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Phelan v. Soda Construction Co. et al.

CASE NO. 1979 CRB-3-94-3

CASE NO. 2107 CRB-3-94-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

OCTOBER 17, 1995

WILLIAM SCOTT PHELAN

CLAIMANT-APPELLEE

CLAIMANT-APPELLANT

CROSS-APPELLEE

v.

SODA CONSTRUCTION CO.

EMPLOYER

and

PEERLESS INSURANCE CO.

INSURER

RESPONDENTS-APPELLANTS

RESPONDENTS-APPELLEES

CROSS-APPELLANTS

and

BENSON CONSTRUCTION CO.

EMPLOYER

RESPONDENT-APPELLANT

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by Christine M. Gonillo, Esq., Hurwitz & Sagarin, P.C., 147 N. Broad St., P. O. Box 112, Milford, CT 06460-0112.

The respondent Benson Construction Co. was not represented at oral argument. At the formal hearing, it was represented by James Baldwin, Esq., Cotter, Cotter & Sohon, 500 Boston Post Road, Milford, CT 06460.

The respondents Soda Construction Co. and Peerless Insurance Co. were represented by Dominick C. Statile, Esq., Montstream & May, 655 Winding Brook Drive, P. O. Box 1087, Glastonbury, CT 06033.

These Petitions for Review from the February 22, 1994, July 8, 1994, and July 21, 1994 Supplemental Findings and Awards of the Commissioner for the Third District were 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 Linda Blenner Johnson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant and all respondents except the Second Injury Fund have each petitioned for review from at least one of the Supplemental Findings and Awards of the Commissioner for the Third District. The respondents Soda Construction Co. and Peerless Insurance Co. (Soda) and the respondent Benson Construction Co. (Benson) both petitioned for review from the February 22, 1994 Supplemental Finding and Award. The claimant and Soda each petitioned for review from the July 8, 1994 Supplemental Finding and Award, with Soda also appealing from the July 21, 1994 correction of that Finding and Award. We will consider each of these appeals in this opinion.

The claimant suffered compensable injuries to his pelvis, right knee, tailbone and left thumb as the result of a fall from a scaffolding platform on July 17, 1991. In a previous award, the commissioner found the claimant to be an employee of Benson, who was in turn an uninsured subcontractor of Soda. This board affirmed the findings that Soda was a principal employer under § 31-291 C.G.S., and that Benson and Soda were both liable for the payment of benefits to the claimant. Phelan v. Soda Construction Co., 13 Conn. Workers’ Comp. Rev. Op. 53, 1583 CRB-3-92-12 (Dec. 20, 1994).

The claimant subsequently sought further findings on his compensation rate and temporary total disability periods. In a February 22, 1994 Supplemental Finding and Award, the trial commissioner found that the claimant worked for Benson from June 26, 1991 through July 17, 1991. Pursuant to § 31-310 C.G.S., he took into account neither the first nor the last week of employment in calculating the claimant’s average weekly wage. The $424.00 figure reached was based solely on the two full weeks the claimant worked at the beginning of July 1991. The commissioner also found that the claimant was totally disabled from July 17, 1991 through August 31, 1993 because of the multiple injuries he suffered and the pelvic surgeries that he required. Both Soda and Benson petitioned for review from that decision.1

Soda first contends on this appeal that the commissioner erred in considering as part of the claimant’s wages a check that was received by the claimant after the date of injury.2 Section 31-310 provides in part that “the average weekly wage shall be ascertained by dividing the total wages received by the injured employee from the employer . . . during the twenty-six calendar weeks immediately preceding the week during which he was injured, by the number of calendar weeks during which . . . the employee was actually employed . . . .” The commissioner’s finding that the claimant earned $1,272.00 in the applicable two-week period is based on the claimant’s receipt of checks for $408.00 and $864.00 for his work during the first two weeks of July, 1991. Because the latter of these checks was not received by the claimant until after the date of his injury, Soda argues it should not have factored into the claimant’s wage calculation.

We think that the interpretation of § 31-310 advocated by Soda is ludicrous. The legislature could not have meant to deprive a claimant of compensation based on wages actually earned simply because he had not yet received his paycheck at the time of injury. Such a reading of the statute would reward employers for withholding wages rightfully due. As we stated in Fiore v. Office Furniture Depot, 10 Conn. Workers’ Comp. Rev. Op. 15, 1093 CRD-3-90-8 (Dec. 27, 1991), “[t]he law often presumes that what should have been done has been done.” Id., 17. There, the claimant was entitled to have overtime pay included in her compensation rate, assuming said pay was due. Here, the claimant was due certain wages for his work during the first two weeks in July. He was entitled to that money as soon as he earned it, and the fact that the employer delayed the mailing of his paychecks was irrelevant under § 31-310. We hold that the commissioner correctly included the $864.00 check in the claimant’s wage calculation.

