5365 CRB-8-08-8 (2009). Churchville v. Bruce R. Daly Mechanical Contractor.

• Court: Connecticut

Connecticut Workers Compensation 2009. 5365 CRB-8-08-8 (2009). Churchville v. Bruce R. Daly Mechanical Contractor CASE NO. 5365 CRB-8-08-8COMPENSATION REVIEW BOARD WORKERS' COMPENSATION COMMISSIONAUGUST 4, 2009FRANCIS J. CHURCHVILLE, JR. CLAIMANT-APPELLANT CROSS-APPELLEE v. BRUCE R. DALY MECHANICAL CONTRACTOR EMPLOYER and RISK ENTERPRISE MANAGEMENT INSURER RESPONDENTS-APPELLEES CROSS-APPELLANTSAPPEARANCES: The claimant was represented by Stephen F. McEleney, Esq., McEleney & McGrail, 20 Church Street, Suite 1730, Hartford, CT 06103. The respondents were represented by Maribeth McGloin, Esq., Maher & Williams, P.O. Box 550, Fairfield, CT 06824. This Petition for Review from the July 15, 2008 Finding and Award/Dismissal of the Commissioner acting for the First District was heard February 27, 2009 before a Compensation Review Board panel consisting of Commissioners Randy L. Cohen, Nancy E. Salerno, and David W. Schoolcraft. OPINION RANDY L. COHEN, COMMISSIONER. The claimant and the respondents have petitioned for review from the July 15, 2008 Finding and Award/Dismissal of the Commissioner acting for the First District. We affirm the decision of the trial commissioner in part and remand in part for additional proceedings consistent with this opinion. The following factual determinations are pertinent to our review. The trial commissioner found that the claimant, while in the employ of Bruce R. Daly Mechanical Contractor, sustained a compensable injury to his right shoulder on December 2, 1997 and a compensable injury to his lumbar spine on March 27, 2000. The record indicates that the claimant also filed a claim for a repetitive trauma injury to his left shoulder on March 27, 2000; in January 2003, Myron Shafer, M.D., performed a Commissioner's Examination on the claimant's left shoulder and opined that the claimant's injury probably did result from repetitive use rather than the claimant's use of a cane or crutch. However, Dr. Shafer did not link the claimant's problems in his left shoulder to the claimant's employment with the respondent employer. Claimant's Exhibit X. On January 7, 2004, the claimant's treating physician, Charles B. Kime, M.D., issued a report in which he opined that the claimant suffered from "failed lumbar spine surgery syndrome." Claimant's Exhibit E. Dr. Kime also indicated that the claimant was totally disabled, had reached maximum medical improvement, and had sustained a thirtytwo percent (32%) permanent partial disability of his lumbar spine. On January 7, 2005, Dr. Kime reviewed the results of the claimant's Functional Capacity Evaluation and remarked that the claimant "may be capable of some sedentary activity." Respondents' Exhibit 1. However, Dr. Kime also indicated that the claimant "does not appear to be capable of any significant vocational activity." Id. On May 27, 2004, Christopher J. Lena, M.D., evaluated the claimant's left shoulder and issued a report in which the doctor opined that the claimant had reached maximum medical improvement and sustained a fifteen percent (15%) permanent partial disability. Claimant's Exhibit G. On June 12, 2006, Michael Aron, M.D., evaluated the claimant's right shoulder and assigned a ten percent (10%) permanent partial disability rating. Claimant's Exhibit F. On May 4, 2007, the respondents filed a Form 36 asserting the claimant had reached maximum medical improvement and attaching in support of their contention a report by Aris D. Yannopoulos dated April 20, 2007 which assigned to the claimant a permanency rating of twenty percent (20%) of the lumbar spine and concluded the claimant had a work capacity such that he "could perform work which requires intermittent sitting and standing."(fn1) Claimant's Exhibit A. On May 7, 2007, the claimant filed correspondence with the Workers' Compensation Commission objecting to the Form 36. On May 29, 2007, at an informal hearing held to address the claimant's timely objection to the Form 36, the presiding trial commissioner ordered a commissioner's examination with Jarob Mushaweh, M.D., "in an effort to determine whether the Claimant had a work capacity, the extent of any permanent partial disability, and whether or not the left shoulder was compensable." Findings, ¶ 12. In his report dated October 26, 2007, Dr. Mushaweh stated that he concurred with Dr. Kime's diagnosis that the claimant suffered from failed back syndrome. Claimant's Exhibit B. Dr. Mushaweh also indicated that the claimant did not require additional treatment to his lumbar spine, and opined that while the claimant may have sustained a repetitive trauma injury to his left shoulder, the injury was not related to the claimant's lumbar spine injury. Dr. Mushaweh did not comment as to whether in his opinion the claimant had a work capacity. On November 28, 2007, the claimant provided to the respondents a settlement proposal which analyzed the value of the case under two scenarios. The first scenario was based on the claimant's continuing entitlement to total disability benefits, while the second was based on the claimant's entitlement to permanent partial disability benefits and § 31308a C.G.S. benefits. Claimant's Exhibit K. At an informal hearing held on January 23, 2008, the presiding trial commissioner denied the Form 36 which had been filed on May 4, 2007.(fn2) Claimant's Exhibit D. On February 28, 2008, the claimant died of causes unrelated to his work injuries, and on March 4, 2008, claimant's counsel indicated by letter that he no longer had any objection to the Form 36 being granted effective January 23, 2008. Claimant's Exhibit J. On the same date, respondents' counsel objected to the claimant's attempt to reopen the Form 36. Respondents' Exhibit 4. On March 27, 2008, a formal hearing was held which served as a trial de novo on the issue of the Form 36 and also addressed the issue of whether any permanent partial disability benefits should be paid to the claimant's estate. The trial commissioner concluded that the claimant had sustained a ten percent (10%) permanent partial disability to his right shoulder and a thirty-two percent (32%) permanent partial disability to his lumbar spine. However, the trial commissioner found the record did not contain sufficient evidence to support finding that the claimant had also sustained a compensable left shoulder injury, and dismissed that claim. The trial commissioner characterized claimant's counsel's settlement demand of November 28, 2007 as an "affirmative request" for permanent partial disability benefits and concluded, "[g]iven that the Claimant made an affirmative demand for payment of permanent partial disability benefits after having reached maximum medical improvement, such benefits were vested on the Claimant's date of death." Findings, ¶¶ F, J. The trier, having determined that as of May 4, 2007, the claimant had a sedentary work capacity and had attained maximum medical improvement relative to his injuries to the lumbar spine and right shoulder, retroactively approved the Form 36 and ordered that all payments to the claimant made by the respondents subsequent to May 4, 2007 be credited against the award of permanent partial disability benefits. The claimant and the respondents filed Motions to Correct, both of which were denied in their entirety, and this appeal/cross-appeal followed. The respondents contend the trial...