Lead Opinion
Opinion
In this consolidated appeal, the defendants, Prometheus Pharmacy and CNA RSKCo Services, appeal and the plaintiff, Susan Marandino, cross appeals from the judgment of the Appellate Court, which had affirmed a finding by a workers’ compensation commissioner that the plaintiff had a compensable arm injury but reversed the finding that she also had a compensable knee injury.
The Appellate Court opinion sets forth the following facts and procedural history. “In February, 1999, while employed by Prometheus Pharmacy, the plaintiff fell at her place of work and sustained an injury to her master right elbow. Beginning in July, 1999, the plaintiff underwent surgeries and received treatment for her arm injury from Andrew Caputo, an orthopedic surgeon. Specifically, on July 12, 1999, the plaintiff underwent an open reduction internal fixation of her right radial head fracture with left iliac crest bone graft, which was secured by a titanium plate, as well as a right carpal tunnel release. In December, 1999, Caputo discovered that there was a crack in the titanium plate and that surgery was required to fix it. Therefore, on January 19, 2000, the plaintiff underwent a right radial head replacement and release of her right elbow contracture.
“On March 1, 2001, the plaintiff underwent her final arm surgery, a right anterior subcutaneous ulnar nerve transposition and excision of deep sutures on her right lateral elbow. Thereafter, the plaintiff underwent an independent medical evaluation with Andrew Nelson, a physician. He diagnosed the plaintiff with, among other things, right upper extremity chronic regional pain syndrome, which he opined was directly and causally related to the injury sustained when the plaintiff fell at her place of work and that the plaintiffs prognosis was poor to fair. He also opined that she was significantly impaired, requiring ongoing narcotic medication and that ‘[a]t best she would only be able to utilize her right upper extremity as a sedentary assistant unless additional evaluation and possible intervention provided her function by way of range of motion, strength, and decreased pain.’ Nelson opined that the plaintiff would reach maximum medical improvement in March, 2002, approximately twelve months after her final surgery on March 1, 2001. In 2002, Nelson authored a second independent medical evaluation in which he indicated that there was no significant change in the plaintiffs complaints or physical evaluation since the November 9, 2001 independent medical examination and that the plaintiff suffered from a permanent partial impairment of 41 percent of the right upper extremity.
“Beginning in June, 2000, and through the time of the hearings before the commissioner, the plaintiff was treated by a pain specialist, Steven Beck, for her arm injury. Beck’s notes indicate an increase in pain, sensitivity and immobility over time, as well as an increase in narcotic medication over time to control the plaintiffs arm pain. Beck testified at his deposition that the plaintiff suffers from complete regional pain syndrome and reflex sympathetic dystrophy.
“On April 24, 2002, the plaintiff reached maximum medical improvement and entered into a voluntary agreement to receive permanent partial disability benefits, in accordance with General Statutes § 31-308,
“In the meantime, in January, 2000, between the plaintiffs first and second arm surgeries, she suffered an injury to her right knee. The plaintiff was in her home and hurriedly was ascending her basement stairs to answer a telephone that was ringing on the first floor when she felt herself fall backward. To secure her bal-anee, and fearful about the crack in the plate in her right arm, the plaintiff reached out for the railing, located on her right side, with her left arm. In doing so, she jerked her body and twisted her right knee. The plaintiff was treated by [Santoro] ... for her knee injury and underwent two surgeries for an osteochondral lesion.
“At some point, after the voluntary agreement was entered into, a hearing was scheduled before the commissioner in which the plaintiff sought to receive benefits for total incapacity. Hearings were held before the commissioner on the matter, and he made several findings, specifically, that the plaintiff had a compensable 41 percent permanent partial disability of her master right arm, that her knee injury was compensable and that she was totally incapacitated and entitled to benefits in accordance with § 31-307.
