CASE NO. 1510 CRB-1-92-9Workers’ Compensation Commission
JANUARY 23, 1995
The claimant was represented by Stephen P. Bertucio, Esq. and Lawrence Cicchiello, Esq., Law Offices of Angelo Cicchiello.
The respondent Monson Nicholas and its insurer were represented by Cori-Lynn S. Webber, Esq., Law Offices of Grant H. Miller, Jr.
The respondent Standard Builders and its insurer were represented by Douglas L. Drayton, Esq., Pomeranz, Drayton
Stabnick, who neither filed a brief nor appeared at oral argument.
This Petition for Review from the August 26, 1992 Finding and Dismissal of the Commissioner acting for the First District was heard August 13, 1993 before a Compensation Review Board panel consisting of Commissioners John A. Arcudi, Donald H. Doyle, Jr., and Nancy A. Brouillet.
OPINION
JOHN A. ARCUDI, COMMISSIONER.
Claimant appeals from the commissioner’s denial of an additional[1] 5% permanent partial disability Sec. 31-308
benefits and Sec. 31-308a wage loss benefits. We sustain the appeal in part.
At issue were two compensable back injuries, one November 23, 1987 with the employer Standard Builders, and another September 23, 1988, with the employer Monson Nicholas. The two employers and their respective carriers reached a Voluntary Agreement with claimant in May 1990, paying him a total of ten (10%) percent permanent partial disability of the back. Standard paid seven (7%) percent and Monson paid three (3%) percent.
The proceedings below were evidently conducted on a documentary record, no oral testimony having been offered. Claimant’s treating Hartford neurosurgeon, Dr. Druckemiller, had issued a variety of reports as to the permanent partial disability. On September 7, 1989 Dr. Druckemiller wrote Mr. Thomas Morelli of CNA Insurance Company, Monson’s carrier, as follows: “If the patient refuses surgery, he has reached maximum medical improvement, has a 15% permanent partial impairment of the lumbar spine”. There was no evidence before the commissioner that claimant or his attorney was ever shown that letter.
At the time of this injury in 1988, Sec. 31-294 [now Sec. 31-294(b)] required: “All medical reports concerning any injury of any employee . . . shall be furnished . . . at the same time and in the same manner, to the employer and the employee or his attorney”. On November 20, 1989 the doctor wrote another report giving a ten (10%) percent permanent partial disability rating. On August 3, 1988, Dr. Robert Fisher, another treater, had rated a five (5%) percent permanent partial disability before the second injury. After the May 1990 Voluntary Agreement had been reached, Dr. Druckemiller gave a fifteen (15%) percent rating in early 1991.
Ordinarily, the trial commissioner is the trier of the facts, and we as an appellate tribunal, may not change those findings.Fair v. People’s Savings Bank, 207 Conn. 535 (1988). However, if a fact is found without evidence or if there is a clearly mistaken inference made from the facts adduced in evidence, we may overturn a commissioner’s factual conclusions. Nelson v.Nelson, 13 Conn. App. 355, 359 (1988).
Here, the commissioner ruled, “The Claimant is not entitled to an additional five percent permanent disability since that rating by Dr. Druckemiller, was taken into consideration and a compromise made by the parties when the ten percent permanent partial disability benefits were paid to the Claimant” (8/26/92) Finding, Paragraph B). In paragraph 5 of the same ruling, the commissioner had referred to Dr. Druckemiller’s September 7, 1989 letter assessing 15 (15%) permanent partial disability. The commissioner’s conclusion seemed to imply that the ten (10%) percent reached in the May 1990 Agreement was a compromise between Dr. Fisher’s and Dr. Druckemiller’s ratings.
Any inference that Dr. Druckemiller’s September 7, 1989 letter played a role in claimant’s accepting the ten (10%) percent May 1990 Agreement is not justified in the absence of evidence that claimant knew about the letter. Absent that knowledge by the claimant, the inference drawn in the commissioner’s conclusion is mistaken. Cf. In re Adalberto S.,27 Conn. App. 49, 53-55, cert. denied, 222 Conn. 903 (1992). “An inference must have some definite basis in the facts . . . and the conclusion based on it must not be the result of speculation and conjecture.” (Quotation marks and citation omitted.) Gulyczv. Stop Shop Companies, 29 Conn. App. 519, 522, cert. denied, 224 Conn. 923 (1992). A commissioner’s conclusion may be subject to question where it is based in part on an erroneous finding of fact. Madden v. Moore Special Tool,9 Conn. Workers’ Comp. Rev. Op. 107, 109, 834 CRD-4-89-3 (1991).
Because the inference drawn is mistaken and based on a fact not in evidence, we must remand to the First District for further proceedings to determine the claim of additional permanent partial disability benefits. “Cases under the Workmen’s Compensation Act are upon a different basis from actions between ordinary litigants. No case under this Act should be finally determined when . . . this court, is of the opinion that, through inadvertence, or otherwise, the facts have not been sufficiently found to render a just judgment.” Cormican v. McMahon,102 Conn. 234, 238 (1925).
Claimant also challenges the dismissal of the claim for Sec. 31-308a wage loss benefits. Such a Sec. 31-308 award is discretionary. Hicks v. State,6 Conn. Workers’ Comp. Rev. Op. 111, 115, 429 CRD-5-85 (1989), no error, 21 Conn. App. 464, cert. denied, 216 Conn. 804 (1990). A commissioner’s denial of those benefits will be sustained if”adequately grounded in factual testimony offered by the parties and contained in the record from below”. Lageux v. Veilleux, 9 Conn. Workers’ Comp. Rev. Op. 177, 181, 876 CRD-6-89-6 (1991). Here, that exercise of discretion is supported by the record.
We therefore grant claimant’s appeal in part, but affirm the denial of Sec. 31-308a benefits. The matter is remanded to the First District for further proceedings not inconsistent with this opinion.
Commissioners Donald H. Doyle, Jr. and Nancy A. Brouillet concur.