Pesce v. Mitchell Bate Company

The claimant was represented by Paul Ranando, Esq., Dodd, Lessack, Ranando & Dalton, 700 West Johnson Ave., Cheshire, CT 06410.

The respondents were represented by Angelo Sevarino, Esq., 110 Day Hill Road, Windsor, CT 06095-1974.

This Petition for Review from the December 1, 1995 Finding and Dismissal of the Commissioner acting for the Fifth District was heard October 11, 1996 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners George A. Waldron and Robin L. Wilson.

OPINION

JESSE M. FRANKL, CHAIRMAN. The claimant has petitioned for review from the December 1, 1995 Finding and Dismissal of the Commissioner acting for the Fifth District. He argues on appeal that the commissioner erred by dismissing his claims for temporary total disability and § 31-308a C.G.S. benefits. We affirm the trial commissioner’s decision.

The claimant suffered a compensable herniated disc at L5-S1 on January 26, 1988. He underwent surgery in March 1988, and improved greatly over the next few months, with some lingering pain. The claimant suffered another herniation at L4-5 on November 29, 1988, for which surgery was again advised. The claimant refused it, however, and his doctor indicated that he would be left with a 25% permanent partial disability of the back. The claimant received benefits accordingly from November 30, 1988 to June 30, 1991. He then received § 31-308a benefits through June 30, 1992.

The claimant’s doctor told him in late 1991 that his failure to have surgery could cause his symptoms to worsen and that he could suffer permanent neurological changes. Although the claimant has complained of worsening back pain since November 1988, he has continued to decline surgery. He was 72 years old at the time of the formal hearing, and had worked as a machinist since arriving in the United States in 1966. He had only a third grade education in Italy, and neither speaks, reads, or writes English. His doctor stated in 1994 that he did not think the claimant was capable of gainful employment. The claimant, who took a lump sum retirement from his employer in 1989, seeks total disability and/or § 31-308a benefits. He testified that he had no retirement plans, and had intended to work for the respondent employer part-time.

The trial commissioner found that the treating physician’s recommendation of spinal surgery is medically reasonable, and that the claimant’s failure to pursue such treatment has caused his claimed inability to work. Thus, he declined to award total disability benefits. The commissioner also noted that the claimant had neither tried to rehabilitate himself nor look for work since retiring, and that his inability to get another job was again due to his refusal to undergo surgery. Therefore, the claimant did not qualify for further benefits under § 31-308a. The claimant has appealed that decision.

Initially, we note that no Motion to Correct was filed in this case. Thus, the factual findings in the commissioner’s decision must be presumed accurate. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996). We may only review the commissioner’s legal conclusions to determine if they are supported by the findings. See Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995).

Here, there is a finding that the claimant’s treating physician has told him that his symptoms will worsen without surgery. There is also a finding that spinal surgery is a reasonable course of treatment, and that the claimant’s refusal of said surgery is causing his inability to work. Section 31-294 [now 31-294e(b)] states that “[i]f it appears to the commissioner that an injured employee has refused to accept and failed to [obtain] reasonable medical and surgical aid . . . , all rights of compensation under the provisions of this chapter shall be suspended during such refusal and failure.” The commissioner clearly thought that such was the case here. Given that it is a factual question whether a claimant is temporarily totally disabled due to a compensable injury, see Bennings v. State of Connecticut/Dept. of Corrections, 3213 CRB-4-95-11 (decided Dec. 18, 1996), and that it is ultimately within a commissioner’s discretion to award or deny § 31-308a benefits, see Loomis v. Colchester Egg Farm, 3047 CRB-5-95-4 (decided Dec. 10, 1996), we have no basis under the facts of this case to find that the trial commissioner erred by declining to make an award under § 31-307 or § 31-308a.