CASE NO. 1859 CRB-5-93-9
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MAY 12, 1995
EMPLOYERS INSURANCE OF WAUSAU
The claimant was represented by Robert P. Wenten, Esq., Wenten, Rosenstein & Magistrali, 75 Park Place, Winsted, CT 06098.
The respondents were represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Vernon, CT 06066.
This Petition for Review from the September 17, 1993 Finding and Award of the Commissioner acting for the Fifth District was heard October 7, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Michael S. Miles.
JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the September 17, 1993 Finding and Award of the Commissioner for the Fifth District. They argue on appeal that the commissioner improperly awarded the claimant discretionary benefits under § 31-308(d) C.G.S.1 We affirm the trial commissioner’s decision.
The claimant suffered a compensable head injury on September 26, 1988 when he was struck by a rock, causing a depressed skull fracture. The commissioner found that the claimant consequently underwent a cranioplasty, whereby a two-centimeter hole in his skull was repaired using wire mesh. The skull injury causes the claimant to suffer headaches, dizziness, and loss of concentration, which have interfered with the claimant’s overall functional capacity. The commissioner found that the claimant had suffered a permanent partial disability to his skull, and pursuant to § 31-308(a) awarded the claimant twenty-six weeks of benefits for the missing part of his skull and seventy-eight weeks of benefits for his overall disability to function. The respondents have appealed that award.
The respondents contend that the commissioner’s award of discretionary benefits is neither supported by nor consistent with the evidence. They allege exaggerations as to the extent of the claimant’s injury, understatement as to the claimant’s post-injury work productivity, insufficiency in Dr. Tucker’s testimony, the improper omission of a finding regarding brain function, the failure to specify what organ or body part has been compromised, and the failure to delineate the evidence upon which the claimant’s award was based.
Before proceeding any further, we again take the opportunity to elaborate upon the nature of a commissioner’s findings and the scope of our review of those findings. As we have often stated, the power and duty of determining the facts rests on the commissioner, who is the trier of fact. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988), citing Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457 (1951). This authority to find the facts entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses. Tovish v. Gerber Electronics, 32 Conn. App. 595, 599 (1993), appeal dismissed, 229 Conn. 587 (1994); Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979); Knoblaugh v. Greenwood Health Center, 1608 CRB-1-92-12 (decided Feb. 6, 1995); Colello v. Dresser Industries, Inc., 1691 CRB-4-93-4 (decided Nov. 3, 1994).
The commissioner must include in the findings only the “ultimate, relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the opinions or beliefs of the commissioner, nor the reasons for his conclusions.” Adzima, supra; Plitnick v. Knoll Pharmaceuticals, 1699 CRB-8-93-4 (decided Nov. 7, 1994). The commissioner may file a memorandum of decision stating his reasoning if he or she believes it will be helpful in deciding the case. Adzima, supra, 118-19.
On review, the commissioner’s conclusions must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Fair, supra, 539; Adzima, supra, 118. This Board will not retry the facts or hear evidence on review. Id. The commissioner’s findings can be changed only if they contain facts found without evidence or fail to include material facts which are admitted and undisputed. Tovish, supra; Wheat v. Red Star Express Lines, 156 Conn. 245, 248 (1968). Where a requested correction would have no effect on the outcome of a case, we will uphold a commissioner’s refusal to grant a motion to correct the findings. Tovish, supra; Knoblaugh, supra; Plitnick, supra.
Many of the respondents’ claims of error can be dismissed by applying these principles. For example, the commissioner stated in his findings that the hole in the claimant’s skull was “the approximate size of a half-dollar.” The respondents sought to have this reference deleted from the findings, as the hole was actually less than the size of a quarter. The commissioner refused to make this correction. The respondents also claim error in the commissioner’s failure to note that the claimant’s thinking process is only restricted when his headaches occur, and his failure to add “uncontradicted” medical testimony that the claimant’s neurological examination, brain tracts examination, and memory and intelligence were normal.
The respondents assert that the omission of these findings gives an exaggerated impression of the severity of the claimant’s injury. We are quite certain, however, that the addition of these corrections to the commissioner’s findings would have absolutely no impact on his ultimate decision. The size of the coin that matches the hole in the claimant’s skull can hardly be deemed a key factor in the commissioner’s decision to award § 31-308(d) benefits. Likewise, nowhere in his findings did the commissioner suggest that he interpreted Dr. Tucker’s testimony to mean that the claimant’s ability to think was restricted beyond the periods when the claimant was experiencing headaches. We do not think it was error for the commissioner to refuse to further clarify his findings. As to the brain tracts and neurological examinations, there is no indication in the findings that those functions were abnormal in any way. We do not believe that those test results affected the commissioner’s conclusion that the claimant’s skull function has been permanently impaired, and that his headaches and other symptoms have affected his overall functional capacity.
