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McGowan v. Waterbury Farrell

CASE NO. 1964 CRB-1-94-2

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

SEPTEMBER 15, 1995

PATRICK MCGOWAN

CLAIMANT-APPELLANT

v.

WATERBURY FARRELL

EMPLOYER

and

AETNA CASUALTY & SURETY CO.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Thomas G. Parisot, Esq. and Eric Brown, Esq., Secor, Cassidy & McPartland, P.C., 41 Church St., P. O. Box 2818, Waterbury, CT 06723-2818.

The respondents were represented by Michael McAuliffe, Esq., Pomeranz, Drayton & Stabnick, 95 Glastonbury Blvd., Glastonbury, CT 06033-4412.

The Second Injury Fund was not represented at oral argument. Notice can be sent to William McCullough, Esq., Assistant Attorney General, 55 Elm St., P. O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the January 26, 1994 Supplemental Finding and Award of the Commissioner acting for the First District was heard February 24, 1995 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta S. D’Oyen and Amado J. Vargas.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the January 26, 1994 Supplemental Finding and Award of the Commissioner for the First District. On appeal, he argues that the commissioner improperly failed to award benefits under §§ 31-294 and 31-308a C.G.S. We affirm the trial commissioner’s decision.

The claimant suffered a compensable back injury on May 2, 1986, resulting in a five percent permanent partial disability. A voluntary agreement was approved in 1989. The claimant’s specific payments ran until May 15, 1987, after which date the claimant sought discretionary benefits pursuant to § 31-308a. The commissioner noted that the claimant had been examined by four doctors. One found no permanent partial disability, and the other three found the claimant able to work with lifting restrictions of 40, 30 and 10 pounds. The commissioner also noted that the claimant was born in 1948, was a high school graduate with additional technical school training, and had worked previously at Pratt & Whitney and in a newspaper pressroom. After considering these facts, he found that the claimant was not entitled to discretionary benefits and dismissed his claim.

In a supplemental Finding and Award, the commissioner held that the claimant was entitled to reimbursement for mileage and certain medical treatment and physical therapy. He declined to award reimbursement for treatment by Drs. Conant and Krieger, however, as neither was in the chain of authorized physicians. He also denied the claimant’s Motion to Correct, which sought to add findings that the claimant was unable to lift over 40 pounds and that he had “made every effort” to secure employment consistent with this limitation. The claimant has appealed the denial of § 31-308a benefits and the denial of reimbursement for Dr. Krieger’s treatment, arguing that the commissioner’s conclusions are unsupported by the facts.

Section 31-308a provides in relevant part:

[T]he commissioner . . . may award additional compensation benefits for such partial permanent disability equal to two-thirds [now seventy-five percent] of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury, . . . and the weekly amount which such employee will probably be able to earn thereafter, . . . to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and the employee’s age. . . . The duration of such additional compensation shall be determined upon a similar basis by the commissioner.”

The statute is self-explanatory. The commissioner has discretion to determine the propriety of an award based upon factors such as the employee’s age, training, education, marketability, and the severity of his injury. Richmond v. General Dynamics, 1825 CRB-2-93-8 (decided April 27, 1995); Lageux v. Rene Dry Wall Co., Inc., 9 Conn. Workers’ Comp. Rev. Op. 177, 180, 876 CRD-6-89-6 (Aug. 13, 1991). On review of that decision, this board must determine whether the commissioner abused his discretion in awarding or denying § 31-308a benefits. Richmond, supra.

Here, the trial commissioner had before him four medical reports, including one that prescribed zero percent disability. As the trier of fact, the commissioner was entitled to determine which medical reports were the most credible. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995). We cannot say on review that it was improper for the commissioner to rely on Dr. Paret’s report, because it is not the function of this board to retry the facts. Id. The Finding and Dismissal indicate that the commissioner took into account the claimant’s prior employment history, age, and educational background in making his decision, as required by the statute. The claimant was simply unable to prove to the commissioner that his disability caused him to suffer a reduced earning capacity, as evidenced by the denial of his Motion to Correct. We therefore cannot say that the commissioner abused his discretion in denying § 31-308a benefits.

With regard to the claim for the payment of Dr. Krieger’s medical bills, the claimant testified that Dr. Czarsty, his treating physician, referred him to Dr. Krieger. (Transcript, May 17, 1993, p. 25). The commissioner ruled, however, that Dr. Conant, an unauthorized treater, had made the referral to Dr. Krieger, making the latter’s treatment unauthorized as well. See § 31-294d C.G.S. A letter from Dr. Krieger dated October 27, 1986, which the claimant introduced into evidence, states that Dr. Conant referred the claimant to him. The claimant did not prove that Dr. Conant was an authorized treating physician. Again, the determination to credit Dr. Krieger’s letter over the claimant’s testimony was one of fact to be made by the trial commissioner. Corona v. Briganti, 10 Conn. Workers’ Comp. Rev. Op. 113, 114-15, 1160 CRD-7-91-1 (May 8, 1992). Because there was evidence to support the commissioner’s decision that Dr. Krieger was outside the chain of authorized physicians, we cannot disturb that conclusion. Id.; see also Webb, supra.

The trial commissioner’s decision is affirmed.

Commissioners Roberta S. D’Oyen and Amado J. Vargas concur.

Workers’ Compensation Commission

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