Opinion
CASE NO. 1510 CRB-1-92-9
JUNE 2, 1995
The claimant was represented by Stephen P. Bertucio, Esq. and Lawrence Cicchiello, Esq., Law Offices of Angelo Cicchiello.
The respondent Monson Nicholas and its insurer were represented by Cori-Lynn S. Webber, Esq., Law Offices of Grant H. Miller, Jr.
The respondent Standard Builders and its insurer were represented by Douglas L. Drayton, Esq., Pomeranz, Drayton Stabnick, who neither filed a brief nor appeared at oral argument.
This Petition for Review from the August 26, 1992 Finding and Dismissal of the Commissioner acting for the First District was heard August 13, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Donald H. Doyle, Jr., and Nancy A. Brouillet.
The panel issued an opinion January 23, 1995 sustaining the claimant's appeal and remanding the matter to the First District to determine the claim of additional permanent partial disability benefits. However, that January 23, 1995 decision affirmed the First District's denial of § 31-308a benefits. Respondent CNA Insurance Companies filed a Motion for Reargument or Reconsideration February 9, 1995 which was heard April 28, 1995 by the original panel. The ruling on the motion is contained in a separate document.
CORRECTED OPINION
Claimant appeals from the commissioner's denial of an additional 5% permanent partial disability Sec. 31-308 benefits and Sec. 31-308a wage loss benefits. We sustain the appeal in part.
The claim for the additional permanent partial disability proceeded against Monson Nicholas only, claimant having earlier reached a final stipulation with Standard Builders in the amount of $16,000.
At issue were two compensable back injuries, one November 23, 1987 with the employer Standard Builders, and another September 23, 1988, with the employer Monson Nicholas. The two employers and their respective carriers reached a Voluntary Agreement with claimant in May 1990, paying him a total of ten (10%) percent permanent partial disability of the back. Standard paid seven (7%) percent and Monson paid three (3%) percent. Only the Standard agreement was approved by the commissioner.
Claimant's treating Hartford neurosurgeon, Dr. Druckemiller, had issued a variety of reports as to the permanent partial disability. On September 7, 1989 Dr. Druckemiller wrote Mr. Thomas Morelli of CNA Insurance Company, Monson's carrier, as follows: "If the patient refuses surgery, he has reached maximum medical improvement, has a 15% permanent partial impairment of the lumbar spine". There was no evidence before the commissioner that claimant or his attorney was ever shown that letter.
At the time of this injury in 1988, Sec. 31-294 [now Sec. 31-294(b)] required: "All medical reports concerning any injury of any employee . . . shall be furnished . . . at the same time and in the same manner, to the employer and the employee or his attorney". On November 20, 1989 the doctor wrote another report giving a ten (10%) percent permanent partial disability rating. On August 3, 1988, Dr. Robert Fisher, another treater, had rated a five (5%) percent permanent partial disability before the second injury. After the May 1990 Voluntary Agreement had been reached, Dr. Druckemiller gave a fifteen (15%) percent rating in early 1991.
Ordinarily, the trial commissioner is the trier of the facts, and we as an appellate tribunal, may not change those findings.Fair v. People's Savings Bank, 207 Conn. 535 (1988). However, if a fact is found without evidence or if there is a clearly mistaken inference made from the facts adduced in evidence, we may overturn a commissioner's factual conclusions. Nelson v. Nelson, 13 Conn. App. 355, 359 (1988).
Here, the commissioner ruled, "The Claimant is not entitled to an additional five percent permanent disability since that rating by Dr. Druckemiller, was taken into consideration and a compromise made by the parties when the ten percent permanent partial disability benefits were paid to the Claimant" (8/26/92 Finding, Paragraph B). In paragraph 5 of the same ruling, the commissioner had referred to Dr. Druckemiller's September 7, 1989 letter assessing fifteen (15%) percent permanent partial disability. The commissioner's conclusion seemed to imply that the ten (10%) percent reached in the May 1990 Agreement was a compromise between Dr. Fisher's and Dr. Druckemiller's ratings.
Any inference that Dr. Druckemiller's September 7, 1989 letter played a role in claimant's accepting the ten (10%) percent May 1990 Agreement is not justified in the absence of evidence that claimant knew about the letter. Absent that knowledge by the claimant, the inference drawn in the commissioner's conclusion is mistaken. Cf. In re Adalberto S., 27 Conn. App. 49, 53-55, cert. denied, 222 Conn. 903 (1992). "An inference must have some definite basis in the facts . . . and the conclusion based on it must not be the result of speculation and conjecture." (Quotation marks and citation omitted.) Gulycz v. Stop Shop Companies, 29 Conn. App. 519, 522, cert. denied, 224 Conn. 923 (1992). A commissioner's conclusion may be subject to question where it is based in part on an erroneous finding of fact. Madden v. Moore Special Tool, 9 Conn. Workers' Comp. Rev. Op. 107, 109, 834 CRD-4-89-3 (1991).
Because the inference drawn is mistaken and based on a fact not in evidence, we must remand to the First District for further proceedings to determine the claim of additional permanent partial disability benefits. "Cases under the Workmen's Compensation Act are upon a different basis from actions between ordinary litigants. No case under this Act should be finally determined when . . . this court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment." Cormican v. McMahon, 102 Conn. 234, 238 (1925).
Claimant also challenges the dismissal of the claim for Sec. 31-308a wage loss benefits. Such a Sec. 31-308 award is discretionary. Hicks v. State, 6 Conn. Workers' Comp. Rev. Op. 111, 115, 429 CRD-5-85 (1989), no error, 21 Conn. App. 464, cert. denied, 216 Conn. 804 (1990). A commissioner's denial of those benefits will be sustained if"adequately grounded in factual testimony offered by the parties and contained in the record from below". Lageux v. Veilleux, 9 Conn. Workers' Comp. Rev. Op. 177, 181, 876 CRD-6-89-6 (1991). Here, that exercise of discretion is supported by the record.
We therefore grant claimant's appeal in part, but affirm the denial of Sec. 31-308a benefits. The matter is remanded to the First District for further proceedings not inconsistent with this opinion.
Commissioners Donald H. Doyle, Jr. and Nancy A. Brouillet concur.
RULING ON MOTION FOR REARGUMENT OR RECONSIDERATION
This matter originally came before the Compensation Review Board on claimant's appeal from the commissioner's denial of an additional 5% permanent partial disability § 31-308c award and § 31-308a wage loss benefits. We affirmed the denial of § 31-308a benefits but remanded the matter on the other issue.
The claim for the additional permanent partial disability proceeded against Monson Nicholas only, claimant having earlier reached a final stipulation with Standard Builders in the amount of $16,000.
After our decision, the respondent insurer CNA Insurance Companies moved to reconsider as our January 23, 1995 opinion contained a factual inaccuracy in the third paragraph, i.e., the statement that the proceedings below were conducted on a documentary record without oral testimony. In fact, there was oral testimony by the claimant. However, the medical evidence was all submitted in documentary form.
Our decision to remand had relied on the medical reports and the lack of any finding or evidence that Dr. Druckemiller's September 7, 1989 conclusion had been made known to the claimant or his attorney. We have now examined claimant's testimony and still do not find any reference in the transcript to claimant's knowledge or lack of knowledge of the September 7, 1989 report.
We are therefore reissuing our January 23, 1995 opinion with suitable corrections concerning the factual inaccuracies noted in respondent's motion.
Commissioners Donald H. Doyle, Jr. and Nancy A. Brouillet concur.