Opinion
CASE NO. 521 CRD-5-86
DECEMBER 1, 1988
The claimant was represented by Richard Casella, Esq. Atty, Casella did not appear at oral argument and the matter was decided on the briefs.
The respondents were represented by Kevin J. Maher, Esq. and Scott Wilson Williams, Esq., both of the Law Offices of Kevin J. Maher.
This Petition for Review from the October 1, 1986 Finding and Award of the Commissioner for the Fifth District was scheduled for oral argument May 20, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Rhoda Loeb and Andrew Denuzze and was ultimately decided on the briefs submitted to the panel.
OPINION
A Voluntary Agreement approved July 2, 1974 by the Fifth District establishes claimant's April 17, 1974 right upper quadrant injury as compensable. The trial Commissioner's October 1, 1986 Finding and Award ordered that temporary total disability benefits for that injury continue to be paid. The respondent-employer filed an appeal October 8, 1986 but withdrew that appeal June 27, 1988. Only the issues raised by claimant's October 10, 1986 cross-appeal are now before us.
Unfortunately, the claimant has not filed any Motion to Correct or any Reasons of Appeal, so it is difficult to determine his appeal's exact basis. If we follow the holding of Sager v. GAB Business Services, Inc., 11 Conn. App. 693, 697 (1987), then under Practice Book Sec. 4055 this tribunal has the authority to dismiss claimant's cross-appeal for lack of diligence in its prosecution. But claimant pleads that its inability to obtain a transcript of the proceedings should estop dismissal. We disagree in light of Sec. 31-301, C.G.S. which directs that the Compensation Review Division should issue its decision within one year of the appeal date. Nonetheless, we will treat the matter on its merits.
Insofar as we can determine from the few papers submitted by the claimant, including a bizarre pleading entitled "Motion for Investigation", he seeks to receive permanent partial benefits for thirty (30%) per cent permanent partial incapacity to the stomach during the same period he is receiving temporary total benefits. He also wants medical bills paid although the trial Commissioner's award has already ordered that.
His claim for simultaneous payment of permanent partial incapacity payments under Sec. 31-308(d), C.G.S. and temporary total benefits under Sec. 31-307, C.G.S. must be denied. Smith v. State of Connecticut, 1 Workers' Comp. Rev. Op. 95, 78 CRD-2-81 (1982), rev'd on procedural grounds, 38 Conn. Sup. 648 (1983), contains an exhaustive analysis of the law pertaining to just this situation. As the panel pointed out in the second Smith v. State of Connecticut, 3 Conn. Workers' Comp. Rev. Op. 69 (1986), the appellate decision in Scalora v. Dattco, Inc., 39 Conn. Sup. 449 (1983) did not override that portion of the Smith case which held that total incapacity and partial incapacity benefits could not both be payable during the same time period.
Therefore, claimant's cross-appeal is dismissed and the Fifth District October 1, 1986 ruling is affirmed.
Commissioners Rhoda Loeb and Andrew Denuzze concur.