CASE NO. 1023 CRD-1-90-5Workers’ Compensation Commission
AUGUST 29, 1991
The claimant was represented by Joseph B. Burns, Esq. and Joseph Cassidy, Esq.
The respondents were represented by William C. Brown, Esq., McGann, Bartlett Brown.
This Petition for Review from the May 14, 1990 Finding and Award and Petitions for Review from the October 22, 1990 and November 8, 1990 rulings of the Commissioner at Large acting for the First District was heard December 14, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Gerald Kolinsky and Angelo dos Santos.
OPINION
JOHN ARCUDI, CHAIRMAN.
Both parties have appealed the May 14, 1990 Finding and Award of the Commissioner at Large James J. Metro, acting for the First District. Claimant’s injury to the right side of his head occurred December 7, 1984 as he was struck by a failing cutting torch. It caused a traumatic brain injury. At an informal hearing before the First District commissioner October 30, 1986 it was recommended that claimant accept specific, permanent partial disability benefits for a period of 156 weeks beginning November 3, 1986. Claimant never agreed to the recommendation on permanent partial disability. Nonetheless the carrier stopped payment of total disability benefits and paid 156 weeks of permanent partial disability benefits from November 3, 1986 to November 6, 1989 (See Finding, paragraphs 3, 4, 5 and
The trial commissioner found claimant reached maximum medical improvement. October 30, 1986, but became totally disabled once again on November 6, 1989. (Paragraph 15 (e).) He also ordered respondents “to provide claimant with up to one (1) year of in patient hospitalization or treatment at a facility in the State of Connecticut Providing said treatment for traumatic brain injuries.” However he granted claimant’s July 31, 1990 Motion’s to Correct and permitted out of state hospitalization as follows:
“Said Motion is hereby Granted, and paragraph 3, page 6 of the commissioner’s Finding and Award dated May 14, 1990 is modified so that the respondent shall provide claimant with up to one year of in-patient hospitalization at New Medico Highwatch Rehabilitation Center, P.O. Box 99, Center Ossipee, New Hampshire.”
Subsequently on November 8, 1990 he responded to a Memorandum from the Second Injury Fund. Respondents treated the response as a ruling by the trial commissioner. Assuming that it was such a ruling, the Second Injury Fund’s memorandum requested that treatment be authorized for a traumatic head injury facility approved and recommended by the Fund. The commissioner asserted the following language: “Agreed — provided claimant and attorney also agree to above.”
Claimant disputes the finding that he reached maximum improvement November 3, 1986, and he seeks an award for interest and attorney’s fees as there was no approved Form 36 pursuant to Sec. 31-296 before total disability payments were stopped. Respondents contest the commissioner granting claimant’s July 31, 1990 Motion to Correct.
The trial commissioner’s conclusion as to claimants’ reaching maximum improvement was based on the factual finding in paragraph 15, “Dr. Dean Hokanson testified that the claimant had reached maximum medical improvement.” This finding was attacked by the claimant in an earlier Motion to Correct in the district file, but the parties seemed to have treated the claimant’s 31 motion as replacing the earlier one. Only the July 31 motion was included in the C.R.D. Record Index, and none of the parties objected. As the conclusion that claimant reached maximum improvement November 30, 1986 is supported by the evidence referred to in paragraph 15, that ruling may stand. The trial commissioner has not ruled on the issue of interest and attorney’s fees. The claimant must have that claim heard at the district level before we may review it.
Respondents objection to the commissioner’s granting the July 31 Motion to Correct is based in part on an allegation that the decision was based on a report from the Connecticut Traumatic Brain Injury Association attached to the motion. They allege that therefore there should have been an evidential hearing which they could have contested the report. We do not agree. Sec. 31-294 in addressing medical treatment states: “The commissioner may, without hearing, at the request of the employer or the injured employee, when good reason exists, or on his own motion, authorize or direct a change of such physician or surgeon or such hospital or nursing service.” Here, there had been a full hearing prior to the original May 14, 1990 ruling authorizing one year of in state in patient treatment. Granting the Motion to Correct without further hearing simply permitted that one year of treatment to be in a specific out of state facility.
We therefore dismiss both appeals and affirm the commissioner’s rulings.
Commissioners Gerald Kolinsky and Angelo L. dos Santos