Thereafter, the defendants appealed from the decision of the board to the Appellate Court. On appeal to the Appellate Court, the defendants claimed that: (1) “the plaintiff is not entitled to total incapacity benefits under § 31-307 . . . because the plaintiff reached maximum medical improvement and entered into a voluntary agreement to receive permanent partial disability benefits, she is unable to request total incapacity benefits without demonstrating a change in [her] medical condition since entering into the agreement . . . [and] that even if the plaintiff can demonstrate a medical change sufficient to seek modification of her award, she is not entitled to total incapacity benefits as she has not exercised reasonable diligence in securing employment and, as such, has not demonstrated a diminished earning capacity in accordance with § 31-307”; id., 681-82; and (2) that the board improperly sustained “the commissioner’s finding that the plaintiffs knee injury was compensable . . . [because] the reports on which the commissioner relied, in part, to make this finding should not have been admitted into evidence . . . [and] that
The Appellate Court concluded that the board properly affirmed the commissioner’s award of total incapacity benefits to the plaintiff. Id., 685-86. Specifically, the Appellate Court concluded that the plaintiff had presented sufficient evidence to establish that the condition of her right arm had worsened from the time that she had entered into the voluntary agreement and that she had met her burden of establishing that she was unemployable by presenting evidence of a vocational rehabilitation expert. Id., 684-86. A majority of the Appellate Court panel further concluded that the board had improperly affirmed the decision of the commissioner that the plaintiffs knee injury was compensable because the medical reports on which the commissioner relied did not constitute competent evidence. Id., 680-81. Judge Mihalakos dissented from that portion of the decision. Id., 686. Accordingly, the Appellate Court reversed the decision of the board with respect to its finding that the plaintiffs knee injury was compensable, but affirmed it in all other respects. Id. This certified, consolidated appeal followed. Additional facts and procedural history will be set forth as necessary.
“As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. ... It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board. ... A state agency is not entitled, however, to special deference when its determination of a question of law has not previously been subject to judicial scrutiny.” (Internal quotation marks omitted.) Deschenes v. Transco, Inc.,
I
In their appeal, the defendants claim that the Appellate Court improperly concluded that the plaintiff was entitled to total incapacity benefits under § 31-307 despite having entered into a voluntary agreement for the payment of permanent partial disability benefits under § 31-308 (b).
The defendants’ appeal raises an issue of statutory interpretation, over which we exercise plenary review. See, e.g., Considine v. Waterbury,
We begin with the language of the relevant provisions of the act. Section 31-307 (a) provides in relevant part that “[i]f any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the injured employee’s average weekly earnings as of the date of the injury . . . .” Section 31-308 (b) provides in relevant part: “With respect to the following injuries, the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be seventy-five per cent of the average weekly earnings of the injured employee .... All of the following injuries include the loss of the member or organ and the complete and permanent loss of use of the member or organ referred to . . . .” In chart form, § 31-308 (b) then lists the com-pensable injuries to individual body parts, including the arm, and specifically the master arm, with the loss at or above the elbow entitling a claimant to 208 weeks of compensation. Section 31-315 further provides in relevant part: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter . . . shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party . . . whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”
On appeal, the defendants assert that the plain language of § 31-308 (b), which provides that compensation under that section is “in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation” indicates that once a claimant receives permanent partial disability benefits he or she is not eligible for any other benefits.
Over the course of the last 100 years, this court frequently has interpreted the provisions of our workers’ compensation statutory scheme by looking at the purpose and the legislative history of the act. At the outset, it is important to understand that the act provides for two unique categories of benefits—those designed to compensate for loss of earning capacity and those awarded to compensate for the loss, or loss of use, of a body part. See Rayhall v. Akim Co.,
With this distinction in mind, we turn to our previous cases interpreting the language of § 31-308 (b). We first examine the case of Costello v. Seamless Rubber Co.,
In considering the defendants’ claim in Costello, this court examined the history of the act. “Prior to 1919 [§ 5352] read: ‘In case of the following injuries the compensation, in lieu of all other payments [for compensation], shall be half of the average weekly earnings of the injured employee, prior to such injury for the terms respectively indicated.’ While the statute was in this form the case of Kramer v. Sargent & Co.,
“In Saddlemire v. American Bridge Co.,
Relying on Saddlemire, this court in Cos tello clarified that “[a]ll of the injuries resulting from the loss of the member include those ordinary, natural and immediate results of the loss of the member. When the results are unusual, and are not the ordinary incidents following the amputation, and partial or total incapacity results, this is not to be attributed to the loss of the member, and is specifically included in the cases which [General Statutes (1918 Rev.) § 5355, the predecessor to § 31-315] provides shall authorize a modification of the original award.” (Internal quotation marks omitted.) Id., 549-50.
