Opinion
CASE NO. 725 CRD-6-88-4
OCTOBER 20, 1989
The claimant was represented by Jonathan L. Gould, Esq., Kestell, Pogue Gould.
The respondents were represented by Brian Prindle, Esq.
This Petition for Review from the April 4, 1988 Finding and Award of the Commissioner for the Sixth District was heard June 23, 1989 before a Compensation Review Division panel consisting of it the Commission Chairman, John Arcudi, and Commissioners Michael S. Sherman and A. Thomas White, Jr.
OPINION
The Sixth District April 4, 1988 Finding and Award found the claimant totally incapacitated "from February 4, 1983 to the present." Respondents argue it was error to conclude claimant was totally incapacitated and, in the alternative, that it was error for the commissioner to conclude total incapacity continued beyond the date of Dr. Richard Simon's last visit in September, 1985. Dr. Simon treated claimant between February 21, 1984 and September, 1985. However at the May 15, 1987 evidentiary hearing the doctor testified, "I have every reason based on probabilities to assume that he's the same." (TR 5/15/87, P. 31)
Paragraph G of the April 4, 1988 Finding and Award.
We do not review the trier's factual findings de novo but are limited to determining whether there was evidence to support those findings and whether the commissioner's conclusions were based on impermissible or unreasonable factual inferences, or were contrary to law, Fair v. People's Savings Bank, 207 Conn. 535 (1988). Further, where, as in the instant matter the evidence below is conflicting, we cannot substitute our findings for those of the trial commissioner as findings are based on the weight and credibility to be accorded the evidence presented below, Wheat v. Red Star Express Lines, 156 Conn. 245 (1968).
As to the second point raised we think the total incapacity finding should not have gone beyond the date of the last evidentiary hearing. Claimant's alleged total incapacity was not one statutorily defined in Sec. 31-307, C.G.S. Absent the instances listed there, total incapacity becomes a matter of continuing proof for the period claimed. To declare claimant continued to be disabled beyond the last hearing without any further testimony is to find a fact without an evidentiary basis. As we held in Besade v. Interstate Security Services, 6 Conn. Workers' Comp. Rev. Op. 83, 593 CRD-2-87 (1989) affirmed 212 Conn. 441 (1989), additional proceedings are necessary to provide the requisite factual basis for a conclusion of continued total incapacity.
Sec. 31-307 defines total incapacity to include total blindness, loss of both hands, loss of both feet, loss of any two limbs, paralysis of two limbs, incurable imbecility or mental illness.
We therefore remand this matter for further proceedings consistent herewith.
Commissioners Michael S. Sherman and A. Thomas White Jr. concur.