Opinion
CASE NO. 281 CRD-5-83
MARCH 11, 1987
The claimant was represented by Edward T. Dodd, Jr., Esq.
The respondents were represented by Richard T. Stabnick, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the November 18, 1983 Finding and Award of the Commissioner for the Fifth District was heard October 26, 1984 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Robin W. Waller.
FINDING AND AWARD
The Finding and Award of the trial Commissioner is affirmed as the Finding and Award of this tribunal.
OPINION
Claimant, an employee of the Anaconda American Brass, sustained a low back injury arising out of and in the course of that employment. A voluntary agreement, approved by the then Fifth District Commissioner, was entered in 1973.
In a November 18, 1983 Finding and Award, the present Commissioner found the claimant terminated that employment December 5, 1972. He received total disability benefits until December 22, 1979, when the Commissioner approved a Form 36, Notice to Compensation Commissioner and Employee of Intention to Discontinue Payments. Additionally, the Commissioner found claimant was not totally disabled after December 22, 1979, but had a limited work capacity.
The appeal presents two issues. First, claimant attacks the Finding that he was not totally disabled after December 22, 1979. Second, he argues that the Commissioner erred as a matter of law in concluding that the respondent filed a valid Form 36.
On the first issue, we have consistently held that a Commissioner's factual findings will not be disturbed where they were based upon conflicting medical evidence, Adzima v. UAC/Norden Division, 177 Conn. 107 (1979). Further, a Commissioner's finding will stand unless "found to be facts without evidence or fails to include material facts which are admitted or undisputed; and the finding of a fact by an inference drawn from the evidence or other facts found, or both, may be corrected only when the inference is one which a reasonable man could not draw in a reasoning way and which therefore is so unreasonable as to justify judicial interference." Bailey v. Mitchell, 113 Conn. 721, 725 (1931) (citations omitted).
With respect to the validity of the Form 36, that is governed by Section 31-296 C.G.S. or more precisely by its predecessor existing as of the date of injury, i.e. Sec. 7444, Conn. General Statutes, Rev. of 1949.
Section 7444 provides, inter alia: Before discontinuing payment on account of total or partial incapacity under any such agreement, the employer, if shall be claimed by or on behalf of the injured person that his incapacity still continues, shall notify the commissioner and the employee of the proposed discontinuance of such payments, with the date of such discontinuance, and the reason therefore, and until such notices shall be sent to the commissioner and such employee, the liability for such payments shall continue, until otherwise ordered by the commissioner. The following form: "Workmen's Compensation Commission of Connecticut, Notice to Compensation Commissioner and Employee of Intention to Discontinue Payments.
Claimant contends the Form 36 filed and approved by the Commissioner January 7, 1980 was invalid as it was not signed by the attending physician. We must determine if the statement on respondent's Form 36 which annexed the physician's report satisfied the statutory requirements, i.e. whether the signature of the physician on the form is a mandatory or directory requirement, Broadriver, Inc. v. City of Stamford, 158 Conn. 522 (1969), cert. denied, 398 U.S. 938, State ex rel Arcudi v. Iassogna, 165 Conn. 203 (1973). Following the reasoning in those two cases, we find that the incorporation by reference of the physician's report satisfied the statute's requirements. In Broadriver, the court reviewed the case law regarding mandatory and directory requirements and stated, "A statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply." (Citations omitted) Id. at 529.
As we find that the respondent substantially complied with the requirements of Sec. 7444, we affirm the Commissioner's finding that a valid Form 36 was filed. We, therefore, affirm the Finding and Award of the Commissioner.
Commissioners Gerald Kolinsky and Robin W. Waller concur.
To the Compensation Commissioner for the __________________ Congressional District and to _____________________________ Employee: You are hereby notified that the undersigned employer will on the ________________ day of ______________ 19__ discontinue the payments of compensation to the above named employee for the following reasons, to wit: ______________________________________________________
__________________________________________________ Employer By __________________________________________ Insurer or Agent
I hereby certify that the above named employee is able to return to (usual) (light) selected) work on the _______________ day of ________________________________ 19__. __________________________ Attending Surgeon