Opinion
No. CV 08-5016344 S
September 23, 2010
MEMORANDUM OF DECISION
On July 24, 2006 the plaintiff, Mario Fiallo, was employed by Eagle Hill School in Fairfield as a maintenance worker. While he was engaged in yard work at the campus of Eagle Hill School he was struck by an automobile operated by Michelle Igesias and sustained injuries. Igesias was covered by an automobile liability insurance policy with $20,000 in policy limits. The plaintiff was paid the entire $20,000 under Igesias' policy and brought this action against defendant, Allstate Insurance Company, pursuant to the underinsured motorists provisions of a policy issued to the plaintiff by the defendant.
The defendant filed an answer and special defenses claiming that its liability under the policy was limited to $50,000 and that, pursuant to the terms of the policy, it was entitled to credits equal to the amounts received by the plaintiff from Igesias and the amounts of benefits paid or payable by workers' compensation. A jury trial was conducted from May 25 to May 27, 2010 in Bridgeport Superior Court. On May 27, 2010 the jury returned a verdict awarding the plaintiff $30,287.14 in economic damages and $64,712.86 in non-economic damages.
On June 7, 2010 the defendant filed a timely motion to reduce the verdict in accordance with the terms of the policy issued to the plaintiff by the defendant. In that motion, the defendant claimed that the $50,000 limits of underinsured motorists coverage under the policy was required to be reduced by the $20,000 paid to the plaintiff by Igesias' automobile liability carrier and by the amounts received or to be received by the plaintiff from workers' compensation. In that motion, the defendant claimed that the $20,000 paid by Igesias' carrier reduced its exposure to $30,000 and that, on information and belief, the plaintiff had received or could receive in excess of $50,000 in workers' compensation benefits, effectively reducing the defendant's liability under the policy issued to the plaintiff to $0.
On June 17, 2010 the plaintiff filed an objection to the defendant's motion to reduce the verdict claiming that the defendant is not entitled to a reduction in the verdict: A. Because the defendant breached the insurance policy; B.1. Amounts reimbursed to workers' compensation are not "paid"; B.2. Unpaid and unawarded permanency ratings and future medical treatment do not constitute amounts "payable"; C. The defendant can not meet its burden because it failed to submit jury interrogatories; D. The defendant cannot rely on the terms of the policy because it was not admitted into evidence.
The plaintiff did not pursue his claim that the defendant was not entitled to assert special defenses because it breached its obligations under the policy. Accordingly, plaintiff's objection A. will not be considered further by the court. Plaintiff's objections B.1., B.2. and C are considered below in this memorandum of decision.
At a hearing held on June 22, 2010 the court first considered plaintiff's objection D. The defendant failed to introduce the policy it issued to the plaintiff in evidence before the jury. Plaintiff claimed that there had been no agreement to reserve the issues regarding policy limits and reductions to the court. The defendant claimed otherwise. Further hearings on the defendant's motion to reduce the verdict, and plaintiff's objections to that motion were continued until July 12, 2010 in order to allow the parties to obtain transcripts of counsels' discussions with the court prior to the presentation of evidence to the jury. On July 12, 2010, defendant's counsel reported that the transcript had not yet been obtained from the court reporter because of the reporter's prior commitments. Based upon the estimate as to when the transcript would be available, the court continued the hearing to August 26, 2010.
At the August 26, 2010 hearing the court received copies of the complete transcript of the trial. Those transcripts reflect the following:
1. On May 25, 2010 in a discussion held prior to the swearing in of the jury, counsel for the parties held the following discussions concerning potential reductions in a plaintiff's verdict required by the provisions of the policy issued to the plaintiff by the defendant:
ATTY. JOHNSON [counsel for defendant Allstate]: We have an agreement as to what the policy limit is, but there's — posttrial there will be some — a necessary hearing regarding — because there was Workers' Compensation paid and —
THE COURT: And has it been agreed that is not an issue for the jury, that the Court can deal with that at the same time it deals — is there collateral source issues as well?
ATTY. JOHNSON: There may be.
ATTY. VIRGIL [counsel for the plaintiff]: There may be.
ATTY. JOHNSON: Yeah. And definitely an agreement that the jury doesn't touch that, that will be for the Court after the verdict.
THE COURT: By statute, the collateral source is an issue for the jury. However, there is no comparable statute with respect to underinsured and the special defenses you pled. However, it is quite normal for parties to stipulate that that will be handled by the Court in a postjudgment matter, but I wanted to make sure that that, in fact, was an agreement because, otherwise, that would have to be an issue that would have to be submitted to the jury.