Many of the respondents’ additional claims of error focus on the commissioner’s failure to cite testimony arguably inconsistent with his findings. As we stated above, it is the commissioner’s province to decide what testimony he finds credible. Knoblaugh, supra. The claimant testified that, after the surgery on his skull, he began to experience severe headaches which cause him to lose his balance and at times interfere with his ability to do his job. He was unsure as to whether his work productivity had been affected, although he had not been in the habit of taking breaks before his injury.
As to the frequency of these headaches, the claimant testified that during a typical week, he would not experience a headache, but that when the weather changed or he was exposed to loud noise, he would often have headaches, and would have to stop working. The headaches would last from a few hours to a whole day. The claimant noted that he had begun to experience stuttering and memory loss as well, which his wife corroborated. She added that the claimant appeared not to comprehend conversation when he was suffering from a headache. The respondents point out two isolated statements in the claimant’s testimony that somewhat downplay his disability. The commissioner was not required to cite those remarks in his findings. He was entitled to conclude from the claimant’s testimony that the hole in the claimant’s skull had caused a disability, regardless of the fact that the claimant was not continuously affected by the headaches.
The commissioner primarily relied upon the medical testimony of Dr. Tucker in his findings. The respondents argue that said testimony is not legally sufficient to support the commissioner’s finding of disability. Although the doctor testified that the claimant had no neurological or brain damage, he did state that the claimant had lost ten percent of the use of the whole person, based on the intermittent incapacity caused by the claimant’s headaches and the effect it would have on him in the workplace. He also testified that the claimant’s skull injury was an important factor in causing the claimant’s headaches, which he termed “post-traumatic migraines.” Again, it was within the commissioner’s discretion to credit this testimony, which was legally sufficient to support the commissioner’s conclusion.
Contrary to the respondents’ suggestion, Dr. Tucker was not merely speculating as to the cause of the headaches. He was not required to use the words “reasonable degree of medical probability” in order to render a definite and reliable medical opinion. Plitnick, supra; see also Struckman v. Burns, 205 Conn. 542, 554-55 (1987). Therefore, we hold that the commissioner had sufficient evidence to conclude as he did regarding the cause of the claimant’s headaches and the existence of a disability.
Finally, we reach the respondents’ claim that the commissioner improperly failed to delineate the organ or body parts involved and the disabling loss accounted for in the claimant’s award. At the time of injury, § 31-308(d) gave the commissioner discretion to award “such compensation as he deems just for the loss or loss of use of the function of any organ or part of the body not otherwise provided for herein, taking into account the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body . . . .”
Here, the commissioner found that the claimant’s headaches were the result of his skull injury, and that the headaches and related symptoms rendered the claimant less capable in terms of his overall functional capacity. He further concluded that the claimant had sustained significant permanent partial disability to his skull. He ordered twenty-six weeks of benefits for the missing part of the claimant’s skull, and seventy-eight weeks of permanent partial disability for the claimant’s loss of overall functional capacity. He specifically noted that he took into account “the age and sex of the Claimant, the disabling effect of the loss of function of the body parts involved and the relation of the body parts to the claimant’s entire body.”
The respondents argue that the commissioner should have explained how he reached his figures, what organ and loss of function were considered in the award, what role that organ plays with respect to the entire body, and what role the claimant’s sex played in his disability. As we stated above, however, a Finding and Award need not contain the reasons for a commissioner’s conclusions, which is what the respondents are seeking here. See Adzima, supra, 118; Plitnick, supra. Administrative Regulation § 31-301-3 states that the “opinions, beliefs, reasons and argument of the commissioner should be expressed in the memorandum of decision, if any be filed, so far as they may be helpful in the decision of the case.” (Emphasis added). The commissioner is clearly not required to file such a document, however, as the language of the regulation is discretionary. See Adzima, supra, 118-19.
Furthermore, it would impinge upon the discretion of the trial commissioner to award benefits under § 31-308(d) if he or she were required to explain each step behind the exercise of his or her discretion. In the present case, there is no evidence that the commissioner abused his discretion in awarding benefits under § 31-308(d).
We affirm the trial commissioner’s decision.
Commissioners Angelo L. dos Santos and Michael S. Miles concur.
1 Section 31-308(d) revised P.A. 91-339. BACK TO TEXT