Opinion
CASE NO. 1134 CRD-2-90-11
MARCH 16, 1992
The claimant was represented by Michael Parizo, Esq.
The respondents were represented by Richard Aiken, Esq., and Margaret Corrigan, Esq., Pomeranz, Drayton, and Stabnick.
The Petition for Review from the November 8, 1990 Finding and Award of the Commissioner at Large acting for the Second District was heard September 27, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners George Waldron and Angelo dos Santos.
OPINION
At issue in this appeal is the commissioner's award of five (5%) per cent permanent partial disability of the right ankle. Claimant seeks a greater award.
In his November 8, 1990 Finding and Award the commissioner noted that claimant's surgeon assessed the permanent disability to the right ankle as five (5%) per cent loss of use and an additional twenty (20%) per cent for pain. Claimant's brief refers to the various reports of Dr. Robert M. Jung, M.D. (Claimant's Exhibit B, Claimant's Exhibit C). Specifically, Dr. Jung's July 5, 1989 report stated "[T]his patient has suffered a 25% permanent loss of use of the right ankle, 5% attributable to the loss of mobility and 20% attributable to the pain which he complains of . . . ." (Claimant's Exhibit B). Dr. Jung's May 25, 1990 report (Claimant's Exhibit C) repeated the same assessment. However, the commissioner relied on the February 19, 1990 report of Dr. Joseph Zeppieri and the January 31, 1989 medical report of Dr. Peter Barnett (Respondents' Exhibits 1 2) which support a finding that claimant sustained a permanent partial disability to the ankle of five (5%) percent.
Claimant did not file a Motion to Correct and therefore the factual findings of the trial commissioner must stand. Mack v. Blake Drug Co., 152 Conn. 523 (1965). But the claimant specifically attacks paragraph seven of the Finding which contains a conclusion of law. That paragraph states "Claimant requests a finding of 25% permanent partial disability for claimant's right ankle notwithstanding that our statutes and case law make no provision for a separate pain rating within Sec. 31-308 or chapter 568." Claimant objects contending the statement is a misstatement of the law. Insofar as the commissioner intended to convey the concept that workers' compensation is not like the tort system at common law which does give recovery for pain and and suffering, the finding is obviously correct. Cooke v. United Aircraft Corp., 152 Conn. 214 (1964).
However as amply demonstrated in the American Medical Association "Guides to The Evaluation of Permanent Impairment" Third Edition (Revised), Appendix B, "Pain and Impairment", the existence of pain may very well be an important factor in the doctor's assessment of permanent impairment or disability. In this particular case, the commissioner chose to rely on medical opinions in evidence which did not specifically evaluate pain and assign a percentage of disability for it. As there was such evidence we can find no error in the conclusions reached.
The appeal is dismissed.
Commissioners Waldron and Santos concur.