Opinion
CASE NO. 4679 CRB-2-03-6CLAIM NO. 200140214
JUNE 4, 2004
The claimant was represented by Howard B. Schiller, Esq., 55 Church Street, P.O. Box 699, Willimantic, CT 06226.
The respondent was represented by Yinxia Long, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the May 28, 2003 Finding and Award of the Commissioner acting for the Second District was heard January 23, 2004 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners A. Thomas White and Charles F. Senich.
OPINION
The claimant, James Maddaloni, has appealed from the May 28, 2003 Finding and Award of the Commissioner acting for the Second District. We affirm the decision of the trial commissioner.
The pertinent facts are as follows. In the course of his employment with the respondent-employer the claimant had several compensable injuries to both of his knees. He sustained an injury to his right knee on August 2, 1974 and another on June 6, 1991. He sustained an injury to his left knee on May 7, 1987 and another on April 21, 1994. Additionally, medical records indicate the claimant sustained a January 1996 right knee injury. On January 23, 1996 and on March 20, 1997 the claimant's treating physician, Dr. Robert Moskowitz provided the claimant with a permanent partial disability rating, however, he did not indicate and was not asked to indicate which date of injury was responsible for the permanent partial disability. On April 14, 1997 the claimant's representative provided these permanent partial disability ratings to the respondent's then third party administrator, Alexsis, Inc. and indicated that a final settlement figure would be forthcoming. However, this information was never ultimately offered.
Dr. Gordan A. Zimmerman, the commissioner's examiner was requested to evaluate the claimant for the April 21, 1994 injury. Dr. Zimmerman was only provided a history of a "1974 or 1975" right knee injury and a "1986 or 1987" left knee injury. On October 21, 2002 Dr. Moskowitz opined the claimant had a 35% permanent partial disability of the right knee and a 30% permanent partial disability of the left knee. On February 6, 2003 the respondents issued a payment to the claimant based on a rating of 30% of each knee. The respondents paid 83.3 weeks at the base rate of $117 based upon the September 25, 1974 date of injury, which is equivalent to 35% of the right knee, and paid 41.65 weeks at the base rate of $285.39 based upon the May 7, 1987 date of injury with credit for the prior 12.5% previously paid in order to compensate the claimant for a 30% permanent partial disability of the left knee.
At the formal hearing the parties stipulated the claimant's permanent partial disability of his knees may be subject to adjustment with respect to allocation to the appropriate date of injury and the proper compensation rate which was yet to be clarified. The formal hearing was limited to Dr. Moskowitz's ratings in 1997 and the delay in the payment of those ratings. April 15, 2003 Transcript, p. 19.
The trial commissioner found while Dr. Moskowitz's January 14, 1997 and March 20, 1997 reports contained permanent partial disability ratings, the doctor did not attribute the permanent partial disability to a specific date of injury, repetitive trauma or occupational disease and therefore, the claimant had not provided sufficient information and/or evidence that he was entitled to receive compensation for permanent disability to an injured member. Despite the fact Dr. Zimmerman did not have an accurate history of the claimant's injuries, Dr. Zimmerman opined the claimant had a 35% permanent partial disability rating related to a "1974 or 1975" right knee injury and a 30% permanent partial disability rating related to a "1986 or 1987" injury. The trial commissioner found that Dr. Zimmerman's report was specific enough to entitle the claimant to a permanent disability of 35% of the right lower extremity related to the September 25, 1997 injury and an additional 17.5% of the left lower extremity related to the May 7, 1987 injury. Additionally the trial commissioner found on February 4, 2003 the respondents had paid the claimant the appropriate amount of permanent partial disability benefits as reflected by Dr. Zimmerman's October 21, 2002 report. Furthermore, the trier found the respondents had not unduly delayed or unreasonably contested the payment of the claimant's permanent partial disability benefits. The trial commissioner denied the claimant's claim for attorney fees and interest pursuant to § 31-300 C.G.S. and also denied his claim for interest under § 31-295(c) C.G.S. from January 4, 1997 to October 20, 2002. The trial commissioner ordered the respondents to pay the claimant 10% interest for the period of October 21, 2002 to February 4, 2003 pursuant to § 31-295(c) C.G.S. which reflected the period after Dr. Zimmerman's report was issued.
