Opinion
CASE NO. 1084 CRD-5-90-8
DECEMBER 27, 1991
The claimant was represented by Robert F. Carter, Esq., Carter, Rubenstein Civitello.
The respondents were represented by Michael Tierney Esq., Cotter, Cotter Sohon, P.C.
This Petition for Review from the July 31, 1990 Finding and Award of the Commissioner At Large acting for the Fifth District was heard May 31, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners George Waldron and Angelo dos Santos.
OPINION
Claimant's appeal contends that the July 31, 1990 Award for twenty-six weeks of permanent partial disability benefits was insufficient. The trial commissioner found claimant sustained a twenty (20%) percent permanent partial bilateral loss of pulmonary function and therefore awarded the twenty-six weeks of partial disability benefits pursuant to Sec. 31-308(d).
The claimant argues that the award of twenty six weeks denied him equal treatment in the application of the statute. An award of twenty-six weeks under Sec. 31-308(d) for twenty percent loss of pulmonary function is less than the amount usually awarded for such a loss of lungs' function. The custom and practice of the commission has been to set a value of three hundred and fifty weeks for bilateral pulmonary lung function. Therefore a twenty percent loss would usually generate an award for seventy weeks of permanent partial benefits under Sec. 31-308(d). In making an award under that statute a commissioner is to consider "the age and sex of the claimant, the disabling effect of the loss of or loss of function of the organ involved and the necessity of the organ or complete functioning of the organ with respect to the entire body, but in no case more than the sum equivalent to compensation for seven hundred and eighty weeks."
Balkus v. Terry Steam Turbine, 167 Conn. 170 (1974) involved a commissioner's award of fifty weeks of benefits for twenty-five percent loss of use of the right lung. The claimant in that case contended that he should therefore have been awarded one hundred and ninety-five weeks of permanent partial benefits, i.e. twenty-five percent of seven hundred and eighty weeks, the total number of weeks permitted under Sec. 31-308(d). The court held that the evidence supported the commissioner's conclusion that the twenty-five percent disability pertained to the right lung and not to the whole man.
In the instant case there was evidence before the trier that claimant's inability to work derived in part from his mental reaction to the injury. However it is not apparent from the commissioner's factual findings what the basis is for the conclusion that claimant's twenty percent bilateral lung function impairment did not result in a twenty percent disability to his lungs. Balkus gives a commissioner discretion in deciding the number of weeks he is to award a claimant for a permanent partial loss of lung function, but the award must still be based on findings showing how the conclusion was reached.
Alger v. Rossi Corporation, 1065 CRD-1-90-6 (December 5, 1991) stated "Balkus made it clear that it was the trial commissioner's function to determine the amount of benefits to be awarded. His determination was to be arrived at by applying the standards set in the statute and not some predetermined mathematical formula." We concluded in Alger, that the trial commissioner considered "the disabling effect of the loss . . . of function of the organ involved and the necessity of the organ . . . with respect to the entire body." and thus his award in excess of that usually awarded for the particular body part or organ could stand.
Here we do not know if the commissioner considered the criteria set out in Sec. 31-308(d). Neither do we know his basis for concluding that while claimant sustained a twenty percent partial bilateral loss of function to his lungs, he was not entitled to the number of weeks of benefits usually awarded for such loss of use of both lungs, i.e. seventy weeks; cf. Balkus, supra at 176. It is necessary that the basis for the trial commissioner's deviation from commission custom and practice should be clearly set out in the findings. Also those findings should indicate that the statutory procedure was followed in arriving at the conclusion reached. Consequently, we must remand so that those findings may be made and for other proceedings, if necessary.
Claimant's further argument is that even if the customary seventy weeks had been awarded, it would have been insufficient. Balkus would seem to indicate otherwise. However, we need not decided that issue at this time.
We therefore remand for further proceedings.
Commissioners George Waldron and Angelo dos Santos concur.