CRB OPINION
CASE NO. 6421 CRB-8-21-4
CLAIM NO. 400099674
COMPENSATION REVIEW BOARD
WORKERS' COMPENSATION COMMISSION
AUGUST 1, 2025
KIMBERLY STEBBINS, SURVIVING SPOUSE OF MICHAEL S. STEBBINS, DECEASED
CLAIMANT-APPELLEE
v.
WALSH CONSTRUCTION COMPANY
EMPLOYER
and
ARCH INSURANCE GROUP, INC.
INSURER
and
GALLAGHER BASSETT SERVICES, INC.
CLAIMS ADMINISTRATOR
RESPONDENTS-APPELLANTS
APPEARANCES:
The claimant was represented by John J. D’Elia, Esq., D’Elia Gillooly DePalma, L.L.C., 700 State Street, 4th Floor, New Haven, CT 06511.
The respondents were represented by Peter M. LoVerme, Esq., Tentindo, Kendall, Canniff & Keefe, L.L.P.,75 Hood Park Drive, Boston, MA 02129.
This Petition for Review from the March 24, 2021 Finding and Award of David W. Schoolcraft, Commissioner acting for the Eighth District, was heard on October 25, 2024 before a Compensation Review Board panel consisting of Chief Administrative Law Judge Stephen M. Morelli and Administrative Law Judges Soline M. Oslena and Shanique D. Fenlator.[1]
OPINION
STEPHEN M. MORELLI, CHIEF ADMINISTRATIVE LAW JUDGE. The respondents have petitioned for review from the March 24, 2021 Finding and Award of David W. Schoolcraft, Commissioner acting for the Eighth District (decision). We find no error and accordingly affirm the decision.[2]
At formal proceedings, the commissioner identified as the issue for determination whether the decedent was entitled to payment for a 14 percent permanent partial loss of use of his left arm pursuant to General Statutes § 31-308 (b),[3] or whether, pursuant to General Statutes § 31-349,[4] he was not entitled to such payment because of a prior award or settlement. The commissioner made the following factual findings which are pertinent to our review. On May 21, 2015, the decedent was employed by the respondent employer as a heavy-machine operator, and both parties were subject to the provisions of the Connecticut Workers’ Compensation Act (act). Prior to his employment with the respondent in the present matter, the decedent was employed by Mather Corporation, where he sustained several injuries during the approximately eighteen years he worked for that company, including injuries to his left non-dominant shoulder on December 11, 1997, and October 30, 1998. The decedent treated with Ronald S. Paret, an orthopedic surgeon, who diagnosed him with an injury to the socket of his left shoulder, or glenoid, due to one or both of these shoulder injuries. Paret performed surgery on the left shoulder utilizing a posterior approach.
On August 13, 1999, Paret examined the decedent and completed a form 42 in October of the same year indicating that he had sustained a 20 percent permanent partial loss of use of his “left shoulder.”[5] Respondents’ Exhibit 1. Paret initially attributed this disability to the work-related injury of December 11, 1997. In an office note dated October 15, 1999, Paret described the decedent’s range of motion as “fair to good,” Respondents’ Exhibit 2, and quantified two measurements: (1) forward flexion to 150‑160 degrees; and (2) abduction to “about 120” degrees. Id. Paret also reported that the decedent continued to perform light duty but was “doing extremely well functionally at this point in time despite a rather severe shoulder injury.” Id.
On October 20, 1999, Paret replied to an inquiry from the workers’ compensation insurance claim representative regarding the decedent’s permanency rating and restrictions. Paret attributed 80 percent of the impairment rating to the 1997 work-related accident and 20 percent to the 1998 work-related accident. Relative to the decedent’s restrictions, Paret stated:
He is, at this point, considered to have a permanent restricted activity [sic] against heavy push-pull activities which would include significant inclines with the specific dozer type machines which launch his body against the control levers which he must then maintain his body position with upper body strength. The vast majority of his heavy machinery equipment [sic], however, he is perfectly capable and willing to operate without any difficulty.
Respondents’ Exhibit 3.
Paret is the only physician known to have provided a disability rating for the decedent’s left shoulder as a result of the claim against Mather Corporation. Aside from Paret’s form 42, his office note of October 15, 1999, and his correspondence of October 20, 1999, the evidentiary record contains no additional medical reports relative to the treatment for the decedent’s left shoulder injuries in the 1990s.
Following his recovery from his shoulder injuries, the decedent returned to his job operating heavy machinery and continued working for Mather Corporation for a number of years, during which time he sustained injuries to other body parts, including an injury to his right shoulder on December 2, 2005. He again sought treatment with Paret and ultimately underwent surgery. During the course of treatment for the right shoulder, the decedent occasionally mentioned that he was continuing to experience difficulties with his left shoulder, but there is no evidence that he received any treatment for the left shoulder during this time.
On October 21, 2009, the decedent settled multiple workers’ compensation claims with Mather Corporation by way of a full and final stipulation in the amount of $115,000. The settlement specifically included claims for the1997 and 1998 left shoulder injuries as well as two injuries to his ankle, a wrist injury, and the 2005 right shoulder injury. The approved stipulation indicated that the decedent was seeking permanent partial incapacity benefits for a 25 percent disability rating to his left shoulder as well as 20 percent for the right shoulder and 5 percent for the left ankle.[6] The stipulation stated that the respondents were entitled to deduct from the settlement any permanent partial disability payments made after August 4, 2009; however, the stipulation did not specify the body part(s) for which such benefits would have been paid. The parties agreed that the stipulation represented “a full, final and complete settlement, accord and satisfaction of all claims” filed by the decedent against Mather Corporation and Travelers, including inter alia the 1997 and 1998 left shoulder claims, and the stipulation also stated that payment was to be “accepted in lieu of all other compensation payments ….” Respondents’ Exhibit 4, p. 4.
