CASE NO. 5036 CRB-3-05-12
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
MARCH 6, 2007
STOP & SHOP COMPANIES, INC.
The claimant was represented by Robert F. Carter, Esq., Carter, Civitello & Douthat, Woodbridge Office Park, One Bradley Road, Woodbridge, CT 06525.
The respondent was represented by Clayton Quinn, Esq., The Quinn Law Firm, LLC, 204 South Broad Street, Milford, CT 06460.
This Petition for Review from the November 23, 2005 Finding and Award of the Commissioner acting for the Third District was heard June 23, 2006 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno.
JOHN A. MASTROPIETRO, CHAIRMAN. The respondent has appealed from the November 23, 2005 Finding and Award of the Commissioner acting for the Third District.1 In the Finding and Award the commissioner ordered the respondent to accept liability for injuries sustained by the claimant as a result of a work place incident occurring September 13, 2004. It was alleged by the claimant that he injured his back when driving a self-propelled lifting machine when another lifting machine driven by a co-worker struck the claimant’s machine.
The respondent filed this appeal and presents the following issues; (1) whether the trial commissioner erred in failing to grant, in whole or in part, the respondent’s Motion to Correct; (2) whether the trial commissioner’s conclusions are legally inconsistent with the facts found and (3) whether the trial commissioner abused his discretion as evidenced by the trier’s Memorandum of Decision on the Respondent’s Motion to Correct. The respondent also argues that the trial commissioner erred by his virtually wholesale adoption of the claimant’s proposed findings. The respondent contends that certain factual findings are inconsistent or are not supported by the evidentiary record. Further, the trier’s failure to grant respondent’s Motion to Correct or at least those parts of the motion seeking corrections that were admitted or undisputed and material to the trier’s ultimate conclusion was an abuse of the trial commissioner’s discretion.
We agree that there are portions of the trial commissioner’s Finding and Award which are inconsistent. In Finding ¶ 18 the trial commissioner ordered the respondent to pay the claimant temporary total disability benefits pursuant to § 31-307 from November 17, 2004 through February 9, 2005 and temporary partial benefits pursuant to § 31-308(a) from February 10, 2005 through June 21, 2005.2 We agree with the respondent’s contention that the trial commissioner’s findings are legally inconsistent as one cannot be the beneficiary of partial and total disability benefits for the same period as double recoveries for the same injury are not permitted. Paternostro v. Edward Coon Co., 217 Conn. 42 (1991).
Having found that the trier’s factual findings are legally inconsistent we remand the instant matter for a trial de novo. Strona v. Textron Lycoming, 4700 CRB-3-03-7 (August 6, 2004) (matter remanded for trial de novo where wholesale adoption of factual findings resulted in trier’s adoption of findings not supported by the evidentiary record).
We therefore set aside the November 23, 2005 Finding and Award of the Commissioner acting for the Third District and remand the instant matter for a trial de novo.
Commissioners Donald H. Doyle, Jr., and Nancy E. Salerno concur.
1 We note extensions of time were granted during the pendency of this appeal. BACK TO TEXT
2 Paragraph 18 of the Finding and Award states:
Dr. O’Brien found the claimant to be disabled from working from November 17, 2004 through the date of the formal hearings, based on his office note of February 9, 2005, in which he stated that the claimant should not return to work until the prescribed course of additional physical therapy was completed. The respondent refused to pay for the additional physical therapy prescribed by Dr. O’Brien, as set forth below, and the claimant has been unable to pay for this treatment himself or otherwise obtain this treatment. I find that the claimant was totally disabled from November 17, 2004 through February 9, 2005, the date of the last visit with Dr. O’Brien, and temporarily partially disabled and eligible for benefits pursuant to Section 31-308(a) for the period from February 10, 2005 through the date of the formal hearing on June 21, 2005.
Because of the claimant’s financial distress, the claimant, in fact, sought work after February 9, 2005, despite Dr. O’Brien’s recommendation that he not work until completing the prescribed course of physical therapy. I find that the claimant was actively seeking employment and available for employment in Connecticut at all times between October 7, 2004 and June 21, 2005. BACK TO TEXT