Opinion
CASE NO. 333 CRD-2-84
DECEMBER 1, 1987
The claimant was represented by Carolyn Kelly, Esq., O'Brien, Shafner, Bartinik, Stuart Kelly, P.C.
The respondents were represented by Frank A. May, Esq., Montstream May.
This Petition for Review from the June 20, 1984 Finding and Award of the Commissioner for the Second District was heard April 4, 1986 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Andrew Denuzze and Darius Spain.
FINDING AND AWARD
The Finding and Award of Commissioner of the Second District is affirmed and adopted as the Finding and Award of this Division.
OPINION
A Voluntary Agreement approved December 14, 1981 established the compensability of claimant's May 27, 1975 injury. On July 12, 1982 the Respondents filed a Form 36-67 (Notice to Compensation Commissioner and Employee of Intention to Discontinue Payments) along with the report of Dr. S. Pierce Browning, an orthopedic surgeon. Dr. Browning indicated claimant had reached a plateau of recovery, and that he had a 35% permanent partial disability of the back and a 20% permanent partial disability of the right leg.
The Form 36 was approved by the Second District but then contested. Respondents offered to pay specific compensation in accordance with the report of Dr. Browning.
The Second District Commissioner in the June 20, 1984 Finding and Award confirmed his earlier approval of Form 36. Additionally, he found maximum medical improvement had been reached July 12, 1982. Claimant then had a 35% permanent partial disability of his back and a 20% permanent partial disability of his right leg.
Claimant's appeal presents the following issues; 1) whether the trial Commissioner erred in not making a finding as to claimant's residual wage earning capacity, 2) whether the trial Commissioner erred in finding that the claimant was not totally disabled, and 3) whether the trial Commissioner's delay in rendering a decision on this matter resulted in a denial of due process of law.
Respondents argue claimant's appeal should be dismissed as it was untimely filed. The Claimant filed his Petition for Review July 2, 1984 from the June 20, 1984 Finding and Award, i.e. 12 days after said Finding. However, the tenth day fell on a Saturday when the Second District Office was not open. The earliest business day on which claimant could file was Monday, June 12th.
Applicable to this matter is Section 3069 of the Rules of the Supreme Court. Sec. 3069 provides:
"When the last day of any limitation for filing any paper under these rules or an order of the court falls on a day when the office of the trial court or of the chief clerk of the supreme court is not required to be open, the paper may be filed on the next day when his office is required so to be open."
Therefore, we conclude that the claimant's petition for appeal was not procedurally defective, Barton v. Weller Farm, Inc., 2 Conn. Workers' Comp. Rev. Op. 101, 320 CRD-1-84 (1984).
Claimant argues that the trial Commissioner should not have awarded permanent partial benefits because he continued to be totally disabled. The Compensation Review Division noted in Masse v. Becton Dickinson Co., 1 Conn. Workers' Comp. Rev. Op. 83, 83 CRD-5-81 (1981), and La Boda v. Watertown, 1 Conn. Workers' Comp. Rev. Op. 63, 51 CRD-5-81 (1981) that whether temporary total disability benefits should be awarded rather than permanent partial compensation is a matter within the trial Commissioner's discretion, Osterlund v. State of Connecticut, 129 Conn. 591 (1943).
Thus, unless the trial Commissioner's finding and conclusions were the "result of an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them", the conclusion must stand, Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). As we do not find such error of law or unreasonable conclusion we cannot upset the findings and conclusions of the trial Commissioner.
We also dismiss appellant's due process arguments with respect to the delay in adjudicating the matter, Sullivan v. Northwind Energy Insulators, Inc., 2 Conn. App. 689 (1984).
Section 31-300 was amended by Public Act 85-64. The Act in pertinent part now provides, "As soon as may be after the conclusion of any hearing, but no later than one hundred twenty days after such conclusion, the Commissioner shall send to each party a written copy of his award. . . ."
We, therefore, affirm the Finding and Award of the Commissioner of the Second District.
Commissioners Andrew Denuzze and Darius Spain concur.