In Costello, the defendants unsuccessfully attempted to distinguish the Saddlemire case “on the ground that the unusual condition creating an additional partial incapacity was . . . confined to the stump of the amputated finger and did not extend into the hand or into another finger.” Id., 550. This court rejected this claim, holding that “no distinction based on the mere location of the abnormal condition can be sustained.” Id. This court
This court further relied on the fact that Kramer and Franko were decided prior to the 1919 amendment of § 5352, which added the words “in addition to the usual compensation for total incapacity . . . .” Public Acts 1919, c. 142, § 7. This court concluded that “[t]his addition, so far as it affects the prior construction of the section, provides a more liberal measure of compensation because it obliterates the distinction theretofore drawn between total incapacity preceding and following the loss, and thereby reverses the ruling in the Kramer case. The award in the Saddlemire case was made before the amendment, but the reasoning of that opinion is not affected thereby.” Costello v. Seamless Rubber Co., supra,
In 1940, this court reaffirmed the holding in Costello, concluding that “[w]here, as here, there is disability followed by specific indemnity and subsequent disability the question always is whether the final disability is distinct from and due to a condition which is not a normal and immediate incident of the loss.” Morgan v. Adams,
In Morgan, the disability award was for the “loss of sight in one eye” under General Statutes (1930 Rev.) § 5237, also a predecessor to § 31-308 (a). This court reasoned that “[t]he statute specifically refers to the loss of sight, not to the loss of the eye. That aside, it is common knowledge that the loss of sight does not necessarily or even usually involve the loss of the eye. While the commissioner did not find in so many words that the loss of the eye was not a normal incident of the loss of sight, he did find a changed condition of fact requiring medical attention and resulting in disability.” Id. On the basis of that finding of a changed condition, this court concluded that the plaintiffs claim in Morgan was consistent with the ruling in Costello and that the plaintiffs final disability was compensable. Id.; see also Osterlund, v. State,
In the eighty-seven years since the decision in Costello v. Seamless Rubber Co., supra,
In the present case, at the hearing on her application for total disability benefits, the plaintiff presented evidence that demonstrated that she was totally incapacitated due to conditions that were not a normal or immediate incident of the partial loss of use of her right arm. Specifically, the plaintiff presented evidence from Beck, her treating physician. Beck opined in a deposition, as noted in the commissioner’s findings, that the plaintiff “suffered from complete regional pain syndromes and reflex sympathetic dystrophy, which had developed over time” and that her “condition was myofascial pain and ongoing sympathetic fiber pain based on continued lost range of motion, sensitivity to touch and swelling of forearm and wrist.” Beck also testified in the deposition that he doubted that the plaintiff “could hold a job . . . The plaintiff also presented evidence from Andrew Caputo, a surgeon who had performed a prior surgery on her right arm, which indicated that in May, 2004, she had a fracture line at the proximal aspect of the stem and posterior interosseous nerve
The defendants further claim that the plaintiffs failure to file a motion to open or modify pursuant to § 31-315 precludes her from receiving total incapacity benefits pursuant to § 31-307. Section 31-315 provides in relevant part: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter . . . shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party . . . whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.” This court has recognized that a modification of an award pursuant to § 31-315 is the appropriate means of obtaining total incapacity benefits in a situation in which a claimant suffers a subsequent disability. See Costello v. Seamless Rubber Co., supra,
First, in the present case, the record demonstrates that the commissioner and the parties considered the plaintiffs application for total incapacity benefits to be the equivalent of a motion to open or modify pursuant to § 31-315. Indeed, as we have explained previously herein, the commissioner’s determination that the plaintiff was entitled to total incapacity benefits was based on a finding that her condition had changed since she entered into the voluntary agreement. In considering the plaintiffs request for total incapacity benefits, the commissioner, therefore applied the standard applicable to a § 31-315 motion. Second, the defendants have failed to point to any way in which the plaintiffs failure to file a formal motion to open or modify pursuant to § 31-315 prejudiced them. Indeed, at the hearing the defendants never objected to the plaintiffs failure to file a motion under § 31-315, were given adequate notice of the hearing and were able to participate, present evidence, and cross-examine witnesses. Furthermore, the board considered the commissioner’s award “as modifying the prior award based on [a] changed condition of fact under § 31-315.”
Moreover, keeping in mind the purpose of the act, which is to be liberally construed to provide coverage for employees who are injured while working, we conclude that it would violate public policy to deny the plaintiff benefits on the basis of her failure to frame her application for total incapacity benefits as a motion to open or modify under § 31-315. Dubois v. General Dynamics Corp.,
II
In her cross appeal, the plaintiff claims that the Appellate Court majority improperly concluded that the commissioner should not have relied on a medical report
At the hearing before the commissioner, the plaintiff sought to enter into evidence her medical records from Santoro. The records contained a note and a letter in which Santoro expressed his opinion that the plaintiffs knee injury was causally related to the arm injury. The note, dated November 28, 2000, stated: “Ifeel that there is [a] direct related cause of the knee injury to the right elbow pre-existing 'problem.” (Emphasis added.) The letter, which also was authored by Santoro and was dated April 5, 2002, was written to the plaintiffs attorney and provided: “I am responding to your . . . correspondence regarding your client and my patient, [the plaintiff]. Please be advised that we have recommended surgery and this dates back to [February, 2002]. I talked specifically with the [plaintiff] that she had an osteochondral lesion [in her knee]. This is a direct result of her previous work-related trauma and as such is a continuation of her ongoing problems. This does not represent a new condition.” (Emphasis added.)