At some point following the execution of the stipulation on October 21, 2009, the decedent was employed by Walsh Construction Company, the respondent in the present matter. On May 21, 2015, the decedent was moving a pile of sand into the back of a truck with a payloader when the bucket struck a raised manhole cover. The impact caused the machine to jerk suddenly while he was holding onto the steering wheel and, as a result, he sustained a new injury to his left shoulder.
For some period of time after the date of injury, the employer provided the decedent with light duty and continued to pay his full salary. However, his condition did not improve and the employer sent him to an urgent care center on June 15, 2015. A week later, the decedent returned to the urgent care center, at which time an MRI was ordered. On July 27, 2015, the decedent filed a notice of claim for the May 21, 2015 injury.
On August 10, 2015, the decedent presented to John P. Daigneault, an orthopedic surgeon, complaining of significant left shoulder symptoms. The decedent informed him of the prior injuries to his left shoulder, and the doctor examined the scar on the decedent’s posterior shoulder. In his report of that date, Daigneault described the work incident which had occurred in May, noting that the decedent’s symptoms had persisted despite rest and conservative treatment. The doctor stated that the decedent had “a history of an injury to his left shoulder in 1998 that apparently involved a fracture of the posterior glenoid. This was treated surgically with good results. He has been asymptomatic since the surgery.” Claimant’s Exhibit A. After examining the decedent, Daigneault opined that “[t]he majority of his symptoms appear to be anterior with radiation into the biceps and I believe that the biceps tendon is a major contributor to his symptoms.” Id. He diagnosed the decedent with a biceps tendon tear, partial tears of the rotator cuff, “traumatic arthritis of [the] shoulder region” and “localized, primary osteoarthritis of [the] shoulder region.” Id. Daigneault cleared the decedent to return to regular duty, although he also recommended the decedent modify his activities and pursue physical therapy.
The decedent continued to work, albeit with employer accommodations. On September 14, 2015, the decedent returned to Daigneault and reported that he was continuing to experience pain in the anterior aspect of his left shoulder. He informed Daigneault that he had undergone some physical therapy which had slightly increased the shoulder’s mobility and slightly reduced the pain. The doctor recommended the decedent continue with conservative measures and allowed him to continue working full duty.
On January 11, 2016, the decedent returned to Daigneault, reporting that although he had continued with physical therapy, he was still experiencing pain, primarily with activity, which was located “over the anterior shoulder with radiation into the biceps.” Id. In his office note of that date, the doctor stated:
Michael continues to have significant left shoulder pain as described. There does appear to be pre-existing glenohumeral arthritis. However, he has significant anterior pain that has persisted since his injury and this is likely related to tears of the subscapularis and supraspinatus and/or biceps tendon. He appears to have plateaued with non‑surgical management. He does not feel that the current level of symptoms [is] tolerable given his occupation and is considering surgical intervention.
Id.
The decedent did not elect to proceed with surgery at that office visit. He returned to Daigneault on March 7, 2016, at which time the doctor again recommended surgery and the decedent again refused, citing scheduling concerns. Daigneault indicated that the decedent could continue working light duty by primarily relying on his right arm but imposed a five‑pound weight restriction with no overhead use and limited repetitive activities with respect to the left arm. However, the decedent’s symptoms continued to worsen and he returned to Daigneault on March 29, 2017, September 1, 2017, and November 13, 2017. Following an MRI demonstrating that the left shoulder condition had deteriorated, the decedent agreed to proceed with surgery.
On November 21, 2017, Daigneault, after observing inter alia “significant arthritic changes of the glenohumeral joint,” debrided the arthritis, multiple tears to the labrum, and partial tears to the rotator cuff and biceps tendon. Findings, ¶ 29; see also Claimant’s Exhibit A. He also performed a subacromial decompression in order to widen the space between the rotator cuff tendons and the acromion. Following the surgery, the decedent underwent physical therapy and returned to Daigneault for several follow-up visits.[7] On March 5, 2018, Daigneault cleared the decedent for light duty as of April 2, 2018.
On September 14, 2018, the decedent again presented to Daigneault, at which time he informed the doctor that he was still in a great deal of pain and was unable to climb into the cabs of the larger machines. Although Daigneault opined that the decedent would eventually require shoulder arthroplasty, he believed the decedent’s recovery had plateaued following the November 21, 2017 surgery. Daigneault measured the decedent’s range of motion and loss of function across a variety of maneuvers, noting inter alia that the measurement for the decedent’s abduction range of motion was unchanged from that reported by Paret in 1999, while the flexion measurement was lower by twenty to thirty degrees.[8]
After combining the various range-of-motion measurements and adding two percentage points for weakness, Daigneault assigned the decedent’s left upper extremity a total impairment rating of 14 percent. In calculating this rating, Daigneault utilized the range-of-motion methodology set forth in the fifth edition of the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) rather than the “diagnosis-based” methodology contemplated by the sixth edition. Findings, ¶ 33. At deposition, Daigneault testified that when he assigned his rating in 2018, “he was unaware of Dr. Paret’s prior rating of 20% impairment of the shoulder. His assessment of impairment was based entirely on the function of the shoulder as it existed on September 14, 2018, without subtracting anything for any prior impairment rating that may have been assessed.” Findings, ¶ 36; see also Claimant’s Exhibit C, pp. 41-42, 44‑46.
