Opinion
CASE NO. 930 CRD-5-89-10
MARCH 7, 1991
The claimant was represented by Donald McGill, Esq., McGill McGill.
The respondents were represented by Marjorie Howes Drake, Esq., Naab, Beach Clendaniel.
This Petition for Review from the October 16, 1989 Finding and Dismissal of the Commissioner for the Fifth District was heard September 28, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Frank Verrilli and George Waldron.
OPINION
In this appeal claimant seeks review of the Fifth District decision. In his October 16, 1989 Finding and Dismissal the commissioner denied (1) temporary partial benefits from October 27, 1982 to November 8, 1984; (2) temporary total benefits from November 8, 1984 to June 16, 1987 and (3) permanent partial disability for the 40.5% loss of use of the claimant's right hand.
A formal hearing was held June 16, 1987 before the late Edward F. Bradley, then commissioner for the Fifth District. Subsequently and before a decision was reached, Commissioner Bradley became acutely ill and died. The parties agreed in a July 13, 1989 letter to submit the record including (1) October 23, 1987 Deposition of Dr. Marvin Arons, (2) November 24, 1987 Deposition of Dr. H. Kirk Watson (3) June 16, 1987 Formal Hearing transcript and (4) various reports, exhibits, memoranda and briefs to commissioner Darius Spain for a decision on the matter.
Commissioner Spain rendered his decision, now the subject of this appeal. The claimant argues his difficulty with the English language prohibited an accurate and complete transcript preventing a sufficient disclosure of facts for a successor commissioner to render an adequate determination; and the commissioner's inability to assess the claimant's demeanor and credibility hindered a fair determination of the nature and extent of the claimant's partial disability and inability to work.
In Foley v. City of New Britain, 1 Conn. Workers' Comp. Rev. Op. 147, 47-CRD-6-81 (1982) and Gavin v. City of New Britain, 1 Conn. Workers' Comp. Rev. Op. 151, 46 CRD-6-81 (1982) we held that where the commissioner died before ruling on a Motion to correct the movant had a right to de novo proceeding.
We are therefore convinced that the initial jurisdiction to determine a motion to correct the finding is pendent upon and comprehended within the jurisdiction of the trier of the facts, the District Commissioner. The claimant is entitled to the full bite of the apple at the District level. This may be accomplished by a de novo hearing before the Sixth District Commissioner or his designee. . . . But we suppose it may also be done if the parties agree to submit the evidential transcripts and exhibits of the Commissioner O'Brien [the original trial commissioner] hearings together with his Finding and Award and the Claimant's Motion to Correct to the District Commissioner or his designee for completion of the district adjudication.
Foley supra at 150.
In the instant case, there was no pending Motion to Correct. Besides the parties agreed to submit the matter on the written evidence including the June 16, 1987 transcript. They thus followed the alternative method suggested in Foley. The claimant, having agreed to that procedure, is bound to accept the result. To allow otherwise would not be granting a full bite but rather a second bite at the apple. Commissioner Spain's conclusion was also supported by the evidence submitted other than the June 16 transcript. See e.g., November 24, 1987 Deposition of Dr. H. Kirk Watson.
We therefore affirm the October 16, 1989 Finding and Dismissal.
Commissioners Frank Verrilli and George Waldron concur.