SCOTT E THOMPSON, Applicant
VILLA MARIA HEALTH CARE, Employer
WAUSAU BUSINESS INSURANCE CO, Insurer
The applicant filed an application for hearing claiming two dates of injury on February 4, 1999, and February 2, 2000. Wausau Business Insurance Company (Wausau Business) was on the risk for the 1999 date of injury and Connecticut Indemnity Company, a/k/a EBI Companies (Connecticut Indemnity) was on the risk for the 2000 date of injury.
This matter was originally heard by administrative law judge (ALJ) John Clarke of the Department of Workforce Development, Worker's Compensation Division on October 2, 2001. Prior to the hearing, the employer and its insurers conceded jurisdictional facts, compensable injuries on the dates claimed, an average weekly wage of $383.07 for the 1999 date of injury, and an average weekly wage of $390.00 for the 2000 injury. At issue was the nature and extent of disability from the injuries, and liability for medical expenses.
ALJ Clarke issued his decision on January 2, 2002. The decision as issued was missing page 5.
A petition for commission review was filed. On February 8, 2002, the Labor and Industry Review Commission issued an order stating:
". . . the commission sets aside the ALJ's order in the above-referenced matter and remands this matter back to ALJ Clarke. All parties agree that clarification is necessary to determine, among other things, which insurer is liable to make payments for disability. The commission remands this matter back to ALJ Clarke for him to make any necessary clarifications to his order"
On approximately July 29, 2002, the parties received a copy of page 5 of Administrative Law Judge Clarke's order. The attorneys then of record agreed among themselves at that time to place the loss of earning capacity claim in abeyance pending the applicant's end of healing.
On July 23, 2003, Section Chief Administrative Law Judge Janell Knutson wrote to the attorneys: ". . . at this time, do the parties request that another hearing be scheduled to include the new benefit issues as well as the issues in dispute at the time of the October 2001 hearing?" The parties agreed further hearing was necessary.
Accordingly, a second hearing was held before ALJ Andrew Roberts on March 31, 2004. At issue before ALJ Roberts was the clarification of ALJ Clarke's January 2, 2002 findings and interlocutory order, as well as the nature and extent of disability, medical expenses, and insurer liability. ALJ Roberts issued his decision on August 3, 2004. Connecticut Indemnity has filed a timely petition for commission review.
The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJs. Based on its review, the commission makes the following:
The applicant was born in 1948. He was a noncommissioned officer in the U.S. military for many years. In 1989, well prior to the injuries at issue and before even beginning work with the employer, the applicant hurt his back and underwent a laminectomy surgery at L5-S1. He testified this injury did not disable him from military service. He subsequently left the military in 1993, and began working for the employer.
As recited above, the applicant claims disability from work injuries while lifting or moving hospital beds in February 1999 and February 2000. After the February 1999 work injury, the applicant underwent a laminectomy surgery at L4-5 performed by Thomas Rieser, M.D., in June 1999. The applicant returned to work, and eventually suffered the second injury in February 2000.
After the second injury, the applicant initially treated conservatively. On June 10, 2000, Dr. Rieser opined he reached a healing plateau from the second injury, though the applicant still suffered symptoms "he could live with." Dr. Rieser also set restrictions which precluded the applicant from returning to work at his former job.
The October 2001 hearing before ALJ Clarke then occurred, and he issued his findings and order on January 2, 2002. (1)
2. ALJ Clarke's January 2, 2002 Interlocutory Order
ALJ Clarke's January 2002 interlocutory order awarded compensation for permanent partial disability for functional loss and loss of earning capacity. He also awarded compensation for medical expenses. As ALJ Roberts pointed out, however, ALJ Clarke's award for disability indemnity is largely mooted out by the additional disability indemnity due to surgeries occurring after ALJ Clarke's October 2001 hearing.
ALJ Roberts found that ALJ Clarke adopted Dr. Rieser's opinions and analysis in his practitioner's report dated February 7, 2001, i.e., the applicant had 14 percent functional permanent partial disability as of the October 2, 2001 hearing with 60 percent of the applicant's functional permanent partial disability attributable to the 1999 injury and 30 percent due to the 2000 injury.
However, ALJ Clarke also stated:
"It is my understanding that 12% permanent partial disability has been conceded and paid. Because of the fact that the applicant had a long history of back problems dating back to his service in Vietnam I find that 12 % is all that is attributable to these two work injuries."
