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Cotton v. Bartlett Nuclear, Inc.

CASE NO. 1929 CRB-2-93-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

AUGUST 10, 1995

TROY COTTON

CLAIMANT-APPELLEE

v.

BARTLETT NUCLEAR, INC.

EMPLOYER

and

COMMERCIAL UNION INSURANCE

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Robert B. Keville, Esq., Suisman, Shapiro, Wool, Brennan & Gray, P.C., The Courtney Building, 2 Union Plaza, New London, CT 06320.

The employer and its insurer were represented by John Thomas Scully, Esq., Cooney, Scully & Dowling, Hartford Square North, 10 Columbus Blvd., Hartford, CT 06106-1944.

The Petition for Review from the December 17, 1993 Finding and Award of the Commissioner for the Second District was heard December 2, 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.

OPINION

JESSE M. FRANKL, CHAIRMAN. The employer has petitioned for review of the Second District Commissioner’s Finding and Award of December 17, 1993. In that decision, the trial commissioner found that the claimant suffered a compensable injury which caused him to sustain bodily injuries including the loss of fourteen teeth, and which resulted in twenty-seven weeks of temporary total disability. On appeal, the respondents contend that (1) the claimant did not meet his burden of proof that his dental injuries were causally related to his fall at work; (2) the evidence does not support the finding that the claimant lost fourteen teeth; (3) the commissioner improperly awarded permanent partial benefits for loss of teeth pursuant to §31-308(b) rather than §31-308(c); and (4) there is no evidence to support the award of twenty-seven weeks of temporary total disability. We will address each contention.1

The trial commissioner found that the claimant fell while at work on March 2, 1992, which caused injuries to his left cheek and periorbital region. As a result of the fall, the claimant suffered severe pain in his face and injuries to his teeth. (Finding No. 4) Prior to his fall on March 2, 1992, the claimant had been exposed to hydrazine, causing a deterioration of his septum and sinuses which weakened the support of his upper teeth. (Finding No. 7)

Whether the trier erred in finding that the claimant’s injury arose out of and in the course of his employment requires a factual determination which we will not disturb unless it is found without evidence, contrary to law or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). In order to establish causation, we have consistently required a standard of “reasonable medical probability.” Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 2, 936 CRD-6-89-11 (March 19, 1991). “Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation.” Hoffman v. Platinum Vacations of New England, 8 Conn. Workers’ Comp. Rev. Op. 174,176, 867 CRD-7-89-5 (Nov. 30, 1990) (citations omitted).

Where we determine that the findings of the commissioner are unsupported by the evidence, this Board will remand the case to the commissioner for further proceedings, including the taking of further evidence if necessary. Uva v. Valleries Transportation Service, Inc., 13 Conn. Workers’ Comp. Rev. Op. 106, 1625 CRB-7-93-1 (January 30, 1995), citing Halliday v. Daw’s Critical Care Registry, 8 Conn. Workers’ Comp. Rev. Op. 74, 797 CRD-7-88-12(1990) and Morais v. Truelove & MacLean, 4 Conn. Workers’ Comp. Rev. Op. 98, 295 CRD-5-84 (1987).

The respondents contest the trial commissioner’s determination that the claimant lost fourteen teeth as a result of his injuries on March 2, 1992. Specifically, the respondents contend that the claimant did not meet his burden of proof that his dental extractions were causally related to his fall. In addition, the respondents contest the number of teeth which the claimant lost following his accident. The trial commissioner found that the claimant lost fourteen “upper teeth.” (Finding No. 12) We have carefully reviewed the numerous medical reports which the claimant entered into evidence.2 None of those medical reports contain an opinion, based upon reasonable medical certainty, that the claimant’s dental extractions were causally related to his fall at work. Moreover, the medical reports refer to only nine dental extractions, rather than the fourteen found by the commissioner. As we are unable to determine the factual basis for the commissioner’s conclusion that the claimant’s fall caused him to lose fourteen teeth, we have decided to remand the issue of causation to the trial commissioner. See Uva v. Valleries Transportation Service, Inc., 13 Conn. Workers’ Comp. Rev. Op. 106, 1625 CRB-7-93-1 (January 30, 1995).

The respondents further contend that the trial commissioner improperly awarded twenty-one weeks of permanent partial benefits pursuant to §31-308(b) rather than §31-308(c) C.G.S. The respondents are mistaken, however, as the decision specifically refers to both §§31-308(b) and 31-308(c) C.G.S. Because the commissioner’s determination that the claimant lost fourteen teeth appears to be in error, we will remand the issue of permanent partial benefits for a new determination.

Finally, the respondents contest the commissioner’s award of temporary total disability. The claimant testified that he “probably missed about sixteen weeks” from work because of his injury. (TR at p. 47) Although the claimant initially returned to work approximately one week following the accident, there are no work attendance or payroll records in evidence. Based upon the existing record, we are unable to determine the factual basis for the trial commissioner’s award of twenty-seven weeks of temporary total disability benefits pursuant to § 31-307 C.G.S. Accordingly, we must remand this issue to the trial commissioner. See Uva, supra.

In accordance with the above, we set aside the decision of the commissioner, and remand the case for further proceedings consistent with this opinion.

Commissioners Angelo L. dos Santos and Michael S. Miles concur.

1 The respondents also dispute the commissioner’s award of “reasonable medical costs” because the claimant failed to produce medical bills at the formal hearing. However, the commissioner did not award a specific amount of medical costs, but advised the parties in the decision that the case would remain open to future hearings at the request of the parties, thus providing a forum to resolve disputes regarding medical costs. BACK TO TEXT

2 The respondents contend that the commissioner improperly allowed into evidence physician’s notes which were unsigned. However, workers’ compensation commissioners are not bound by common law or statutory rules of evidence, “but shall make inquiry, through oral testimony or written and printed records, in a manner that is best calculated to ascertain the substantial rights of the parties and carry out the provisions and intent of this chapter.” General Statutes § 31-298. We find no error. BACK TO TEXT

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