On July 12, 2019, claimant’s counsel wrote to Daigneault inquiring whether his rating was “separate and apart from the prior rating” and enclosing Paret’s office notes from December 7, 2005, regarding the right shoulder and August 31, 2007, regarding the left shoulder. Findings, ¶ 37, quoting Claimant’s Exhibit C, p. 49. In his reply of that same date, Daigneault stated:
There has been some confusion regarding his prior left shoulder disability rating and whether or not this was in addition to a previous rating he received in the distant past. The details of those previous treatments are not completely clear. Some documentation has been received. However, it is my opinion that the current rating is due to a new injury and should be considered separate from any previous injury/rating.[9]
Claimant’s Exhibit A.
The decedent remained employed during this time period, although he continued to experience difficulties with the arthritic glenohumeral joint in his left shoulder. He presented to Daigneault for several office visits during 2019; on September 23, 2019, Daigneault administered a cortisone injection, and on March 13, 2020, he administered a hyaluronic acid injection in an attempt to postpone the shoulder arthroplasty.
At a deposition held on April 13, 2020, Daigneault opined that the decedent had injured his glenoid in the workplace accidents which occurred in the late 1990s while he was working for Mather Corporation. He believed the glenoid may have been fractured, although he was not certain based on the imaging studies and limited information available to him. Moreover, although it was clear that Paret had conducted his surgery via a posterior approach, Daigneault could not identify the specific procedure Paret had performed. Nevertheless, by the time he saw the decedent in 2015, arthritis was present at the glenohumeral joint. Daigneault testified that the preexisting arthritis was aggravated by the 2015 injury and continued to progress between the date of injury and the date of the surgery in 2017.
Daigneault also testified regarding the methodology he followed in arriving at the 14 percent disability rating, explaining that he had relied on the fifth edition of the AMA Guides because it allowed for the use of specific range-of-motion measurements, as opposed to utilizing the sixth edition which bases its ratings on the nature of the diagnosis. He indicated that it was difficult for him to compare the decedent’s current degree of impairment to that measured by Paret in 1999 given that Paret’s rating had only included the measurements for flexion and abduction. Daigneault opined that the decedent’s abduction range was approximately the same as it had been in 1999 but his flexion range was more limited, and stated that he could not compare his disability rating to Paret’s without knowing the extent to which Paret’s rating may have been based on an impairment to the decedent’s upper extremity.
In addition, Daigneault testified that his rating specifically referenced the upper extremity rather than the shoulder, explaining that in the past, a physician “could rate separately for the shoulder, and not … the upper extremity. So that 20 percent might need to be converted into upper extremity in order to, you know, compare apples to apples.” Claimant’s Exhibit C, p. 54. Daigneault did not opine as to how Paret’s 20 percent rating of the shoulder would convert to an impairment of the arm, or how his 14 percent rating to the upper extremity could be converted into a rating for the shoulder. He also did not opine as to what rating he might have assigned in 1999 had he evaluated the decedent at that time.
At formal proceedings held on September 2, 2020, the decedent testified that the symptoms associated with the 1997 and 1998 injuries were mostly located at the back of his shoulder, while the symptoms associated with the 2015 injury were consistently in the front of his shoulder. He admitted to having experienced some left shoulder symptoms prior to the 2015 injury but testified that he was still able to operate most pieces of heavy equipment with the exception of a few machines. However, the decedent indicated that his ability to climb onto large machines and operate steering wheels and shift levers had been compromised since the 2015 date of injury. He further testified that, even after the surgery of November 21, 2017, he continued to experience difficulties climbing onto large machines and operating steering wheels, stick shifts, and many pieces of heavy equipment. He also stated that his ability to swim was impaired and he had difficulties lifting.
On the basis of the foregoing, the commissioner concluded that the decedent sustained a compensable injury on May 21, 2015, which resulted in partial tears of the biceps and supraspinatus tendons and also aggravated and accelerated the progression of his preexisting arthritis in the glenohumeral joint of his left shoulder. The commissioner determined that the arthritis was partially, if not entirely, caused by the prior work accidents in 1997 and 1998 which had occurred while the decedent was working for a different employer. Although no voluntary agreement attesting to the 20 percent rating assigned by Paret in 1999 was submitted into evidence, the commissioner concluded that all parties involved in the claim were aware of the rating. As such, he dismissed the inference that payment was not made at some point between 1999 and 2009 as “highly improbable,” Conclusion, ¶ E, and further found that the permanency benefits associated with Paret’s disability rating “were payable at that time.” (Emphasis in the original.) Id.
With regard to the full and final stipulation entered into by the decedent and Mather Corporation in 2009, the commissioner concluded that even if the decedent had not been paid the 20 percent permanency for the left shoulder prior to executing the stipulation, the contention that he was not paid the benefits at the time of the stipulation because the stipulation had listed permanent injuries to multiple body parts was neither supported by the evidence nor credible. Moreover, given that the stipulation specifically stated that the decedent was seeking compensation for a 25 percent impairment to his left shoulder, and the stipulation constituted a “complete settlement, accord and satisfaction of all claims,” Conclusion, ¶ G, quoting Respondents’ Exhibit 4, p. 4, the commissioner concluded that the decedent had been fully compensated for any and all permanency benefits attributable to the prior left shoulder injuries.
