LAINE v. NEW ENGLAND AIRCRAFT, 536 CRD-6-86 (4-5-89)

CAROL LAINE, CLAIMANT-APPELLEE CROSS-APPELLANT vs. NEW ENGLAND AIRCRAFT, EMPLOYER and ROYAL INSURANCE CO., INC., INSURER, RESPONDENTS-APPELLANTS CROSS-APPELLEES

CASE NO. 536 CRD-6-86Workers’ Compensation Commission
APRIL 5, 1989

The claimant was represented by Nicholas Loconte, Esq.

The respondents were represented by Edward D. O’Brien, Esq. and Christopher P. Hankins, Esq.

This Petition for Review from the November 28, 1986 Finding and Award of the Commissioner at Large acting for the Sixth District was heard October 30, 1987 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Rhoda Loeb and Gerald Kolinsky.

JOHN ARCUDI, CHAIRMAN.

Respondents’ appeal is from the November 28, 1986 Finding and Award ordering: (1) benefits to be paid for permanent partial loss of lung function under Sec. 31-308(d); and (2) payment for a tubal ligation. Claimant’s cross-appeal seeks payment by the Second Injury Fund under Sec. 31-301(b).[1]

Respondents contend that the claimant has not suffered a permanent loss of lung function because there was evidence indicating the condition was reversible. Sec. 31-308(d)[2]
provides benefits for “the loss of” or the “loss of use of the function of an organ.” Our review is limited to whether there was evidence below supporting the Commissioner’s conclusion and whether such conclusion was so unreasonable as to justify judicial interference, Bailey v. Mitchell, 113 Conn. 721, 725 (1931).

There was evidence to support the findings. Specifically, we note the testimony of Dr. Bruce Englander and Dr. Laura Welch[3] provides such a basis. Respondents point to other testimony by those doctors and others for their argument. But where the evidence is in conflict we will not disturb the trier’s reliance on the testimony he chose, Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974). We need only determine if there was sufficient evidence to support the conclusions and whether factual findings were the “result of an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988). We do not think there was any such incorrect application or inference.

The trial Commissioner should have entered an order against the Second Injury Fund to pay benefits pending the appeal, Sec. 31-301(b), Annechiarico v. Friendly Ice Cream Co., 6 Conn. Workers’ Comp. Rev. Op. 18. 640 CRD-7-87 (1988).

Additionally, under Sec. 31-301c we award claimant interest in the amount of six per cent per annum from the date of the Finding and Award to the date of the final appeal decision.

The respondents’ appeal is dismissed.

[1] We note for the record the procedural history of the instant matter. The dispute between the parties was first the subject of this tribunal’s review in Laine v. New England Aircraft, 2 Conn. Workers’ Comp. Rev. Op. 109, 195 CRD-6-83
(1984). In that CRD opinion we remanded the matter for further proceedings for a determination of whether the claimant was entitled to benefits under Sec. 31-308(d). It is pursuant to the proceedings that the November 28, 1986 Finding and Award was entered.

[2] Sec. 31-308(d) states: In addition to compensation for total or partial incapacity for a specific loss of a member or loss of use of the function of a member of the body or for disfigurement or scarring, the commissioner may award such compensation as he deems just for the loss or loss of use of the function of any organ or part of the body not otherwise provided for herein, taking into account 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.

[3] Specifically as to respondents’ allegation that there was no evidence to supporting a causal nexus of the disability and the claimant’s tubal ligation we refer respondents to the testimony of Dr. Laura Welch July 31, 1985 Transcript at 58.