Ricci v. Redstone Development Corp.

The claimant was not represented at oral argument. Notice was sent to Alphonse Balzano, Jr., Moss, Cirillo & Kessler, 35-37 Audubon St., New Haven, CT 06511.

The respondents were not represented at oral argument. Notice was sent to Jan A. Marcus, Esq., Law Office of John Haymond, 1000 Lafayette Blvd., Suite 709, Bridgeport, CT 06604.

This Petition for Review from the June 21, 1996 Finding and Award of the Commissioner acting for the Third District was considered on March 14, 1997 by a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners James J. Metro and John A. Mastropietro.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondent has petitioned for review from the June 21, 1996 Finding and Award of the Commissioner acting for the Third District. The respondent argues on appeal that the commissioner erred by finding the claimant had a 15% permanent partial disability and that he could not work after his injury. We affirm the trial commissioner’s decision.

The trier found that the claimant suffered a work-related right ankle fracture on February 16, 1993, while employed by the respondent, who was not insured for workers’ compensation liability on that date. The claimant’s treating physician, Dr. Irving, released him for light duty on March 22, 1993, but the claimant could not perform his duties, and was totally disabled by Dr. Irving a week later. The respondent laid him off at around the same time. He began collecting unemployment benefits, but eventually got another job with Toll Brothers Company, where he earned a total of $800. At the time of the formal hearing, he was 66 years old, and had been a construction worker for 43 years. He is now retired and living in Florida on his Social Security pension, though he alleges that he wanted to continue working, and has been looking for employment.

Dr. Irving inserted a metal plate and screws in the claimant’s ankle when he performed fixation surgery immediately after the injury. He stated that the claimant had a 15% permanent partial disability of the ankle. Dr. Cooper, the claimant’s treating physician in Florida, indicated that he should not have further surgery to remove the plate and screws. The trier found that the claimant was totally disabled from February 17, 1993 to March 21, 1993, and from March 30, 1993 through April 27, 1993. He also found that the claimant had a 15% permanent partial disability of the right foot with a maximum medical improvement date of June 26, 1995. The commissioner ordered the uninsured respondent to pay temporary total disability benefits, with credit for three weeks of salary paid after the injury, as well as medical bills and permanent partial disability benefits. He further ordered the respondent to pay a $10,000 civil penalty for failure to carry insurance. The respondent filed a petition for review from the commissioner’s award of benefits.

The respondent makes two arguments on appeal. First, it contends that the claimant’s permanent partial disability award should be 10% rather than 15% of the right ankle, because Dr. Irving stated that the impairment percentage would be reduced to 10% if the screws and plates were removed. Second, it contends that the total disability award covering the four-week period between March 30, 1993 and April 27, 1993 should be reversed, because the claimant was able to work at that time. Both of these arguments implicate the accuracy of the commissioner’s factual findings.

It is well-established in this forum that in reviewing a trier’s decision, we must remember that the trial commissioner is empowered to find the facts and to determine the weight and credibility of the evidence presented to him by the parties, including all of the medical opinions. Jusiewicz v. Reliance Automotive, 3140 CRB-6-95-8 (decided Jan. 24, 1997); Rogers v. Laidlaw Transit, 45 Conn. App. 204, 207 (1997). The commissioner’s findings can be changed only if they contain facts found without evidence or fail to include material facts which are admitted and undisputed. Id.; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp. Rev. Op. 69, 71, 1859 CRB-5-93-9 (May 12, 1995). His conclusions must stand unless they result from an incorrect application of the law to the facts, or from an inference illegally drawn from the facts that he found. Id., citing Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In order to change the commissioner’s factual findings, a party must first file a Motion to Correct pursuant to Admin. Reg. § 31-301-4. This gives the trier of fact the opportunity to review the party’s assertions and make the changes himself, if they are indeed appropriate. Here, the respondent has neglected to file a request for a correction of the findings. Thus, the factual findings in the commissioner’s decision cannot be altered by this board in any way on review. Seltenreich v. Stone & Webster Engineering Corp., 15 Conn. Workers’ Comp. Rev. Op. 135, 136, 2196 CRB-3-94-10 (Jan. 17, 1996).

A look at the findings shows that they offer sufficient support for the legal conclusions drawn from them. See Fair, supra; Webb, supra. There is a finding that the claimant was totally disabled by Dr. Irving on March 30, 1993, and that he did not start collecting unemployment until April 17, 1993. There is also a finding that Dr. Irving rated the claimant with a 15% permanent partial disability of his ankle. These findings directly lead to the conclusions reached by the trier. This board must therefore affirm the trial commissioner’s decision.

Insofar as any portion of this award owed to the claimant has not been paid pending appeal, the respondents are ordered to add interest pursuant to § 31-301c C.G.S.