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Petta v. Waterbury Hospital

CASE NO. 1310 CRD-5-91-9

COMPENSATION REVIEW BOARD/DIVISION

WORKERS’ COMPENSATION COMMISSION

AUGUST 23, 1993

THERESA PETTA

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

WATERBURY HOSPITAL

EMPLOYER

SELF-INSURED

RESPONDENT-APPELLEE

CROSS-APPELLANT

and

UTICA INSURANCE

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Edward T. Dodd, Esq., 182 Grand Street, Waterbury, CT 06702.

The respondents, Utica Insurance were represented by Jonathan Reik, Esq., McGann, Bartlett and Brown, 281 Hartford Turnpike, Suite 901, Vernon, CT 06066.

The respondent, self insured was represented by William F. Holland, Esq., Carmody and Torrance, P.O. Box 1110, Waterbury, CT 06721.

The Second Injury Fund was represented by Kathleen Smith, Esq., and Ernie Walker, Esq. Assistant Attorneys General, 55 Elm St., P.O. Box 120, Hartford, CT 06101-0120. However, the Fund did not appear at oral argument nor was a brief filed on its behalf.

This Petition for Review from the September 23, 1991 Finding and Award and October 17, 1991 Amended Finding and Award of the Commissioner for the Fifth District was heard August 7, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners James J. Metro and Roberta D’Oyen.

OPINION

JESSE FRANKL, CHAIRMAN. The claimant appealed from the September 23, 1991 Finding and Award/Denial of the Commissioner for the Fifth District. The respondent self-insured cross-appealed from the trial commissioner’s October 17, 1991 Amended Finding and Award.

The pertinent facts are as follows. The claimant suffered an injury to her mid-back and neck on October 21, 1980. On September 22, 1983 claimant suffered a muscle strain to her thoracic back. Both incidents were memorialized in approved Voluntary Agreements. The October 21, 1980 injury occurred while the employer’s workers’ compensation insurance was carried by Utica Mutual. The September 22, 1983 injury occurred while the employer was self-insured.

Both injuries resulted in the permanent partial loss of function to claimant’s neck. As a result of the October 21, 1980 injury the claimant sustained a fifteen percent (15%) permanent partial disability to her neck and after the September 22, 1983 injury the claimant sustained an additional five percent (5%).

The claimant sought benefits pursuant to Sec. 31-308a for the period between October 1, 1987 and September, 1990. The trial commissioner awarded Sec. 31-308a benefits for the period from May 1, 1990 to September 15, 1990 at the claimant’s basic compensation rate and denied claimant’s claim for interest, attorney’s fees and deposition expenses.

The facts found by the trier indicate that the claimant underwent surgery for a cervical fusion in 1982. In June, 1983 she returned to her employment as an x-ray technician. Claimant’s employment was part-time, 14.4 hours per week and earned a weekly wage of $114.00. After her September, 1983 injury she was unable to perform her job as an x-ray technician. Between 1985 and 1986 claimant attended the Division of Workers’ Rehabilitation’s retraining program but was unable to procure a position in her new field. She sought no other employment until May, 1990. In September, 1990 claimant procured a position which paid $285.75 per week, $7.62 per hour for 37 1/2 hours.

The claimant sought the payment of the wage differential for the period between October 1, 1987 to September, 1990 on a difference in wages computed on an hourly basis as opposed to a weekly basis. The trial commissioner held that the wage differential should be calculated on the basis of claimant’s weekly earnings. He then reasoned, as the claimant’s former job would pay $15.00 per hour the approximate weekly pay would be $216.00 per week as compared to her actual weekly earnings of $285.75. Thus, there was no wage diminution after claimant’s employment in September, 1990.

The claimant did not file a Motion to Correct and thus, the factual findings of the trial commissioner must stand. Mack v. Blake Drug, 152 Conn. 523 (1965). Nor did the trial commissioner misapply the law. Sec. 31-308a clearly refers to the computation of wages on a weekly basis. “[T]he commissioner ... may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held ... prior to his injury and the weekly amount which such employee is able to earn thereafter.” (emphasis ours).

We next consider whether the trial commissioner erred in failing to award interest and deposition expenses. In her brief, claimant contends that Sec. 31-298 and Sec. 31-3001 require payment of the aforementioned. As to the payment of interest claimant states in her brief “Section 31-300 authorizes the Commissioner in his discretion to award interest in this matter.” (emphasis ours). Claimant’s Brief at 9. We cannot say that the trial commissioner’s failure to award interest was an abuse of his discretion. See e.g., Carlino v. Danbury Hospital, 5 Conn. Workers’ Comp. Rev. Op. 139, 357 CRD-7-84 (1988).

The claimant contends that Sec. 31-298 requires payment of her deposition fees. Sec. 31-298 states:

When liability or extent of disability is contested by formal hearing before the commissioner, the claimant shall be entitled if he prevails on final judgment, to payment for services rendered him by a competent physician or surgeon for examination, x-ray, medical tests and testimony in connection with the claim, the commissioner to determine the reasonableness of such charges....