Soda also contends that the commissioner’s decision regarding disability was erroneous. They claim that there was no medical evidence in the record to support the conclusion that the claimant was temporarily totally disabled. The commissioner found that the claimant underwent surgery for a fractured pelvis on the date of his injury, requiring the insertion of a metal plate that was not removed until August 20, 1993. Although the claimant had not yet undergone surgery on his left thumb or right knee, tests showed that the claimant had a radial collateral ligament injury of the left thumb and a tear of the medial collateral ligament and a possible tear of the anterior cruciate ligament in his right knee. The commissioner also found that none of the doctors who treated the claimant released him for any type of work, and that Dr. Goodman indicated that the claimant would be able to return to some type of sedentary work after the hardware was removed from his pelvis and after a determination was made regarding potential knee surgery.

All of the above findings are supported by the medical reports in the record, and cannot be disturbed on appeal. Webb v. Pfizer, Inc., 1859 CRB-5-93-9 (decided May 12, 1995), citing Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18 (1979). We do not believe it was unreasonable for the commissioner to conclude from these findings that the claimant was temporarily totally disabled from the date of his injury until August 31, 1993, eleven days after the plate in his pelvis was removed. See Webb, supra, citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988), and Adzima, supra, 118. The doctors’ reports adequately supported that conclusion. Therefore, Soda’s appeal from the February 22, 1994 Supplemental Finding and Award is dismissed.

We next turn to the petitions for review from the July 8, 1994 Supplemental Finding and Award and the Corrected Finding and Award dated July 21, 1994.3 In those awards, the commissioner found that the claimant was temporarily totally disabled from August 31, 1993 through January 10, 1994, and that he performed restricted job searches from February 1, 1994 through March 18, 1994, when he obtained a job as a real estate appraiser. He accordingly awarded the claimant total disability benefits and § 31-308(a) C.G.S. benefits, including wage differential. Soda argues that this award was based entirely on a June 28, 1994 medical report that was improperly admitted into evidence.

At the conclusion of the June 28, 1994 formal hearing, the claimant received permission to submit an additional medical report from Dr. Baumgartner, the doctor who performed the claimant’s pelvic surgeries, within one week. The transcript shows that this report was intended to clarify the dates of temporary total disability, and that both parties’ attorneys wished to close the record to avoid further delay. (Transcript of June 28, 1994 hearing, p. 21-23.) The report thus would have been due on Tuesday, July 5, 1994. Soda did not receive it until July 8, 1994, the day the Finding and Award was issued. They claim to have been deprived of their right to procedural due process, as no hearing was held to admit this report and no opportunity was given Soda to examine the report prior to its admission and cross-examine accordingly.

The record shows that the report, which simply states that “[t]his is to confirm that [William Phelan] was temporarily totally disabled from August 31, 1993 to January 10, 1994,” was faxed to the commissioner’s office on the morning of July 6, 1994. The claimant’s counsel states in her brief that she received the letter that same morning, the mails having been slowed by one day due to the Independence Day holiday on July Fourth. Given the latitude that § 31-298 C.G.S. provides a commissioner regarding the admission of evidence, we do not think that he was required to exclude this report because of lateness. See also Practice Book § 4010.

Furthermore, the record shows that a January 10, 1994 report from Dr. Baumgartner had been admitted into evidence at the time of the formal hearing. This report stated that the doctor did not feel the claimant was capable of returning to full duty work because of the effects of his pelvic injury, and that additional wrist and knee injuries further impeded his ability to return to unrestricted work. Given the limited information provided by the brief note of June 28, 1994, we do not think that Soda was deprived of any meaningful opportunity to cross-examine on that document. The letter merely served to clarify the January 10, 1994 report, and the commissioner did not need to schedule another hearing for its admission, especially given Soda’s acquiescence to a one-week time limit before closing the record during the hearing of June 28, 1994. We thus dismiss Soda’s appeal from the July 21, 1994 Corrected Finding and Award.

The trial commissioner’s decision is affirmed.

Commissioners Roberta S. D’Oyen and Linda Blenner Johnson concur.

1 Benson’s Reasons for Appeal indicate that its petition for review was based on the commissioner’s finding that Soda was entitled to reimbursement by Benson for any sums paid to satisfy the award. Benson subsequently filed a Chapter 7 bankruptcy petition, and the proceedings of this case were stayed pursuant to 11 U.S.C. § 362. Relief from the stay was subsequently granted to the claimant, and this board restored the case to the docket on September 13, 1994. Nothing has been filed with this board on behalf of Benson since that date, however, such as a brief. Furthermore, no one appeared on behalf of Benson at oral argument. In accordance with Practice Book § 4055, we therefore dismiss Benson’s appeal for failure to prosecute in a diligent manner. McBreairty v. D.B.D., Inc., 1781 CRB-7-93-7 n.1 (decided April 18, 1995); Latulippe v. Derekseth Homes, Inc., 13 Conn. Workers’ Comp. Rev. Op. 140, 1839 CRB-1-93-9 (Feb. 1, 1995). BACK TO TEXT

2 Soda in fact objected to the use of two checks in their brief. However, the check for $432.00 referred to in Soda’s brief was not actually used in the wage calculation, so we do not refer to it here. BACK TO TEXT

3 The claimant’s petition for review from the Supplemental Finding and Award became moot in light of the Corrected Finding and Award, and need not be considered here. BACK TO TEXT

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