Opinion
CASE NO. 52-CRD-5-81
JANUARY 27, 1982
The claimant appellee was represented by Roger Sullivan, Esq.
The respondent-appellant was represented by Howard Field, Esq.
The Second Injury Fund was represented by Ralph Russo, Esq. Assistant Attorney General.
This Petition for Review from the February 10, 1981 Decision of the Commissioner for the Fifth District was argued June 19, 1981 before a Compensation Review panel consisting of Commissioners John Arcudi, A, Paul Berte' and Robin Waller. A Finding and Award was released November 23, 1981 which was vacated December 14, 1981. There was further argument January 22, 1982.
SUBSTITUTE FINDING AND AWARD
1. The February 24, 1978 Finding and Award previously issued in this matter is incorporated herein by reference.
2. After claimant's May 5, 1972 work injury, he returned to employment with respondent as a roller in a rolling mill on October 26, 1972.
3. That work involved standing for long periods of time, walking continuously to various areas of the plant and pulling and pushing heavy pieces of metal.
4. Between October 26, 1972 and the beginning of 1979 the claimant's condition deteriorated as a direct and proximate cause of the May 5, 1972 work injury and the medical procedures which it made necessary.
5. In the latter part of 1978 the claimant was experiencing such pains and cramps in both legs that he sought treatment from Dr. Raymond E. Sullivan, a Waterbury vascular surgeon.
6. This condition caused claimant to lose some time from work in 1978.
7. Dr. Sullivan advised in January, 1979 that claimant should cease any type of employment which involved standing for long periods of time.
8. Claimant sought other type work from his employer, but as none was forthcoming, he continued at his old job.
9. The May 5, 1972 work injury and the subsequent medical procedures which it made necessary caused claimant to become totally disabled as of the beginning of 1979.
10. Claimant on July 28, 1980 was 62 years of age and was blind in his left eye.
11. He had completed grammar school and two years of high school.
12. In an attempt to find work suitable to his diminished working capacity, claimant sought work from at least ten different employers between November, 1979 and July, 1980. These efforts were unsuccessful.
13. Claimant in his lifetime has worked as a carpenter, dry cleaner, headwaiter, chef and painter.
14. As found in the February 24, 1978 decision, the condition from which claimant is suffering was a deep vein thrombo-phlebitis condition in both legs.
15. Neither Dr. Raymond E. Sullivan nor Dr. William F. Quigley, another Waterbury surgeon, found in 1980 medical impairment in both legs exceeding the 25 percent awarded in the February 24, 1978 decision of the Commissioner.
16. But both doctors agreed that claimant no longer could work at any jobs requiring prolonged standing.
17. It is found that claimant's condition has worsened since 1972 to the point that he became totally disabled in 1979.
18. The claimant's compensation rate on May 5, 1972 was $95.00 per week which with cost of living adjustments to January 1, 1979 established the claimant's compensation rate at $160.00 at the time of his total disability.
WHEREFORE IT IS ORDERED, DECREED, AWARDED AND ADJUDGED THAT:
A. Respondents pay claimant total disability benefits from February 20, 1979 on at his compensation rate together with any cost of living adjustments mandated by law.
B. That respondents pay all medical expenses due to the injuries found above.
C. That the Fifth District Commissioner hold further proceedings to determine the question of Second Injury Fund liability.
D. That the Fifth District Commissioner hold further proceedings to determine whether total incapacity for work continues or whether vocational rehabilitation or other facilities may be available to make claimant reemployable.
This Division released an Opinion November 23, 1981 which was vacated December 14, 1981. There was further argument January 22, 1982.
SUBSTITUTE OPINION
Prior to the February 10, 1981 Finding and Award, the subject of this Appeal, there was a previous proceeding resulting in a Finding and Award issued February 24, 1978 by the Commissioner for the Fifth District. It related that the claimant had suffered a compensable injury to his right leg October 9, 1950. Claimant then suffered another compensable injury to his right leg May 5, 1972. Because of a cross pedicle flap surgical procedure necessitated, claimant also then suffered phlebitis in the left leg. The Commissioner consequently made a specific award of twenty-five (25%) percent of each lower extremity and also awarded compensation for disfigurement.
