CASE NO. 142 CRD-6-82(2)Workers’ Compensation Commission
NOVEMBER 14, 1988
The claimant was represented by Jonathan L. Gould, Esq.
The respondent-insurer, Liberty Mutual Insurance Company was represented by Brian E. Prindle, Esq., Berman, Curry, Russo Prindle.
This Petition for Review from the April 16, 1982 Finding and Award of the Chairman acting for the Sixth District was heard on February 25, 1983 before a Compensation Review Division panel consisting of Commissioners A. Paul Berte, Rhoda Loeb and Robin W. Waller. Pursuant to the May 25, 1983 CRD Remand Order, No. 142 CRD-6-82, issued by said panel, the Chairman, acting for the Sixth District, re-opened proceedings and further evidence was submitted. Thereafter, the Chairman issued Added Findings on August 20, 1986. The Petition for Review was re-heard by the same panel on October 31, 1986.
FINDING AND AWARD
The Finding and Award of the Chairman acting for the Sixth District, as amended by Added Findings, is affirmed and adopted as the Finding and Award of this Division.
OPINION
ROBIN W. WALLER, Commissioner.
The Trial Commissioner’s April 16, 1982 Finding and Award ordered respondents to pay 8 weeks of compensation for a specific loss of use of a part of the navel or umbilical skin.
At the time of injury, April 14, 1975, Section 31-308, C.G.S. specifically excluded awards for scars occasioned by surgery for an umbilical hernia. Based on that prohibition, this Division remanded to the Trial Commissioner because of his failure to recite the basis on which he founded the Award as is required by Section 31-308, C.G.S.:
“[T]he 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 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. . . .]”[**]
The Trial Commissioner’s failure to list these criteria made it impossible to determine whether he had considered them in making the Award. Since their consideration is a statutory mandate, he was required to comply with them to make a valid award.
In answer to the remand order of this Division, the Commissioner filed the following amended findings dated August 20, 1986:
7A Claimant’s loss of his umbilicus constitutes 1% loss of the skin, an organ system of the body.
7B Chapter 11 of the American Medical Association, “Guides to the Evaluation of Permanent Impairment”, 2nd Edition, 1984, entered into evidence as Exhibit C1, provides criteria for evaluating the effect that permanent impairment of the skin has on an individual’s ability to perform or participate in the activities of dailing [daily] living.
7C That Publication declares the functions of the skin to include:
“(1) Providing a protective body covering,
“(2) Participating in sensory perception, temperature regulatory fluid regulation, electrolyte balance, immunobiologic defenses, and resistance to trauma.
“(3) Regenerating the epidermis and its appendages.
7D The claimant is a male born October 16, 1939.”
By reciting the subordinate facts upon which he relied in making the decision, the Commissioner has complied with Administrative Regulation Section 31-301-3 which requires that a Finding and Award contain all material facts necessary to support the conclusion. The Commissioner specifically mentioned claimant’s age (Paragraph 7D), sex (Paragraph 7D), disabling effect or loss of or the loss of function of the organ involved (Paragraph 7B), and the necessity of the organ (Paragraph (7C) or the complete functioning of the organ with respect to the entire body (Paragraph 7C (1), (2) and (3)).
The Supreme Court in Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974) in weighing the extent to which a Commissioner considers these subordinate facts concluded that the Commissioner could make an award for an unscheduled part of the body based upon his age, sex and the disabling effect the injury had on him, concluding, “The Courts will not review the weight which the Commissioner attributed to the evidence. Practice Book Sec. 435. The Award is adequately supported by the subordinated facts found”, Id. at 176.
The Commissioner has found facts necessary to support his conclusion and is therefore affirmed.
Commissioners A. Paul Berte and Rhoda Loeb concur.