The defendants objected to the admission of the November, 2000 note on the ground that it was not a medical report in accordance with General Statutes § 52-174 (b).
On appeal to the Appellate Court, the defendants claimed that there was not sufficient evidence in the record on which the commissioner could rely to find that the plaintiffs knee injury was causally related to her arm iryury. The Appellate Court majority agreed with the defendants and concluded that, “Santoro’s reports provided a determination of causation without any supporting medical facts from which medical causation could reasonably be inferred. Because Santoro’s opinion regarding causation is merely a statement devoid of a basis in fact ... it was not competent evidence, but rather speculation and conjecture and, as such, could not, without more, be relied on to determine whether legal causation existed between the arm and [knee] injury.” Marandino v. Prometheus Pharmacy, supra,
As we have explained previously herein, “[t]he principles that govern our standard of review in workers’ compensation appeals are well established. The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the . . . board nor this court has the power to retry facts.” (Citation omitted; internal quotation marks omitted.) Tracy v. Scherwitzky Gutter Co., supra,
“To recover under the [act], an employee must meet the two part test embodied in General Statutes § 31-275,
“When, as in the present case, it is unclear whether an employee’s [subsequent injury] is causally related to a compensable injury, it is necessary to rely on expert medical opinion. See, e.g., Murchison v. Skinner Precision Industries, Inc.,
In her cross appeal, the plaintiff claims that the Appellate Court majority improperly concluded that the commissioner’s finding that her knee injury was compensable was not supported by competent medical evidence. To the contrary, the plaintiff asserts that the commissioner properly relied on the uncontroverted medical opinion of her attending physician. The plaintiff further claims that Santoro’s report did not constitute speculation or conjecture merely because it did not contain the supporting medical facts for his conclusion regarding causation. We agree with the plaintiff.
This court has repeatedly stated that, a workers’ compensation award must be based on competent evidence and that, in workers’ compensation matters,
In the present case, the plaintiff presented evidence from Santoro in which he definitively stated that it was his medical opinion that the plaintiffs knee injury was causally related to her arm injury. As we have explained previously herein, the defendants did not object to the admission of the medical report of Santoro being admitted into evidence. See footnote 13 of this opinion. At the hearing, the defendants did not challenge Santoro’s qualifications as an expert witness; nor did they offer any contrary report or witness. Indeed, the evidence at the hearing established that Santoro was the plaintiffs attending physician who had treated her for approximately two years and performed two surgeries on her knee. Accordingly, it is undisputed that Santoro was qualified to provide an expert opinion in this matter. Compare Cooke v. United Aircraft Corp., supra,
Instead, on appeal the defendants claimed and the Appellate Court majority agreed that Santoro’s expert opinion was not competent because he failed to include the supporting medical facts behind his conclusion in his medical report. We disagree. As we have explained previously herein, the facts on which an expert relies for his medical opinion is relevant to determining the admissibility of the expert opinion, but once determined to be admissible, there is no rule establishing what precise facts must be included to support an expert opinion. See State v. Douglas, supra,
Moreover, as we have explained previously herein, it is proper to consider medical evidence along with all other evidence to determine whether an injury is related to the employment. Murchison v. Skinner Precision Industries, Inc., supra,
The defendants claim that this appeal is controlled by our recent case, DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., supra,
The expert opinion evidence in the present case is readily distinguishable from that in DiNuzzo. First, as we have explained previously herein, Santoro was the plaintiffs attending physician who had treated her for approximately two years after she had received the injury for which she sought compensation. Unlike the medical expert in DiNuzzo, Santoro had performed multiple physical examinations of the plaintiffs injured knee, as well as reviewing other diagnostic reports, such as
The judgment of the Appellate Court is affirmed with respect to the defendants’ appeal challenging the award of total incapacity benefits to the plaintiff; the judgment of the Appellate Court is reversed with respect to the plaintiffs cross appeal regarding the compensability of her knee injury and the case is remanded to that court with direction to affirm the compensation review board’s decision.
In this opinion NORCOTT and McLACHLAN, Js., concurred.
