Lourenco v. Francis Cammisa/Jack A. James, Inc.

CASE NO. 1661 CRB-1-93-3

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 31, 1995

MANUEL LOURENCO

CLAIMANT-APPELLANT

v.

FRANCIS CAMMISA/JACK A. JAMES, INC.

EMPLOYER

and

RELIANCE INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

and

SECOND INJURY FUND

RESPONDENT-APPELLEE

APPEARANCES:

The claimant was represented by John Serrano, Esq., Serrano & Serrano, 690 Flatbush Avenue, West Hartford, CT 06110-1308.

Respondent Second Injury Fund was represented by Loida D. John-Nicholson, Esq., Assistant Attorney General, P. O. Box 120, 55 Elm Street, Hartford, CT 06141-0120.

This Petition for Review from the February 26, 1993 Finding and Award of the Commissioner acting for the First District was heard March 11, 1994 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Nancy A. Brouillet and Michael S. Miles.

OPINION

NANCY A. BROUILLET, COMMISSIONER. The claimant has petitioned for review from the February 26, 1993 Finding and Award of the First District Commissioner. It is his contention that the ultimate conclusion of the commissioner is inconsistent with the subordinate facts found. We agree that the decision should be reversed and remand this matter for a new hearing.

The claimant sustained a compensable work-related injury to his lumbar spine on May 5, 1988. In a stipulation approved on March 30, 1992, the parties agreed, among other things, that the claimant, who was not receiving benefits at the time of the stipulation, had received temporary total disability benefits from May 6, 1988 until January 2, 1990, and that he received advances against specific benefits “during a period of time that [the claimant] contended he continued to be totally disabled, continually until 10/3/90.” They also agreed that the claimant had received a ten-week advance of § 31-308a benefits as per the commissioner’s recommendation, for which the Second Injury Fund agreed to reimburse the respondent insurer. Liability was transferred to the Fund as of May 6, 1990.

In the subsequent proceedings to determine the claimant’s entitlement to temporary total disability benefits after January 2, 1990, a different commissioner ruled that the claimant had been temporarily totally disabled as of June 21, 1991 based on “the combination of [the claimant’s] lack of education, poor command of the English language, limited employment background only in the construction industry and the nature and extent of his permanent partial disability.” His findings indicate that the claimant’s treating physician wrote four reports, all stating that the claimant was physically capable of very limited part-time sedentary work, but considering his background and educational level, it was in the doctor’s opinion highly unlikely that a suitable job could be found for him. Although the first of these reports was written on January 15, 1990, the commissioner adopted June 21, 1991, the date of the second report, as the date of temporary total disability.

We will not disturb the conclusions of the trial commissioner unless they are unsupported by the evidence. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). It is appropriate for this Board to order a remand if the conclusions of the commissioner are inconsistent with the facts found. Tessier v. Kogut Florist and Nurseryman, Inc., 9 Conn. Workers’ Comp. Rev. Op. 276, 277, 1088 CRD-8-90-7 (1991).

Here, it is unclear why the commissioner chose June 21, 1991 as the date of temporary total disability. The commissioner specifically found that on August 8, 1989, the claimant’s treating physician reported that the claimant had reached maximum medical improvement with a 20% permanent partial impairment of his back. There is no evidence in any of the medical reports that the claimant’s physical condition changed significantly between that date and January 22, 1992, the date of the physician’s final report. The commissioner stated no basis for his choice of June 21, 1991 as the date of temporary total disability, and we are unable to infer one from the record. Despite the deference given by this Board to the conclusions drawn by a commissioner from his findings of fact, see Fair v. People’s Savings Bank, supra, 539, it is the determination of this Board that in this case, there is insufficient evidence to support the commissioner’s conclusion.

The trial commissioner is reversed, and the case is remanded for a new hearing.

Chairman Jesse M. Frankl and Commissioner Michael S. Miles concur.