ATTY. JOHNSON: No, I don't think we want that issue submitted to the jury.
THE COURT: Very few people do, but since the statute does, not — is not similar to collateral source. All right. How long do we anticipate the trial will be?
ATTY. VIRGIL: I expect the evidence should be concluded today, and I think we would close and charge tomorrow.
THE COURT: All right. Does anybody have any proposed jury instructions or jury interrogatories?
ATTY. VIRGIL: I do have proposed jury instructions. I filed them electronically and I have given counsel a copy as well and I have an additional copy for you, your Honor.
2. On May 27, 2010 during a discussion concerning the court's charge instructing the jury not to consider the possibility that some of the plaintiff's medical expenses may have been paid by either health care insurance or workers' compensation benefits, the following discussion took place:
ATTY. VIRGIL: Well, we had spoken before about collateral sources, Workers' Comp, the tortfeasor's insurance, and — and health insurance. And you have addressed it in two separate places. You made references to disregard it. I would also like the addition of a sentence that said that is something that you will decide and you will calculate after the verdict has been rendered.
THE COURT: Well, I will in some respects but not others. There will be no basis — in the absence of interrogatories, there will be no basis for collateral source.
ATTY. JOHNSON: I don't think there is actually a collateral source issue here in terms of the insurance payment. There is Workers' Comp issues, that's the thing that the Court's gonna —
THE COURT: Well, that depends upon whether — I mean, you know, the wording of your policy . . .
In Bennett v. Automobile Ins. Co. of Hartford, 230 Conn. 795 (1994), the Supreme Court considered whether, in an underinsured motorist case, a defendant insurer was required to plead limitations set forth in the policy as a special defense. The court held that the trial court had properly reduced a jury verdict to conform with the limitations on coverage in the policy despite the failure of the insurance company to allege such limitations in a special defense. However, the court established a rule applicable to all such cases in the future. "In view of the issues raised by this appeal, we take this opportunity, pursuant to our supervisory authority over the administration of justice to hold that henceforth an insurer should raise issues of policy limitation, even when undisputed, by special defense. When a jury determination of the facts raised by special defense is not necessary, the special defense will not be submitted to the jury but, rather, will be resolved by the trial court prior to the rendering of judgment. Compliance with this procedure will place the trial court and the opposing party on proper notice of the policy limitation issue so that it may be resolved in accordance with § 38a-336(b)." (Internal citations omitted.) 230 Conn. at 806.
Based on the transcripts of the discussions the court held with counsel prior to the trial, the court finds that the parties had agreed to reserve all issues relating to reductions in underinsured motorists coverage under the provisions of policy, including those which might otherwise been submitted to the jury, for post-verdict determination by the court. Accordingly, the court overrules plaintiff's objection "D."
UNINSURED — UNDERINSURED MOTORIST COVERAGE
General Statutes § 38a-336 et seq. mandates that insurer selling automobile liability coverage in this state provide their insured with uninsured/underinsured motorist coverage. General Statutes § 38a-334(a) requires the Insurance Commissioner to "adopt regulations with respect to minimum provisions to be included in automobile liability insurance policies . . . Such regulations shall relate to the insuring agreements, exclusions, conditions and other terms applicable to the . . . uninsured motorists coverages . . ." Pursuant to this statutory authority the Insurance Commissioner adopted regulations including Sec. 38a-334-6(d) which provides:
(d) Limits of liability. (1) The limit of the insurer's liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of Section 114-112 of the General Statutes, except that the policy may provide for the reduction of limits to the extent that damages have been (A) paid by or on behalf of any person responsible for the injury, (B) paid or are payable under any workers' compensation law, or (C) paid under the policy in settlement of a liability claim.
PLAINTIFF'S CLAIM OF AN AMBIGUITY IN THE INSURANCE POLICY
The defendant presented evidence to the court of the automobile insurance policy issued to the plaintiff. (Ex. 1.) The declaration page of the policy indicated that uninsured/underinsured coverage was provided to the plaintiff in the amount of $50,000 for each person and $100,000 for each accident.