Notes
The defendants appealed, and the plaintiff cross appealed, from the judgment of the Appellate Court. We granted the defendants’ petition for certification to appeal limited to the following question: “Did the Appellate Court properly determine that the [plaintiff] was entitled to temporary total benefits after having received permanent partial disability benefits pursuant to a voluntary agreement?” Marandino v. Prometheus Pharmacy,
We granted the plaintiffs petition for certification to appeal limited to the following question: “Did the Appellate Court properly determine that the workers’ compensation commissioner improperly relied on the report by Vincent Santoro, an orthopedic surgeon?” Marandino v. Prometheus Pharmacy,
General Statutes § 31-307 (a) provides: “If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of the injured employee’s average weekly earnings as of the date of the injury, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to section 31-310; but the compensation shall not be more than the maximum weekly benefit rate set forth in section 31-309 for the year in which the injury occurred. No employee entitled to compensation under this section shall receive less than twenty per cent of the maximum weekly compensation rate, as provided in section 31-309, provided the minimum payment shall not exceed seventy-five per cent of the employee’s average weekly wage, as determined under section 31-310, and the compensation shall not continue longer than the period of total incapacity.”
Technical changes not relevant to this appeal have been made to § 31-307 since the time of the plaintiffs claim for benefits. See Public Acts 2006, No. 06-84. For purposes of convenience, we refer herein to the current revision of the statute.
The defendants concede that the plaintiff is eligible for additional discretionary benefits in accordance with General Statutes § 31-308a.
At oral argument in the Appellate Court, the defendants conceded that the Appellate Court could sustain the board’s affirmance of the commissioner’s finding that the plaintiff was unemployable and, thus, totally incapacitated on the basis of the 41 percent permanent partial disability of the plaintiffs master right arm. In other words, sustaining the commissioner’s finding that the plaintiff is totally incapacitated would not require this court to sustain the commissioner’s finding that the knee injury is compensable.
General Statutes § 31-308 (b) provides in relevant part: “With respect to the following injuries, the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be seventy-five per cent of the average weekly earnings of the injured employee, calculated pursuant to section 31-310, after such earnings have been reduced by any deduction for federal or state taxes, or both, and for the federal Insurance Contributions Act made from such employee’s total wages received during the period of calculation of the employee’s average weekly wage pursuant to said section 31-310, but in no case more than one hundred per cent, raised to the next even dollar, of the average weekly earnings of production and related workers in manufacturing in the state, as determined in accordance with the provisions of section 31-309, or less than fifty dollars weekly. All of the following injuries include the loss of the member or organ and the complete and permanent loss of use of the member or organ referred to:
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We note that § 31-308 (b) was amended after the time of the plaintiffs claim by the addition of iiyuries to other parts of the body. See Public Acts 2000, No. 00-8. Those amendments are not relevant to this appeal and for purposes of convenience, we refer herein to the current revision of the statute.
General Statutes § 31-315 provides: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter or any transfer of liability for a claim to the Second Injury Fund under the provisions of section 31-349 shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party or, in the case of a transfer under section 31-349, upon request of the custodian of the Second Injury Fund, whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”
See footnote 3 of this opinion.
We disagree with the concurring opinion, which states that the defendants clearly concede in their brief that if the plaintiff demonstrated a change in condition, then § 31-307 benefits are allowed. Although we acknowledge that the defendants concede that the plaintiff “was not without remedy for some change in her physical condition after accepting permanent partial [disability benefits]” and that she could have filed a motion for modification under § 31-315, the defendants never concede that she would be entitled to § 31-307 benefits if she demonstrated such a change and such concession would be wholly inconsistent with their principal claim in this matter. We understand that the defendants are raising one principal claim, namely, that the plaintiff cannot receive total incapacity benefits under § 31-307 after entering into a voluntary agreement for the payment of permanent partial disability benefits under § 31-308 (b). We therefore rely on Costello v. Seamless Rubber Co., supra,
The posterior interosseous nerve is “the terminal portion of the deep branch of the radial [nerve] . . . .” Stedman’s Medical Dictionary (28th Ed. 2006).
Paresthesia is “[a] spontaneous abnormal usually nonpainful sensation (e.g., burning, pricking) . . . .” Stedman’s Medical Dictionary (28th Ed. 2006).
As we explain more fully in part n of this opinion, the commissioner also determined that the plaintiffs ir\jury to her right knee was compensable. Because we conclude in part II that the commissioner properly determined that the right knee injury was compensable and that the knee injury is distinct from and due to a condition that is not a normal and immediate incident of the partial loss of the nse of the plaintiffs right arm, we conclude that the right knee injury provides yet another basis on which the plaintiff was properly awarded total incapacity benefits.
Although § 52-174 (b) was amended after the proceedings before the commissioner in the present case; see Public Acts 2008, No. 08-81; those changes are not relevant to this appeal. For purposes of convenience, references herein to § 52-174 are to the current revision of the statute.
