State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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Garcia v. John Bianchi d/b/a Complete Change Landscaping Tree Removal and Excavating Company

CASE NO. 4670 CRB-5-03-5

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 3, 2004

NOE GARCIA

CLAIMANT-APPELLEE

v.

JOHN BIANCHI d/b/a COMPLETE CHANGE LANDSCAPING TREE REMOVAL AND EXCAVATING COMPANY

EMPLOYER

NO RECORD OF INSURANCE

and

SECOND INJURY FUND

RESPONDENT-APPELLANT

APPEARANCES:

The claimant was represented by Gary Broder, Esq., 89 Roseland Avenue, Waterbury, CT 06710.

The Second Injury Fund was represented by Michael Belzer, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

The employer, John Bianchi, 44 Regal Court, Waterbury, CT 06705, appeared pro se.

This Petition for Review from the May 13, 2003 Amended Finding and Award of the Commissioner acting for the Fifth District was heard December 19, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The Second Injury Fund appeals from the May 13, 2003 Amended Finding and Award of the Commissioner acting for the Fifth District. In that Amended Finding and Award the trial commissioner awarded the claimant temporary total disability benefits from the date of injury September 11, 2001 through December 31, 2001. Additionally, the trial commissioner awarded the claimant a 22% permanent partial disability award for the loss of use of the claimant’s non-master hand. Both the claimant and the Second Injury Fund filed appeals. The Second Injury Fund’s appeal presents the following issues; (1) whether the trial commissioner erred in awarding the claimant temporary total disability benefits, (2) whether the trial commissioner erred in awarding the claimant a permanent partial disability award for the loss of use of twenty-two per cent of his non-master hand.

We first consider whether the trial commissioner erred in awarding temporary total disability benefits for the period from September 11, 2001 until December 31, 2001. The pertinent facts in this case are as follows. The claimant was employed by the respondent employer who failed to insure his liability for Workers’ Compensation. On September 11, 2001 the claimant sustained a compensable injury to his non-master hand while operating a wood chipper. Specifically, the claimant lost the tip of his left little finger and severed the tendon on his left ring finger. The record before the trial commissioner reflects that the claimant’s native language was Spanish and the claimant’s testimony in the proceedings was given with the aid of an interpreter.

Whether the claimant was totally disabled from the September 11, 2001 through December 31, 2001 is a factual determination to be made by the trial commissioner. The appellant Second Injury Fund contends that the trier’s conclusion as to the claimant’s total disability status is without medical evidence. However, our review of the record reflects the claimant’s surgeon, Dr. Stanley J. Foster did not find the claimant was completely healed from his injury until December 31, 2001. The medical reports also reflect the claimant was in physical therapy following surgery until just prior to Dr. Foster’s December 31, 2001 evaluation. Additionally there is a November 27, 2001 report from Dr. Foster expressing concern the claimant was scarred down to the bone.

The factual findings of the trial commissioner will stand unless they are without evidence, contrary to law or based on impermissible or unreasonable factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). Our review of the medical reports submitted to the trial commissioner demonstrate evidence from which the trier could infer the claimant was totally disabled for the period from September 11, 2001 through December 31, 2001 and that inference was not unreasonably or impermissibly drawn, the conclusion stands.

We next consider whether the trial commissioner erred in awarding the claimant a permanent partial disability for the twenty two percent (22%) loss of use of the claimant’s non-master hand. The appellant Second Injury Fund contends the commissioner erred as a matter of law in awarding a permanent partial disability for the loss of use of the claimant’s non-master hand. The Fund argues that claimant’s permanent partial disability award is a matter controlled by statute, i.e., § 31-308(b) and thus, the claimant is only permitted an award of fifty percent (50%) loss of use of the small finger and twenty seven percent (27%) loss of use of the ring finger on the basis of the medical evidence. Dr. Foster opined that the claimant’s amputation of the tip of his left small finger and the laceration of the tendon of the left ring finger resulted in a fifty percent (50%) loss of use of the small finger and twenty seven percent (27%) loss of use of the ring finger but on the basis of the claimant’s reduced grip strength and restricted range of motion, the claimant had a twenty-two percent (22%) loss of use of his non-master hand. Dr. Foster’s report references his use of the AMA Guides to the Evaluation of Permanent Impairment 5th Edition in reaching his opinion.

There are two facets to the appellant’s argument and challenge to the trial commissioner’s award of permanent partial disability benefits. The first argument is that § 31-308(b) provides a specific schedule of permanent partial benefits for the body parts to which the claimant sustained an injury. The second argument challenges the methodology employed by Dr. Foster in utilizing the AMA Guides to the Evaluation of Permanent Impairment 5th Edition in reaching his opinion.

As to the appellant’s first argument, we believe that question was settled by this tribunal’s opinion in Smith v. John’s Tree Service, 4272 CRB-3-00-7 (June 19, 2001). In Smith this tribunal held that the commissioner was not precluded from taking into account the impact on the loss of use of the fingers on the use of the whole hand. As regards the appellant’s challenge to the methodology employed by Dr. Foster in reaching his opinion, we find no indication in the record the appellant sought to depose Dr. Foster or sought his testimony before the trial commissioner for the purpose of clarification. The appellant cannot use its appellate brief as a means of cross-examining Dr. Foster’s opinion.

We therefore affirm the May 13, 2003 Amended Finding and Award of the Commissioner acting for the Fifth District.

Commissioners James A. Metro and Ernie R. Walker concur.

Workers’ Compensation Commission

Page last revised: May 26, 2004

Page URL: http://wcc.state.ct.us/crb/2004/4670crb.htm

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