Part V of the policy is concerned with "Uninsured Motorist Insurance Underinsured Motorist Insurance Coverage SS." In relevant part, Part V states: "If a premium is shown on the declarations page for Coverage SS, Uninsured Motorist Insurance and Underinsured Motorist Insurance, we will pay those damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto or an underinsured auto because of bodily injury sustained by an insured person." Part V further provides that "The limits of coverage will be reduced by 1. all amounts paid by or on behalf of the owner or operator of the . . . underinsured auto . . . 2. all amounts paid or payable under any workers' compensation law."
The plaintiff concedes that he recovered $20,000 from the operator of the vehicle which struck him. However, the plaintiff claims that the declaration page of the policy is ambiguous and that the plaintiff is, in fact, entitled to coverage under Part VI of the policy.
Part VI of the policy is concerned with "Uninsured Motorist Insurance Underinsured Motorist Conversion Insurance Coverage SC." In relevant part, Part VI states: "If a premium is shown on the declarations page for Coverage SC, Uninsured Motorist Insurance and Underinsured Motorist Conversion Insurance, we will pay those damages which an insured person is legally entitled to recover from the owner or operator of an uninsured auto or an underinsured auto because of bodily injury sustained by an insured person." Part VI further provides that "In the case of accidents involving a legally liable underinsured motorist, the damages payable will be reduced by: 1. all amounts paid by or on behalf of the owner or operator of the . . . underinsured auto . . . 2. all amounts paid or payable under any workers' compensation law."
The difference between the coverages afforded under Part V of the policy and that afforded under Part VI is clear. Under Part V, the limit of coverage is reduced by the amount recovered from the tortfeasor's insurer, in this case such reduction would leave maximum coverage of $30,000 available to the plaintiff. ($50,000 less $20,000.) Under Part VI the amount of damages is reduced by the amount recovered from the tortfeasor's insurer. In this case such reduction would reduce the amount of damages awarded by the $30,000 available to the plaintiff. Under Part VI damages are reduced by the amount recovered from the tortfeasor's insurer. In this case, the damages awarded by jury, $95,000 would be reduced by the $20,000 recovered from the tortfeasor's insurer and the full amount of plaintiff's underinsured coverage, $50,000, would be available to him.
In relevant part, the declarations page of the plaintiffs' policy states:
COVERAGE LIMITS DEDUCTIBLE PREMIUM
" . . . Uninsured/ Under Insured Motorists $50,000 each person Not applicable $21.80 $100,000 each accident"The plaintiff notes that the declarations page does not show a premium for "Coverage SS" as set forth in Part V of the policy. The plaintiff reasons that the coverage for which he was charged a premium of $21.80 by the defendant might well be "Coverage SC" under Part VI of the policy. The plaintiff asserts that this ambiguity in the terms of the policy must be construed in his favor (see e.g. Peerless Ins. Co. v. Gonzalez, 241 Conn. 476, 481-83 (1997)), and the plaintiff would be entitled to underinsured motorist coverage in the effective amount of $50,000 rather than $30,000.
The court disagrees with the plaintiff's claim. Both Parts V and VI of the policy envision that the declaration page will state whether the coverage provided by the defendant would be designated by code "SS" or code "SC." However, the absence of a code does not render the policy ambiguous. Part V refers to the coverage provided therein as" Uninsured Motorist Insurance Underinsured Motorist Insurance Coverage SS" while Part VI refers to the coverage under that part as "Uninsured Motorist Insurance Underinsured Motorist Conversion Insurance Coverage SC." The declaration pager refers to "Uninsured/Underinsured Motorists." There is nothing on the declaration page to suggest that Conversion coverage was being provided by the defendant. Under these circumstances the court finds no ambiguity in the policy and finds that the plaintiff is entitled to coverage afforded under Part V of the policy and is not entitled to coverage under Part VI of the policy.
REDUCTIONS OF LIMITS OF COVERAGE AMOUNTS PAID UNDER WORKERS' COMPENSATION LAW
Based on the court's finding as to the coverage afforded under the policy, the court concludes that the $50,000 coverage limit must be reduced by the $20,000 which the plaintiff admits receiving from the tortfeasor's insurance company. The parties disagree as to the extent of any further reductions in coverage for "amounts paid or payable under any workers' compensation law." The parties agree that the plaintiff has received net workers' compensation benefits in the amount of $5,403.71.
The plaintiff received workers' compensation payments in the total amount of $12,001.73. Upon receiving a $20,000 payment from the tortfeasor's insurer, the plaintiff repaid $6,598.02 to his employer's workers' compensation carrier, resulting the balance of $5,403.71.
