State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Bowee v. Comcast Cablevision

CASE NO. 4604 CRB-3-03-1

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 12, 2004

DANIEL BOWEE

CLAIMANT-APPELLEE

v.

COMCAST CABLEVISION

EMPLOYER

and

SENTRY INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Roger Frechette, Esq., Frechette & Frechette, 12 Trumbull Street, New Haven, CT 06511.

The respondents were represented by James C. Delaney, Esq., Law Offices of Murphy & Raccio, 1062 Barnes Road, Suite 110, P.O. Box 865, Wallingford, CT 06492-0865.

This Petition for Review from the December 19, 2002 Finding and Award of the Commissioner acting for the Third District was heard November 21, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Howard H. Belkin and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents, Comcast Cablevision and Sentry Insurance Company, have appealed from the December 19, 2002 Finding and Award of the Commissioner acting for the Third District. We affirm the decision of the trial commissioner.

The pertinent facts are as follows. The claimant was injured on May 19, 1997 when he fell down some stairs at a job site while he was performing his work duties for the respondent, Comcast Cablevision. On that date the claimant was transported to the Hospital of Saint Raphael Occupational Health clinic. While he was at the clinic the claimant complained of dizziness from a head injury, neck pain, shoulder pain, tailbone pain, and right wrist and arm pain. The claimant continued to complain about pain in his coccyx (tailbone) to his treating physician, Dr. Peter Amato, on May 23, 1997.

Mr. Bowee’s complaints of coccyx pain continued through May 6, 1999. On that date the claimant was examined by Dr. Louis Iorio. Dr. Iorio indicated he would consider referring the claimant for pain management and possible surgery. However, the claimant indicated he did not want to pursue either pain management or surgery. In May 1999 the claimant was employed by Home Depot. The claimant had an x-ray of the coccyx taken at that time which indicated a possible hairline fracture.

On April 10, 2002 the claimant was again examined by Dr. Amato who indicated the claimant had coccyalgia secondary to a fracture or contusion to the coccyx. Dr. Amato related the coccyalgia to the May 19, 1997 injury. Dr. Amato recommended an excision of the distal of the coccyx. However, the claimant did not want the surgery. On April 20, 2002 Dr. Amato indicated the claimant was at maximum medical improvement and had a 5 percent impairment of the whole person which would be the equivalent to a 30 percent permanent partial impairment of the coccyx.

The claimant sought both temporary total disability benefits, and permanent partial disability of the coccyx. The respondents contend the claimant was not entitled to specific benefits for the coccyx because § 31-308(b) only allows for benefits if the coccyx is actually removed.

Formal Hearings were held on this matter on September 3, 2002, September 19, 2002, and the matter was continued until October 10, 2002 for the filing of proposed findings of fact. The trial commissioner found the claimant was totally disabled from May 20, 1997 through June 1, 1997. The claimant was released for restricted duty work on June 2, 1997. The commissioner found the claimant was entitled to a specific benefits of 10.50 weeks based on a 30 percent impairment to the coccyx. Additionally, he found the claimant was entitled to temporary total benefits from May 20, 1997 through June 1, 1997.

On appeal the respondents raise three errors. First, the respondents allege the trial commissioner’s conclusion the claimant was entitled to temporary total benefits from May 20, 1997 through June 1, 1997 “was without evidence, was based upon impermissible or unreasonable factual inferences, and/or was based upon an incorrect application of law to the subordinate facts.” Appellant’s Brief p. 6. We will not overturn the findings and conclusions of a trial commissioner unless they violate any of the core mentioned tenets. Kish v. Nursing and Home Care, Inc., 248 Conn. 379 (1999); Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). The commissioner is free to believe all, some, or none of the presented evidence. Busak v. Stamford, 12 Conn. Workers’ Comp. Rev. Op. 291, 1562 CRB-7-92-11 (June 8, 1994), aff’d, 39 Conn. App. 919 (1995) (per curiam).

The respondents contend the claimant returned to work on May 23, 1997. However, whether and when the claimant returned to work appears to be a factual finding upon which the parties differ. The respondents contend the claimant returned to work on May 23, 1997 because of a notation in Dr. Amato’s report on that date. In the May 23, 1997 report Dr. Amato notes, “He stayed out of work and returned to work today but has been watching himself.” In that same report Dr. Amato suggested the claimant should not be working. Claimant’s Exhibit I. Dr. Amato’s subsequent medical reports indicate the claimant should not work through June 2, 1997. Claimant’s Exhibits I, J, K. Medical reports dated May 27, 1997, May 30, 1997, and June 4, 1997 did not indicate the claimant was working. Claimant’s Exhibits J, K, and L. According to Dr. Amato’s report dated April 19, 2002 the claimant was not released for regular duty work until on or about July 14, 1997. Claimant’s Exhibit A. The claimant did not testify on this issue.

