Marandino v. Prometheus Pharmacy
Decision Date | 26 January 2010 |
Docket Number | No. 18135.,18135. |
Citation | 294 Conn. 564,986 A.2d 1023 |
Parties | Susan MARANDINO v. PROMETHEUS PHARMACY et al. |
Court | Connecticut Supreme Court |
Jason M. Dodge, with whom, on the brief, was Douglas L. Drayton, Glastonbury, for the appellants-appellees (defendants).
Angelo Paul Sevarino, Windsor, for the appellee-appellant (plaintiff).
Joram Hirsch and Robert F. Carter filed a brief, Bridgeport, for the Connecticut Trial Lawyers Association as amicus curiae.
ROGERS, C.J., and NORCOTT, KATZ, VERTEFEUILLE and McLACHLAN, Js.*
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.1 Marandino v. Prometheus Pharmacy, 105 Conn.App. 669, 686, 939 A.2d 591(2008). On appeal, the defendants claim that the Appellate Court improperly concluded that the plaintiff was entitled to temporary total incapacity benefits under General Statutes § 31-307(a)2 of the Workers' Compensation Act (act) after having received permanent partial disability benefits pursuant to a voluntary agreement. In her cross appeal, the plaintiff claims that the Appellate Court improperly concluded that the workers' compensation commissioner for the sixth district (commissioner) improperly relied on a report by Vincent Santoro, an orthopedic surgeon, in reaching the commissioner's decision that the plaintiff's arm and knee injuries were causally related. We affirm in part and reverse in part the judgment of the Appellate Court.
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.
3 4 Id., at 671-74, 939 A.2d 591.
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., at 681-82, 939 A.2d 591; and (2) that the board improperly sustained "the commissioner's finding that the plaintiff's 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 there was insufficient evidence in the record on which the commissioner could rely to find that the plaintiff's knee injury was causally related to the prior compensable arm injury." Id., at 674, 939 A.2d 591.
The Appellate Court concluded that the board properly affirmed the commissioner's award of total incapacity benefits to the plaintiff. Id., at 685-86, 939 A.2d 591. 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., at 684-86, 939 A.2d 591. A majority of the Appellate Court panel further concluded that the board had improperly affirmed the decision of the commissioner that the plaintiff's knee injury was compensable because the medical reports on which the commissioner relied did not constitute competent evidence. Id., at 680-81, 939 A.2d 591. Judge Mihalakos dissented from that portion of the decision. Id., at 686, 939 A.2d 591. Accordingly, the Appellate Court reversed the decision of the board with respect to its finding that the plaintiff's 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.
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