In other words, ALJ Clarke found that the work injuries combined caused a total of 12 percent permanent partial disability on a functional basis, which had already been paid by Wausau Business. While ALJ Clarke did not say how he would apportion the 12 percent between the two insurers, it is reasonable to conclude he meant to pay it according to the same relative proportion as that given by Dr. Rieser between the 1999 and 2000 injuries -- 60:30 -- or two-thirds paid by Wausau Business and one-third by Connecticut Indemnity. As so clarified, the commission affirms and adopts these findings on permanent partial disability on a functional basis as of the date of the hearing before ALJ Clarke.
ALJ Clarke also found the applicant sustained a loss of earning capacity at 40 percent, into which the functional PPD rating would be merged. His findings indicate he thought Wausau Business (the 1999 insurer) should pay 60 percent of the compensation for loss of earning capacity, Connecticut Indemnity (the 2000 insurer) should pay 30 percent, with "the balance to other back injuries." However, ALJ did not award only 90 percent of the compensation for loss of earning capacity.
Rather, the WC Summary Sheet on which his award is based assumes payment of compensation totaling 400 weeks of PPD at $184 per week totaling $73,000, of which 128.1666 weeks totaling $23,582.67 had accrued as of the date of the computation. The computation on the WC Summary Sheet subtracted the 120 weeks of compensation previously paid (discussed above) totaling $22,080.00. This left a net of compensation due of $1,502.67, which, after deduction of the 20 percent fee, resulted in the amount of disability compensation awarded under ALJ Clarke's order, or $1,202.14.
Following the computation through in the terms of ALJ Clarke's order itself, it is clear that ALJ Clarke's order awards the entire 400 weeks of compensation for loss of earning capacity (after deductions for fees, costs and prior payments) at the full weekly rate for PPD of $184. The commission thus concludes that his finding of the balance of 10 percent relating back to other injuries notwithstanding, ALJ Clarke intended Wausau Business and Connecticut Indemnity between them to pay the full additional 280 weeks for loss of earning capacity beyond the 120 weeks of previously-paid functional PPD. The commission also concludes that ALJ Clarke meant to apply the same 60:30 apportionment, or two-thirds paid by Wausau Business and one-third by Connecticut Indemnity. As so clarified, the commission affirms and adopts these findings on permanent partial disability on a vocational basis for loss of earning capacity as of the date of the hearing before ALJ Clarke.
The WC Summary sheet, as noted above, indicated that 128.1333 weeks of PPD had accrued as of the January 15, 2002 computation date. That would be the 120 weeks previously-paid for functional PPD, plus the first 8.1333 weeks of additional compensation for loss of earning capacity accrued to January 15, 2002.
However, as ALJ Roberts pointed out, full payment of the award for loss of earning was precluded by future events. On January 9, 2002, the applicant re-entered a healing period as set out below, and was entitled to compensation for temporary total disability from that point until May 5, 2003, when the applicant became permanently and totally disabled.
Because a worker may not simultaneously collect compensation for PPD while also collecting compensation for TTD or PTD, compensation for PPD/LOEC in this case effectively ended on January 9, 2002. Working backward from the WC Summary Sheet, then, the applicant would be entitled to a total of 127.333 weeks of PPD in all, or 7.333 more than the previously-paid 120 weeks.
Finally, Administrative Law Judge Clarke ordered that Connecticut Indemnity (identified as EBI Companies) pay some medical bills, though the amounts in his award do not seem to correspond with the amounts claimed on applicant's exhibit I, the WCK-3 submitted at the October 2001 hearing before ALJ Clarke. ALJ Roberts assumed that ALJ Clarke meant to hold Connecticut Indemnity liable for all of the medical expenses listed in Exhibit I. Accordingly ALJ Roberts ordered Connecticut Indemnity to pay all of the expenses listed in Exhibit I (as well as additional medical expenses listed in a supplemental WKC-3 submitted at the hearing before ALJ Roberts himself as exhibit AA.)
Connecticut Indemnity, of course, was on the risk for the February 2000 injury. However, a large number of the expenses claimed in exhibit I are for expenses incurred before February 2000, to treat the February 1999 injury for which Wausau Business was on the risk. For example, the treatment expenses documented in exhibit I include the June 1999 surgery. Aside from the question of apportionment of the expenses incurred after the February 2000 injury (addressed below), the commission concludes that Connecticut Indemnity should not be held liable for medical expenses incurred before the February 2000 accidental injury for which it is liable.
