Opinion
CASE NO. 135 CRD-6-82
OCTOBER 8, 1986
The claimant was represented by Harold J. Geragosian, Esq.
The respondent was represented by Joseph Skelly, Esq.
This Petition for Review from the February 10, 1982 Finding and Award of the Chairman of the Commission, Acting for the Sixth District, was argued September 23, 1983 before a Compensation Review Division panel consisting of Commissioners Gerald Kolinsky, A. Paul Berte and Frank Verrilli.
FINDING AND AWARD
1-22. Paragraphs 1 through 22 of the trial Commissioner's Finding and Award dated February 10, 1982, are made paragraphs 1 through 22 of this Division's Finding and Award.
The Order and Award of the trial Commissioner is adopted as the Order and Award of this Division.
OPINION
On December 6, 1966, the claimant sustained a compensable back injury while performing his duties as a fire fighter in the employ of the City of New Britain, for which he received benefits during the time he was disabled. The claimant subsequently returned to duty as an Inspector until April 1, 1969 when he was retired on a disability pension.
Subsequent to retirement, the claimant worked for a time at New Britain Machine, then as a teacher at Plainville High School; he was unemployed between 1976 and 1979, and in 1979 he worked one month as a salesman. The matter came on for hearing initially in 1980 on the claimant's claim for weekly compensation benefits.
The Commissioner found that at the time of the hearing before him, the claimant "constantly has to take medication, for pain" (F. A. 11) and further that "his legs give out often due to the injury and he no longer is working." (F. A. 12)
The claimant's current orthopedist diagnosed the claimant's condition as a herniated lumbar disc between the fourth and fifth level, suggested a myelogram be performed and depending on the results of the myelogram, that surgery be undertaken. The claimant however objected to this suggestion, as there was risk attached to surgery and no guarantee of improvement.
The claimant's orthopedist was of the opinion that the claimant then had a 30% permanent partial disability of the back but that surgery might reduce the disability to 5% or 10%.
The Commissioner found that at the time of the injury in 1966, the claimant's compensation rate was $65.00 per week, the then permissible maximum. permissible maximum.
The Commissioner further found the claimant to be partially disabled due to the 1966 injury and found him to be entitled to a partial benefit of $19.50 per week under 31-308, C.G.S. from July 1, 1979 and continuing until such time as his condition improved, and ordered such payments by the respondent employer.
From such Finding and Award, both the claimant and respondent employer appealed.
The respondent employer City has assigned as its primary reasons of appeal that the Commissioner erred in 1) failing to find that the claimant's ten year delay in presenting his compensation claim constituted laches which was prejudicial to the interests of the City and 2) failing to find that the claimant was estopped from bringing this claim since the long delay had misled the respondent and prejudiced its ability to prepare a defense. Further error is assigned in the Commissioner's failure to find that the claimant's refusal to undergo surgery was unreasonable and constituted a bar to compensation, in the Commissioner's Award of $19.50 per week as a partial benefit, in the Commissioner's failure to find that the claimant's 30% disability of the back was attributable to his refusal to undergo surgery rather than to the injury itself.
As regards the first two reasons of appeal, the Commissioner did find that the claimant had suffered a compensable injury to his back in 1966, and that he received compensation benefits thereafter from the respondent employer. In perusing Chapter 568 of the Connecticut General Statutes, we are unable to find, nor has respondent employer provided us with, authority to the effect that compensation benefits terminate after a particular period of inactivity in an accepted compensation claim.
Unlike similar acts in other jurisdictions, such as the Federal Longshore and Harbor Workers Act, Amendments of 1984, 33 U.S.C. § 901, et seq (1984) which allow the abatement of weekly benefits after several years of inactive status, a claimant with an established compensable claim under Connecticut law is eligible to receive benefits for medical care and the like without limitation as to time, and may receive a weekly compensation throughout his or her entire period of total incapacity, if such is the case ( 31-307, C.G.S.) but in instances of partial incapacity, such claimant is limited to a maximum of 780 weeks of weekly compensation payments ( 31-308, C.G.S.), without a like termination of medical benefits.
