Perri v. Mitchell Motors

The claimant was not represented at oral argument. Notice sent to Paul S. Ranando, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., 700 West Johnson Ave., Cheshire, CT 06410.

The respondents were represented by William Brown, Esq., McGann, Bartlett, & Brown, 281 Hartford Tpke., Vernon, CT 06066.

This Petition for Review from the January 30, 1996 Findings of Fact and Award of Compensation of the Commissioner acting for the Sixth District was considered on the briefs on November 1, 1996 by 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 January 30, 1996 Findings of Fact and Award of Compensation of the Commissioner acting for the Sixth District.1 He argues on appeal that the commissioner erred by finding that the claimant would not be entitled to further § 31-308a benefits after the date of the formal hearing. We agree, and reverse the portion of the decision that attempts to resolve the issue of future entitlement to benefits.

The claimant suffered a compensable injury to his right knee on December 17, 1985. As an automotive technician, his job required prolonged bending, standing and squatting. After surgery on his knee, he could no longer engage in such movement, and could not return to work as an auto mechanic despite trying several times. His attempts at retraining were unsuccessful until he completed a locksmithing course in 1994. Since then, the claimant’s earning capacity has been $320.00 per week. The commissioner awarded the claimant $9,113.65 in wage differential benefits under § 31-308a for the period between May 1, 1991 and May 31, 1994. He also included Paragraph J in the award stating, “[c]onsidering the extent of the claimant’s injury and all other factors under Section 31-308a, further 31-308a compensation shall be awarded in this claim.”

The respondents filed a Motion to Correct seeking to change Paragraph J to read that “further 31-308a compensation shall not be awarded in this claim.” (Emphasis added.) The trial commissioner granted that motion. The claimant then filed a petition for review on the ground that the correction was erroneous. The claimant argues that the commissioner should not have made a decision regarding entitlement to § 31-308a benefits beyond the date of the last formal hearing. The respondents contend that the statute allows the commissioner to determine the duration of such compensation, and that he was merely clarifying that the duration of his award was three years, absent a change in circumstances that would warrant reopening the case under § 31-315 C.G.S.

Section 31-308a indeed allows the commissioner discretion to determine the duration of an award. We have also stated that, based on that discretion, the trier may state that an award of additional benefits would be subject to a substantial change in the claimant’s condition. Richmond v. General Dynamics Corp./Electric Boat Division, 13 Conn. Workers’ Comp. Rev. Op. 345, 346, 1825 CRB-2-93-8 (April 27, 1995). However, a commissioner cannot be sure that a claimant will or will not merit § 31-308a benefits in the future, as that issue is not yet before him. By definition, his future condition is unknown, and a commissioner is only empowered to decide how much compensation is appropriate given the condition of the claimant at the time of the proceedings.

The respondents state that by cutting off the claimant’s future entitlement to benefits, we would be furthering our policy of bringing finality to litigation. Our concern regarding cases not being presented in a piecemeal fashion relates to already-ripe issues that could and should be brought at a formal hearing because the necessary evidence already exists. See Fassett v. F. Castellucci & Sons, 15 Conn. Workers’ Comp. Rev. Op. 83, 84, 2150 CRB-3-94-9 (Dec. 7, 1995). That policy does not extend to inchoate future claims that might occur depending on what happens to a claimant in the future.

The trial commissioner’s granting of the Motion to Correct is reversed, and Paragraph J of the commissioner’s award is stricken.

Commissioners George A. Waldron and Robin L. Wilson concur.

1 The respondents also filed a petition for review from that decision, but withdrew their appeal once their Motion to Correct was granted by the trial commissioner. BACK TO TEXT