2. Compensation issues since ALJ Clarke's order
a. Further surgery; expert opinion.
On January 10, 2002 -- after the hearing before ALJ Clarke -- the applicant underwent a decompressive laminectomy. He developed a right foot drop after the procedure. By June 24, 2002, he further developed a significant increase in back and right leg pain, and he was then hospitalized. Percocet and morphine were prescribed.
On August 2, 2002, he underwent a posterior fusion of L4-S1. His foot drop worsened thereafter, and he must wear a plastic prosthetic device on his calf. On September 9, 2002, he underwent an anterior fusion.
In a June 21, 2003 practitioner's report on form WC-16B (Exhibit N), Dr. Rieser opined the applicant had reached a healing plateau -- that is, could return to work subject only to permanent restrictions -- as of May 6, 2003. Dr. Rieser also rated permanent partial disability as follows:
"14% permanent partial disability to the body as a whole according to Wisconsin Workers Compensation statutes. 60% due to the 1999 work injury; 30% due the 2000 injury; 10% to an industrial injury; apportionment of back condition and need for surgery. 30% permanent partial disability functional foot drop -- to the knee apportionment for foot drop as above."
Dr. Rieser set work restrictions to light duty, with a 10 to 15 pound lifting limit; no repetitive bending, lifting or twisting; sitting six hours total in eight hour day, standing six hours total and walking 2 hours total (2); with changing position every 30 minutes. He indicated the first injury directly caused disability, with the second acting as an event which aggravated the applicant's pre-existing condition beyond normal progression.
The applicant was re-examined by Dr. Becker on August 27, 2003, at the request of Wausau Business Insurance Company. In an October 2, 2003 report, Dr. Becker opined:
"In my opinion, the above-mentioned three surgeries were unrelated to the February 4, 1999 injury. He was able to return to work unrestricted following the February 4, 1999 injury, which did result in a permanent aggravation, but did not require additional treatment after the healing plateau date of September 1, 1999. In my opinion, the additional treatment after that date was the result of the February 2, 2000 injury."
He set work restrictions against lifting more than 30 pounds, no prolonged sitting, standing, walking, squatting, twisting or stooping. He rated permanent partial disability to the applicant at 40 percent based under the Wisconsin rating system. Exhibit Wausau 13, page 6. Additional records were forwarded to Dr. Becker and in an October 16, 2003 report he reiterated his opinions.
The applicant was re-evaluated by Dr. Fielden at the request of Connecticut Indemnity Company. In an October 8, 2003 report, Dr. Fielden opined:
"This all primarily relates back to the 1999 injury that essentially all progression has been from that point...permanent disability, the combination of the two level fusion and the drop foot on right result in 30 percent."
Dr. Fielden allowed the applicant to work full time if he got a five minute break every hour, change position as required, lifting 15-20 pounds, and avoided repetitive bending or awkward bending or positioning. He rated permanent partial disability for a combination of the two-level fusion and the foot drop at 30 percent, presumably to the body as a whole.
The applicant testified before ALJ Roberts that he had trouble standing, that he is never comfortable sitting, that he can drive for about 35 minutes at a time, that he continues to have "foot drop" and numbness in his foot, and that he uses a brace to help him walk and replace lost function in his foot.
The applicant's vocational expert, Francis Maslowski, found the applicant permanently totally disabled under the restrictions set by Dr. Rieser or Dr. Fielden after the fusion surgery. Mr. Maslowski opined that under either doctor's restrictions, the applicant would be excluded from factory work and available for only very select service jobs -- as most service jobs require workers to be on their feet. That left select motel clerk and night auditor work, which did not take the applicant out of the odd-lot category. Under Dr. Becker's post-fusion restrictions, Mr. Maslowski rated loss of earning capacity at 30 to 35 percent. Exhibits M and O.
Wausau Business also updated its vocational report. Exhibit Wausau 15. Its expert Jay Smith found a LOEC of 35 to 45 percent under Dr. Rieser's restrictions and 25 to 35 percent under Dr. Becker's. Examples of jobs Mr. Smith felt the applicant could do under Dr. Rieser's restrictions include light duty courier, a variety of clerical positions, retail cashier, local bus driver, teller, retail sales, and security guard. He felt the applicant could do similar jobs under Dr. Becker's restrictions, but more of them.
b. Extent of disability after the 2002 surgeries.
