Summary
In Delcarmine there was an attending physician's report from 1977 that concluded the claimant suffered a 10% loss of the use of the neck and arm. Subsequently, the same doctor issued a 1983 report in which he opined the claimant had a 15% partial permanent disability of the neck and arm. The trial commissioner used the 1983 report as the applicable date of maximum improvement.
Summary of this case from Maddaloni v. State University of Conn., NoOpinion
CASE NO. 311 CRD-7-84
JUNE 27, 1988
The claimant was represented by Leo Gold, Esq., Macklet Gold, P.C.
The respondent was represented by Edward D. O'Brien Jr., Esq.
This Petition for Review from the February 17, 1984 Finding and Award of the Commissioner for the Seventh District was heard October 25, 1985 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Frank Verrilli.
FINDING AND AWARD
The Seventh District Finding and Award of February 17, 1984 is affirmed and adopted as the Finding and Award of this Division.
OPINION
Claimant's admitted compensable injury occurred September 22, 1977. The trial Commissioner awarded benefits under Sec. 31-308, C.G.S. for 15% permanent partial loss of use of the master arm, 46.8 weeks, and for 15% of the cervical spine, 26.25 weeks at $135.00 per week. He also found the maximum medical improvement date to be July 6, 1983 and denied Claimant's request for interest on the award.
There was more than a six-year gap between the date of the injury and the Commissioner's award. The claimant's appeal contends that Respondents were aware of Claimant's permanent partial disability in 1977 and that maximum medical improvement had then been reached. Therefore, under the provisions of Sec. 31-295(c), C.G.S. payment should have begun November 15, 1977 within thirty days of maximum improvement. In addition, since waiting until 1984 to pay constituted an unconscionable delay, then the Commissioner should have awarded interest.
Sec. 31-295. Waiting period. When compensation begins. (c) If the employee is entitled to receive compensation for permanent disability to an injured member in accordance with the provisions of section 31-308, such compensation shall be paid to him beginning not later than thirty days following the date of the maximum improvement of such member or members and, if such compensation payments are not so paid, the employer shall, in addition to the compensation benefit rate, pay interest at the rate of six per cent per annum on such sum or sums from such date of maximum improvement. The employer shall ascertain at least monthly whether employees are entitled to benefits because of a loss of wages as a result of such injury and, if there is a loss of wages, shall pay such benefits. The commissioners shall adopt regulations for the purpose of assuring prompt payment by the employer or his insurance carrier.
In his brief, Claimant cites Sec. 31-300, C.G.S. and its provisions concerning interest. However, the version of that statute which he cites is not the law as it existed in 1977. We include below the pertinent language from Sec. 31-300 prevailing on September 22, 1977. As is readily apparent, the award of interest in 1977 was totally within the discretion of the trial Commissioner. We cannot disturb the exercise of that discretion.
Sec. 31-300 in 1977 stated in part: "In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where, through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at six per cent per annum. In cases where there has been delay in either adjustment or payment, which delay has not been due to the fault or neglect of the employer or insurer, whether such delay was caused by appeals or otherwise, the commissioner may allow interest at such rate, not to exceed six per cent per annum, as may be fair and reasonable, taking into account whatever advantage the employer or insurer, as the case may be, may have had from the use of the money, the burden of showing that the rate in such case should be less than six per cent per annum to be upon the employer or insurer. . . ."
Beyond the question of the discretionary award of interest, Claimant's appeal holds that the Form 42-62 filed November 15, 1977 by Dr. Gerard A. Sava, the attending physician, was sufficient notice to the employer that there was permanent partial loss of use of the neck and the arm. Dr. Sava on that date filed such a form and concluded Claimant had suffered a 10% loss of use of the neck and the arm. On July 6, 1983 Dr. Sava submitted a medical report in which he found Claimant to have a "partial/permanent disability of 15% referrable [referable] to the neck and right arm. . .". As is evident, the Commissioner awarded the doctor's 1983 percentages rather than his 1977 ones. The 1977 submission contained no date of maximum medical improvement nor did the 1983 report refer to maximum medical improvement specifically. The 1983 report did state that the doctor last saw Claimant in April of 1979. Relying on his analysis of the information contained in the reports concerning continuing treatment and changing percentages of permanent disability, the Commissioner used the doctor's 1983 report to determine the date of maximum improvement.
Appellant argues from the fact of the employer's knowledge of some permanent disability in 1977 that the delay in notifying Claimant of such fact and the consequent delay in payment was culpable. Further, he claims such culpability should be penalized by assessment of interest against the employer. But the assessment of interest under Sec. 31-300 in 1977 as we have noted was discretionary with the Commissioner. Similarly, the determination of the maximum medical improvement date lay within the Commissioner's province as the trier of the facts. As recently as last month, our Supreme Court in Fair v. People's Savings Bank, 207 Conn. 535, 540-541 (1988) has reiterated the importance to be given the trial Commissioner's findings and conclusions by citing Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477-78 (1947), "`Even if such an inference be considered more legal than factual in nature, the reviewing court's function is exhausted when it becomes evident that the Deputy Commissioner's choice has substantial roots in the evidence and is not forbidden by the law.'".
We, therefore, affirm the Seventh District's February 17, 1984 Finding and Award and dismiss Claimant's appeal.
Commissioners Robin Waller and Frank Verrilli concur.