AMOUNTS "PAYABLE UNDER ANY WORKERS' COMPENSATION LAW"
The defendant claims that it is entitled to further credits for additional amounts "payable under . . . workers' compensation." In paragraph 5 of its June 7, 2010 motion to reduce the verdict, the defendant asserts: "Additionally, the plaintiff was awarded $30,287.14 in economic damages, some of which was paid by workers' compensation and the remainder of which presumably is `payable' by workers' compensation. Therefore, since the economic damages award has either been paid or is payable by workers' compensation, the remaining coverage available on the underinsured motorist claim should be reduced to $0."
In paragraph 6 of its motion the defendant claims: "Furthermore, the plaintiff received permanency ratings of 6% to the right upper extremity and 5% to the lumbar spine. Based on the workers' compensation statutes, the plaintiff is entitled to a specific payment for those permanencies. In accordance with those statutes the plaintiff is entitled to a specific payment from workers' compensation of approximately $23,000."
Part V of the policy purports to take advantage of the provisions of Sec. 38a-334-6(d) of the Regulations by reducing the amounts otherwise payable by "all amounts paid or payable under any workers' compensation law." Language of the policy issued by the defendant differs from that in the Regulation which allows for reduction of " damages . . . paid or are payable under any workers' compensation law." (Emphasis supplied.) With respect to the issues of this case, the court can not discern any difference between the use of the word "damages" in the Regulations and "amounts" in the policy. See: Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 815-16 (1992), in which the court found no disparity between the word "damages" in the Regulations and "sums" in the policy.
However, one Superior Court has held that language of the Regulations requires that payments under workers' compensation laws must be actually paid or "awarded but not yet paid" before an insurer is entitled to a reduction in limits coverage by reason of workers' compensation benefits. In Perillo v. Jacobs, Superior Court, judicial district of New Haven, Docket No. CV 06-6000215 (April 20, 2009, Cronan, J.) [ 47 Conn. L. Rptr. 764], the plaintiff sued the State of Connecticut Department of Public Safety for injuries sustained in a work-related automobile accident. The defendant was self-insured and had filed an insurance memorandum stating, in relevant part: "It is the intent of the State of Connecticut in designing and funding its self-insurance program to avail itself of all rights and benefits conferred to insurers under General Statute § 38a-336, the applicable Regulations of Connecticut State Agencies, including 38a-334-6, and the case law interpreting those statutes and regulations." The court in Perillo was required to determine whether the reference to "paid or are payable" included Workers' Compensation Benefits which had not been applied for.
The court relied on Rydingsword v. Liberty Mutual Ins. Co., supra, in which the Supreme Court reversed a trial court decision rejecting that portion of an arbitration award in an uninsured/underinsured case which reduced the plaintiff's damages by the value of a workers' compensation award for which the plaintiff had not yet been paid. The Workers' Compensation Commission had approved and paid awards for medical expenses, lost wages and compensation for permanent disfigurement. The court in Rydingsword was construing the phrase "paid or payable" which was used in the subject policy. While the court noted that the policy was required to conform the requirements of § 38a-334-6 the Regulations, the court did not comment on the differences between the policy language and that of the Regulations.
"paid or payable . . ."
"paid or are payable . . ."
The court in Perillo, supra, apparently understood that in Rydingsword "an award for twenty percent permanent disability was also approved [by the Commission.]" In fact, the Supreme Court in Rydingsword found that "[t]he plaintiff did not pursue a workers' compensation claim for specific indemnity for the 20 percent disability of the lumbar spine as provided in 31-308(b)." In Perillo the court was not required to construe the language of an insurance policy and determine whether that policy impermissibly extended the scope of reductions for not yet paid workers' compensation benefits beyond that permitted by § 38a-334-6 of the Regulations. The insurance memorandum at issue in Perillo incorporated the limitations of the regulations by reference. The court found that the phrase "are payable" to refer only to awards which have already been approved by the Workers' Compensation Commission.
The court in Rydingsword considered the language of both the regulations and the policy and apparently found no distinction between the use of "are payable" in the regulations and simply "payable" in the policy. The policy language in Rydingsword addressing limitations of coverage under the uninsured/underinsured motorists provisions was identical to the language in the policy issued by defendant, Allstate. Under Rydingsword, the court is constrained to find that the defendant is entitled to have the court consider the evidence of all workers' compensation benefits resulting from the injuries sustained by the plaintiff in the July 24, 2006 accident whether they have been paid, awarded but not yet paid, or not applied for. Such a finding is consistent with the public policy of this state which disfavors duplicate recoveries for the same injuries. Rydingsword, supra, at 18. See also: Berk Jainchill, Connecticut Law of Uninsured and Underinsured Motorist Coverage 4th Ed. § 6.3.1 (2010).
