Fantasia v. Milford Fastening Systems

CASE NO. 4332 CRB-4-00-12

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

JANUARY 15, 2002

SAMUEL FANTASIA

CLAIMANT-APPELLANT

v.

MILFORD FASTENING SYSTEMS

EMPLOYER

and

WAUSAU INSURANCE CO.

INSURER

RESPONDENTS-APPELLEES

APPEARANCES:

The claimant was represented by Victor M. Ferrante, Esq., 2970 Main Street, Bridgeport, CT 06606.

The respondents were represented by Robert Enright, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the November 16, 2000 Finding And Award In Part And Finding And Dismissal In Part of the Commissioner acting for the Fourth District was heard July 20, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Stephen B. Delaney.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant has petitioned for review1 from the November 16, 2000 Finding And Award In Part And Finding And Dismissal In Part of the Commissioner acting for the Fourth District. In that decision, the trial commissioner denied the claimant’s request for temporary total disability benefits. In support of his appeal, the claimant argues that the trier erred by failing to award any temporary total disability benefits despite accepting as credible the opinion of the trial commissioner’s examiner that the claimant was totally disabled. We agree that the findings of fact appear to be conflicting, and thus we must remand this matter to the trial commissioner.

The following facts are relevant to this appeal. The claimant suffered a back injury while working for the respondent employer on October 13, 1994 which was accepted by the respondents. The claimant also suffered from a non-compensable heart condition, and suffered a myocardial infarction on October 28, 1995. Dr. Druckemiller performed a commissioner’s examination on October 26, 1995 and issued a report dated October 27, 1995 in which he opined that the claimant suffers from a herniated lumbar disc secondary to his work-related injury of October 1994. Additionally, in that report, Dr. Druckemiller indicated that surgery is recommended and that the claimant is temporarily totally disabled until he has surgery. The trier specifically found Dr. Druckemiller’s October 27, 1995 report to be “credible and persuasive as to the fact that the Claimant was temporarily totally disabled due to his compensable injury as of October 27, 1995.” Findings, ¶ D.

Despite finding Dr. Druckemiller’s opinion that the claimant was temporarily totally disabled to be credible and persuasive, the trier did not award temporary total disability benefits. Accordingly, we must remand this matter to the trial commissioner for an articulation of the apparent discrepancy between his denial of temporary total disability benefits and his acceptance of Dr. Druckemiller’s opinion that the claimant was temporarily disabled due to his compensable injury. See Codding v. Colchester Egg Farms, Inc., 11 Conn. Workers’ Comp. Rev. Op. 4, 1232 CRD-2-91-5 (Feb. 4, 1993); Perrotti v. Portland Chemical, 8 Conn. Workers’ Comp. Rev. Op. 105, 836 CRD-8-89-3 (June 6, 1990).

This matter is thus remanded to the trial commissioner in accordance with the above.

Commissioners James J. Metro and Stephen B. Delaney concur.

1 We note that although the claimant’s Petition for Review was not filed in a timely manner, the claimant on November 22, 2000 filed a Motion for Extension of Time to file a Motion to Correct which demonstrated substantial compliance with § 31-301(a). See Capra v. State/Dept. of Correction, 3791 CRB-4-98-4 (April 27, 1999). BACK TO TEXT