CASE NO. 186 CRD-3-82Workers’ Compensation Commission
JULY 3, 1984
The Claimant-Appellee was represented by William F. Gallagher, Esq.
The Respondents-Appellants were represented by John J. Keefe, Jr., Esq.
This Petition for Review from the December 8, 1982 Finding and Award of the Commissioner for the Third District was argued March 25, 1983 before a Compensation Review Division Panel consisting of Commissioners Robin Waller, Edward F. Bradley and Gerald Kolinsky.
FINDING AND AWARD
1-12. Paragraphs 1-12 of the Commissioner’s Finding and Award, together with Orders 1, 2, and 4, are made paragraphs 1-12 of this Division’s Finding and Award.
13. Respondents have paid claimant temporary total disability benefits in the amount of $68.71 per week from July 1, 1980 until November, 1980.
14. Respondents have paid claimant $68.71 per week from November, 1980 as advances against specific indemnity for permanent partial disability pursuant to Section 31-308 of the General Statutes.
WHEREFORE IT IS ADJUDGED, AWARDED, ORDERED, AND DECREED that:
A. Respondent company pay claimant compensation based on his average weekly wage which shall be determined by multiplying his hourly wage rate of $11.45 by 40, the number of regular hours he was permitted each week.
B. All appropriate temporary total disability payments shall be paid by respondent company.
C. Respondent shall pay all reasonable and proper medical bills.
D. The case is remanded to the Commissioner for the sole purpose of assessing the amount of permanent partial disability consistent with the views more particularly set forth in the accompanying opinion.
This Finding and Award was written by Commissioner Robin Waller for the entire panel.
OPINION
ROBIN WALLER, Commissioner.
Claimant-Appellee suffered a compensable back injury on July 1, 1980, which the commissioner found in the Finding and Award of Compensation dated December 8, 1982. Respondents’ Reasons for Appeal dated December 17, 1982 basically concern the issues of the amount of the claimant’s average weekly wage and whether or not he had suffered a 20% permanent partial impairment of the back as a result of the compensable injury.
In an Amended Reasons for Appeal dated February 9, 1983, respondents-appellants added an eighth reason, “The Commissioner erred in not finding the claimant had refused reasonable medical care pursuant to Connecticut General Statute Section 31-294.” The submission of this document was not done within the time limitation provided in Section 31-301-2; respondents-appellants are barred from making same as a Reason for Appeal.
In essence the Commissioner found that claimant was hired at the hourly rate of $11.45 which was the prevailing wage as a platform worker in loading and unloading trailer trucks. She further found that claimant was hired for at least an entire week and that therefore claimant’s average weekly wage should be based on a figure for the week.
Respondents-Appellants do not deny that claimant was injured during the course of his employment, but they contend that his compensation rate should be based on that of a part time casual employee. Since he was injured on the first day of his employment, his average weekly wage should be based on the amount of money he would have earned that day, $91.60. He was in fact paid $67.71 per week by the respondents during the time he was disabled from work because of the injury.
Since claimant was working less than two calendar weeks for the respondent-appellants, the issue arises over the interpretation of Section 31-310 of the General Statutes. Respondents contend that the claimant had worked sporadically for them in January and February for periods ranging from one to five days as a part time worker. In addition, on the day of the injury, it was the custom in the industry to hire part time workers one day at a time, and that therefore the average prevailing wage in the same employment should be based upon the amount of money a worker earned in one day.
Claimant-Appellee contends that the employer told him that there would be work for one week. He therefore contends that the regular number of hours that would be permitted for the week would be 40, thereby giving an average weekly wage of $458.00.
There is extensive testimony to support the contentions of both parties. The role of this panel is not to ferry the case to determine if it would reach a different result than the Commissioner below, but to determine if there is evidence which, if believed by the Commissioner, is sufficient enough on which to base a Finding and Award.
The weight of the evidence, the credibility of the witnesses, and the inferences to be drawn, are the realm of the hearing commissioner, Adzima vs. UNC/Norden Division, 177 Conn. 107 (1979). A review of the evidence indicated that there was a sufficient basis on which the Commissioner could conclude that the amount of hours permitted for this type of employment was what she found.
The second issue concerns the Commissioner’s finding that claimant had a permanent partial disability of 20% of the back caused by the compensable injury. Paragraph 10 of the Finding and Award states that Dr. Frankel believed claimant to have a 25% permanent partial disability of the back. There is also evidence which would indicate that the percentage of disability would be 10 to 15% if he had surgery, which claimant declined to accept.
Dr. Lycurgus Davey was of the opinion that claimant had a 15% permanent partial impairment of the back, which would be reduced to 5 to 10% with surgery.
Both Doctors Frankel and Davey had recommended surgery at various times. It would therefore be manifestly unfair to require the respondent to pay for a permanent disability which all doctors agree could be reduced, even though the cost of the surgery and attendant temporary disability would be borne by them.
Therefore this portion of the case is remanded to the Commissioner below for the purpose of entering an Award of Permanency consistent with this opinion.
Commissioners Bradley and Kolinsky join in this opinion.