The applicant reentered a healing period on January 10, 2002 when he underwent a decompressive laminectomy. Dr. Rieser and Dr. Fielden credibly opine that the applicant reached an end of healing as of May 6, 2003. He is thus entitled to compensation for temporary total disability during this period.
Because of the three surgeries following the October 2, 2001 hearing, additional functional permanent partial disability has resulted. Dr. Becker notes in his October 2, 2003 report, for the unscheduled component the applicant is entitled to a total of 40 percent functional permanent partial disability as compared to permanent total disability compensation under the administrative code. However, because the commission finds that the applicant was permanently totally disabled from the time he reached an end of healing on May 6, 2003, no additional award for permanent partial disability on a functional basis shall be made.
Regarding the applicant's work restrictions upon reaching an end of healing after the 2002 fusions, the commission finds the restrictions of treating Dr. Rieser most credible. Dr. Becker allows a 30-pound lifting limit, which seems too high in light of the limit set by Dr. Fielden who was retained by Connecticut Indemnity. In addition, given the applicant's continuing problems with foot drop, the lower lifting limit set by Dr. Rieser is warranted, as is the restriction to two hours of walking as set out on Dr. Rieser's functional capacity evaluation.
Turning to the vocational effect of those restrictions in terms of loss of earning capacity, the commission notes the applicant was born in 1948. He is a high school graduate and armed services veteran whose primary employer was the U.S. Army or U.S. Army Reserves until 1993. He has had some vocational training and college coursework, but since leaving the military has worked as a clerk at Cub Foods for a few months before getting the job setting up durable medical equipment for the employer. This job paid $9.75 per hour.
The commission concludes that Mr. Maslowski's report has made a prima facie case of permanent total disability on an odd-lot basis, and that the presumption of permanent total disability has not been rebutted by Mr. Smith's report. See: Beecher v. LIRC, 2004 WI 88, 273 Wis. 2d 136, 682 N.W.2d 29. Mr. Smith assumes the applicant can walk six hours a day; in fact, Dr. Rieser has limited him to two. Beyond that, Mr. Smith identifies jobs -- delivery/courier work, various clerk jobs, bus driver, teller and security guard -- that the applicant cannot realistically perform with the requirement he change positions every half hour, not walk more than two hours or stand more than six, especially if one factors in the five minute break every hour recommended by Dr. Fielden.
The commission thus concludes, as did ALJ Roberts, that the applicant is permanently totally disabled.
3. Apportionment.
The next question is who must pay the compensation awarded. Finding that permanent total disability cannot be apportioned, ALJ Roberts held Connecticut Indemnity liable for the entire PTD award. As noted above, he also held Connecticut Indemnity liable for all medical expenses.
On appeal, Connecticut Indemnity points out that Wis. Stat. § 102.175(1) provides:
"102.175(1) If it is established at the hearing that 2 or more accidental injuries, for each of which a party to the proceedings is liable under this chapter, have each contributed to a physical or mental condition for which benefits would be otherwise due, liability for such benefits shall be apportioned according to the proof of the relative contribution to disability resulting from the injury."
The department's interpretative footnote provides further:
"This permits the department to apportion disability between two or more injuries according to proof of their relative contribution. Medical evidence on the exact percentage contribution by each injury is not necessarily required."
DWD, Worker's Compensation Act with Amendments to January 1, 2002, WKC-1-P (R. 07/2002), note 92.
Wisconsin Stat. § 102.175(2) follows a decision of the supreme court, Giant Grip Mfg. Co v. Industrial Commission, 271 Wis. 583 (1955), where the court upheld a commission decision apportioning a compensation award fifty-fifty between two injuries following two back injuries resulting in intervertebral disc protrusions. Specifically, the commission found certain periods of TTD and TPD from the date of the second injury to the date of the hearing, and held that the respective insurers were liable in 50-50 proportions for disability compensation and medical expenses as became payable after the second date of injury. Giant Grip, 273 Wis. 584, 587. The Giant Grip case, then, permits apportionment, and does not distinguish between disability for functional loss and for vocational loss, or between permanent partial disability and permanent total disability. In Giant Grip, as here, a medical expert expressly apportioned disability between the two injuries. Giant Grip, at 273 Wis. 586.
Apportionment was also addressed in Green Bay Soap v. ILHR Department, 87 Wis. 2d 561 (Ct. App. 1979). In that case, the court was careful to point out that there was no actual apportionment by a medical expert. Id., at 87 Wis. 2d 565 (noting "[t]he examiner did not find that applicant's pre-existing disability contributed to his total disability...") Rather, in Green Bay Soap, a doctor had rated pre-existing permanent partial disability at 30 percent, followed by another injury and a permanent total rating, and the court was asked to infer a 70/30 split from that. The court declined.