On appeal to the Appellate Court, the defendants claimed that the report in which Santoro opined that the plaintiffs knee injury was causally related to her arm injury should not have been admitted into evidence because it was not a medical report for the purposes of § 52-174 (b). As we have explained previously in this opinion, there were two documents admitted into evidence by the commissioner that contained Santoro’s opinion that the plaintiffs knee injury was causally related to the plaintiffs arm injury, namely, the November, 2000 note and the April, 2002 letter. The defendants did not object to the admission of the April, 2002 letter. The Appellate Court concluded, that because “[t]he defendants did not object to [the April, 2002] letter during the hearing . . . they can not raise the propriety of its admission into evidence for the first time on appeal.” Marandino v. Prometheus Pharmacy, supra,
Judge Mihalakos dissented from the majority opinion of the Appellate Court. Marandino v. Prometheus Pharmacy, supra,
General Statutes § 31-275 provides in relevant part: “As used in this chapter, unless the context otherwise provides:
“(1) ‘Arising out of and in the course of his employment’ means an accidental injury happening to an employee or an occupational disease of an employee originating while the employee has been engaged in the line of the employee’s duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer, provided ....
“(B) A personal injury shall not be deemed to arise out of the employment unless causally traceable to the employment other than through weakened resistance or lowered vitality ....
“(E) A personal injury shall not be deemed to arise out of the employment if the injury is sustained: (i) At the employee’s place of abode, and (ii) while the employee is engaged in a preliminary act or acts in preparation for work unless such act or acts are undertaken at the express direction or request of the employer . . . .”
Concurrence Opinion
joins, concurring. I agree with the majority that the Appellate Court: (1) properly affirmed in part the decision of the workers’ compensation review board (board) dismissing the appeal of the defendants, Prometheus Pharmacy and CNA RSKCo Services, from the decision of the workers’ compensation commissioner (commissioner) concluding that the plaintiff, Susan Marandino, is entitled to total incapacity benefits; and (2) improperly reversed in part the board’s decision insofar as it had dismissed the defendants’ appeal from the commissioner’s decision finding the plaintiffs knee injury compensable. I disagree, however, with the majority’s analysis with respect to the first issue. Specifically, that issue requires the court to consider under what circumstances a claimant who has received permanent partial disability benefits under General Statutes § 31-308 (b) pursuant to a voluntary agreement subsequently may obtain total incapacity benefits under General Statutes § 31-307.
To explain my concerns and the more limited approach that I would take, I begin
In his finding and award, the commissioner concluded that the plaintiff was totally incapacitated and, therefore, was entitled to benefits under § 31-307. In support of the incapacity determination, the commissioner found credible testimony and evidence relating to the plaintiffs 41 percent permanent partial disability to her arm, her chronic and debilitating pain and her long-term use of narcotic medication to treat that pain. Thereafter, the defendants filed a motion to correct the finding and award seeking to add or substitute, inter alia, the following findings: (1) the parties had executed a voluntary agreement on April 24, 2002, for payment of permanent partial disability benefits, which the commissioner subsequently approved; (2) the plaintiff had offered no medical evidence of a change in her medical condition after April 24, 2002; (3) the plaintiff had not moved to open the voluntary agreement pursuant to § 31-315; and (4) “[t]he [plaintiffs] only entitlement [after accepting the permanent disability benefits] is for benefits payable due to a relapse pursuant to [General Statutes] § 31-307b, benefits for additional permanent partial disability pursuant to [General Statutes] § 31-308a or subject to [a] motion to modify the voluntary agreement pursuant to ... § 31-315.” The commissioner denied the motion. The defendants did not seek an articulation. See Biehn v. Bridgeport, No. 5232, CRB-4-07-6 (September 11, 2008) (“a [mjotion for [a]rticulation is a suitable remedy when the basis for the trial commissioner’s conclusions is unclear or the factual findings as written are perceived to be ambiguous”).
After the commissioner issued the final award, the defendants appealed to the board, which dismissed the appeal. The board determined that “[t]he presence of a deteriorating condition is an essential jurisdictional fact to [an] award [of] § 31-307 benefits when they have not been ordered previously . . . .” The board therefore examined whether the plaintiff’s failure to move formally to open the award under § 31-315 rendered the award ineffective and whether the plaintiff had proved a changed condition. The board first concluded that, because the defendants had notice of the change in benefits sought and the award of § 31-307 benefits was to commence upon exhaustion of the § 31-308 (b)
The defendants appealed from the board’s decision to the Appellate Court. As set forth in the the Appellate Court opinion, the defendants claimed that, “because the plaintiff reached maximum medical improvement and entered into a voluntary agreement to receive permanent partial disability benefits, she [was] unable to request total incapacity benefits without demonstrating a change in medical condition since entering into the agreement.” Marandino v. Prometheus Pharmacy,
In their certified appeal to this court, the defendants contend that the workers’ compensation scheme sets forth a strict progression of benefits under which, once the plaintiff entered into a voluntary agreement to accept permanent partial disability benefits under §31-308 (b), she could not receive total incapacity benefits under § 31-307 without moving to open and modify the agreement on the basis of a changed condition of fact under § 31-315.
