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CASE NO. 3891 CRB-05-98-09
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
SEPTEMBER 22, 1999
ALFRED J. COLUMBIA
CITY OF TORRINGTON
SECOND INJURY FUND
The claimant did not appear at oral argument.
The employer and its insurer were represented by Scott Wilson Williams, Esq., Maher & Williams, 1300 Post Road, P.O. Box 550, Fairfield, CT 06430.
The respondent Second Injury Fund was represented by Taka Iwashita, Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the August 28, 1998 Finding and Award of the Commissioner acting for the Fifth District was heard January 22, 1999 before a Compensation Review Board panel consisting of Commissioners Angelo L. dos Santos, Michael S. Miles and Stephen B. Delaney.
ANGELO L. dos SANTOS, COMMISSIONER. The respondent Second Injury Fund (“Fund”) has petitioned for review from the August 28, 1998 Finding and Award of the Commissioner acting for the Fifth District. In that decision the trial commissioner determined that the employer provided timely notice of intent to transfer to the Fund pursuant to § 31-349. In support of its appeal, the Fund contends that for purposes of the notice provision of § 31-349, the trial commissioner erred by declining to include the period from April 14, 1992 through August 4, 1992 during which the claimant had returned to work at his regular position. The Fund thus contends that the employer failed to provide timely notice to the Fund.
The trial commissioner found the following relevant facts. On October 30, 1991 the claimant sustained a compensable injury to his back while working for the respondent employer. The Fund does not dispute that the claimant suffered from a pre-existing condition which made the October 30, 1991 injury materially and substantially greater. The claimant was employed as a police captain and as such his job duties were administrative and clerical. Following his injury, the claimant was temporarily totally disabled from November 4, 1991 through January 26, 1992. The claimant’s treating physician, Dr. Schildgen, released the claimant to work six hours per day on January 26, 1992 continuing to April 13, 1992. On April 13, 1992, Dr. Schildgen released the claimant to work on a full time basis, whereupon the claimant on April 14, 1992 returned to his regular work as a police captain. Pursuant to his examination of the claimant on April 13, 1992, Dr. Schildgen indicated in his report as follows:
When last seen on 4/13/92, he stated that he felt well. He no longer experienced any back or sciatic pain. Examination showed that he ambulated with a normal gait and station. Lumbo-sacral extension illicited (sic) some pain in the lower back. There was no muscular spasm. (Respondent’s Exh. 1; see also Finding of Fact ¶ 8).
On August 4, 1992, Dr. Schildgen opined that the claimant had a fifteen percent permanent physical impairment of his spine. A voluntary agreement approved on December 21, 1992 provides August 4, 1992 as the maximum medical improvement date. The trial commissioner concluded that for the purposes of determining the 104 weeks of disability pursuant to § 31-349, the claimant was not disabled during the period that he returned to full duty through the date on which he reached maximum medical improvement.
Section 31-349 (Rev. to 1991) provides in relevant part: “As a condition precedent to the liability of the second injury fund, the employer or his insurance carrier shall, ninety days prior to the expiration of the one-hundred-four-week period, notify the custodian of the second injury fund of the pending case . . . .” We have stated that “(s)trict compliance with this provision is required in order to transfer liability under this section.” Pereira v. Taylor & Fenn Company, 14 Conn. Workers’ Comp. Rev. Op. 16, 17, 1816 CRB-1-93-8 (April 28, 1995) (citations omitted).
Our Supreme Court has reviewed the method of determining the 104 weeks of disability in the notice provision of § 31-349, and has held the following:
(T)he rate of pay received by the claimant and the number of hours worked upon her return to work are not determinative of the time period of her disability under § 31-349(a). Rather, the determinative factor as to whether the time period is to be included in calculating the 104 week period of disability that triggers the date by which the employer must furnish notice to the fund, is whether the claimant is medically impaired as a result of his or her work-related injury.
Innocent v. St. Joseph’s Medical Center, 243 Conn. 513, 518 (1998) (emphasis added).
In Innocent, supra, the court held that even though the claimant was not entitled to receive any disability benefits when she had returned to light duty work at full pay, nevertheless those weeks of light duty constituted periods of disability and thus were required to be included in the calculation of the 104 week period under § 31-349.
It has repeatedly been held that “the conclusions drawn by the trial commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Six v. Thomas O’Connor & Co., 235 Conn. 790, 799 (1996). Moreover, “[o]nce the commissioner makes a factual finding, (we are) bound by that finding if there is evidence in the record to support it. . . . Similarly, the conclusions drawn by the commissioner from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818 (1999).
In support of its appeal, the Fund argues that the claimant must have had some disability during the period at issue because he had not yet reached maximum medical improvement. Furthermore, the Fund argues that although he was released by his physician to work eight hour days, perhaps by implication he was not allowed to work overtime. We note that the Fund did not make any arguments, nor did the Fund introduce any evidence, regarding overtime during the formal hearings in this matter. Accordingly, we cannot accept such an argument made solely on conjecture with no evidence in the record nor any findings on this issue. The board has explained as follows:
Section 31-349(a) uses the word “disability.” This board will not construe that term so broadly as to include as a matter of law any symptoms that have not yet ripened into either a permanent partial impairment or a condition that affects the claimant’s ability to perform her job. Some measurable disability must be found by the trier of fact before the threshold of “medical impairment” is met. The trier did not find such an impairment here, and we must affirm his decision on review.
Karutz v. Feinstein & Herman, 3698 CRB-7-97-8 (Dec. 18, 1998).
In the instant case, the trial commissioner specifically found that on April 13, 1992 there were no medical or physical restrictions placed on the claimant’s return to work. Furthermore, the records supervisor for the employer testified that the claimant was working eight hour days performing his regular job duties without restrictions. The trial commissioner specifically found that during the period in question, the claimant “had no medical or physical limitations or impairments .” (Finding ¶ D). Based upon these findings, which are supported by the record, we must affirm the trial commissioner’s decision. See Innocent, supra; see also O’Reilly, supra.
The trial commissioner’s decision is affirmed.
Commissioners Michael S. Miles and Stephen B. Delaney concur.
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