The commissioner found that Daigneault’s records and deposition testimony made it “unequivocally clear” that he had carefully evaluated the function of the decedent’s shoulder and “carefully and methodically applied” the protocols set forth in the fifth edition of the AMA Guides in assigning the 14 percent disability rating. Conclusion, ¶ H. The commissioner also determined that the record demonstrated that Daigneault’s permanency rating “[reflected] the totality of the [decedent’s] then-existing permanent partial loss of function, inclusive of any residual impairment left over from the injuries in 1997 and 1998.” Conclusion, ¶ I. The commissioner found that Daigneault’s opinion attributing the entire 14 percent permanency rating to the 2015 injury was “nothing more than a reflection of the fact he [did] not know the extent of the residual limitations of motion the [decedent] had prior to the 2015 work accident.” Conclusion, ¶ J. In addition, the commissioner “[credited] the [decedent’s] self‑assessment that the overall condition of his left shoulder was to some degree worse in 2018 than it had been before the 2015 accident.”[10] Id.
With regard to the issue of whether the benefits associated with Daigneault’s permanency rating could be deemed “payable or paid with respect to the previous disability” as contemplated by § 31-349, the commissioner noted that although both Paret and Daigneault had assigned their ratings on the basis of their assessments of the structural impairments to the decedent’s left shoulder, Paret had specifically stated that his rating was to the decedent’s shoulder while Daigneault had indicated that his rating was to the decedent’s upper extremity, consistent with the AMA Guides. The commissioner stated:
Anatomically, the shoulder is the highest articulating joint of the human arm. When the function of the shoulder is impaired, the use of the arm is necessarily impaired to some degree. The permanent loss of function of the left shoulder that was assessed by both physicians unquestionably resulted in some degree of partial loss of function of the ratable body part, i.e., the left arm.
Conclusion, ¶ L.
However, the commissioner pointed out that since July 1, 1993, entitlement to permanent partial disability benefits has been limited to the schedule of body parts listed in § 31‑308 (b). Moreover, although some respondents and physicians may consider a shoulder rating to be interchangeable with an arm rating, our “case law establishes that this is not necessary so, as least when challenged.”[11] Conclusion, ¶ O. The commissioner determined that, on the basis of the evidentiary record, it was “impossible” to determine whether Paret’s 1999 rating to the decedent’s shoulder was directly applicable to the decedent’s left arm or whether Paret would have provided a lower permanency rating had he been asked to rate the degree of impairment to the decedent’s arm. Conclusion, ¶ P. The commissioner also noted that because the stipulation with Mather Corporation had referenced the decedent’s shoulder, “it cannot be stated with certainty that as of 2009 the [decedent] had been compensated for a full 25% partial loss of use of the left arm.” (Emphasis in the original.) Id.
The commissioner concluded that “the [decedent’s] current level of permanent impairment is less than 34% loss of use in the left arm,” Conclusion, ¶ Q, and found persuasive Daigneault’s opinion that his disability rating included any residual impairment associated with the prior injuries of 1997 and 1998. Although the commissioner recognized that both a 20 percent and a 25 percent permanency rating “[represent] a very significant impairment rating of the left arm, the record of this case provides me no medical opinion or factual basis to determine exactly how much permanent partial impairment of the left arm was actually payable at the time of the 2009 stipulation.” (Emphasis in the original.) Conclusion, ¶ R. The commissioner concluded that the decedent had satisfied his burden of establishing an entitlement to compensation for a 14 percent permanent partial disability of his left arm given that the respondents had failed to establish the extent to which some portion of the prior permanency award may have been payable or paid for the left arm when the decedent executed the stipulation in 2009. Accordingly, the commissioner ordered the respondents to pay the full amount of the permanent partial disability benefits associated with the disability rating assigned by Daigneault.
The respondents filed a motion to correct which was granted in part and denied in part and this appeal followed.[12] On appeal, the respondents contend that, contrary to the commissioner’s findings, the evidentiary record established that the permanency benefits associated with the decedent’s prior left shoulder injuries were “payable or paid” as contemplated by the provisions of § 31-349. As such, the order for payment of the compensation for Daigneault’s rating to the decedent’s left upper extremity constituted error because the payment was “subsumed” by the prior 20 percent rating to the left shoulder. Appellants’ Brief, p. 6. In addition, the respondents aver that the award of the permanency benefits associated with the 2015 injury constitutes a double recovery, which is prohibited by our act. We are not persuaded by these claims of error.
The standard of appellate review we are obliged to apply to a trier’s findings and legal conclusions is well-settled. Such “factual findings and conclusions must stand unless they are without evidence, contrary to law or based on unreasonable or impermissible factual inferences.” Russo v. Hartford, 4769 CRB-1-04-1 (December 15, 2004), citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Moreover, “[a]s with any discretionary action of the trial court, appellate review requires every reasonable presumption in favor of the action, and the ultimate issue for us is whether the trial court could have reasonably concluded as it did.” Burton v. Mottolese, 267 Conn. 1, 54 (2003), quoting Thalheim v. Greenwich, 256 Conn. 628, 656 (2001). Thus, “it is … immaterial that the facts permit the drawing of diverse inferences. The [trier] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court.” Fair, supra, 540, quoting Del Vecchio v. Bowers, 296 U.S. 280, 287 (1935).
We begin our analysis with the respondents’ argument that they are not obligated to pay the additional permanency benefits associated with Daigneault’s disability rating given that the benefits associated with Paret’s prior disability rating were “payable or paid.” The respondents contend that the evidentiary record contains “two independent avenues” which serve to illustrate that these benefits were paid to the decedent. Appellants’ Brief, p. 5. In support of this assertion, the respondents rely on the full and final stipulation executed by the decedent and Mather Corporation on October 21, 2009, as well as a form 36 ostensibly approved by the Workers’ Compensation Commission (commission) on November 23, 2009, which sought to convert the decedent’s benefits to permanent partial disability on the basis of Paret’s August 13, 1999 finding of maximum medical improvement.[13] The respondents point out that the 2009 agreement specifically contemplated payment for a 25 percent permanent partial disability to the decedent’s left shoulder. Moreover, the decedent adduced no evidence at trial suggesting that he had been paid for less than a 20 percent disability or that any other physicians had provided a countervailing permanency rating. The respondents therefore argue that the approval of the stipulation in 2009 “[required] a finding that the 20% permanent partial disability rating to the [decedent’s] left shoulder was ‘payable.’” Id., 5.