In his Objection C., the plaintiff argues that because the defendant failed to submit jury interrogatories designed to outline exactly what losses the jury's award of damages was intended to cover and in what amount, the defendant is precluded from seeking a reduction in the verdict based on yet unpaid workers' compensation benefits. The defendant counters that the law relied upon by the plaintiff is irrelevant because it deals with the collateral source doctrine and, aside from the tortfeasor payment, the reductions it seeks are not based upon collateral source payments. The plaintiff relies on Jones v. Kramer, Conn. 336 (2004), in which the Supreme Court ruled that the trial court could only make collateral source reductions in a jury's award of economic damages for specific items of damages included in the jury's award. The Court determined that General Statutes § 52-225a requires the trial court to deduct only those collateral source payments that were allocated to the specific items of damages "actually included within the fact finder's verdict." Id., 339. The Court announced the following rule regarding the future resolution of such issues: "We conclude that the defendant, as the party seeking to reduce the amount of economic damages awarded by the fact finder, bears the burden of proving that the verdict includes items of damages for which the plaintiff has received a collateral source benefit. Specifically, the defendant who is seeking a collateral source reduction must, at the conclusion of the evidence, submit interrogatories to the jury concerning the specific items of damages included within the verdict. Although we acknowledge that § 52-225a is silent concerning burdens of proof . . . we believe that placing the burden on the defendant to submit jury interrogatories is most consistent with the equitable balance that the statute seeks to strike between barring plaintiffs from recovering twice for the same loss, on the one hand, and preventing defendants from benefitting from reduced judgments due to collateral source payments, on the other. Moreover, because it is the defendant who is seeking to reduce the award, the defendant should bear the burden of proving that the items of damages corresponding with the desired collateral source reduction actually are included in the award." (Citation omitted.) Id., 349-50.
Both parties overlook the fact, that because of their agreement that the court would decide issues relating to reductions in the verdict required under the provisions of the policy issued by the defendant, no evidence was presented to the jury as to the amount of workers' compensation benefits received by the plaintiff as a result of the injuries he sustained. Nor was the jury asked to determine the extent, if any, to which the plaintiff would be entitled to future payments of workers' compensation benefits. In fact, the jury was instructed not to guess or speculate as to whether the plaintiff would be entitled to payments either from a health insurance carrier or from workers' compensation. As the trier of fact on the issue of reductions in the limits of policy coverage the court will consider both the evidence presented to the jury at trial and the evidence presented at the hearing on the defendant's post-verdict motion. The court will also consider the jury's verdict and the determinations of fact implicit in that verdict.
TRIAL EVIDENCE CT Page 18885
Regarding damages, the relevant evidence presented at trial consisted of the following:
Ex. 5 — St. Vincent Medical Center emergency care records from July 24, 2006 and July 25, 2006 regarding the diagnosis and initial treatment of the injuries to the plaintiff's back and right shoulder immediately following the accident.
Ex. 6 — Treatment records of Mark Wasserman, M.D. of the Primary Care Physicians of Fairfield, P.C. regarding:
1. March 2, 2004 visit relating to injuries sustained by the plaintiff to his left shoulder in a fall "going down stairs."
2. January 19, 2005 visit for back and left shoulder pain after "snow shoveling."
3. September 28, 2005 visit relating to re-injury of right ankle.
4. May 24, 2006 visit relating to pain in lower back radiating down the left leg.
5. July 27, 2006 visit relating to injuries sustained on July 24, 2006. Complaints "are muscle spasms in his neck and shoulders (RL), left shoulder pain and inability to abduct it without a lot on pain and return of his sciatica on the right, which had completely resolved after he switched his wallet to the front pocket.
Ex. 7 — Records of Rolf H. Langeland, M. D. — Orthopaedic Specialty Group, P.C. consisting of:
1. Report of examination on July 28, 2006 — The report notes "Consultation: Dr. Wasserman" and reports complaints of "constant pain about the neck, the low back, the right shoulder, the left forearm and the pelvis." resulting from the July 24, 2006 accident. The recommendations included formal therapy, Celebrex, no work until follow up visit and follow up in four weeks for evaluation.
