Opinion
CASE NO. 988 CRD-5-90-3
SEPTEMBER 12, 1991
The claimant was represented by Edward Dodd, Jr., Esq. and Paul Ranando, Esq.
The respondents was represented by Armado Vargas, Esq. and Brewster Blackall, Esq., Assistant Attorneys General.
This Petition for Review from the March 5, 1990 Finding and Award of the Commissioner at Large acting for the Fifth District was heard February 22, 1991 before a Compensation Review Division panel, consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and Donald Doyle.
OPINION
Both the claimant and the respondent State of Connecticut have appealed the March 5, 1990 ruling of the Commissioner at Large acting for the Fifth District. Claimant had suffered an April 8, 1984 injury to the nose but returned thereafter to the same job. She then sustained an August 12, 1985 neck injury and was paid specific benefits for 17.5% permanent partial disability of the neck pursuant to a Voluntary Agreement relating to that 1985 injury and approved December 18, 1987. After the 1985 neck injury she never returned to her state employment.
Claimant contends, that the August, 1985 neck disability caused a flare-up of the April, 1984 injury and that she has been totally disabled since 1987. The commissioner awarded her total disability benefits due to trigeminal neuralgia stemming from the April, 1984 injury as of September 19, 1988. In this appeal she requests interest on the sums due as temporary total benefits. The respondent's cross-appeal contests the award of any temporary total benefits.
Whether a claimant was totally disabled is a factual determination to be made by the trial commissioner. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454 (1951). His conclusions will not be disturbed unless contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. People's Savings Bank, 207 Conn. 535 (1988). Here there was evidence from which the commissioner could have concluded that claimant was totally disabled after September 19, 1988. Dr. Jesse W. Cheng, M.D. in his September 27, 1988 report indicates claimant was totally disabled. See claimant's exhibit A.
One of claimant's arguments is that respondent's failure to file a Form 36 under Sec. 31-296 did not permit discontinuance of temporary total disability benefits after February 1, 1987. The commissioner found that claimant returned to her employment after the April, 1984 injury, and therefore no Form 36 was required. We agree. Platt v. UTC/Pratt Whitney Aircraft Div., 3 Conn. Workers' Comp. Rev. Op. 3, 164 CRD-6-82 (1985).
On the interest claim the commissioner concluded claimant was not entitled to interest and attorney's fees. But claimant cites Sec. 31-300 C.G.S. which then provided in pertinent part:
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.
Pokorny v. Getta's Garage, 22 Conn. App. 539, 542-43 (1990) rev'd other grounds 219 Conn. 439 (1991) held that a commissioner must consider that discretionary provision of Sec. 31-300. In denying interest, Paragraph A of the award, the commissioner stated: "I further find that the Claimant returned to her regular work at the Southbury Training School subsequent to the April 1984 injury and therefore, no Form "36" was required to be filed by the Respondent's and Claimant on this issue is not entitled to interest and Attorney's fees."
We cannot determine from that ruling whether the commissioner considered that part of Sec. 31-300 quoted above. Instead he seems to be considering only those parts of the statute which permit the award of attorney's fees in cases of unreasonable contest and where the delay has been caused by the fault or negligent of the employer or insurer.
The Appellate court in Pokorny stated, "When deciding a claim for interest, the commissioner cannot ignore relevant sections of the statute." Pokorny, supra, at 543. We are unable here to determine whether the commissioner's denial of interest was because: (1) the payments were not unduly delayed, (2) any delay, if unduly delayed, was not due to fault or neglect or (3) despite an undue delay not attributable to fault or neglect, the commissioner merely exercised his judicial discretion not to award interest. We cannot review the correctness of the conclusion unless we know the statutory basis upon which it was reached. Franzese v. Lombard Brothers, 6 Conn. Workers' Comp. Rev. Op. 109, 585 CRD-5-87 (1989). Further, "No case under this act should be finally determined when . . . through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment." Cormican v. McMahon, 102 Conn. 234, 238 (1925).
Finally we consider the respondent's contention that it was error to conclude that claimant was totally disabled beginning September 19, 1988. We have already referred to Dr. Cheng's September 27, 1988 report in evidence which provides a sufficient testimonial basis for that finding. Therefore the trial commissioner's conclusion was proper. In any event respondent filed no Motion to Correct, and thus, our review is limited to the facts as found by the trier. Mack v. Blake, 152 Conn. 523 (1965).
We dismiss respondent's cross appeal and pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of this appeal. As to claimant's appeal on the interest question, we remand for further proceedings consistent with this opinion.
Commissioners Frank Verrilli and Donald Doyle concur.