Summary
In Antonucci we directed the trial commissioner to "find out how many weeks of temporary total benefits are necessitated because of the change of condition and how great the permanent partial disability now is."
Summary of this case from Esposito v. City of New Haven Employer, NoOpinion
CASE NO. 511 CRD-1-86
JULY 29, 1988
The claimant was represented by Albert J. McGrail, Esq., McEleney McGrail.
The respondent was represented by Lisa Silvestri, Esq. and Kevin B. Kenny, Esq., Corporation Counsel.
This Petition for Review from the August 25, 1986 Finding and Award of the Commissioner at Large acting for the First District was heard January 22, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Rhoda Loeb and Andrew Denuzze.
OPINION
Claimant, a Hartford policeman, was awarded benefits pursuant to Sec. 31-308(d), C.G.S. and Sec. 7-433c, C.G.S.. The 117 weeks benefits thus found for permanent partial disability of the cardiovascular system were to run from March 10, 1983, the date of maximum improvement, to June 9, 1985. However, as permitted by Sec. 31-302, C.G.S., the compensation payable was commuted and paid in a lump sum.
Unfortunately, claimant's condition worsened in the last months of 1984, and he underwent cardiac bypass surgery January 22, 1985. He therefore sought temporary total Sec. 31-307 benefits for the period October 29, 1984 to September 16, 1985, the day when he returned to work after the surgery. In his August 25, 1986 Finding and Award, the Commissioner only awarded total benefits from June 9, 1985 to September 16, 1985.
Although the Commissioner did not specifically so find, it would appear to be an inescapable factual conclusion that an individual hospitalized for cardiac surgery January 22, 1985 must be totally unable to work for the period immediately before the surgery and for the hospitalization and recovery period after it. The finding in paragraph 6 that claimant was hospitalized for surgery January 22, 1985 is therefore inconsistent with the finding in paragraph 8 that claimant is only entitled to total disability benefits from June 9, 1985 to September 16, 1985. The inconsistency apparently derives from an unarticulated legal conclusion, i.e. that temporary total Sec. 31-307 benefits may not be granted for a period during which Sec. 31-308 benefits have already been paid pursuant to a Voluntary Agreement or an Award as was the case here.
But such a view of the law is incorrect. Section 31-315, C.G.S. addresses that very point. It permits modification of an Award or Voluntary Agreement when "changed conditions of fact have arisen which necessitate a change of such agreement or award in order properly to carry out the spirit of this chapter". Claimant's worsened physical condition and subsequent cardiac surgery in this instance were the "changed conditions" necessitating a change in the previous award. The fact that the weeks during which he is now totally disabled have already been paid as permanently partially disabled weeks presents no insurmountable obstacle. The adjustment is simply a matter of arithmetic accomplishable in a variety of ways.
The claimant's permanent partial disability of the cardiovascular system must be reevaluated. If it remains at 15% after the cardiovascular surgery as before, then the number of weeks of temporary total disability will be ascertained and paid as such. Whatever that number is, it will be tacked on to the weeks after September 16, 1985 in sufficient number to make up the 117 weeks of permanent partial disability represented by 15% impairment of the cardiovascular system. If the permanent partial disability is more than 15%, then similar computations will be made and the appropriate number of weeks will be tacked on. In the unlikely circumstance that the permanent disability is less than 15%, then the number of weeks tacked on will be correspondingly less than the total number of weeks of total disability benefits awarded.
On remand the trial Commissioner must find how many weeks of temporary total benefits are necessitated because of the change in conditions and how great the permanent partial disability now is. He then must make the corresponding modifications in his original November 4, 1983 Award.
We remand the matter to the District for further proceedings consistent with this opinion.
Commissioners Rhoda Loeb and Andrew Denuzze concur.