In advancing this argument, the respondents reply in part upon this board’s analysis in Ouellette v. New England Masonry Company, 5424 CRB-7-09-2 (January 14, 2010), wherein we reviewed an appeal brought by a claimant contending that the amount of the credit awarded to the respondents for payment of permanent partial disability benefits associated with a prior back injury was erroneous. The evidentiary record indicated that the claimant, who sustained back injuries in 1999 and 2003, executed a stipulation to date in 2002 in the amount of $37,500 which referenced inter alia a 20 percent permanent partial disability to his low back. Subsequent to the 2003 back injury, the parties agreed to a compromised disability rating of 32.5 percent, against which the commissioner awarded the respondents a credit for the prior 20 percent rating. The claimant challenged the amount of the credit, pointing out that, once the temporary total incapacity benefits he had received pursuant to the stipulation were subtracted, the balance of the award available for allocation toward the 20 percent permanency rating had actually equated to payment for a disability rating of only 11.25 percent.
In reviewing the appeal, we examined the “plain meaning” of § 31‑349 relative to the provision requiring that a respondent receive a credit for any compensation which was “payable or paid” to a claimant with respect to a prior disability to the same body part. We also noted that in DiGrazio v. CBL Trucking, 3479 CRB-8-96-11 (February 18, 1998), this board had remarked:
Whether the claimant actually received compensation on account of that permanent partial impairment (and we note that he does not suggest that such compensation was not received) is immaterial under § 31-349 (a); if compensation was payable for such disability, it must be considered in any subsequent award for permanent partial disability to the same body part. (Emphasis in the original).[14]
Id.
In addition, we pointed out that the subject stipulation contained the following language:
The payment as stated above, shall be made and accepted as a full and final settlement for all temporary total, temporary partial and permanent partial disability indemnity, to the date of the approval of this agreement, resulting from such injury.
Id.
Thus, although we recognized “a certain level of ambiguity” in the stipulation to date, given that the agreement did not articulate the precise allocation of benefits among the various forms of compensation due the claimant at the time it was executed, we concluded that the stipulation “clearly was intended to be a full and final settlement of the claimant’s permanent partial disability claim as of 2002.” Id. We therefore affirmed the 20 percent credit awarded by the commissioner to the respondents, characterizing the amount of the credit as “a reasonable conclusion based on the four corners of the document itself.” Id.
In light of this board’s analysis in Ouellette, we agree with the respondents in the present matter that the approved 2009 stipulation allowed for the reasonable inference that the 20 percent disability rating associated with the 1997 and 1998 injuries to the decedent’s left shoulder was “payable or paid.” Appellants’ Brief, p. 5. As noted previously herein, the commissioner stated that “[t]he inference that payment on that rating was not made in the 10 years between 1999 and the 2009 stipulation … is highly improbable.” Conclusion, ¶ E. In addition, the commissioner did not deem credible the decedent’s assertion that he was never fully compensated for this disability; rather, noting that the 2009 stipulation constituted “a full, final and complete settlement, accord and satisfaction of all claims,” he concluded, consistent with Ouellette, that the decedent had been fully compensated for any and all permanency benefits associated with the prior disability to his left shoulder.
However, the issue for resolution in the present matter did not involve an inquiry into whether the permanency benefits associated with the 2009 stipulation were “payable or paid” but, rather, required a determination regarding the precise body part for which the decedent received the disability rating and associated permanency benefits. The rather meager evidentiary record relative to Paret’s disability rating reflects that Paret assigned his rating to the decedent’s “left shoulder.” Respondents’ Exhibit 1. The record also reflects that Daigneault, after conducting “a careful evaluation of the function of the [decedent’s] shoulder,” Conclusion, ¶ H, ultimately assigned his rating to the “left upper extremity,” consistent with the terminology in the fifth edition of the AMA Guides. Claimant’s Exhibit A [report of September 14, 2018]. Thus, although both disability ratings were predicated in part on the extent of permanent damage to the decedent’s left shoulder, the commissioner concluded that the loss of function evaluated by both physicians had also “unquestionably” resulted in some degree of impairment to the decedent’s left arm. Conclusion, ¶ L.
The respondents have asserted that “[t]he commissioner created an illusory distinction between the terms ‘upper extremity’ and ‘shoulder,’” Appellants’ Brief, p. 4, given that neither term is referenced in § 31-308 (b). They further contend that the commissioner erroneously equated the terms “upper extremity” and “arm” but not “shoulder” and “arm,” and point out that, “[a]ccording to the hearing decision … a label of ‘upper extremity’ is the equivalent of the ‘arm’ – but the label of ‘shoulder’ is fatal to the respondents because it is not the equivalent of the ‘arm.’” Appellants’ Brief, p. 8. As such, the respondents argue that “the ‘shoulder’ satisfies a loss at or above the elbow.” Appellants’ Brief, p. 7.