In support of this contention claimant’s counsel cites Fappiano v. Nutmeg Concrete Inc., 6 Conn. Workers’ Comp. Rev. Op. 29, 652 CRD-2-87 (1988). In Fappiano, this tribunal upheld a trial commissioner’s finding that the payment of a doctor’s appearance fee should be paid by the respondents although initial liability for the fee existed with the claimant. The C.R.D. stated “The party who orders such a transcript to be prepared is obligated to pay the fee to the stenographer. Insofar as the appearance fee referred to in ... the Finding is a fee for the presence of the doctor as a witness, Sec. 31-298, C.G.S. authorizes the Commissioner to order the respondent to pay the fee for such testimony.” Id. at 32. All that the C.R.D. held was that, in the presence of a finding by the trial commissioner, the commissioner has the authority under Sec. 31-298 to order such payment.

In the instant case there is no finding by the trial commissioner to support such a transference of litigation expenses. Nor did the claimant move to correct the lack of such a finding. See, Mack, supra. Finally, as to this issue, the claimant failed to order a transcript of the proceedings. As there is no transcript, the appellant has failed to provide an adequate record on review. Without the full and complete record we are powerless to consider the claimant’s challenge as to this issue. Weaver v. Jessman Motors, Inc., 8 Conn. Workers’ Comp. Rev. Op. 138, 793 CRD-5-88-12 (1990).

The respondent self-insured petitioned for review from the October 17, 1991 Amended Finding and Award. In the Amended Finding and Award, the trial commissioner found the claimant returned to her former job at the Waterbury Hospital after her October 21, 1980 injury and was unable to return to that position after her September 22, 1983 injury. The trial commissioner concluded that as the respondent hospital was self-insured at the time of the September 22, 1983 injury, the liability for the payments in the September 23, 1991 Finding and Award was the responsibility of the self-insured.

The respondent asks this tribunal to consider whether the trial commissioner erred in failing to apportion the liability for the benefits and in his conclusion that the September 22, 1983 injury was the cause of claimant’s diminished earnings. In essence, the respondent-self insured asks us to reassess the evidence before the trial commissioner. Whether the October 21, 1980 injury in combination with the September 22, 1983 injury resulted in a disability entitling her to Sec. 31-308a benefits is a factual determination. Our review of such questions is limited to determining whether the trial commissioner’s conclusion was contrary to law, without evidence or based on unreasonable or impermissable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988).

We understand that the respondent-self insured contends that the testimony of Dr. Richard Matza could be read so as to support a finding that the claimant’s subsequent disability for which Sec. 31-308a benefits was awarded was causally related to both the October, 1980 injury and September, 1983 injury. However, such a factual finding is uniquely in the province of the trier and is dependent on the weight and credibility to be accorded the evidence and testimony presented. Rivera v. Guida’s Dairy, 167 Conn. 524 (1975). We also note that in spite of Dr. Matza’s testimony there is direct evidence that after the October, 1980 injury and 1982 cervical surgery, the claimant was able to return to her work as an x-ray technician and after her September, 1983 injury she was unable to return to that work. Thus, the trial commissioner’s conclusion is logically supported.

Additionally, respondent self-insured, like the claimant, did not request or provide this tribunal with a transcript of the proceedings. As we noted earlier in our discussion of the issues raised in the claimant’s appeal, the failure to provide a transcript where the factual findings are attacked prevents us from reviewing the issues raised.2

The respondent self-insured cites Perrotti v. Portland Chemical, 8 Conn. Workers’ Comp. Rev. Op. 105, 836 CRD-8-89-3 (1990) and Perrotti’s reliance on Mund v. Farmers’ Cooperative, Inc., 139 Conn. 338 (1952) as supportive of its contention that apportionment should have been ordered. Both Perrotti and Mund are distinguishable. In Perrotti it was unclear to the C.R.D. whether the trial commissioner found that the three back injuries (in 1976, 1978 and 1985) sustained by the claimant were equally responsible for the claimant’s 1985 disability in which case equal apportionment under Mund, supra was applicable, or whether the earlier injuries were relatively minor and it was the last injury which caused the resultant disability. The C.R.D. thus, remanded the Perrotti matter for further findings so as to clarify the trial commissioner’s decision. Thus Perrotti and Mund support the concept that before apportionment can be determined, there must be a factual finding justifying that determination.

In the instant case the factual findings do not support the apportionment of liability. As the trial commissioner’s conclusion was not so unreasonable as to justify judicial interference, Bailey v. Mitchell, 113 Conn. 721 (1931), and did not violate the tenets of appellate review set out in Fair, supra the conclusions of the trial commissioner must stand.

We therefore affirm the trial commissioner’s Finding and Award and Amended Finding and Award.

Commissioners James J. Metro and Roberta D’Oyen concur.

1 Sec. 31-300 provides in pertinent part:

In cases where, through the fault or neglect of the employer or insurer, adjustments of compensation have been unduly delayed, or where through such fault or neglect, payments have been unduly delayed, the commissioner may include in his award interest at six per cent per annum in the case of undue delay in adjustments of compensation and may include in his award in the case of undue delay in payments of compensation, interest at twelve per cent per annum.... 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 appeal 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.... BACK TO TEXT

2 Both parties failed to indicate in their petitions for review that they were requesting a transcript of the proceedings. BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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