Where the commissioner’s conclusions depend upon an evaluation of conflicting evidence this board must defer to the trial commissioner’s determinations. Niklewski v. K-Tron Manufacturing Co., 4299 CRB-5-00-10 (October 25, 2001). The respondents are raising the factual accuracy of the temporary total disability finding. A claimant cannot be permitted to collect temporary total disability benefits during a period when he was actually working. However, it is not clear from the evidence whether the claimant worked on May 23, 1997 and if he did work on that date, whether he worked the entire day. Did he work a full day, half day or some period of time that sufficed as no more than a de minimus attempt to return to work? Additionally, no evidence was presented as to whether the claimant was paid any wages for May 23, 1997 or thereafter.

While we recognize the burden of proving the period of total incapacity rests with the claimant, it is clear that once Dr. Amato opined the claimant was totally disabled from May 20, 1997 through June 1, 1997 the respondents were on notice that the trier had an evidentiary basis from which he could opine the claimant was totally incapacitated.

The respondents could have proffered the employer’s payroll records for the period in dispute but they chose to rely on Dr. Amato’s statement “claimant returned to work today.” This left the trial commissioner to weigh its significance in the context of the claimant’s temporary total claim. Therefore, based on the medical records before the trial commissioner we find his finding regarding the dates of temporary total disability benefits was supported by the evidence before him. We therefore will not overturn this finding on appeal.

The respondents’ primary contention on appeal is the commissioner’s finding that the claimant is entitled to 10.50 weeks of specific benefits under § 31-308(b) based on a 30 per cent impairment of the coccyx was without evidence, was based upon impermissible or unreasonable factual inferences, and/or was based upon an incorrect application of the law to the subordinate facts. It is the respondents’ assertion under § 31-308(b) a claimant can only be afforded benefits if the coccyx is actually removed. The respondents assert any injury short of removal of the coccyx is not compensable under this section of the statute.

Section 31-308(b) lists a schedule of weeks a trial commissioner can award permanent disability benefits for the loss of or loss of the use of specific body parts. Prior to listing each scheduled member the relevant portion of the statute states:

All of the following injuries include the loss of the member or organ and the complete and permanent loss of the use of the member or organ referred to.

The statute then lists each scheduled member, injury, and related number of weeks of compensation. For the member of coccyx the injury is described as “actual removal” and the weeks of compensation is listed as 35. Following the list of scheduled body parts the statute reads as follows:

If the injury consists of the loss of a substantial part of a member resulting in a permanent partial loss of the use of a member, or if the injury results in a permanent partial loss of function, the commissioner may, in the commissioner’s discretion, in lieu of other compensation, award to the injured employee the proportion of the sum provided in this subsection for the total loss of, or the loss of the use of, the member or for incapacity or both that represents the proportion of total loss or loss of use found to exist, and any voluntary agreement submitted in which the basis of settlement is such proportionate payment may, if otherwise conformable to the provisions of this chapter, be approved by the commissioner in the commissioner’s discretion. Notwithstanding the provisions of this subsection, the complete loss or loss of use of an organ which results in the death of an employee shall be compensable pursuant only to section 31-306.

We read this part of the statute to mean that if the injury is less severe than a total loss of the member or total loss of use of the function of the member then the trial commissioner has the discretion to make an order of some portion of the maximum weeks prescribed. The words of the statute have meaning. We shall not interpret a statute to render certain language meaningless or superfluous. Hasselt v. Lufthansa German Airlines, 262 Conn. 416, 424 (2003); McEnerney v. U.S. Surgical Corporation, 4252 CRB-3-00-6 (October 16, 2001) aff’d, 72 Conn. App. 611 (2002), cert. denied, 262 Conn. 916 (2002). In this case the claimant injured his coccyx however, it was not removed. The statute clearly states if the injury consisted of a permanent partial loss or permanent partial loss of use or function of the member, a proportional part of the maximum amount of weeks of benefits can be ordered. Therefore, the commissioner here ordered a percentage of the maximum weeks allowed under the statute. We believe this was proper under our interpretation of the later portion of the statute. We find no error.

Lastly, the respondents argue the trial commissioner’s conclusion that the claimant may be entitled to benefits under § 31-308(a) C.G.S. was without evidence, based upon impermissible or unreasonable factual inferences, and/or based upon an incorrect application of the law to the subordinate facts. The trial commissioner found the following: “The claimant was released for restricted work on June 2, 1997 and a claim for any C.G.S. 31-308(a) benefits has not been made at this time.” Findings, ¶ J. We do not read this to mean that the claimant may be entitled to § 31-308(a) benefits. At most, this finding stands as a clarification of the issues that were before the commissioner. We find no error.

Therefore, we affirm the December 19, 2002 Finding and Award of the Commissioner acting for the Third District.

Commissioners Howard H. Belkin and Ernie R. Walker concur.

Workers’ Compensation Commission

Page last revised: May 26, 2004

Page URL: http://wcc.state.ct.us/crb/2004/4604crb.htm

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