We are not persuaded. As the commissioner noted in his decision, since July 1, 1993, permanency benefits pursuant to our act have been restricted to the schedule of body parts specifically set forth in § 31‑308 (b), which “provides specific indemnity benefits for loss of use of the arm, or ‘upper extremity’ in the parlance of the AMA Guides.” Conclusion, ¶ O. Our review of the provisions of § 31-308 (b) indicates that the statute awards 208 weeks of benefits for the loss of the master arm at or above the elbow and 194 weeks for the loss of the non-master arm at or above the elbow. Thus, while we believe the term “arm” can reasonably be viewed as synonymous with “upper extremity,” the plain language of the statute does not provide a basis for the inference that “arm” is equally synonymous with “shoulder.”
Our case law also reflects that although the terms “shoulder” and “arm” may have been used interchangeably on occasion, it is not a distinction without a difference. In Scanlon v. Finkle & Sons Service Co., Inc., 5963 CRB-3-14-10 (July 22, 2015), this board reviewed an appeal brought by a claimant challenging a permanency award which had been adjusted to reflect payment for prior disability ratings to both arms pursuant to a full and final stipulation.[15] At deposition, Michael Kaplan, an orthopedist, opined that a 5 percent disability of the shoulder was equivalent to 3 percent of the whole arm and a 20 percent disability rating to the shoulder was equivalent to 12 percent of the arm. Kaplan assigned a 12 percent disability to the claimant’s arms bilaterally.
The commissioner, noting that the shoulder is not a scheduled body part pursuant to § 31-308 (b), awarded the claimant permanency benefits for a 12 percent disability to his arms but subtracted the 10 percent previously received by way of stipulation. On appeal to this board, the claimant claimed an entitlement to permanency benefits for Kaplan’s entire 12 percent rating to the bilateral arms, asserting that “when a prior agreement or award does not specifically state compensation is for a specific body part, the commissioner should not impute that the prior award compensated the claimant for an injury to that body part.” Id.
In affirming the decision, we reviewed inter alia Sierra v. C & S Wholesale Grocers, Inc., 5370 CRB-1-08-8 (September 23, 2009), aff’d, 128 Conn. App. 78 (2011), cert. denied, 301 Conn. 924 (2011), wherein we had affirmed the denial of benefits for an abdominal injury for which the claimant had failed to provide persuasive evidence of a connection to a scheduled body part pursuant to § 31-308 (b). We also referenced Safford v. Owens Brockway, 262 Conn. 526 (2003), in which the respondents had appealed a permanency award for injuries to the claimant’s bilateral shoulders. In reversing the award in Safford, our Supreme Court observed:
The commissioner had three ratings of impairment to a scheduled body part from which to choose …. Accordingly, the commissioner permissibly could have accepted or rejected any one of these impairment ratings of the plaintiff’s upper extremities. The commissioner was not free, however, to substitute his own opinion that [the] initial report rating the plaintiff as having a 20 percent impairment of the shoulders, an unscheduled body part, is, a priori, equivalent to a 20 percent impairment of the upper extremities, a scheduled body part. In the absence of evidence to support that finding, the commissioner abused his discretion.
Id., 536.
Thus, in light of the foregoing precedent, we find the respondents’ contentions relative to the interchangeability of the terms “arm” and “shoulder” to be patently at odds with the plain language of § 31-308 (b), our Supreme Court’s analysis in Safford, and this board’s analysis in Scanlon.
We likewise find little merit in the respondents’ assertions that “Daigneault’s deposition testimony clearly linked the injuries to the left shoulder and left upper extremity to that of a scheduled body part,” Appellants’ Brief, p. 7, and that “no evidence was presented to indicate the 20% left shoulder rating from Dr. Paret translated to anything other than a 20% rating to the arm.” Id. In fact, Daigneault testified that, in order to accurately compare Paret’s shoulder rating to the upper extremity rating, Paret’s rating would require a conversion. See Claimant’s Exhibit C, p. 54. When queried regarding the possibility of converting Paret’s rating, Daigneault replied:
[T]here’s quite a bit of confusion in how the rating arrived in the first place…. So I don’t know how he actually arrived at that rating. But in order for me to tell, again, if what I gave him is additive or subtracted from Dr. Paret’s rating, I’d have to know where that 20 percent rating came from and whether it was truly shoulder, or it was upper extremity.
Id., 54.
Thus, in light of Daigneault’s clear inability to offer an opinion within reasonable medical probability regarding the conversion of Paret’s disability rating for the shoulder to a disability rating for the arm, we lack any evidentiary basis to reverse the commissioner’s findings in this regard. As this board observed in Rodriguez v. Remington Products, 16 Conn. Workers’ Comp. Rev. Op. 115, 3069 CRB-4-95-5 (November 25, 1996), “it is incumbent upon the party seeking the credit to prove that the claimant has been partially compensated for a disability.”[16] Id., 117.
For similar reasons, we find little merit in the respondents’ contention that the commissioner’s failure to “subsume” Daigneault’s permanency rating into the prior rating assigned by Paret resulted in a prohibited double recovery by the decedent. It is axiomatic that “[o]ne of the purposes of the workers’ compensation statute is ‘the avoidance of two independent compensations for the injury ….’” Enquist v. General Datacom, 218 Conn. 19, 26 (1991), quoting Uva v. Alonzy, 116 Conn. 91, 98 (1933). It should be noted that this prohibition has been applied to proceeds arising from sources other than Connecticut workers’ compensation claims. For instance, in Chappell v. Manaford Bros, Inc., 63 Conn. App. 630 (2001), our Supreme Court affirmed the commissioner’s decision to subtract from the claimant’s permanency award the disability benefits received from a third-party settlement associated with a prior motor vehicle accident.