The commission's decision in Anderson v. Fabricating Engineers, WC Claim No. 1999-061668 (LIRC, January 29, 2004) dealt with an attempt to apportion between a pre-existing, non-work related condition, and a work injury. The commission pointed out such an injury falls outside Wis. Stat. § 102.175(1), which allows apportionment in cases of "2 or more accidental injuries, for each of which a party to the proceedings is liable under [Wis. Stat. ch. 102]." (3)
More on point, is the commission's decision in Buresh v. Wissota Tool & Machine, WC Claim Nos. 1997-019890 and 1987-015355 (LIRC, January 30, 2002), cited by Connecticut Indemnity. There the worker injured his back at work in 1987 and aggravated his condition from that injury in a subsequent accidental injury at work in 1996. The doctor in Buresh recognized that a normal healthy back would not have been aggravated in the second injury but nonetheless apportioned fifty-fifty between the employment injuries. The ALJ apportioned the permanent total disability award and medical expenses in that case and -- in affirming -- so did LIRC.
The commission concludes that the law permits apportionment of both disability compensation (including permanent total disability compensation) and medical expenses in an appropriate case. Is this an appropriate case?
Dr. Rieser apportioned disability in his February 7, 2001 practitioner's report which was adopted by ALJ Clarke. In his subsequent June 21, 2003 practitioner's report on form WKC-16B, Dr. Rieser again apportioned the need for the 2002 surgeries and the foot drop symptoms using the same 60:30:10 split.
The commission is not bound by the fact that ALJ Clarke originally credited Dr. Rieser's apportionment. However, the commission, like ALJ Clarke, finds Dr. Rieser's opinions to be the most credible. On this point, Dr. Becker, who examined the applicant on behalf of Wausau Business, opined:
"If the fusion surgery is accomplished within the next year, I believe the February 2000 work injury was responsible for aggravating his underlying condition beyond normal and thus necessitating surgery. However, if Mr. Thompson does not undergo surgery, for at least another couple of years, then I believe it will have been necessitated by a combination of the February 2000 work injury and his other injuries."
Wausau Exhibit 2, April 4, 2001 report of Becker, page 8. The applicant did not undergo the fusion surgery until August 2002, or more than a year after Dr. Becker issued his report on April 4, 2001 (though the applicant underwent a laminectomy in January 2002). In any event, it is clear from Dr. Becker's opinion that apportionment between the work injuries is a reasonable medical judgment, and the commission adopts it here.
In apportioning, the commission follows the 60:30 -- or two-thirds Wausau Business/one-third Connecticut Indemnity -- proportion discussed above. The commission acknowledges that Dr. Rieser's apportionment assigned 10 percent to "another industrial injury," most likely the 1989 injury resulting in the laminectomy at L5-S1 that year. However, Wis. Stat. § 102.175(1) permits apportionment only for "accidental injuries, for each of which a party to the proceedings is liable under [Wis. Stat. ch. 102]." Whoever is liable for the "other industrial injury" identified by Dr. Rieser (if indeed it was an "industrial" injury) is not a party to these proceedings.
Further, consistent with the decisions in Giant Grip and Buresh, the commission believes it appropriate to apportion between the two insurers not only the disability indemnity, but also the medical expense, incurred after the February 2, 2000 injury.
4. Award
As set out above, Wausau Business previously paid 120 weeks of permanent partial disability, $22,080, for 12 percent permanent partial disability on a functional basis. Under the two-thirds Wausau Business/one-third Connecticut Indemnity apportionment, Connecticut Indemnity shall reimburse Wausau Business $7,360 for that payment.
Consistent with ALJ Clarke's order, an additional 7.333 weeks of PPD/LOEC accrued before the applicant re-entered a healing period on January 10, 2002. At the weekly rate of $184 per week (which applies to injuries in 1999 and 2000), the total additional PPD compensation is $1,349.27, of which Wausau Business shall pay two-thirds ($899.51), and Connecticut Indemnity one-third ($449.76).
