Opinion
CASE NO. 652 CRD-3-87
SEPTEMBER 27, 1988
The claimant was represented at the trial level by Thomas F. Brown, Esq. and on appeal by Bruce A. Chaplin, Esq.
The respondents Nutmeg Concrete Inc. and Peerless Insurance Co. were represented by Ralph Russo, Esq. and David Kelly, Esq., Montstream May.
The respondent-insurer Hartford Insurance Group was represented at the trial level by Bruce W. Thompson, Esq., Shay, Thompson Slocum.
No appearance was made on behalf of the respondent-Hartford Insurance Group at the appellate level.
The respondents West Haven Equipment Co. and Aetna Life and Casualty Co. were represented by Jason Dodge, Esq. and Anne Kelly, Esq., Pomeranz, Drayton Stabnick.
The Second Injury Fund was represented by Robert Murphy, Esq., Morton Greenblatt, Esq. and Robin Wilson, Esq., Assistant Attorneys General.
This Petition for Review from the October 21, 1987 Finding and Award of the Commissioner at Large acting for the Third District was heard March 25, 1988 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and Frank Verrilli.
OPINION
Because three separate injuries were alleged, a series of issues were presented to the trial Commissioner for decision. Claimant sustained a back injury October 12, 1981 while employed by respondent Nutmeg Concrete Company. On that date, the employer was insured by Peerless Insurance Company. A new compensable back injury was claimed to have occurred October 16, 1984 while that same employer was insured by the Hartford Insurance Group. Also on July 3, 1984, while in the employ of West Haven Equipment Company, a compensable injury to the neck and back is alleged. On that date respondent West Haven Equipment Company was insured by Aetna Life and Casualty Company.
The Commissioner ruled no separate back injuries occurred July 3, 1984 and October 16, 1984 but rather all back symptoms and disabilities related to the October 12, 1981 incident. He further held that an injury to the neck did occur July 3, 1984. Therefore, he ordered the Peerless Insurance Company to pay benefits for all medical expenses and disability periods arising from the back injury. Similarly, he ordered Aetna Life and Casualty Company to pay benefits arising from the July 3, 1984 neck injury. However, he did not permit payment for chiropractic treatment by Dr. Paul Musco and Dr. Moshe Hasbani as he did not find such treatment authorized. He did authorize payment of permanent partial disability payments under Sec. 31-308a, C.G.S. on proper documentation of claimant's reduced wages commencing February 1, 1986. Finally, in the Finding, paragraph #34a, he ordered all three insurers to share equally the costs incurred by claimant for transcript, deposition and doctor's appearance fees.
Respondent Peerless Insurance Company appealed only the award of Sec. 31-308a benefits because the Commissioner did not compute the actual amount due. It argues that further evidence is needed to be submitted for such a determination. We agree. Section 31-308a grants to the commissioner the power to award such benefits, but it also leaves to him the task of determining the amount of the benefit. The matter must therefore be remanded for further proceedings to determine that amount.
Sec. 31-308a states: "In addition to the compensation benefits provided by section 31-308 for specific loss of a member or use of the function of a member of the body, or any personal injury covered by this chapter, the commissioner, after such payments provided by said section 31-308 have been paid for the period set forth in said section, may award additional compensation benefits for such partial permanent disability equal to two-thirds of the difference between the wages currently earned by the employee in a position comparable to the position held by such injured employee prior to his injury and the weekly amount which such employee will probably be able to earn thereafter, to be determined by the commissioner based upon the nature and extent of the injury, the training, education and experience of the employee, the availability of work for persons with such physical condition and at the employee's age, but not more than the maximum provided in section 31-309. If evidence of exact loss of earnings is not available, such loss may be computed from the proportionate loss of physical ability or earning power caused by the injury. The duration of such additional compensation shall be determined upon a similar basis by the commissioner."
Respondent Aetna Life and Casualty appeals the award of transcript fees in paragraph #34a of the Finding. Our examination of the record indicates that the deposition of Dr. Isaac Goodrich was taken by the claimant. This panel's decision, Evans v. Lightolier, Inc., 4 Conn. Workers' Comp. Rev. Op. 69, 517 CRD-2-86 (1987) addressed that issue. We determined to follow the procedures for taking depositions in matters before the court. Connecticut Practice Book, Sec. 247(b) requires, "The party on whose behalf a deposition is taken shall at his expense provide a copy of the deposition to each adverse party". Therefore, in the instant case any expenses related to the production of transcripts of Dr. Goodrich's deposition are to be borne by the claimant.
With respect to transcripts of proceedings before Workers' Compensation Commissioners, Sec. 51-63(e), C.G.S. governs. The party who orders such a transcript to be prepared is obligated to pay the fee to the stenographer. Insofar as the appearance fee referred to in paragraph #34a of the Finding is a fee for the presence of the doctor as a witness, Sec. 31-298, C.G.S. authorizes the Commissioner to order the respondent to pay the fee for such testimony. Since Dr. Goodrich's testimony had to do with both the neck and back injuries and since the claimant prevailed on contested issues relating to both injuries, the respondent Aetna is responsible for part of the fee chargeable by Dr. Goodrich for his testimony.
The above are the only issues raised by respondents' appeals, but claimant's cross-appeal seeks the payment of interest and attorney's fees. In his ruling, paragraph the trial Commissioner found that the delays in payment were not solely due to the respondents, and he did not find that the disputed issues were unreasonably contested, Sec. 31-300, C.G.S.. For that reason he denied interest and attorney's fees. We will not disturb his conclusions, Fair v. People's Savings Bank, 207 Conn. 535 (1988).
The Finding and Award is affirmed in part but the matter is remanded for further proceedings consistent with this opinion.
Commissioners Robin Waller and Frank Verrilli concur.