The majority agrees with the plaintiffs two responses to these contentions: first, that the scheme does not mandate a strict progression of benefits that bars an award of total incapacity benefits after a claimant receives permanent partial disability benefits; and, second, that the Appellate Court properly concluded that the plaintiffs condition had changed since executing the voluntary agreement, thereby allowing modification of the agreement. As support for the first conclusion, the majority points to a line of cases from 1918 to 1940 on which it relies for the following proposition: “[A] claimant is not precluded from receiving incapacity benefits under § 31-307 for a subsequent disability if it is distinct from and due to a condition that is not a normal and immediate incident of the loss for which she received permanent partial disability benefits under § 31-308 (b).”
I have several concerns about the majority’s approach. Fundamentally, it appears to me that either of the plaintiffs responses, if correct, would be an independent and sufficient basis on which to affirm the Appellate Court. The only reason that we would need to reach both grounds is if we were to conclude that the act generally does not permit a subsequent award of total incapacity benefits after a claimant has received permanent disability benefits. In that case, we would have to consider whether the plaintiff has met the conditions for modification of the voluntary agreement. Indeed, the board analyzed the question precisely in this manner. The Appellate Court implicitly assumed, without deciding, that the act would not permit the award in the absence of a changed condition and determined that such a condition had been established.
I would affirm the Appellate Court’s judgment on the narrow basis of that court’s decision for several reasons. First, the defendants repeatedly have conceded that a changed condition is a proper legal basis on which to modify a voluntary agreement for permanent disability benefits to allow a claimant subsequently to receive total incapacity benefits.
it agrees with the defendants’ view of the statutory scheme.
I also disagree, for several reasons, with the majority’s reliance on an old line of
I also am concerned that the majority’s reliance on these cases may suggest that this court has adopted a narrow view of what constitutes a changed condition for purposes of § 31-315. There is precedent of more recent vintage in which claimants have recovered benefits without showing the distinct and unusual conditions contemplated in the cases cited by the majority. See, e.g., Schiano v. Bliss Exterminating Co.,
Having stated my points of disagreement, I next briefly explain why I agree with the majority that, even in the absence of a formal motion to modify the agreement and an express finding by the commissioner that the plaintiffs condition had
In the present case, the defendants make no claim that the plaintiffs failure to file a formal motion violated their right to due process. The defendants knew precisely what benefits the plaintiff sought. They had ample opportunity to cross-examine witnesses and, indeed, during their deposition of Steven Beck, one of the plaintiffs physicians, specifically asked whether, at various points in time, the plaintiffs condition had improved, worsened or remained the same. The defendants’ position in their posttrial brief to the commissioner was simply that the plaintiffs condition had not changed. Therefore, the plaintiffs failure to file a formal motion alleging a changed condition is not fatal.
The absence of an express finding of a changed condition is more problematic, but not insurmountable. The board previously has characterized the issue of whether there is a changed condition as a question of fact. Saleh v. Poquonock Giant Grinder Shop, No. 04005, CRB-01-99-03 (March 13, 2000) (“The determination of whether changed conditions of fact exist which support a reopening of a voluntary agreement is a question of fact. Lyons v. Wasley Products, Inc., No. 3788, CRB-6-98-3 [June 18, 1999]; Knudsen v. GSD, Inc., [8 Conn. Workers’ Comp. Rev. Op. 81 (1990)].”). Neither the board nor the courts have the authority to find facts, as that function is relegated exclusively to the commissioner. See DiNuzzo v. Dan Perkins Chevrolet Geo, Inc.,
The commissioner specifically credited the medical opinion of Beck, who had treated the plaintiff for pain management from 2000 to the date of the hearing, as well as the opinion of Albert Sabella, the plaintiffs vocational expert, who had relied on Beck’s opinion as to the plaintiffs condition. The commissioner also found the plaintiff to be a credible witness. In finding unpersuasive the defendants’ argument that the plaintiff was not totally incapacitated, the commissioner
In disagreeing with the conclusions of the board and the Appellate Court as to the presence of a changed condition, the defendants take a narrow view of what constitutes a “changed [condition] of fact” for purposes of § 31-315, essentially viewing it as requiring an increased incapacity. I disagree with their narrow interpretation. The changed condition language must be read in connection with the broad remedial language of § 31-315, which provides in relevant part: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter . . . shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party . . . whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement . . . [or] award ... in order properly to carry out the spirit of this chapter.” (Emphasis added.) See generally Hunt v. Naugatuck,
Although both §§ 31-308 and 31-307 have been amended since the time of the relevant proceedings in the present case; see Public Acts 2006, No. 06-84; Public Acts 2000, No. 00-8; those changes are not relevant to this appeal and I, like the majority, refer herein to the current revision of those statutes for purposes of convenience.