Consistent with ALJ Roberts' order, applicant was in a healing period and entitled to TTD from January 9, 2002 to May 6, 2003 (both dates exclusive), a period of 68 weeks and 4 days. Under the two-thirds Wausau Business/one-third Connecticut Indemnity apportionment:
The applicant was permanently totally disabled as of May 6, 2003, and he is entitled to permanent total disability compensation that date to May 4, 2005, a period of 104 weeks and 2 days. Under the two-thirds Wausau Business/one-third Connecticut Indemnity apportionment:
The insurers shall continue to pay compensation at these rates, adjusted for monthly payment, for the rest of the applicant's life, subject to a deduction for attorney fees through December 4, 2012.
In all, the amount currently due in compensation from Wausau Business is $32,721.76, which is its share of the sum of the remaining PPD/LOEC (($899.51), the TTD ($14,059.50), and the PTD to May 4, 2005 ($17,762.75). The applicant agreed to an attorney fee set at 20 percent of the additional compensation, or $6,544.35 which together with costs of $3,737.74 shall be paid within 30 days. The remainder, $22,439.67 shall be paid to the applicant in 30 days.
The amount currently due in compensation from Connecticut Indemnity is $15,443.87 which is its share of the sum of the remaining PPD/LOEC ($449.76), the TTD ($5,951.34), and the PTD to May 4, 2005 ($9,042.57). The applicant agreed to an attorney fee set at 20 percent of the additional compensation, or $3,088.73, which shall be paid within thirty days. The remainder, $12,354.93 shall be paid to the applicant in thirty days.
The medical expenses for treatment before February 2, 2000, shall be paid by Wausau Business alone. Treatment expense incurred on and after February 2, 2002, shall be paid under the two-thirds Wausau Business/one-third Connecticut Indemnity apportionment. The commission declines to go through the itemization supporting the WKC-3 at exhibit I to determine what expenses were incurred before February 2, 2000, and instructs the insurers to determine the proper payments and reimbursements between them.
As to the expenses itemized at exhibit AA, the insurers shall, in accordance with the two-thirds Wausau Business/one-third Connecticut Indemnity apportionment, pay the unpaid balances, reimburse the applicant for his out-of-pocket costs, and reimburse Group Health, Humana, and WC Unknown. According to exhibit AA, Connecticut Indemnity (EBI) paid $29,127.37 towards medical expenses. According to exhibit Wausau 17 (and the August 10, 2004 letter from its attorney to ALJ Roberts), Wausau Business paid $52,562.68 toward the bills documented on exhibit AA. Adding these together and applying the two-thirds Wausau Business/one-third Connecticut Indemnity split, Wausau Business should have paid $54,460.03, and Connecticut Indemnity should have paid $27,230.02. Wausau Business shall pay Connecticut Indemnity $1,897.35 as an adjustment of this amount.
This order shall be left interlocutory to permit future orders and awards as are necessary.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and orders of ALJ Clarke and ALJ Roberts are modified to conform to the foregoing and, as modified, are affirmed in part and reversed in part.
Within 30 days from the date of this order, the employer and Wausau Business Insurance Company shall pay all of the following:
Within 30 days from the date of this order, the employer and The Connecticut Indemnity Company shall pay all of the following:
Within 30 days from the date of this order, Wausau Business Insurance Company and The Connecticut Indemnity Company shall attempt to determine which expenses documented in exhibit I were incurred before February 2, 2000; the employer and Wausau Business shall make the appropriate payment and reimbursements with respect to those expenses. With respect to the treatment expenses incurred on or after February 2, 2000 as documented in exhibit I, the employer and the insurers shall make the appropriate payments and reimbursements with Wausau Business being liable for two-thirds, and Connecticut Indemnity liable for one-third.
Beginning on June 4, 2005, and continuing on the fourth day of each month thereafter through December 4, 2012:
Beginning on January 4, 2013 and continuing on the fourth day of each month:
Jurisdiction is reserved for further findings and awards as are appropriate and consistent with this decision.
Dated and mailed May 13, 2005
thompsc . wrr : 101 : 8 ND § 3.43
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
The commission did not discuss witness credibility with either ALJ, because its modifications of their orders did not depend on the credibility of any witness who testified, but on its view of the law.
The commission based its calculations on the figures used by the department in calculating the awards issued by ALJs Clarke and Roberts. It also appreciates that the insurers may have made payments under the ALJs' orders which are not accounted for in the commission's award. The insurers are, of course, entitled to the appropriate credit for any such payments against their liability under the award so that they do not pay the same amounts twice.
cc:
Attorney Theodore A. Franti
Attorney James W. Goonan
Attorney Steve A. Cotton
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