2. Report of follow-up visit on September 1, 2006 diagnosing cervical strain, lumbar strain, right shoulder contusion, left shoulder contusion, improved, and pelvic contusion improved. The recommendations included, Celebrex, continue therapy, light duty at work and follow up in one month to consider increased work status.
3. Report of follow-up visit on October 4, 2006 diagnosing cervical strain, lumbar strain, right shoulder contusion, left shoulder contusion, and pelvic contusion. The plaintiff states that he "still does have occasional pain in his neck and low back particularly with strenuous activities." The objective findings included: "cervical spine with improved range of motion. Mild tenderness in the right paravertebral musculature. No radicular signs." "lumbar spine . . . near full range of motion" "right shoulder reveals mild tenderness at the trapeziel, upper border of the trapezius. Neurological exam distally intact." The recommendations included, Celebrex, continue formal therapy, light duty, 20 pounds weight restriction four hours per day and follow up in one month to consider increased work status.
4. Report of follow-up visit on November 10, 2006 diagnosing lumbar strain; cervical strain, improved; right shoulder contusion, improved; left shoulder contusion, improved and pelvic contusion, improved. The plaintiff states that "he is improving every month. He states that he has only residual low back pain currently, which is improving gradually." The objective findings included: "lumbar spine the near full range of motion, mild tenderness, no radicular signs." The recommendations included, Celebrex, home stretching program, light duty, 20 pounds weight restriction eight hours per day and follow up in one month to consider full duty work.
5. Report of follow-up visit on December 15, 2006 diagnosing lumbar strain, improved; cervical strain, improved; right shoulder contusion, improved; left shoulder contusion, improved and pelvic contusion, improved. The report states: "Mr. Fiallo returns now six months after his injury and he is doing much better. He states that he has occasional low back and neck pain." The objective findings included: "cervical spine with full range of motion. No radicular signs. Neurovascular exam distally intact." The recommendations included, Aleve, back stretching program, work status — full duty, and follow up in one month to reevaluate his status after full duty work.
6. Report of follow-up visit on February 2, 2007 diagnosing lumbar strain, right shoulder bursitis cervical strain, left shoulder contusion, and pelvic contusion. The report states: "[Mr. Fiallo] states both his back and right shoulder continue to cause him some pain. He states he is able to perform full duty work, however, at the end of the day he is sore in his back and his shoulder. His other injuries have resolved and have no pain." The objective findings included: "lumbar spine with full range of motion, mild tenderness, no radicular signs. Neurovascular exam distally intact. Examination of the right shoulder reveals mild synovial swelling, mild tenderness. Neurovascular exam distally intact." The recommendations included, work status — full duty, Aleve, back stretching program and follow up in two months for impairment rating.
7. Report of follow-up visit on April 6, 2007 assigning the following impairment ratings: left upper extremity 0%; cervical spine 0%, pelvis 0%.
8. Report of follow-up visit on October 26, 2007 diagnosing "lumbar disc disease and stating that "Mr. Fiallo returns for reevaluation of his lumbar spine. He states he continues to experience pain in his low back, particularly with lifting activities and on moist days. He underwent MRI recently." "MRI reveals evidence of mild degenerative changes at disk spaces L3 through S1. No herniation. No nerve impingement." Recommendations included: continue low back stretching program, strengthening program, light duty — avoid heavy lifting, follow up in the future.
9. Report of follow-up visit on October 13, 2009 diagnosing "low back pain; lumbar radiculopathy, right leg." The plaintiff apparently complained of a "several-day history of increased pain and tenderness in the low back and right leg, significantly more severe over the weekend when he rested and restricted his activities. Pain typically radiates into his right buttock, posterior thigh and calf area." Significantly, the report does not directly connect the plaintiff's condition with the July 24, 2006 accident. However, it states "no prior history of any back injuries or problems."
This statement appears to ignore both the prior treatment of the plaintiff's lumbar and cervical spine following the July 24, 2006 accident as well as the May 24, 2006 visit to Dr. Wasserman in which lower back pain apparently resulted from the plaintiff's habit of carrying his wallet in his back pocket. As the referring physician, Dr. Wasserman presumably shared the plaintiff's medical history with Dr. Langeland.
