CASE NO. 1443 CRB-6-92-6
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
FEBRUARY 28, 1994
WHITE OAK CORPORATION
EMPLOYERS INSURANCE OF WAUSAU
The claimant was represented by Paul Ranando, Esq., Law Offices of Edward T. Dodd, Jr., 182 Grand Street, Waterbury, CT 06702.
The respondents were represented by William C. Brown, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.
This Petition for Review from the June 17, 1992 Finding and Award of the Commissioner for the Sixth District was heard April 16, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.
JESSE FRANKL, CHAIRMAN. The respondents have appealed from the June 17, 1992 Finding and Award of the Commissioner acting for the Sixth District. In that Finding and Award the commissioner found that the claimant was entitled to Sec. 31-308a benefits. The pertinent facts are as follows.
The claimant was initially injured February 1, 1979 and a Voluntary Agreement between the claimant and the Hartford Insurance Group reflects a 7.5% permanent partial loss of use of the cervical spine. On June 30, 1986 while working for the respondent White Oak Corp., the claimant sustained a second injury to his cervical spine which resulted in an additional 7.5% permanent partial loss of use of the cervical spine. A Voluntary Agreement between the claimant and the respondents was approved and reflected that the claimant had a 15% permanent partial loss of use of his cervical spine, 7.5% of which was attributable to the prior injury. That Voluntary Agreement also reflected that the claimant reached maximum medical improvement January 1, 1987. Thereafter, the claimant sought benefits pursuant to Sec. 31-308a.
In his factual findings the trier referred to the opinions of Dr. James E. Finn, and Dr. Norman Gahm, neurosurgeons and noted that the physicians agreed that the claimant was able to engage in sedentary light duty work but could not return to his former occupation as a construction laborer. The trier in paragraph #11 stated the following. “The claimant’s basic compensation rate is $385.00 per week. He was earning $13.50 per hour at the time of the injury. The claimant testified that he would be able to earn at least $600.00 per week as a construction laborer.” In his final paragraph the commissioner ordered “payment of Sec. 31-308a benefits from July 2, 1987 to November 11, 1988 (the date of the last job search submitted to the respondent) at the rate of $143.35 per week ($600.00 - $385.00 = $215.00 x .6667 = $143.35).”
Additionally, the trier found that the claimant’s refusal to undergo surgery was not unreasonable. In Paragraph #7 & 9 the trier stated the following:
Dr. James Finn, a neurosurgeon, states that the claimant can only perform work which does not involve lifting over 10 lbs. (exhibit 4a).
Dr. Finn is of the opinion that the claimant has a 25% permanent partial disability of the cervical spine that probably could be reduced to 15% with surgery. There is nothing on the record to indicate that Mr. Camp’s refusal to undergo surgery at this time is unreasonable. To the contrary, the medical evidence indicates that the claimant’s condition has improved since the injury of June 30, 1986. (Ex. 4a).
Clearly, the trier misapplied the law both in his calculation of benefits and as to the claimant’s refusal of medical surgery. Sec. 31-308a at the time of claimant’s 1986 injury, provided that a commissioner “may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by an employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter....”
The claimant testified that at the time of his injury he was earning $13.50 per hour. He also testified that he would be able to earn at least $600.00 per week as a construction laborer. The trier then used the claimant’s compensation rate as part of the computation of the wage loss difference. Clearly Sec. 31-308a requires a computation of the weekly amount the claimant would be able to earn after the injury. The utilization of claimant’s compensation rate is not a measurement of the claimant’s earning capacity. Sec. 31-308a additionally provided that the amount the claimant will be able to earn thereafter is “to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee’s age, but not more than the maximum provided in section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury.”
On what basis the trier concluded that the claimant’s earning capacity for the period during which Sec. 31-308a benefits were sought (July 2, 1987-November 11, 1988) was to be measured by the claimant’s compensation rate is unclear. The factual findings of the trier in no way support his conclusion as to the calculation of benefits claimant may be entitled. Additionally, the trier’s factual findings make no reference to the factors set out in Sec. 31-308a as to claimant’s experience, age, training, education, nature and extent of injury, and the availability of work for persons with claimant’s physical condition. See Traylor v. Poquonnock Bridge Fire District, 8 Conn. Workers’ Comp. Rev. Op. 59, 788 CRD-2-88-11 (1990).
Finally, the trier’s conclusion that the claimant’s refusal of medical surgery was not unreasonable is clearly a misapplication of the law. Sec. 31-294 at the time of claimant’s injury provided in pertinent part, “If it appears to the commissioner that an injured employee has refused to accept . . . reasonable medical, surgical or hospital or nursing service, all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure.” In Pagliarulo v. Bridgeport Machines, Inc., 20 Conn. App. 154 (1989), the Appellate Court considered this provision and held, “The statute is concerned not with the reasonableness of the plaintiff’s refusal to accept treatment, but with the reasonableness of the ‘medical, surgical or hospital or nursing service’ available to the plaintiff.” (citation omitted). The Pagliarulo court also held that the question of whether proposed medical treatment is reasonable is a question of fact for the trier. “This question is not necessarily a medical matter only, on which expert testimony would be necessary, but may also be affected by a consideration of the surrounding circumstances as the trier of fact finds them. Such circumstances may include the plaintiff’s age, medical history, previous course of treatment and its success or failure, and whether the proposed medical procedure ‘involves real danger and suffering without fair assurance of effecting an improvement or restoration of health.’ Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684, 690 (1953).” (citation omitted)
Thus, as the trier erred as trier’s factual findings do not support his conclusion as to claimant’s entitlement and calculation of benefits under Sec. 31-308a, and as the trier erred in his application of Sec. 31-308a to the case at hand, as well as his misapplication of Sec. 31-294’s provision as to the refusal of medical treatment, it is clearly apparent that a remand is in order as “[n]o case under this Act should be finally determined when . . . through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment.” Cormican v. McMahon, 102 Conn. 234, 238 (1925).
We, therefore, remand for further proceedings consistent with this opinion.
Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.