In a similar vein, in Mann v. Morrison‑Knudsen/White Oak, 14 Conn. Workers’ Comp. Rev. Op. 79, 1918 CRB‑1‑93‑12 (May 12, 1995), this board reviewed an appeal of a permanency award for which the commissioner had denied the respondents a credit for proceeds received by the claimant from the settlement of a prior workers’ compensation injury sustained in Missouri. In reversing the award, we stated that “the legislature has unequivocally indicated that ‘compensation’ refers to more than compensation under our Workers’ Compensation Act for the purpose of § 31‑349 (a). Therefore, we hold that the credit for prior compensation under § 31‑349 (a) is not limited to compensation received under our Workers’ Compensation Act.” Id., 81.
In the present matter, we note at the outset that Daigneault, in his report of July 12, 2019, clearly stated that his permanency rating was “due to a new injury and should be considered separate from any previous injury/rating.” Claimant’s Exhibit A. He also repeatedly testified at deposition that the shoulder injury for which he had treated the decedent was a new injury. See id., 27, 35, 41, 66. Moreover, he agreed with claimant’s counsel that the impairment rating he had assigned “was a rating specifically identifiable as being for the May 2017 [sic] work‑related injury.” Claimant’s Exhibit C, pp. 41-42. In addition, he opined that the earlier shoulder injury appeared to be “multifactorial,” id., 14, and he had found significant the relative paucity of complaints regarding the decedent’s left shoulder in the years prior to the 2015 injury. No countervailing evidence was introduced at trial to challenge Daigneault’s opinion.[17] As such, his testimony provides a reasonable basis for the inference that the permanency award for the 2015 injury could not constitute a double recovery as a matter of law given that it was associated with a separate and distinct injury.
There is no question that in the present matter, the commissioner fully recognized the ambiguity of the evidentiary record relative to the extent of the impairment to the decedent’s left shoulder following the 2015 injury. It may be reasonably inferred that it was precisely this ambiguity which prompted the commissioner to conclude that “the record of this case provides me no medical opinion or factual basis to determine exactly how much permanent partial impairment of the left arm was actually payable at the time of the 2009 stipulation.” (Emphasis in the original.) Conclusion, ¶ R. The commissioner’s inability to accurately assess the significance of Paret’s rating vis-à-vis the “payable or paid” provision of § 31‑349 reflects the limitations of the evidentiary record with which he was provided. It is well‑settled in our case law that a trial commissioner is not free to reach a conclusion that is rooted in “speculation and conjecture.” DiNuzzo v. Dan Perkins Chevrolet Geo, Inc., 294 Conn. 132, 143 (2009). Ultimately, the commissioner in the present matter concluded that “the [decedent] currently suffers from a 14% partial loss of use of the left arm, inclusive of any residual impairment left by the injuries in 1997 and 1998.” Conclusion, ¶ Q. In light of the respondents’ inability to persuasively demonstrate the extent to which the permanency benefits associated with Daigneault’s impairment rating to the decedent’s upper extremity could reasonably be “subsumed” into Paret’s prior impairment rating for the decedent’s shoulder, we affirm the commissioner’s decision to award the full amount of the permanency benefits associated with Daigneault’s disability rating. As this board has previously observed, “[o]ne can only expect the trier of fact to render a decision based on what evidence actually says, not what it should have said.” Ben-Eli v. Lowe’s Home Improvement Center, 5006 CRB‑3‑05-10 (November 16, 2006).
There is no error; the March 24, 2021 Finding and Award of David W. Schoolcraft, Commissioner acting for the Eighth District, is accordingly affirmed.
Administrative Law Judges Soline M. Oslena and Shanique D. Fenlator concur in this Opinion.
[1] In 2021, the legislature enacted Public Acts 2021, No. 21-18, § 1 (P.A. 21-18), codified at General Statutes § 31-275d, which substituted the term “administrative law judge” for “workers’ compensation commissioner” and “commissioner.” Because the decision in this matter was issued prior to October 1, 2021, which was the effective date of P.A. 21-18, § 1, we use the terms “workers’ compensation commissioner” and “commissioner” in this Opinion.
[2] We note that three motions for extension of time and one motion for stay were granted during the pendency of this appeal. In addition, oral argument was postponed from July 19, 2024, to October 25, 2024, due to a scheduling conflict.
[3] General Statutes § 31-308 (b) states 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 ... 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 ....”
[4] General Statutes § 31-349 states: “The fact that an employee has suffered a previous disability, shall not preclude him from compensation for a second injury, nor preclude compensation for death resulting from the second injury. If an employee having a previous disability incurs a second disability from a second injury resulting in a permanent disability caused by both the previous disability and the second injury which is materially and substantially greater than the disability that would have resulted from the second injury alone, he shall receive compensation for (1) the entire amount of disability, including total disability, less any compensation payable or paid with respect to the previous disability, and (2) necessary medical care, as provided in this chapter, notwithstanding the fact that part of the disability was due to a previous disability. For purposes of this section, ‘compensation payable or paid with respect to the previous disability’ includes compensation payable or paid pursuant to the provisions of this chapter, as well as any other compensation payable or paid in connection with the previous disability, regardless of the source of such compensation.”
[5] At that time, the form 42 was entitled “Physician’s Report to Commissioner in Cases of Permanent Injuries.” It is currently entitled “Physician’s Permanent Impairment Evaluation.”
[6] In light of the fact that the decedent had received a disability rating of 20 percent from Paret, it is not entirely clear why the stipulation referenced a 25 percent disability rating for the left shoulder.
