Fantasia v. Milford Fastening Systems

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 September 16, 2002 Articulation Of Finding And Award Dated November 16, 2000 of the Commissioner acting for the Fourth District was heard March 28, 2003 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners James J. Metro and Howard H. Belkin.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The claimant appeals from the September 16, 2002 Articulation Of Finding And Award Dated November 16, 2000 of the Commissioner acting for the Fourth District. The September 16, 2002 Finding resulted from this tribunal’s remand following the claimant’s appeal from the trial commissioner’s November 16, 2000 Finding and Award In Part and Dismissal In Part [hereafter Finding]. In this board’s consideration of Fantasia v. Milford Fastening System, 4332 CRB-4-00-12 (Jan. 15, 2002) [hereafter Fantasia I] we asked the trial commissioner to articulate as to the apparent discrepancy between the trier’s denial of temporary total benefits in his November 16, 2000 Finding and his acceptance of a medical expert’s opinion that the claimant was totally disabled.

In Fantasia I we reviewed the pertinent facts which were as follows. On October 13, 1994 the claimant sustained an injury to his back while in the employ of the respondent employer. The respondents accepted the claimant’s claim. On October 26, 1995 the claimant was examined by Dr. William Druckemiller at the request of the Commissioner. Dr. Druckemiller opined in his October 27, 1995 report that the claimant suffered a herniated disc as a result of his work injury and that the claimant was a surgical candidate and totally disabled until such time as he had the surgery.1

In his November 16, 2000 Finding the trial commissioner failed to award temporary total benefits despite his finding in ¶ D stating, “I also find Dr. Druckemiller’s report of October 27, 1995 credible and persuasive as to the fact that the Claimant was temporarily totally disabled due to his compensable injury as of October 27, 1995.” This board remanded the matter back to the trial commissioner for an articulation as to the contradiction between the trier’s finding and his failure to award temporary total disability benefits.

We note that prior to the trial commissioner’s November 16, 2000 Finding, a Voluntary Agreement was approved on March 30, 1999 by Commissioner Thomas A. White, Jr. That Voluntary Agreement reflected a 10% permanent partial disability of the claimant’s back and a maximum medical improvement of February 13, 1996. In his September 16, 2002 Finding and Award, the trier complied with this board’s remand order in Fantasia I and found that the claimant was entitled to temporary total benefits from October 27, 1995 until February 13, 1996.

Following the September 16, 2002 Finding and Award, the claimant filed this appeal. The ultimate issue presented by this appeal is whether the trial commissioner erred in limiting his award of temporary total from October 27, 1995 until February 13, 1996 and not a time beyond that period. In his appeal the claimant contends that the trier’s award of temporary total benefits until February 13, 1996 was without legal foundation. In short, the claimant contends that the trier’s order of temporary total benefits until February 13, 1996 is without evidentiary foundation, i.e., it is not based on medical evidence. Thus, the claimant contends it was legal error for the trial commissioner to only award temporary total until February 13, 1996.

However, as noted above, the Voluntary Agreement approved by Comm. White reflects a maximum medical improvement date of February 13, 1996. Thus, February 13, 1996 is a date of maximum medical improvement to which the claimant agreed when he signed the Voluntary Agreement. Furthermore, the period of time to which the claimant was entitled to temporary total benefits is a factual determination to be made by the trial commissioner. Arcano v. Stamford, 4447 CRB-7-01-10 (October 10, 2002); Carlson v. Bic Corp., 4364 CRB-3-01-2 (January 29, 2002). As we do not engage in de novo review, we may only review the trier’s findings and conclusion and determine whether they are based on unreasonable or impermissible factual inferences, contrary to law, or without evidence. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). We find no error here.

We therefore affirm the September 16, 2002 Articulation Of Finding And Award Dated November 16, 2000 of the Commissioner acting for the Fourth District.

Commissioners James J. Metro and Howard H. Belkin concur.

1 On October 28, 1995 the claimant suffered a myocardial infarction. BACK TO TEXT