10. Report of follow-up visit on March 15, 2010 diagnosing "right leg lumbar radiculopathy, right shoulder rotator cuff tendinosis." Nearly three years after last referring to the July 24, 2006 accident, Dr. Langeland now links the plaintiff's condition with the accident and gives the following impairment ratings: "right upper extremity, 6% . . . lumbar spine 5% based on AMA Guidlines sixth edition." The report also states that the plaintiff will require future treatment in the form of physical therapy for his right shoulder and his lumbar spine and anti-inflammatories at an estimated cost of $1,000 per year.
Ex. 8 — Report of Advanced Radiology of October 1, 2007 MRI showing "mild disc deterioration at the L-3 through L5/S1 levels. There is not associated central stenosis or nerve root compression."
Ex. 9 — Report of Michael E. Opalak, M.D. dated May 30, 2008 stating "At this point in time he either has a chronic sprain, but at two years this seems a little bit unusual, an element of instability or an element of neuropathy in the legs."
Ex. 10 — Record from the office of Konecny Chiropratic Centers of a October 15, 2009 visit.
Ex. 11 — A summary of the plaintiff's claim of medical expenses incurred as a result of the accident, with supporting bills attached, showing a total of $11,341.
Ex. 15 — A life expectancy table showing that a man of the plaintiff's age would have a life expectancy of 34.3 years.
EVIDENCE PRESENTED TO THE COURT IN THE POST-TRIAL HEARING
At the August 26, 2010 hearing the defendant called Lawrence R. Pellet, the attorney for Republic Franklin, workers' compensation carrier of the plaintiff's employer, as a witness. Pellet was able to authenticate a Voluntary Agreement signed by the plaintiff and the carrier in September 2006 and approved by the Workers' Compensation Commission on September 20, 2006. (Ex. 4.) That agreement covered only the subject of total incapacity and set forth an agreed rate of compensation of $740.69 per week. Attached to the Voluntary Agreement was a form entitled "Filing Status and Exemption." In that form, the defendant although married claimed the status of "head of household," a tax filing status unavailable to married individuals.
Pellet also authenticated a Notice of Intent to Reduce or Discontinue Payments (Ex. 6) effective July 20, 2008 which demonstrated that a moratorium on workers' compensation payments in the amount of $6,678.88 had been established following the plaintiff's receipt of settlement funds from the tortfeasor's insurer and the subsequent repayment of funds by the plaintiff to Republic Franklin.
The defendant also offered the testimony of Jean Bonzani, district manager for the Workers' Compensation Commission. She stated that if the commission determined that the plaintiff had a 6% permanent partial disability of his non-master upper extremity and a 5% permanent partial disability of his lumbar spine, he would be entitled to a lump sum award in the amount of $22,460.92. That award would be subject to "commutation" at a 3% rate resulting in a final lump sum award of $22,271.00. On cross-examination by the plaintiff, Bonzani testified that the voluntary agreement signed by the plaintiff (Ex. 4), was limited to the issue of total incapacity and did not, in fact, include any agreement with respect to permanent partial disability. She also acknowledged that the filing status of head of household included with the voluntary agreement was probably incorrect.
ECONOMIC DAMAGES PAYABLE
The defendant claims that because the jury awarded economic damages in the amount of $30,287.14, it must have awarded the plaintiff all of his medical bills, plus lost wages. The defendant asserts that there is every reason to expect that plaintiff could receive the balance of his economic damages from his still-open workers' compensation claim.
One difficulty with this argument is that the plaintiff's verdict form does not differentiate between damages awarded for past medical expenses, damages awarded for lost wages and damages awarded for future medical treatment and no jury interrogatories were submitted by either party to allow the court to determine the actual elements of the economic damages awarded by the jury. The court notes that according to Dr. Langeland's report and testimony, the jury could have found that the plaintiff would incur at least $34,300 in future medical expenses. While the Supreme Court's decision in Jones, supra, was limited to the manner in which collateral source payments included in jury awards were to be addressed, it is instructive as to how a trial court must address issues arising from a jury verdict. The court cannot guess or speculate as to the components which make up a jury award, but must rely upon the verdict forms or the jury's answers to interrogatories in order to determine the elements which comprise an award of damages.
$1,000 per year for future treatment times the plaintiff's life expectancy of 34.3 years. Of, course based on the evidence presented the jury was, in accordance with the court's instructions, free to determine that, in plaintiff's case, a longer life expectancy would be more appropriate.
