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Cummings v. Twin Tool Mfg. Co.

CASE NO. 1542 CRB-1-92-10

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JULY 11, 1994

DAVID CUMMINGS

CLAIMANT-APPELLANT

v.

TWIN TOOL MFG. CO.

EMPLOYER

and

FRANK B. HALL RISK MANAGEMENT

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Richard W. Gifford, Esq., 449 Silas Deane Highway, Wethersfield, CT 06109.

Respondent Employer and Frank B. Hall Risk Management were represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

Respondent, Second Injury Fund did not file a brief or appear at oral argument. At the trial level the Fund was represented by Brewster Blackall, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the October 20, 1992 Finding and Dismissal of the Commissioner for the First District was heard October 29, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, George A. Waldron and Donald H. Doyle, Jr.

OPINION

JOHN A. ARCUDI, Commissioner. Claimant contests the trial commissioner’s ruling denying (1) total incapacity benefits from December, 1991 to June, 1992 and (2) that continuing medical care need was related to the compensable injury. We affirm in part.1

Claimant suffered a compensable head injury December 7, 1984. A May 14, 1990 decision found claimant had reached maximum medical improvement October 30, 1986 but again became totally disabled November 6, 1989 and continued to be so disabled to the date of that decision. The single issue before the commissioner in these proceedings was claimant’s entitlement to temporary total disability benefits after December 1991.

Dr. Alan Russakov, claimant’s treating physician, the only witness at the June 25, 1992 formal hearing, testified claimant was totally disabled. The claimant therefore challenges the commissioner’s ruling to the contrary. The commissioner specifically found2 that Dr. Russakov’s opinion lacked support in the evidence. “Despite the [claimant’s] contention to the contrary, the trial [commissioner] is not required to accept uncontradicted expert testimony. The [commissioner] might reject it entirely as not worthy of belief or find that the opinion was based on subordinate facts that were not proven.” State v. Blades, 225 Conn. 609, 629 (1993).

Claimant next objects to the finding in paragraph 8 of the decision arguing that it relies on a document not offered in evidence but marked for identification only. The trial commissioner apparently treated it as a full exhibit. The commissioner’s reliance on the document was therefore improper. See Robinson v. Faulkner, 163 Conn. 365, 373 (1972). So those findings must be stricken. But the commissioner’s evidentiary error is not fatal to the result reached, as her other findings adequately and independently support the decision. See Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 87, 593 CRD-2-87 no error, 212 Conn. 441 (1989).

The appeal argues further certain findings in the decision are beyond the scope of the issues properly before the commissioner. As set forth in paragraph 5 of the Finding and Dismissal, the sole issue to be decided in these proceedings was temporary total benefits subsequent to December, 1991. Any findings and conclusions about claimant’s continuing need for medical treatment related to issues not properly before the commissioner and, as such, must be vacated. See Davis v. New London Board of Education, 11 Conn. Workers’ Comp. Rev. Op. 245, 247, 1346 CRD-2-91-11 (1993). Accordingly, we modify the decision below by striking paragraph C and that portion of paragraph E holding that “the claimant has not sustained his burden of proof that the continuing medical care need is directly related to the compensable event.”

The claimant finally contends respondents’ unilateral discontinuance of temporary total benefits without an approved Form 36 was improper. Respondents maintain that no Form 36 was required as the May 14, 1990 decision awarded temporary total benefits only from November 6, 1989 to the date of the decision. For benefits to continue after that date, another award would be necessary. Therefore Form 36 procedure was not relevant.

Absent statutory permanent total incapacity defined in Sec. 31-307 (a) - (f) C.G.S., a finding of total incapacity cannot go beyond the evidence of the last evidentiary hearing. Thus, “total incapacity becomes a matter of continuing proof for the period claimed . . . . [A]dditional proceedings are necessary to provide the requisite factual basis for a conclusion of continued total incapacity. “Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 100, 725 CRD-6-88-4 (1989), citing Besade v. Interstate Security Services, supra, 86; see also Coates v. Turbine Component, 11 Conn. Workers’ Comp. Op. 264, 267, 1365 CRD-3-92-1 (1993). Neurath and Besade recognize such temporary total awards are necessarily limited in time by the evidentiary requirements and subsequent benefit awards must be based on subsequent evidence. The rationale of those cases compels the conclusion that no Form 36 is here required for discontinuance of benefits. It was the May 14 ruling which discontinued benefits by limiting them to the time period there listed.

We, therefore, affirm the decision below denying benefits from December, 1991 to June, 1992 but modify the commissioner’s Finding as above set forth.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 The claimant filed a motion to submit additional evidence dated December 20, 1992. At oral argument in this matter, the claimant filed an amended motion to submit additional evidence. We deny those motions as the claimant has failed to meet the requirements of Administrative Regulation Sec. 31-301-9. BACK TO TEXT

2 In her Finding and Dismissal, the trial commissioner found that “[t]he opinion of Dr. Alan Russakov concerning total disability of the claimant from December 15, 1990 to the present is not supported by the evidence which was introduced at the formal hearing,” and that “[n]o evidence was introduced at the formal hearing that the claimant is now, or was during December 1991 to the present, totally disabled or partially disabled.” We understand the latter finding to flow from the former and to mean that no credible evidence was presented to the trial commissioner to support the claim for temporary total disability benefits during the relevant time period. BACK TO TEXT

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