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CASE NO. 1365 CRD-3-92-1
COMPENSATION REVIEW BOARD/DIVISION
WORKERS’ COMPENSATION COMMISSION
NOVEMBER 18, 1993
The claimant was represented by Lori WelchRubin, Esq., 51 Elm Street, New Haven, CT 06510 and Roger Sullivan, Esq., 7 South Main Street, P.O. Box 811, Branford, CT 06405.
The respondents were represented by Scott Wilson Williams, Esq., Maher & Williams, P.O. Box 269, Bridgeport, CT 06601.
This Petition for Review from the December 31, 1991 Finding and Award and January 24, 1992 Amended Finding and Award of the Commissioner at Large acting for the Third District was heard December 18, 1992 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Angelo dos Santos and Donald H. Doyle, Jr.
JESSE FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 31, 1991 Finding and Award and the January 24, 1992 Amended Finding and Award of the Commissioner at Large acting for the Third District. On appeal, the claimant contends that the trial commissioner should have (1) granted his motion to correct which sought to add a finding of temporary total disability during certain periods of time which the commissioner had excluded from his award of temporary total disability benefits and (2) opened the hearing to receive additional evidence regarding the claimant’s incapacity subsequent to the last evidentiary hearing. We affirm the trial commissioner.
The claimant sustained a work-related low back injury on July 22, 1985 while employed at Turbine Components. A voluntary agreement, approved on April 25, 1986, acknowledged a ten percent permanent partial disability of the low back with a maximum medical improvement date of January 3, 1986. The claimant sought to vacate that specific agreement, claiming that he has been totally disabled since the date of the agreement and that he has not reached maximum medical improvement. The claimant did, however, search for work and did in fact work for a period of time in 1987-88 and requested temporary partial benefits for that period of time.
Although the commissioner found that the claimant had not established grounds for vacating the voluntary agreement and substituting temporary total payments in lieu of the specific award, the commissioner did find that the claimant was entitled to an additional five percent partial disability as rated by Dr. Jeffrey Sumner, an orthopedic surgeon authorized to treat the claimant, with this additional permanency to run consecutively from the end of the original ten percent permanency paid under a maximum medical improvement date of January 3, 1986. With respect to the issue of temporary total disability, the commissioner found that the claimant was entitled to such benefits during his treatment with Dr. Aaron Tessler, a psychiatrist, from February 22, 1988 to June 11, 1988 and during his period of physical therapy at the Madison Rehabilitation Center from August 14, 1989 to October 11, 1989. Additionally, the commissioner found that the claimant was totally disabled, in accordance with Dr. James F. Brodey’s report of April 10, 1990, and ordered temporary total payments from April 10, 1990 through the date of the last evidentiary hearing held on July 2, 1990.1 The commissioner denied the claimant’s motion to correct the Finding and Award to reflect temporary total disability from February 22, 1988 through July 2, 1990 and to open the hearing to consider evidence as to the claimant’s continued total incapacity subsequent to the July 2, 1990 close of evidence. The denial of both requests forms the basis of the present appeal.
The claimant first contends, in effect, that the evidence before the trial commissioner supported no conclusion other than that he was totally incapacitated subsequent to February 22, 1988. He argues that while the determination of whether he was totally disabled at any particular time is a factual issue to be resolved by the trial commissioner, see, e.g. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454 (1951); the commissioner’s refusal to find the claimant totally disabled during those periods of time in which active medical treatment was suspended must be disturbed on appeal as it was based on unreasonable or impermissible factual inferences. See Fair v. People’s Savings Bank, 207 Conn. 535 (1988). We disagree.
The claimant received evaluation and/or treatment from approximately sixteen medical providers. The commissioner noted that the extensive medical reports and depositions from many of those providers offered differing medical opinions concerning the claimant’s condition, restrictions and ability to perform work. A February, 1990, report by Dr. Druckemiller indicates that the claimant’s condition appeared unchanged since his last evaluation in February, 1989 and that the claimant was capable of working without continuous bending or lifting. See Report of Dr. Druckemiller, dated February 16, 1990 (Respondents’ Exhibit 3). Although Dr. Druckemiller agreed that the claimant was not capable of work in 1989, his 1990 report comes to a different conclusion without any change in the claimant’s condition. It was within the province of the commissioner to resolve this apparent conflict in the evidence. See Miller v. Kirshner, 225 Conn. 185, 198-99 (1993); State v. Sherbacow, 21 Conn. App. 474, 479-80, cert. denied, 216 Conn. 808 (1990); State v. Sesler, 33 Conn. Sup. 747, 751, cert. denied, 172 Conn. 702 (1976). Moreover, after his 1990 examination of the claimant, Dr. Druckemiller was of the opinion that, while the claimant did have a back injury, he was able to work but seemed to lack the motivation required to re-enter the work force. See Deposition of Dr. Druckemiller, dated May 17, 1990 (Respondents’ Exhibit 4), pp. 14-15. Based on this evidence, the trial commissioner could reasonably infer that, although the claimant’s pain was real, the claimant’s lack of motivation rather than his injury rendered him unable to work during those periods during which he had suspended treatment. Accordingly, the trial commissioner properly denied the motion to correct.
The claimant also challenges the commissioner’s refusal to open the hearing for the purpose of receiving evidence of the continuation of the claimant’s total disability subsequent to the close of evidence. The claimant does not dispute the commissioner’s decision to limit his finding and award of temporary total benefits to a period of time ending with the date of the last evidentiary hearing. “To declare claimant continued to be disabled beyond the last hearing without any further testimony is to find a fact without an evidentiary basis. As we held in Besade v. Interstate Security Services, 6 Conn. Workers’ Comp. Rev. Op. 83, 593 CRD-2-87 (1989), affirmed, 212 Conn. 441 (1989), additional proceedings are necessary to provide the requisite factual basis for a conclusion of continued total incapacity.” Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 100, 725 CRD-6-88-4 (1989); see also Castro v. General Electric, 9 Conn. Workers’ Comp. Rev. Op. 73, 75, 904 CRD-6-89-8 (1991). The claimant, however, sought the opportunity to present such evidence as part of his motion to correct.
A motion to correct is not a proper vehicle for introducing additional evidence. Nonetheless, it is clear that “additional proceedings are necessary to provide the requisite factual basis for a conclusion of continued total incapacity.” Neurath v. UTC/Pratt & Whitney, supra. The Finding and Award does not preclude such hearings, as it states: “The case shall remain open and subject to future hearings as the parties may request.” Consequently, we do not interpret the commissioner’s refusal to open the hearing record of the proceedings which generated this appeal to deny the claimant the right to request an opportunity to produce evidence to support his claim that he remained totally disabled beyond July 2, 1990. See, Colucci v. Mattatuck Manufacturing Co., 9 Conn. Workers’ Comp. Rev. Op. 234, 236, 1000 CRD-5-90-4 (1991). Any such further proceedings will necessarily and appropriately occur subsequent to and separate from those involved in this appeal.
We, therefore, affirm the trial commissioner and deny the appeal.
Commissioners Angelo dos Santos and Donald H. Doyle, Jr. concur.
1 The original Finding and Award ordered temporary total payments to continue on a weekly basis after April 10, 1990, the date of Dr. Brodey’s report. The commissioner subsequently amended the Finding and Award to limit those payments until July 2, 1990, the close of formal evidence. See Neurath v. UTC/Pratt & Whitney, 7 Conn. Workers’ Comp. Rev. Op. 99, 725 CRD-6-88-4 (1989). In light of the Amended Finding and Award, the respondents withdrew their appeal. BACK TO TEXT
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