parts of the body, 15 percent of the back, 78 weeks; 25 percent of the right leg, 59 weeks; 25 percent of the left leg, 59 weeks; and 50 percent of the penis, 35 weeks. The parties further agreed that the 231 weeks was to commence May 15, 1979.
At a January 12, 1982 informal hearing held after Vetre obtained new counsel it was claimed that the totality of permanent partial impairments was such that he should have been entitled to temporary total disability benefits under 31-307 since he was in effect unemployable, Osterlund v. State of Conn., 129 Conn. 591 (1943); Osterlund v. State of Conn., 135 Conn. 498 (1949); Masse v. Becton Dickinson Co., 83 CRD-5-81 (Compensation Review Division, December 8, 1981); La Boda v. Town of Watertown, 61 CRD-5-81 (Compensation Review Division, October 26, 1981); Czeplicki v. Fafnir Bearing Co., 137 Conn. 454 (1951), and that the July 10, 1979 Voluntary Agreement should be rescinded.
As of July 10, 1979 claimant still continued as an employee on the rolls of the City of New Britain with full pay although he did not seem actually to be performing any services. He was not separated from such employment status until November 20, 1981. This termination by the Public Schools of New Britain was based on a November 13, 1981 letter from Dr. Stanley Filewicz, the attending orthopedic surgeon, stating that his patient would not be able to return to any type of gainful employment. Dr. Filewicz had used substantially the same language in a 1978 report. However, Dr. John F. Raycroft, a Hartford orthopedist who examined on behalf of the respondent, had stated in his February 17, 1977 report that "it is rather unlikely that this man will ever return to any form of active work," and also, "it is highly unlikely he will return to his usual occupation."
After a formal hearing January 6, 1983 the Commissioner-at-Large, Acting for the Sixth District, ruled that Vetre was unemployable and therefore modified the July 10, 1979 Voluntary Agreement and awarded total disability benefits beginning January 12, 1982.
Respondents argue that the conditions necessary for the modification of a Voluntary Agreement set forth in 31-315, C.G.S. have not been meet since there had been no change in circumstances or in the claimant's condition of incapacity between July 10, 1979 and January 12, 1982. But as our recital of the facts demonstrates, Respondents' claims are not factually accurate.
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 its 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 Dr. Filewicz's latest reiteration of his 1978 assertion about incapacity illustrate the City's view that the condition of 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 a circumstance changed from those existing July 10, 1979.
The sum total of events occurring between July 10, 1979 and January 12, 1982 constituted adequate evidence to satisfy the requirements of 31-315, C.G.S. Therefore the respondent-employer's appeal is dismissed.
With respect to the cross appeal of the claimant there must be a similar result. The facts known as of July 10, 1979 were different from those which occurred in November and December, 1981. Because of that the trial commissioner cannot be faulted for modifying the 1979 Agreement as of January, 1982 rather than ab initio. Both appeals are dismissed.
Commissioners Rhoda Loeb and Frank Verrilli concur with this opinion.