Poulin v. General Dynamics Corp./Electric Boat Division

JESSE M. FRANKL, CHAIRMAN. The claimant has filed a Motion for Reconsideration and/or Articulation of the January 25, 1995 decision of this Board. We decline to reverse our decision or allow oral argument on the matter before this Board, but we will explain our decision further.

First, we clarify one fact in the claimant’s argument. This Board never ruled that the date of the claimant’s incapacity in this case was January 14, 1986. As the trier of fact, the commissioner ruled that payments should commence on that date and subsequently granted the claimant’s Motion to Correct stating that the claimant’s compensation rate should be based on his wages for the 26 weeks prior to January 14, 1986. We reversed his ruling on the Motion to Correct, holding that there was no evidence to support the use of that date as the date of permanent partial disability.

The claimant argues that our decision in Wilkinson v. General Dynamics, 1605 CRB-2-92-12 (decided November 3, 1994) is inconsistent with our decision in this case. We will therefore explain the distinction. In Wilkinson, no diagnosis of impairment or disability had been made before September 14, 1988, which coincided with the time of the claimant’s retirement. Although a physician testified that the claimant had exhibited symptoms of active lung disease three years earlier, the records of that treatment were unavailable at trial, as they had been lost. The commissioner found that September 14, 1988 was the date of injury and calculated benefits based on the claimant’s wage as of that date. We deferred to the commissioner’s finding that no impairment had occurred before that date, noting that said finding was supported by the fact that the claimant continued to work through that date. We did not mean to suggest that a claimant’s date of retirement is generally the dispositive factor in determining the date of incapacity.

Here, the commissioner specifically found a December 9, 1980 date of injury. There is no finding that the claimant’s incapacity occurred on any other specific date. Certain medical reports in evidence indicate that the claimant’s change in lung volumes occurred between March 13, 1984 and October 31, 1985. These reports were accepted by the commissioner in his Finding and Award. The commissioner did not make a finding regarding the January 14, 1986 medical report cited by the claimant in its brief, however. We reversed the commissioner’s decision to grant the Motion to Correct because, based on the factual findings he made, there was no support for the use of January 14, 1986 as a date of incapacity. Rather, the findings suggested that either December 9, 1980 or the period of change in the claimant’s lung volumes were the possible dates of disability.

On remand, the commissioner is not bound to use the December 9, 1980 date of injury as the date of disability. See Stevens v. Raymark Corporation/Raybestos Manhattan, 28 Conn. App. 226, 230 (1992). He is entitled to examine all of the evidence to determine the actual date of disability. We are merely saying that his use of a particular date of disability must have some support in his subordinate findings, as in this case the date appeared to be randomly selected when compared with the findings that were made.

Commissioners Angelo L. dos Santos and Nancy A. Brouillet concur in this Articulation.

Poulin v. General Dynamics Corp./Electric Boat Division

ARTICULATION