CASE NO. 1094 CRD-5-90-8Workers’ Compensation Commission
DECEMBER 27, 1991
The claimant was represented by Edward T. Dodd, Esq.
The respondent was represented by Diane Duhamel, Esq., Assistant Attorney General, at trial level and on an appeal while no one appeared at oral argument for the respondent a brief was filed by Brewster Blackall, Esq., Assistant Attorney General.
This Petition for Review from the August 6, 1990 Finding and Award of the Commissioner for the Fifth District was heard June 28, 1991 before a Compensation Review Division panel consisting of the Commission Chairman, John Arcudi and Commissioners Andrew Denuzze and Angelo L. dos Santos.
OPINION
JOHN ARCUDI, CHAIRMAN.
Claimant, the surviving dependent widow of the decedent employee, seeks payment of additional specific benefits she claims were due her late husband. The decedent had suffered a myocardial infarction on July 16, 1984 which was the subject of a Voluntary Agreement. The Agreement stated the employee had sustained a 25% permanent partial disability of his heart and maximum medical improvement was reached on June 20, 1985. Specific benefits “were paid as they became due” and expired March 13, 1989. He died March 14, 1989 due to congestive heart failure. The widow is now receiving death benefits as provided by the law.
In this appeal she contends her husband’s heart condition had worsened to such an extent that Dr. Dennis Dobkin in a February, 1989 medical report rated his permanent loss of cardiac function at 75% rather than the previous rating of 25%. The commissioner found that the decedent underwent cardiac by-pass surgery in March, 1987 and was totally disabled from the time of that surgery until his death on March 14, 1989. He therefore suspended payment of specific benefits which had been provided for in the Voluntary Agreement as of March 1, 1987 and ordered that total disability benefits be paid from March 1, 1987 to the date of the decedent’s death. Thereafter the widow was awarded the specific benefits which the decedent would otherwise have received from March 1, 1987 through March 13, 1989.
The issue presented on appeal is whether the widow should receive specific benefits for an additional 50% permanent partial loss of use of the heart so as to reflect the decedent’s 75% loss of function evaluated by Dr. Dobkin. Whether the decedent should receive permanent partial benefits or should be considered totally disabled is within a trier’s discretion. Osterlund v. State, 129 Conn. 591 (1943). In the present case the commissioner determined that from March 1, 1987 until the date of death decedent was totally disabled. As he noted, the evidence of a 75% impairment to the heart certainly supports a conclusion that decedent was totally disabled. See McCurdy v. State, 9 Conn. Workers’ Comp. Rev. Op. 22, 887 CRD-4-89-6 (1991). That conclusion was therefore not so unreasonable as to justify judicial interference. Bailey v. Mitchell, 113 Conn. 721 (1931).
We therefore affirm the August 6, 1990 Finding and Award of the Commissioner for the Fifth District and dismiss claimant’s appeal.
Commissioners Andrew Denuzze and Angelo L. dos Santos concur.