After the 1972 injury, claimant resumed employment with the respondent October 29, 1972. Claimant's work as a roller in a rolling mill involved his standing for long periods of time. He walked continuously and pulled and pushed heavy pieces of metal. His deep vein thrombo-phlebitis condition in both legs was aggravated by the work he did between October, 1972 and January, 1979. As of January, 1979 Dr. Raymond E. Sullivan, a Waterbury vascular surgeon, advised claimant not to continue working any longer at his previous job.
Claimant informed his employer of this and sought from the respondent other work which would not necessitate such continual standing and aggravation of the venous stasis and thrombophlebitis condition. Other type of work was not forthcoming, and on February 14, 1979, claimant was caused to cease employment due to the deterioration of the condition resulting from his injuries.
After February 1979 and until the date of the 1980 hearing, the claimant sought employment from at least ten different employers in the Waterbury-Wolcott area. Claimant is in his mid-sixties, has completed two years of high school and is blind in his left eye. The Commissioner found that because of claimant's 1950 and 1972 injuries he had become totally unemployable and was therefore entitled to total disability payments from February 20, 1979 on.
Appellants contest the conclusions of the Commissioner and have requested extensive corrections and additions to his finding. We have carefully examined all the evidence and granted many of these requests in our Finding and Award. But these corrections and additions do not alter the ultimate conclusions reached by the commissioner below. The commissioner should have made the subordinate factual findings necessary to support his conclusions. However, his failure to state those subordinate facts do not necessarily vitiate the ultimate result reached. There was ample evidence in the record to provide a basis for the conclusion expressed in (4) of the commissioner's Finding: "It is found as a fact from all the evidence, that commencing that date the claimant has a total incapacity to work."
Our Supreme Court has stated on innumerable occasions since 1913 that an appellate tribunal has limited power in reviewing the decision of a commissioner. Among the more recent expressions of this principle are JACQUES V. H. O. PENN MACHINERY CO., 167 Conn. 170 (1974). ADZIMA V. UAC/NORDEN DIVISION, 177 Conn. 107 (1979). The 1979 amendment to Sec. 31-301, C.G.S. creating the compensation review division and transferring the appellate power from the Superior Court to it did not, in our view, materially change the substance of the appellate power. True, the legislature gave to the compensation review division limited authority to hear further evidence, but unless this was done, the division "shall hear the appeal on the record of the hearing before the Commissioner . . ." Here, of course no further evidence was heard by the panel. In fact, the only evidence presented below was by the claimant. The respondents presented no evidence at any time.
31-301 does require the compensation review division to include in its decision its own findings and award and conclusions of law. Thus the statute codifies the method by which the division, an administrative agency, may affirm, modify or reverse the decision of the commissioner. When the legislature after sixty-six years of the law opted for administrative review rather than judicial review, it apparently felt it appropriate to define the modality of such review in the statute.
But in defining it the General Assembly did not augment the reviewing power. The 1979 amendment to 31-301 failed to include the verbal formula "to substitute its factual findings for those of the commissioner." Instead the three verbs already cited were employed, "affirming modifying or reversing the decision of the commissioner." Given this limited function in the appellate panel, we cannot disagree with the commissioners conclusion that claimant had become unemployable in 1979 due to his injuries. Certainly OSTERLUND V. STATE, 135 Conn. 498 (1949) and CZEPLICKI V. FAFNIR BEARING CO., 137 Conn. 454 (1951) furnish ample authority for that result.
The second part of respondent's appeal has to do with Sec. 31-349 transfer of liability after 104 weeks of payment from the respondents to the Second Injury and Compensation Assurance Fund. It is not clear from the record that this matter was fully litigated before the commissioner. The Second Injury Fund has moved to dismiss this part of the appeal as prematurely taken. It has been the Second Injury Fund's contention in these matters that a separate proceeding is necessary to determine rights as between respondents and the Second-Injury Fund. Respondents have generally answered that to hold such a separate hearing is really superfluous and a waste of time as it would simply mean a replowin of evidentiary furrows already well worked in the proceeding between the claimant employee and the respondent employer. There is much merit in this latter argument, but we do not need to decide the issue in this instance as a more complete record is necessary, and for that reason we have remanded the matter.
The decision of the commissioner is modified to conform with our Finding and Award.