The claimant appealed the Finding and Award and contended the trial commissioner should have found the claimant was entitled to permanent partial disability benefits based on Dr. Moskowitz's report. Additionally the claimant argued the trial commissioner should have applied § 31-295(c) C.G.S. as of the date of Dr. Moskowitz's rating of the claimant's permanent partial disability.
In its brief the claimant also alleges the commissioner improperly failed to consider and award interest pursuant to § 31-300 C.G.S. This issue was not raised in the claimant's Reasons for Appeal and therefore not discussed as part of this opinion. However, we will note that an award of interest under § 31-300 is assessed at the discretion of the commissioner. Delcarmine, supra. The commissioner in this case made a finding that the respondents had not unduly delayed or unreasonably contested the payment of the claimant's permanent partial disability benefits. Findings, ¶ P. We see no reason to overturn this factual finding.
A claimant has a right to a permanent partial disability award at the time he or she has reached maximum medical improvement. McCurdy v. State, 227 Conn. 261, 268 (1993); Panico v. Sperry Engineering Co., 113 Conn. 707, 714 (1931). The determination of the maximum medical improvement date is a factual one which is left to the purview of the trial commissioner. Kluttz v. Estate of Glenn Howard, 3738 CRB-4-97-12 (February 18, 1999); Delcarmine v. Fire Prevention Service, Inc., 5 Conn. Workers' Comp. Rev. Op. 123, 311 CRD-7-84 (June 27, 1988).
Interest on unpaid permanency benefits is mandated under § 31-295(c).Ortiz v. Highland Sanitation, 4439 CRB-4-01-9 (November 12, 2002). The section of the statute provides if an employee is "entitled to receive compensation for permanent disability to an injured member in accordance with the provisions of subsection (b) of section 31-308, the compensation shall be paid to him beginning not later than thirty days following the date of maximum improvement of the member or members." Section 31-295(c) further provides that if the compensation is not paid within the prescribed thirty days the employer shall pay the employee ten per cent interest from the date of maximum medical improvement.
Here the trial commissioner chose to credit Dr. Zimmerman's report relating to the permanency ratings and date of maximum medical improvement. Neither Dr. Moskowitz's report nor Dr. Zimmerman's report specifically contained a date of maximum medical improvement. On review we cannot override the trier's decision to credit Dr. Zimmerman's report as establishing maximum medical improvement.
This case is factually similar to Delcarmine, supra. In Delcarmine there was an attending physician's report from 1977 that concluded the claimant suffered a 10% loss of the use of the neck and arm. Subsequently, the same doctor issued a 1983 report in which he opined the claimant had a 15% partial permanent disability of the neck and arm. The trial commissioner used the 1983 report as the applicable date of maximum improvement. On appeal, the claimant argued that the respondents were aware of the permanent disability in 1977 and that maximum improvement had been reached, therefore under § 31-295(c) payments should have begun within thirty days of the 1977 report. Neither of the reports contained a date of maximum medical improvement. In that case we said that the determination of a maximum medical improvement date was within the province of the trial commissioner. In this case the trial commissioner used Dr. Zimmerman's report to determine the date of maximum medical improvement.
It is the claimant's burden to prove eligibility for § 31-308(b) benefits. Landry v. Light Metals Coloring Co., 4514 CRB-6-02-4 (April 3, 2003); Saleh v. Poquonock Giant Grinder Shop, 4005 CRB-1-99-3 (March 13, 2000). The trial commissioner made the determination that Dr. Moskowitz's report was insufficient to establish the permanency award. He found Dr. Zimmerman's report, although lacking definite specificity regarding the dates of injuries, was sufficient to establish the permanency award. We find these determinations reasonable given the nature of the medical reports and will not overturn these findings on appeal.
Therefore, we affirm the May 28, 2003 Finding and Award of the Commissioner acting for the Second District.
Commissioners A. Thomas White and Charles F. Senich concur.