Stonkus v. Foster Wheeler

The claimant was represented by Louis Avitabile, Esq., Law Offices of Louis Avitabile, 182 Grand Street, Suite 314, Waterbury, CT 06702.

The respondents were represented by Robert Brennan, Esq., Law Offices of Robert Brennan, 265 Church Street, New Haven, CT 06510-7014.

This Petition for Review from the January 24, 2000 Finding and Award of the Commissioner acting for the Fourth District was heard October 27, 2000 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Robin L. Wilson and Leonard S. Paoletta.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review from the January 24, 2000 Finding and Award of the Commissioner acting for the Fourth District. In that decision, the trial commissioner determined that the claimant sustained a compensable injury on April 19, 1996 and awarded a ten percent permanent partial disability of the lumbar spine. In support of his appeal, the claimant contends that the trial commissioner improperly assessed a ten percent permanent partial disability rating and improperly found the date of maximum medical improvement to be October 19, 1998. Additionally, the claimant argues that the trial commissioner improperly denied payment for a medical report. We find no error.

At the formal hearing, the claimant requested a 13.5 percent permanency rating of the claimant’s lumbar spine. However, the respondents presented medical evidence indicating that the claimant sustained only a ten percent permanent partial disability. In his original Finding and Award, the trial commissioner found as follows: “The Respondent claims that the Claimant is entitled to specific benefits for a 10% permanent partial impairment of the lumbar spine in accordance with the opinions of Dr. Duffy, Dr. Jabbour and also Dr. Sterling.” (Finding ¶ 46). Subsequently, in granting the claimant’s Motion to Correct, the trial commissioner removed the reference to Dr. Sterling in the above finding, as his March 6, 1998 report had not been entered as a full exhibit, but was marked for identification only.

The claimant argues that the trial commissioner was required to hold a new hearing following his granting of the Motion to Correct. Specifically, the claimant contends that a new hearing was required merely because the trial commissioner originally referred to a physician’s report which was not a full exhibit. The cases cited by the claimant in support of this contention do not stand for this proposition.

We have repeatedly explained that the power and duty of determining the facts rests upon the trial commissioner as the trier of facts. We will not disturb such determinations unless they are found without evidence, based on impermissible or unreasonable factual inferences or contrary to law. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). This board has repeatedly held that “the determination of the extent of an injured worker’s permanent disability (is) within the trial commissioner’s province as the trier of the facts.” Kerins v. Johnson Controls, 12 Conn. Workers’ Comp. Rev. Op. 72, 73, 1419 CRB-8-92-5 (Feb. 3, 1994) (citations omitted). Moreover, where “the medical evidence regarding the extent of the claimant’s permanency (is) in conflict, the trial commissioner’s conclusion must stand so long as there is evidence to support it.” Salz v. Oliver’s Taverne, 12 Conn. Workers’ Comp. Rev. Op. 325, 327, 1593 CRB-8-92-12 (July 5, 1994).

In the instant case, the trial commissioner chose to rely upon the medical opinions of Dr. Jabbour and Dr. Duffy, who both assessed a ten percent permanent partial disability of the lumbar spine. Dr. Jabbour assessed a ten percent permanent partial disability on October 19, 1998, and testified by deposition that the claimant had reached maximum medical improvement on that date. See Finding ¶ 16; see also Depo. of Dr. Jabbour (Claimant’s Exh. I) at p. 23. The trial commissioner’s conclusion that the claimant reached maximum medical improvement on October 19, 1998 with a ten percent permanent partial disability is fully supported by the record, and thus it must be affirmed. Fair, supra.

Finally, we will address the claimant’s argument that the trial commissioner improperly denied payment for the May 6, 1999 medical report written by Dr. Hillsman, who was found to be an authorized treater. In that report, Dr. Hillsman indicated that the claimant could perform restricted work which did not involve lifting more than twenty-five pounds and did not require repetitive bending, twisting, or lifting. (Finding ¶ 39). The trial commissioner denied the claimant’s request for reimbursement of $510.00 for said report. Section 31-279-9(b) provides as follows:

In the instant case, it was within the discretion of the trial commissioner to determine whether the May 6, 1999 medical report constituted a “routine progress” report, or whether said report constituted a detailed report requiring a significant expenditure of time. We have reviewed said report, and find no abuse of discretion on the part of the trial commissioner.