A second difficulty arises from the fact that, even if the court were able to determine the elements of the jury's award of economic damages, the defendant failed to present sufficient evidence to the court as to the amount the Workers' Compensation Commission might award to the plaintiff as economic damages. Although the jury may well have ignored the medical records which showed prior injuries from a fall down stairs, and showed significant radiculopathy of pain prior to the accident (see Ex. 6), there was no evidence that the Workers' Compensation Commission would act in a similar fashion. The Commission could well determine that some or even the greater part of the plaintiff's economic damages were the result of a prior non-work-related injuries or of a disease. (See Ex. 7, report of October 26, 2007.) The court agrees with the plaintiff that the evidence before the court fails to establish that the plaintiff will receive additional awards from the Workers' Compensation Commission for economic damages in addition to the damages awarded by the jury.
FUTURE PAYMENTS FOR PERMANENCY RATINGS
The defendant argues that the non-economic damages of $64,712.86 awarded by the jury in their verdict must have included awards of damages for the 5% permanent impairment of the lumbar spine and 6% permanent impairment of the right shoulder in accordance with Dr. Langeland's ratings. In the absence of jury interrogatories, the court cannot find that the jury's award of non-economic damages included any award for permanent injuries. The plaintiff gave extensive testimony of the pain he endured as the result of the accident for many months thereafter up to and including the date of trial. The award of non-economic damages could have been based entirely on the past pain and suffering endured by the plaintiff and not have included any award pertaining to a permanent disability. In light of the fact that Dr. Langeland did not offer a permanency rating until nearly four years after the accident, the jury could have accepted his testimony in that regard or ignored it entirely. The jury could also have agreed that the plaintiff suffered from one or more permanent impairments, but decided that the plaintiff had failed to establish a connection between the accident and those injuries. The court will decline the defendant's invitation to speculate or guess to the elements which may have comprised the jury's award of non-economic damages.
As with economic damages, the real issue before the court is not whether the jury award of non-economic damages included awards of damages for permanent impairment, but rather whether the evidence has shown that the Workers' Compensation Commission will, in the future make one or more awards to the plaintiff based upon Dr. Langeland's ratings for the injuries the plaintiff sustained on July 24, 2006. On this issue, the defendant relies on the testimony of Jean Bonzani, district manager for the Workers' Compensation Commission, who opined that assuming the commission determined that the plaintiff had a 6% permanent partial disability of his non-master upper extremity and a 5% permanent partial disability of his lumbar spine, the plaintiff would be entitled to a lump sum award in the amount of approximately $22,000. The court can overlook the fact that her testimony was based on the somewhat flawed voluntary agreement signed by the plaintiff. (Ex. 4.) However, the court can find no evidence supporting the assumption that the Workers' Compensation Commission would, in fact, make the awards in accordance with Dr. Langeland's ratings. Jean Bonzani was asked to assume that the Commission made findings of such disability ratings and then to testify as to the award to the plaintiff that would result from such ratings. While her testimony was entirely credible, there was no reliable evidentiary basis for the assumptions she asked to make.
"Any `double recovery' in this case is at best uncertain. Moreover, reducing the policy limits by a hypothetical future workers' compensation payment would undermine the essential purpose of underinsured motorist coverage which is to place the insured in the same position as, but no better position than, the insured would have been had the underinsured tortfeasor been fully insured. In this case, the argued prospective workers' compensation payment to the plaintiff is indefinite and incalculable; it cannot form the basis of a reduction under Rydingsword." (Internal citations and quotation marks omitted.) Dillon v. Providence Washington Ins. Co., Superior Court, judicial district of Waterbury, Docket No. CV 990152359 (October 19, 2002, Wolven, J.) [ 33 Conn. L. Rptr. 419].
CONCLUSION
The court finds that the defendant is entitled to reductions in the verdict to reflect the $50,000 policy limits and the $20,000 which the plaintiff received from the tortfeasor's insurer. The court further finds that the defendant is entitled to a reduction in the verdict based on the net workers' compensation benefits received by the plaintiff in amount of $5,403.71. The court declines the defendant's invitation to further reduce the verdict either based on speculation as to the elements of damages included in the jury's award of both economic and non-economic damages or on speculation as to the sums which the Workers' Compensation Commission might "presumably" award in the future. The court finds that the defendant has failed to present the court with a sufficient evidentiary basis for making any further reductions in the verdict.
The motion to reduce the verdict is granted and the verdict is reduced to $24,596.29.
$30,000 less $5,403.71.