General Statutes § 31-315 provides in relevant part: “Any award of, or voluntary agreement concerning, compensation made under the provisions of this chapter . . . shall be subject to modification in accordance with the procedure for original determinations, upon the request of either party . . . whenever it appears to the compensation commissioner, after notice and hearing thereon, that the incapacity of an injured employee has increased, decreased or ceased, or that the measure of dependence on account of which the compensation is paid has changed, or that changed conditions of fact have arisen which necessitate a change of such agreement, award or transfer in order properly to carry out the spirit of this chapter. The commissioner shall also have the same power to open and modify an award as any court of the state has to open and modify a judgment of such court. The compensation commissioner shall retain jurisdiction over claims for compensation, awards and voluntary agreements, for any proper action thereon, during the whole compensation period applicable to the injury in question.”
Although the parties agree on these background facts, neither the plaintiffs request for the total incapacity benefits nor the voluntary agreement were made part of the record before this court. In addition, although the defendants suggest in their brief to this court that the plaintiff received some incapacity benefits prior to the execution of the agreement, there is no evidence in the record regarding the payment of such benefits.
Specifically, file defendants contend that, in the absence of a changed condition, the scheme requires a strict, one-way progression from total incapacity benefits under § 31-307, to partial incapacity benefits under § 31-308 (a), to permanent disability benefits under § 31-308 (b). They further contend that, upon exhaustion of permanent disability benefits and without a changed condition, the only additional benefits that would be available are the discretionary benefits under General Statutes § 31-308a.
The defendants acknowledge that, under our case law, the commissioner would have had discretion to award total incapacity benefits to the plaintiff if she had requested them at the time the commissioner approved the voluntary agreement for permanent partial disability benefits under § 31-308 (b). They contend, however, that, once the plaintiff executed the agreement without asking for total incapacity benefits, she could not thereafter obtain those benefits without modifying the agreement, which would require, according to the defendants, a change in her condition.
Within the context of this claim, the defendants’ brief discusses the evidentiary requirements for establishing total incapacity. It is unclear whether this discussion is intended to support the defendants’ claim that the plaintiff had not demonstrated a changed condition or whether it is an attempt to renew a different claim that they had raised in the Appellate Court, namely, that the plaintiff also is not entitled to total incapacity benefits because she failed to demonstrate that she actively sought employment. As the latter contention is neither separately briefed nor addressed in the conclusion of the defendants’ brief, I agree with the majority’s determination not to treat this discussion as raising a separate claim.
Examples of the defendants’ concession as to this legal question include the following statements in their brief: “Unless [the plaintiff] proves a change in her physical condition (such as hospitalization for the injury) her only remedy to secure additional benefits is on the next stop of the statutory time line or [§] 31-308a.” (Emphasis added.) “The [plaintiff] was not without remedy for some change in her physical condition after accepting permanent partial disability] [benefits] ‘in lieu of all other compensation.’ The commissioner had continuing jurisdiction under § 31-315 to modify an award or voluntary agreement if there had been a change in her candition. ... An appropriate motion for modification could have been filed or a motion to [open] if the [plaintiff] had evidence to support such motions.
. . . Based upon the evidence, she did not have any change in her condition to support a motion to modify or a motion to [open].” (Citations omitted; emphasis added.)
I note that, in reaching its conclusion that a deteriorating condition was an essential jurisdictional fact in the present case, the board relied on cases addressing the question of whether the doctrine of collateral estoppel bars a request for total incapacity benefits after a previous denial of a request for such benefits. See Bailey v. Stripling Auto Sales, Inc., No. 4516, CRB-2-02-4 (May 8, 2003), citing Schreiber v. Town & Country Auto Services, No. 4239, CRB-3-00-5 (June 15,2001). In those cases, the board had concluded that a claim for a different period based on proof of a condition that had deteriorated since the prior denial would not be barred under that doctrine. The board did not explain in its decision in the present case why a failure to request incapacity benefits at the time a voluntary agreement for permanent disability benefits is approved is tantamount to a denial of such a request. Compare Liberty Mutual Ins. Co. v. Lone Star Industries, Inc.,
The amicus also raises an interesting argument that, because the plaintiff was not seeking to change the permanency benefits provided under the voluntary agreement, she did not need to modify the agreement. The plaintiff has not taken a specific position in her brief as to whether she needed to modify the agreement. Again, I would save that issue for another day.