Opinion
CASE NO. 3135 CRB-6-95-8
JANUARY 22, 1997
The claimant appeared on his own behalf.
The respondents were represented by Lucas Strunk, Esq., Pomeranz, Drayton Stabnick.
This Petition for Review from the August 2, 1995 Finding and Award of the Commissioner acting for the Sixth District was heard June 28, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George Waldron and Robin L. Wilson.
OPINION
The respondent employer and its insurer (hereinafter "respondents") have petitioned for review from the August 2, 1995 Finding and Award of the Commissioner acting for the Sixth District. In that decision, the trial commissioner determined that the claimant sustained a compensable carpal tunnel injury on January 14, 1990 and assessed an eleven percent permanent partial disability of the right hand. In support of their appeal, it is the respondents' contention that the trial commissioner improperly assessed an eleven percent permanent partial disability rating.
The only issue on appeal is the permanency rating of the claimant's right hand. The trial commissioner found the following relevant facts. The claimant's treating physician, Dr. Willett, assessed a permanency rating of twenty percent; Dr. Watson assessed a permanency rating of five percent, and Dr. Kelly assessed a permanency rating of seven percent. The trial commissioner indicates in his findings that Dr. Watson conducted an independent medical examination at the request of the respondents and that Dr. Kelly performed a medical examination at the request of the trial commissioner. The trial commissioner appears to have averaged the three permanency ratings in determining that the eleven percent rating.
However, it appears from the record that Dr. Kelly conducted an independent medical examine at the request of the respondents and that Dr. Watson performed a medical examination at the request of the trial commissioner. At the formal hearing, the trial commissioner stated that Respondents' Exhibit No. 1 (Dr. Watson's report) "is a Commissioner's exam that was ordered in this case and it's a full exhibit." TR. of 7/24/95 at p. 2; see also Respondents' Exhibit No. 1 and 2. Moreover, the respondents filed a motion to correct on this issue.
The power and duty of determining the facts rests upon the trial commissioner as the trier of facts. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People's Savings Bank, 207 Conn. 535 (1988). This board has repeatedly held that "the determination of the extent of an injured worker's permanent disability (is) within the trial commissioner's province as the trier of the facts." Kerins v. Johnson Controls, 12 Conn. Workers' Comp. Rev. Op. 72, 73, 1419 CRB-8-92-5 (Feb. 3, 1994) (citations omitted). Moreover, where "the medical evidence regarding the extent of the claimant's permanency (is) in conflict, the trial commissioner's conclusion must stand so long as there is evidence to support it. Salz v. Oliver's Tavern, 12 Conn. Workers' Comp. Rev. Op. 325, 327, 1593 CRB-8-92-12 (July 5, 1994).
In the instant case, there was no medical opinion produced which opines an eleven percent impairment rating. We have held that a trial commissioner's permanent partial disability assessment cannot merely be the average of several medical opinions, but must be supported by at least one medical opinion. Morais v. Truelove Maclean, 4 Conn. Workers' Comp. Rev. Op. 98, 295 CRD-5-84 (June 12, 1987), see also Uttenweiler v. General Dynamics Corp./Electric Boat, Case No. 3110 CRB-8-95-6 (Jan. 8, 1997). Because the eleven percent assessment is not supported by any of the medical opinions presented in this case, we thus must reverse the award, and remand this issue for an award consistent with the above.
In addition, we note that we have previously held that where a commissioner chooses not to adopt the diagnosis of the physician performing a commissioner's ordered examination, he or she should articulate the reasons behind his or her decision to disregard the examiner's report. Gillis v. Waterbury Construction, Case No. 2182 CRB-5-94-10 (Jan. 17, 1996), see also Iannotti v. Amphenol/Spectra-Strip, 13 Conn. Workers' Comp. Rev. Op. 319, 1829 CRB-3-93-9 (April 25, 1995), aff'd., 40 Conn. App. 918 (1996).
This matter is remanded to the trial commissioner in accordance with the above.
Commissioners George Waldron and Robin L. Wilson concur.