CASE NO. 834 CRD-4-89-3Workers’ Compensation Commission
APRIL 8, 1991
The claimant was represented by John C. Kucej, Esq.
The respondents were represented by Jason M. Dodge, Esq., Pomeranz, Drayton Stabnick.
The Second Injury Fund was represented at the trial level by Diane Duhamel, Esq., Assistant Attorney General. The Second Injury Fund did not appear at oral argument nor did it file a brief.
This Petition for Review from the March 13, 1989 Finding and Award of the Commissioner for the Fourth District was heard October 26, 1990 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi, and Commissioners Robin Waller and James Metro.
OPINION
JOHN ARCUDI, CHAIRMAN.
From the scanty documentation presented by the claimant in this appeal, it is difficult to ascertain what, if any relief, is being sought. The Fourth District issued a Finding and Award March 13, 1989 and a Supplemental Finding and Award #1 June 8, 1989. The only document presented by the claimant was a Petition for Review filed by his counsel on March 20, 1989.
Claimant has never filed Reasons of Appeal or Motion to Correct as required by Administrative Regulations Sec. 31-301-2
and 31-301-4[1] respectively. The Compensation Review Division never received any notification that counsel had withdrawn, but once counsel had filed the Petition for Review, claimant seemed to be proceeding pro se. Because of our concern that pro se claimants’ rights be protected even if there is a failure to comply with all procedural technicalities, the matter was set down for oral argument on the calendar for October 26, 1990. The claimant appeared without counsel and argued the case in his own behalf at that time. The respondents objected and argued in a written submission that the matter should be dismissed for noncompliance with Administrative Regulations.
Claimant had suffered a previous compensable back injury October 14, 1985 as evidenced by a Voluntary Agreement approved by the Fourth District February 13, 1986. This entitled claimant to a weekly compensation rate of $285.92 per week together with $30.00 dependency allowance for three dependents or a total of $315.92. He received some compensation for total disability as a result but returned to work.
About four months after that return to work claimant suffered another compensable back injury April 1, 1986. This new injury was evidenced by a Voluntary Agreement approved July 16, 1987. That second agreement entitled him to $242.65 as a weekly compensation rate plus allowances for three dependents so that the total came to $272.65. It is the latter injury which is the subject of this proceeding.
Prior to the March 13, 1989 decision the issue for adjudication by the Fourth District Commissioner was whether as a result of the April 1, 1986 injury claimant was entitled to temporary total disability benefits during the period November 1, 1987 to June 10, 1988. Claimant’s treating physician had been Dr. Nicholas Breyan, a Bridgeport orthopedic surgeon. On July 20, 1987 Dr. Breyan discharged him from care advising that claimant was then capable of light selected work.
In the interim however Dr. Breyan had referred the claimant to Dr. Kenneth Lipow, a neurosurgeon. Dr. Lipow on June 16, 1987 was also of the opinion that claimant could return to restrictive work. The claimant had also come under the care of Dr. Cyril Waynik, a psychiatrist who testified in the Fourth District proceeding that claimant was totally disabled due to a depressive reaction caused by the lumbar injury.
Respondents had the claimant examined by Dr. Herbert Schwartz, another psychiatrist, who concluded claimant was not psychiatrically disabled. However claimant was authorized for inpatient treatment at Mount Sinai Hospital in Hartford. At the hospital claimant was treated by Dr. Alan Russakov, Chief of Rehabilitation Medicine. Dr. Russakov testified that as of May 16, 1988, the date of admission to Mount Sinai, claimant was totally disabled.
The Fourth District’s March 13, 1989 decision concluded claimant was not totally disabled from November 1, 1987 to May 16, 1988 since he had light work capability and did not pursue that capability. The decision concluded further claimant was entitled to total disability benefits from May 16, 1988 to June 10, 1988. That March 13, 1989 decision left open the question of any permanent partial disability award.
In the June 8, 1989 Supplemental Finding Award the trial commissioner awarded total disability benefits from July 12, 1988 through September 5, 1988 and temporary partial disability benefits from September 16, 1988 through January 10, 1989. He also awarded benefits beginning May 11, 1989 for 10% permanent partial disability of the back, 6% attributable to the October 14, 1985 injury and 4% to the April 1, 1986 injury. Both Drs. Waynik and Russakov had testified that claimant was able to do light work subsequent to September 5, 1988.
In his comments at oral argument claimant attacks paragraph #9 of the March 13, 1989 Finding and Award. That paragraph states that the neurosurgeon, Dr. Lipow, “had the benefit of a myelogram, CT scan and MRI examinations.” The claimant argued no myelogram had ever been done. In fact, at a May 17, 1989 hearing subsequent to the March 13 decision, claimant submitted a report from Dr. Lipow admitted into evidence as Exhibit FF. That report stated “No myelogram was ever done.”
Since the commissioner’s ruling in the March 13 decision seemed clearly to be based in part on the erroneous declaration in paragraph #9, then the conclusions drawn may be subject to question. Our Supreme Court has held:
“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)
Therefore, because we have determined that Finding #9 is factually incorrect, we will remand to the Fourth District for further proceedings. We do this despite the fact claimant’s counsel abandoned his Petition in mid stream, as it were, and despite the appeal’s being technically dismissible for noncompliance with the rules.
The matter is remanded for further proceedings consistent with this opinion.
Commissioners Robin Waller and James Metro concur.
Sec. 31-301-4 Correction of Finding. If the appellant decides to have the finding of the commissioner corrected he must, within two weeks after such finding has been filed, unless the time is extended for cause by the commissioner, file with the commissioner his motion for the correction of the finding and with it such portions of the evidence as he deems relevant and material to the corrections asked for, certified by the stenographer who took it, but if the appellant claims that substantially all the evidence is relevant and material to the correction sought, he may file all of it so certified, indicating in his motion so far as possible the portion applicable to each correction sought. The commissioner shall forthwith, upon the filing of the motion and of the transcript of the evidence, give notice to the adverse party or parties.