Such being the case under Connecticut law, we do not agree with the respondent employer's contention the claimant's delay in pressing a claim for benefits constitutes laches for which he should be estopped in prosecuting a demand for benefits. A review of the transcript of the hearing held on October 2, 1981, clearly shows that he remained under the continuing medical supervision of his physicians from the time of his injury until early 1980 for care of his back, and that he did not come forward to claim compensation benefits because he was unaware that he was eligible to do so.
Regarding the respondent's contention that the claimant's refusal to undergo surgery was unreasonable and should bar his right to compensation, we defer to the findings of the Commissioner before whom this case was tried. In his Finding and Award, the Commissioner found in paragraph 18, that ". . . there was risk attached to surgery and no guarantee of improvement", and we further note in reviewing the transcript of testimony of Dr. Filewicz that the following colloquy took place:
"Q In view of the history as you know it, and what you've seen of him, examining him and knowing the history of his case on everything as well as any man can know, did you have any feeling on his (undeterminable) being reasonable or unreasonable and the position he's taken.
"A Let me put it this way. If this were my back involved I would have more than second thoughts about having anything done. I would prefer to try to rest and try to recover (undeterminable) without going through any type of evasive (sic) procedure or surgery." (Transcript of 11/5/80, p. 63).
The Commissioner is the sole judge of the facts and the record contains sufficient evidentiary basis to support his conclusions. It is not for us, an appellate tribunal, to substitute our conclusion on the evidence for those of the Commissioner. Adzima v. UAC/Norden Division, 177 Conn. 107 (1979), Gecewicz v. Sealtest Foods Division. 77 CRD-1-81, 1 Conn. Workers' Comp. Rev. Op. 195 (1982).
We will now deal with the claimant's cross-appeal, which is based upon Preliminary Reasons of Appeal, dated February 26, 1982 and the Claimant's Brief, dated May 18, 1983.
It should be noted at the outset that at no time did the claimant file a Motion to Correct the Finding and Award, consequently we must assume that he had no quarrel with the findings of fact, but merely with the conclusions reached by the Commissioner on the basis of those facts.
The claimant's reasons of appeal contend that the Commissioner's conclusion that the claimant was only partially disabled, as opposed to being totally disabled was erroneous; that further error was committed by the Commissioner in calculating the amount of weekly compensation to which the claimant is entitled, and in the method of computing said amount; that the Commissioner should have awarded disability benefits commencing at a much earlier date than July 1, 1979; that the provisions of 31-308, C.G.S. were not properly applied by the Commissioner.
As we stated above, the Commissioner is the sole judge of facts. "The conclusions drawn by him from the facts must stand unless they result from an incorrect application of the law to the subordinate facts found or from an inference illegally or unreasonably drawn from them." Adzima, supra, at page 118.
Notwithstanding the claimant's contentions that he was totally disabled, the Commissioner found in paragraph 19 of the Finding and Award appealed from that "Dr. Filewicz testified at the November 5, 1980 hearing that the claimant then had a 30% permanent partial disability of the back but that surgery might reduce the disability to 5% or 10%, and in paragraph 21, "The claimant is found to be partially disabled as the result of his 1966 injury."
The Commissioner thereupon awarded to the claimant 30% of his weekly compensation rate pursuant to 31-308, C.G.S., the pertinent portion of which states:
". . . if the injury results in a permanent partial loss of function, the Commissioner may, in his discretion, in lieu of other compensation, award to the injured person such a proportion of the sum herein provided for the total loss of, or the loss of the use of, such member or for incapacity or both as represents the proportions of total loss or loss of use found to exist . . . (emphasis added).
It is clear from a reading of the Finding and Award that the Commissioner did precisely that which the above quoted portion of 31-308 gave him discretion to do.
Although we may not have followed the same tack, the matter was completely within the discretion of the Commissioner, and we cannot say that he abused that discretion in any way.
Both appeals are Dismissed.
Commissioners A. Paul Berte and Frank Verrilli concur in this opinion.