[7] At some point during this time period, the respondents accepted compensability of the May 21, 2015 left shoulder injury and issued a voluntary agreement which was signed by the parties in 2017 and approved by the Workers’ Compensation Commission on March 19, 2018.
[8] The record does not contain any additional range-of-motion measurements against which further comparisons could be made.
[9] The commissioner noted that at the time Daigneault issued this clarification, he was still unaware of the extent of Paret’s 1999 rating.
[10] At trial, the decedent testified that he was not experiencing any pain prior to the injury of May 21, 2015, and that after the injury, the pain was primarily located in the front of his shoulder running down his arm to his elbow. See September 2, 2020 Transcript, pp. 40, 42, 48.
[11] In Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793 (1999), our Supreme Court stated: “In light of the plain language of the statute, as supported by the discussion on the floor of the Senate and the legislative history derived from the committee’s 1995 report, we conclude that § 31‑308 (b), with respect to the amendments by § 19 of P.A. 93‑228, authorizes the commissioner to grant compensation for the loss or permanent partial disability of a scheduled body part or organ. It does not, however, provide the commissioner with discretion to award compensation for the loss or permanent partial disability of an unscheduled body part or organ.” Id., 811.
[12] The commissioner corrected Findings, ¶ 37, to reflect that claimant’s counsel’s correspondence to Daigneault on July 12, 2019, had included one office note from Paret for the left shoulder and one for the right shoulder. He also modified Conclusion, ¶ K, to reflect that, having ascertained that the decedent was assigned a 14 percent permanent partial disability in 2018, “the sole remaining question is whether there is a basis to conclude that all or part of that 14% impairment can be deemed payable or paid with respect to the previous disability.” (Emphasis omitted.) May 6, 2021 Ruling on Motion to Correct, p. 3.
[13] In their brief, the respondents reference a “form 36 package” which was date-stamped by the commission on November 12, 1999, consisting of a cover sheet; a form 36 filed on November 8, 1999; Paret’s report of October 15, 1999, opining that the decedent had attained maximum medical improvement as of the date of his last examination on August 13, 1999; Paret’s form 42 of October 6, 1999, documenting a 20 percent permanent partial disability to the decedent’s left shoulder; and Paret’s correspondence of October 20, 1999, attributing 80 percent of the permanency rating to the injury of 1997 and 20 percent of the rating to the injury of 1998. The respondents contend that the subject form 36 was administratively approved with an effective date of November 12, 2019. Our review of the file indicates that the form 42 along with Paret’s correspondence of October 15, 1999, and October 20, 1999, were entered into the evidentiary record without objection as Respondents’ Exhibits 1, 2 and 3, respectively. However, the respondents appear to rely upon “administrative notice of file number 40035964” for the submission of the cover sheet and form 36. Appellants’ Brief, p. 6. We note that at formal proceedings held in this matter on September 2, 2020, the commissioner took administrative notice of the 2009 stipulation and read into the record several file numbers which were referenced in the stipulation. See Administrative Notice Exhibit 1; see also September 2, 2020 Transcript, p. 4. He then stated that those file numbers were for identification and remarked, “I’m not going to go through – there’s items in those files that have been closed in our system. If anybody wants me to take notice of anything in particular from those now closed files, let me know.” September 2, 2020 Transcript, pp. 4-5. The forms 36 for which the commissioner did take administrative notice were filed on April 16, 2018; May 21, 2018; December 26, 2019; and January 7, 2019. At no time during the formal hearing did respondents’ counsel request that November 12, 1999 cover sheet or form 36 be entered into the record; in fact, respondents’ counsel specifically stated that “[o]ther than the exhibits that were offered – which again I’d like to reiterate that we’re offering the exhibits into evidence as full exhibits – other than those exhibits, I don’t have anything to offer.” Id., 55. We further note that these documents were not included in the package of Paret’s medical reports given to Daigneault at his deposition of April 13, 2020. The respondents did attach these materials to their motion to correct; however, in his ruling on this motion, the commissioner specifically rejected the submission of the documents, stating that he did “not recall being asked to take notice of any specific contents” of the closed files referenced in the stipulation and noting that the documents were not material to the decision given that there was no longer any “legitimate question as to whether the [decedent] had previously been paid for the 20% rating ….” May 6, 2021 Ruling on Motion to Correct, pp. 1-2. This board is therefore prohibited from reviewing the November 12, 1999 cover sheet or form 36 as they were neither properly introduced into the record nor considered by the commissioner.
[14] In addition to the modifications to General Statutes § 31-275d referenced previously herein, Public Acts 2021, No. 21-18, § 5 (P.A. 21-18), amended General Statutes § 31‑349 by deleting the subsection (a) designator along with former subsections (b) to (f).
[15] “The full and final stipulation memorialized payment of permanent partial disability benefits for 10% to the left upper extremity, 10% to the right upper extremity, 5% to the left hand and 5% to the right hand as a result of left and right carpal tunnel, cubital tunnel and thoracic outlet syndrome as a result of repetitive and/or cumulative trauma. This agreement also acknowledged any claim for the shoulders remained open and pending and is not covered by the stipulation agreement.” Scanlon v. Finkle & Sons Service Co., Inc., 5963 CRB-3-14-10 (July 22, 2015).
[16] In Rodriguez v. Remington Products, 16 Conn. Workers’ Comp. Rev. Op. 115, 3069 CRB-4-95-5 (November 25, 1996), this board affirmed the commissioner’s denial of a credit to the respondents on the basis that the prior stipulation failed to establish whether any portion of the settlement had been allocated to a claim for permanent partial disability benefits.
[17] The evidentiary record does not reflect that the decedent underwent a respondents’ medical examination.