Papapietro v. City of Bristol

The claimant was represented by Paul Ranando, Esq., Dodd, Lessack, Ranando & Dalton, L.L.C., 700 West Johnson Avenue, Suite 305, Cheshire, CT 06410.

The Second Injury Fund was represented by Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.

This Petition for Review from the June 10, 2003 Ruling On Claimant’s Motion To Correct by the Commissioner acting for the Sixth District was heard December 19, 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 has petitioned for review from the June 10, 2003 Ruling On Claimant’s Motion To Correct by the Commissioner acting for the Sixth District. In that ruling the trial commissioner granted parts of the claimant’s Motion To Correct and denied other parts. It is from the denial of certain requested factual findings made in claimant’s Motion To Correct that the claimant appeals.

The claimant’s Motion to Correct was filed following the trial commissioner’s May 15, 2003 Finding and Award. In that Finding and Award the commissioner ordered the Second Injury Fund to pay the costs of an 800 square foot unit at Chancellor Gardens, an assisted living facility. The commissioner also ordered the Fund to provide the claimant with 3.5 hours of Certified Nurse’s Aide [hereafter C.N.A]. assistance. Following the trial commissioner’s order in this matter the claimant filed a Motion To Correct. That motion was granted in part and denied in part. Following the trier’s ruling the claimant filed this appeal seeking review of whether the trial commissioner’s failure to grant all paragraphs of the Motion To Correct was error.

Specifically, the claimant sought the addition of the following two paragraphs:

“The Fund is further ordered to pay the costs comparable [for an] alternate assisted living facility if care at Chancellor Gardens becomes unavailable or unsuitable;” and “The Fund is further ordered to pay the costs of 24 hour care, 7 days per week for CNA care in the Claimant’s home if he should decide to return there to live.”

Claimant’s disability is the consequence of a compensable injury to his lumbar spine occurring March 29, 1971 while employed by the City of Bristol. In 1978 the claimant suffered an exacerbation of his injury and surgeries to the affected site proved unsuccessful. Ultimately, the claim was transferred to the Second Injury Fund.

The trial commissioner found the claimant has been totally disabled since 1986 and suffers from a progressive debilitation due to spinal stenosis and post surgical scarring. The claimant’s legs are paralyzed and he suffers from muscular atrophy and weakness. The claimant is unable to live independently due to the assistance he requires for daily living. The claimant requires assistance in many routine daily activities such as meal preparation, matters of personal grooming and hygiene including bowel and bladder care. The trial commissioner found the claimant’s physical deterioration is such that he cannot reside safely in his home without 24-hour care 7 days a week.

The claimant’s daily living needs are now met by his residency at an assisted living facility. Additionally, the claimant is provided 3.5 hours C.N.A. care assisting him in his daily living activities. The 800 square foot residential unit occupied by the claimant at the assisted living facility accommodates his motorized wheelchair, hospital bed and chair lift. The trial commissioner concluded that the claimant’s residence at the assisted living facility and the 3.5 hours per day of C.N.A. were reasonable and necessary care and treatment related to his medical disability.

On appeal, the claimant contends it was error for the trial commissioner to fail to find the claimant required 24 hour/7days per week home health care and in failing to order the Second Injury Fund to pay the cost of comparable alternate care if Chancellor Gardens becomes unavailable. The first issue we consider is whether the trial commissioner erred in failing to find the claimant required a home health care aid 24 hours per day, 7 days a week. The trier’s determination on this issue is factual in nature and dependent upon the weight and credibility he assigned to the evidence presented. Sprague v. Lindon Tree Service, Inc., 80 Conn. App. 670 (2003). On appeal we do not engage in de novo review. The trier’s findings and conclusions must stand unless they are contrary to law, without evidence or based on unreasonable or impermissible factual inferences. Fair v. People’s Savings Bank, 207 Conn. 535 (1988). The record in the instant matter amply supports the findings and conclusions of the trial commissioner.

In reviewing the appropriateness of the trier’s ruling on the claimant’s Motion To Correct we note the claimant did not provide any specific references to the evidence that support the corrections he seeks. See Thornton v. Kabel, 15 Conn. Workers’ Comp. Rev. Op. 353, 3027 CRB-4-95-3 (June 26, 1996); Horkheimer v. Stratford, 4 Conn. Workers’ Comp. Rev. Op. 139, 163 CRD-4-82 (December 31, 1987). It is not the responsibility of this tribunal to cull through the testimony and evidence to find support for the corrections claimant seeks. Additionally we note that the claimant seeks to compel the Second Injury Fund to provide care based on the occurrence of some future condition subsequent. As the Appellate Court recently noted in Rinaldi v. Enfield, 82 Conn. App. 505, 515 (2004). “Jurisprudential considerations require that we address the case before us and refrain from ruling on hypothetical situations.” (citation omitted) See also, Kovalik v. E. Stewing Movers, Inc., 4556 CRB-7-02-8 (August 29, 2002).

Furthermore, the findings and conclusions drawn by the trial commissioner on this issue, like those discussed above, flow from the weight and credibility accorded to the evidence. That determination is a matter within the trier’s purview and will not be disturbed unless it results from an abuse of the trial commissioner’s discretion. Dzialo v. B&B Industries, 4509 CRB-2-02-3 (March 5, 2003).

We therefore affirm the Commissioner acting for the Sixth District’s June 10, 2003 Ruling On Claimant’s Motion To Correct.