CASE NO.3660 CRB-04-97-08
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
DECEMBER 16, 1998
UNITED HOME CARE, INC.
MATHOG & MONIELLO COMPANIES, INC.
The claimant was represented by James M. Hughes, Esq., McNamara & Kenney, 75 Kings Highway Cutoff, Fairfield, CT, 06430.
The respondents were represented by Maureen Driscoll, Esq. and Scott Williams, Esq., Maher & Williams, 1300 Post Road, P. O. Box 550, Fairfield, CT 06430-0550.
This Petition for Review from the July 31, 1997 Finding and Award of the Commissioner acting for the Fourth District was heard April 24, 1998 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Donald H. Doyle, Jr., and Michael S. Miles.
MICHAEL S. MILES, COMMISSIONER. The respondents have petitioned for review from the July 31, 1997 Finding and Award of the Commissioner acting for the Fourth District. The trial commissioner in that decision reopened a Form 36 that had been denied at an initial emergency informal hearing, and granted it effective May 12, 1997, the date of the formal hearing. We agree with the respondents’ contention that the findings do not support the use of a filing date beyond February 26, 1997, and accordingly remand the trial commissioner’s decision for further articulation.
The claimant sustained compensable injuries to his thoracic spine, right knee and leg due to a fall February 8, 1995. Dr. S. Javed Shahid, the authorized treater for the claimant, determined that the claimant had a 5% permanent partial disability of the thoracic spine. He also stated in a February 17, 1997 letter to the respondents that he felt the claimant had reached maximum medical improvement. Respondents’ Exhibit 1. On February 26, 1997, the respondents filed a Form 36 with the compensation commissioner and the claimant. The reason given for discontinuing payment of total disability benefits was that the claimant had reached maximum medical improvement, and that he should begin receiving permanent partial disability benefits. The claimant objected to Dr. Shahid’s rating, and claimed ongoing temporary total disability. The Form 36 was subsequently denied on March 27, 1997.
At the claimant’s behest, a formal hearing was held on May 12, 1997 to contest this denial. The trial commissioner there found that the claimant had indeed reached maximum medical improvement. Accordingly, the trier reopened the Form 36 and ordered temporary total disability benefits to end effective May 12, 1997, with any subsequent payments to be credited towards the 5% permanency. Both the claimant and the respondents appealed this decision.1 The respondents also filed a Motion to Correct, which was denied by the trial commissioner.
Our standard of review for the decisions of a trial commissioner is well settled. “(T)he power and duty of determining the facts rests on the commissioner, the trier of facts . . . . The conclusions drawn by him from the facts found 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 v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Where the trier’s legal conclusions are supported by the factual findings, this board will not disturb his decision.
Here, the respondents argue that there is no basis in the factual findings or the evidence for the commissioner’s decision to grant the Form 36 as of the May 12, 1997 date of the formal hearing. They contend that the Form 36 instead should have been granted effective February 26, 1997, the date the form was filed at the Fourth District. In Stryczek v. State of Connecticut/Mansfield Training School, 14 Conn. Workers’ Comp. Rev. Op. 32, 1765 CRB-2-93-6 (May 4, 1995), this panel held that “in granting a Form 36, a trial commissioner should discontinue or reduce benefits effective on the date the Form 36 was filed, unless extenuating circumstances dictate that a later date is more appropriate.” Id., 34; Torres v. Southern Connecticut Truck & Tire Center, 3144 CRB-3-95-8 (February 5, 1997). Although the commissioner may determine that a later date is more appropriate, he cannot make permanent partial disability payments commence retroactively to the date of maximum medical improvement if it occurs prior to the filing date of the Form 36. Crowe v. DBD, Inc., 14 Conn. Workers’ Comp. Rev. Op. 283, 285, 1941 CRB-7-93-12 (Sept. 11, 1995).
In an attempt to justify the use of the May 12, 1997 effective date for the Form 36, the claimant lists factors in his brief that the commissioner may have construed as “extenuating circumstances.” These include the fact that Dr. Shahid did not examine the claimant after September 1996, and did not clarify his initial permanency rating until February 17, 1997; that the claimant had not worked since the date of his injury; and that the trier cited a report by Dr. Marks dated April 23, 1997. See Finding and Award, ¶¶ 4, 9, 14. It is evident that the trier found Dr. Shahid’s medical opinion persuasive, as he adopted that physician’s diagnosis of 5% permanency and his opinion that the claimant has reached maximum medical improvement. The trier did not discuss the opinions of any other physicians. He noted that the claimant “has no medical evidence corroborating an on-going claim for temporary total disability or addressing the percentage of permanent partial disability.” Award, ¶ 17. Overall, these findings do not establish “extenuating circumstances” justifying the use of a later approval date for the Form 36, and thus offer no support for that legal conclusion. See Santala v. New Britain General Hospital, 3298 CRB-8-96-3 (Nov. 25, 1997) (no special circumstance was evident to justify withholding effect of Form 36 for nine months after its filing date).
However, we cannot ignore the fact that the decisions of a trial commissioner are to be given deference by this board on review. See Fair, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70, 1859 CRB-5-93-9 (May 12, 1995). Although there were no findings that explained why the trial commissioner chose a May 12, 1997 effective date, there may have been factors not enunciated in the Finding and Award that would explain his use of the later date. See, e.g., Santala, supra (Amado J. Vargas, Commissioner, concurring in part and dissenting in part). We have often remanded cases to provide an opportunity for trial commissioners to explain their decisions. See Gillis v. Waterbury Construction, 15 Conn. Workers’ Comp. Rev. Op. 131, 2182 CRB-5-94-10 (Jan. 17, 1996); Riley v. ARA Services/County School, 16 Conn. Workers’ Comp. Rev. Op. 112, 2280 CRB-2-95-1 (Nov. 25, 1996). We believe that such a result is the appropriate course of action in this case as well. The trier must be given an opportunity to explain his use of an effective date subsequent to the filing date of the Form 36.
The trial commissioner’s decision is hereby remanded for articulation.
Commissioner Donald H. Doyle, Jr., concurs.
JESSE M. FRANKL, CHAIRMAN, DISSENTING IN PART. I concur with the other members of this review panel in the portion of the opinion regarding the lack of support in the record for the May 12, 1997 effective date of the Form 36. However, I believe that the proper result is to remand the case and order the Form 36 approved as of the date it was filed. Simply put, the Form 36 was received by the Fourth District on February 26, 1997, initially denied, and later granted at a de novo formal hearing. See Anguish v. TLM, Inc., 3437 CRB-7-96-9 (Jan. 20, 1998). Our case law requires that the Form 36 should have been declared effective as of February 26, 1997, absent “extenuating circumstances.” Neither the findings nor the evidence indicate any such circumstances, and further proceedings are not warranted in this case.
1 This board granted the claimant’s motion to withdraw his petition for review on March 3, 1998. BACK TO TEXT