ORLANDO v. MAKULA, 1556 CRB-3-92-11 (6-13-94)

KRIS ORLANDO, CLAIMANT-APPELLEE v. GREG MAKULA d/b/a GCM BUILDERS, EMPLOYER, NO RECORD OF INSURANCE, RESPONDENT-APPELLANT and SECOND INJURY FUND, RESPONDENT-APPELLEE

CASE NO. 1556 CRB-3-92-11Workers’ Compensation Commission
JUNE 13, 1994

The claimant was represented by Scott Maser, Esq. and Jeremy Vishno, Esq., Vishno, Rieger Maser.

The respondent-employer was represented by Steven Jacobs, Esq., Jacobs, Jacobs Shannon, P.C.

The Second Injury Fund was represented by Robin Wilson, Esq. and Michael Belzer, Esq., Assistant Attorneys General.

This Petition for Review from the November 4, 1992 Supplemental Finding and Award of the Commissioner for the Third District was heard September 10, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Donald H. Doyle and Angelo L. dos Santos.

OPINION

JESSE FRANKL, CHAIRMAN.

By Supplemental Finding and Award dated November 4, 1992, the Third District Commissioner found that the claimant was totally disabled from July 5, 1990 through March 31, 1991 due to his compensable left knee injury. On appeal, the respondent-employer contends that the trial commissioner should have granted his motion to correct which sought to add facts bearing on the reason for the claimant’s delay in obtaining necessary surgery during that period of total disability.

It is undisputed that the claimant delayed the knee surgery because of his inability to pay for the surgery.[1] The respondent-employer argues that had this fact been included in the finding and award, the commissioner could not logically have concluded that the claimant was temporarily totally disabled at all times from July 5, 1990 through March 31, 1991 by reason of his work-related injury. We disagree.

The factual findings of a trial commissioner will not be altered, even if the correction sought was not in dispute, if the requested correction would not alter the legal conclusion reached by the trial commissioner. Hill v. Pitney Bowes, Inc., 8 Conn. Workers’ Comp. Rev. Op. 98, 832 CRD-7-89-3 (1990). Here, the claimant’s reason for delaying surgery — his inability to pay for surgery — would not affect the conclusion that the claimant continued to be totally disabled due to the workplace injury. “[A]n otherwise reasonable medical procedure, including necessary surgery, can be deemed unreasonable . . . where a respondent disputes compensability and the claimant delays the surgery until some resolution of the disputed issues is reached in the Workers’ Compensation forum due to legitimate concerns about incurring costs beyond the claimant’s means.” D’Anna v. Kimberly-ClarkCorporation, 1580 CRB-7-92-12 (decided May 4, 1994).[2] The respondent-employer’s claim to the contrary notwithstanding, because the claimant’s delay in having the surgery performed was not due to any unreasonable delay on his part but was instead necessitated by the employer’s refusal to pay for surgery related to the compensable injury, the trial commissioner could not logically or legally have excluded any period attributable to such delay from the period of temporary total disability.[3]
Accordingly, the trial commissioner properly denied the respondent-employer’s motion to correct.

We, therefore, affirm the trial commissioner and deny the appeal.

Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos concur.

[1] It appears that arthroscopic surgery was recommended on July 16, 1990, and certainly no later than September 7, 1990. Arthroscopic surgery was not performed on the claimant, however, until January 30, 1991. The claimant continued to be totally disabled during the two month recuperation period which followed that surgery.

[2] In D’Anna, we affirmed the suspension of the claimant’s rights of compensation where the claimant refused to undergo scheduled shoulder surgery. In D’Anna, unlike the present case, the commissioner determined that the claimant’s concerns regarding the cost of necessary surgery were unfounded.

[3] Despite the employer’s claims to the contrary, it is of no significance that the claimant eventually went ahead with surgery despite the fact that he still lacked the ability to pay for the surgery. The respondent cannot avoid its responsibilities under the Workers’ Compensation Act and then seek to hold the claimant responsible for the consequences of that conduct.