Opinion
CASE NO. 1253 CRD-3-91-7
FEBRUARY 23, 1993
The claimant was represented by Robert Carter, Esq., Carter, Rubenstein and Civitello.
The Respondents were represented by James Pomeranz, Esq., Richard T. Stabnick, Esq., and Margaret Corrigan, Esq., all of Pomeranz.
This Petition for Review from the June 26, Finding and Award of the Commissioner at Large acting for the Third District was heard April 24, 1992 before a Compensation Review Board panel consisting of the then Commission Chairman, John Arcudi and Commissioners Robin Waller and Angelo L. dos Santos.
OPINION
Respondents' appeal contests the award of forty weeks of Sec. 31-308(d) disfigurement benefits to claimant. Previous to that award on June 26, 1991 there had been a January 19, 1990 ruling that claimant had suffered a compensable injury arising out of and in the course of her employment, i.e., a chemical exposure causing occupationally induced asthma. Due to that injury, the treating physician prescribed cortico-steroids to treat claimant's severe asthmatic condition.
The commissioner's award, paragraph B, stated claimant experienced "permanent hair growth over her entire face and particularly over her upper lip and below her ears and lower cheek area and will permanently experience a cushingoid faces such that these conditions constitute a permanent significant disfigurement of the Claimant's body." He then awarded the Sec. 31-308(d) benefits which the respondents contest.
In their appeal respondents argue the commissioner erred in finding claimant will be required to take cortico-steroids in varying doses for the rest of her life and in finding that claimant's weight gain and hair growth are injuries for which benefits may be awarded pursuant to Sec. 31-308(d).
The first point was raised in a request to correct paragraph A of the commissioner's award. This paragraph had held, a result of the compensable occupational disease which the Claimant suffered she will be required to take cortico-steroids in varying doses for the rest of her life." The respondents sought to substitute the following:
"A. As a result of the compensable occupational disease which the claimant suffered, she might be required to continue to take cortico-steroids in varying doses for the rest of her life."
The respondents failed to refer to any evidence in the record supporting the requested correction filed on July 3, 1991. On a procedural basis the commissioner was correct to deny the substitution sought due to the failure of the motion to provide support from the evidentiary record. See Gonzalez v. Meriden-Wallingford Hospital, 10 Conn. Workers' Comp. Rev. Op. 127, 1178 CRD-8-91-2 (1992) citing Sorrentino v. Cersosimo, 103 Conn. 426 (1925), Horkheimer v. Stratford, 4 Conn. Workers' Comp. Rev. Op. 139, 163 CRD-4-82 (1987). cf., Crochiere v. Enfield, 10 Conn. Workers' Comp. Rev. Op. 165, 1069 CRB-1-90-7 (August 27, 1992) appeal docketed (relying on Administrative Regulation Sec. 31-301-4).
However, even on the merits, respondents' argument is not convincing. They presented their brief April 24, 1992, the day of oral argument before this panel. In it they argued that Claimant's Exhibit A supports the contention that paragraph A should be corrected.
Exhibit A consists of the July 17, 1990 and October 22, 1990 medical reports of claimant's treating physician, Dr. Richard E. Kaufman, M.D. In the July 17 report Dr. Kaufman states:
Given the fact that her asthma is severe and life-threatening, I expect cortico-steroids to be used forever. They may be to a greater or lesser extent, but at least the track record thus far is that she has required high dose cortico-steroids and has suffered some of the consequences of steroids. Over the long haul I will expect to see many of the effects of steroids, including the possible development of ulcer disease, diabetes and osteoporosis. Hypertension may also be a problem. These are more than likely to occur at the dose ranges of steroids that she will require over an extended period of time.
We fail to see how that evidentiary exhibit supports the correction sought.
With respect to their second argument respondents contend claimant's weight gain and hair growth are conditions which are not permanent and which do not constitute a disfigurement these terms are contained in Sec. 31-308(d). While the trier's ruling does refer to claimant's weight gain (see paragraphs 6-9), a careful reading of B. of the actual award reveals that the significant permanent disfigurement found arises from the permanent hair growth on the claimant's face and cushingoid faces. The award is not predicated on the claimant's weight gain.
At the time of claimant's injury Sec. 31-308(d) provided:
In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner may award such compensation as he deems Just, equal to sixty-six and two-thirds per cent of the average weekly earnings of the injured employee, but in no case more than the maximum weekly benefit rate as established in Sec. 31-309, for any permanent significant disfigurement of, or permanent significant scar on, any part of the body up to two hundred and eight weeks, . . . (emphasis ours.)
The statutory criteria emphasize the "permanent" and "significant" nature of the disfigurement. What constitutes a permanent significant disfigurement is, in large measure, a factual determination. For that purpose we cannot substitute our judgment for the trier's. Morro v. UTC/Sikorsky Aircraft Div., 4 Conn. Workers' Comp. Rev. Op. 10, 347 CRD-4-84 (1987). As there was evidence before the commissioner to support the conclusions he reached, we cannot overturn those conclusions. Bailey v. Mitchell, 113 Conn. 721 (1931).
We therefore affirm the June 26, 1991 Finding and Award. Pursuant to Sec. 31-301c(b) we grant interest at the rate permitted by statute on any amount remaining unpaid during the pendency of the appeal.
Commissioners Robin Waller and Angel dos Santos concur.