CASE NO. 142 CRD-6-82Workers’ Compensation Commission
MAY 25, 1983
The Claimant-Appellee was represented by Jonathan L. Gould, Esq.
The Respondents-Appellants were represented by Brian Prindle, Esq.
This Petition for Review from the April 16, 1982 Finding and Award by Commissioner John Arcudi, Acting for the Sixth District Commissioner, was argued February 25, 1983, before a Compensation Review Division Panel consisting of Commissioners A. Paul Berte, Robin Waller and Rhoda Loeb.
/s/ A. Paul Berte A. Paul Berte, Commissioner
/s/ Robin Waller Robin Waller, Commissioner
/s/ Rhoda Loeb Rhoda Loeb, Commissioner
OPINION
This is an appeal by the Respondents from the Commissioner’s decision awarding the Claimant discretionary benefits pursuant to Sec. 31-308(d) of the Connecticut General Statutes for the loss of the navel or the umbilical skin.
That Claimant sustained a compensable injury is not in issue in this matter. It is undisputed that Claimant suffered a compensable injury while working for the Employer on April 14, 1975. Due to this injury Claimant suffered a hernia in the abdominal region near the navel just above the site of an old hernia operation. And, as a result of the April 14, 1975 injury, Claimant required a second hernia operation in which the surgeon had to remove the umbilical sign and totally obliterate the navel.
There was no testimony taken at the hearing before the Commissioner, and the claim was decided by the Commissioner on the submission of documentary evidence consisting exclusively of four (4) medical reports (Claimant’s exhibits A-D) which are before us as part of the record.
The Commissioner in his Finding and Award found that the Claimant “lost the navel or the umbilical skin, a part of the body” (Finding and Award, Paragraph 7), and he made an award of compensation benefits for that loss, citing Sec. 31-308(d). (Finding and Award, Paragraph 8).
The Respondents have assigned four reasons of appeal, including the Commissioner’s refusal to grant their Motion to Correct. In their brief, however, the Respondents focus their appeal through three arguments as follows:
1. That the record in this case is inadequate to support the finding made;
2. That the provisions of Sec. 31-308, when read together, evidence a clear intent that the loss of the navel, or umbilical skin, should be considered for compensation purposes as a scar, and not as an organ or part of the body entitled to an award of discretionary specific benefits;
3. That no award of specific can be made for the loss of or loss of use of an organ or part of the body unless the organ or part of the body in question performs a function or is necessary to the performance of some function of the body.
We find it unnecessary to discuss the last two arguments made, since a resolution of the first argument requires us to remand this matter to the Commissioner.
Sec. 31-301-3 of the Board of Compensation Commissioners Administrative Regulations provides that the finding of the Commissioner should contain only the ultimate relevant and material facts essential to the case in hand and found by him, together with a statement of his conclusions. The ultimate relevant and material facts requisite to a proper finding in this instance are those necessary to comply with the statutory requirements stated in Sec. 31-308(d).
Under Sec. 31-308(d),
“. . . 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.”
Nowhere in his Finding and Award does the Commissioner state whether in determining the compensation he awarded he considered the statutory elements stated in Sec. 31-308(d), and underlined in the excerpted portion of the statute quoted above. It may be that the Commissioner did give consideration to those elements but was of the opinion that it was not necessary so to state in his finding. On the other hand, it may also be that the lack of reference to the underlined statutory elements resulted from the Commissioner’s nonconsideration of them. And, if the Commissioner did not consider those statutory elements, he determined the specific indemnity benefits without considering elements that the statute required him to consider. Balkus v. Terry Steam Turbine Co., 167 Conn. 170 (1974).
We are of the opinion that the Commissioner’s finding does not contain all the subordinate facts which are pertinent to this appeal, and the conclusions of the Commissioner therefrom. Until we have before us a legally sufficient finding we are not in a position to decide whether the award was correct and just or not. McQuade v. Ashford, 130 Conn. 478, 482-3 (1944).
For the above reasons, the Respondents attack on the Commissioner’s finding must be sustained, and the Finding and Award must be remanded to the Commissioner for a further finding with respect to the required statutory elements.
Accordingly, the Finding and Award of the Commissioner is remanded to him for further proceedings, with direction to correct the finding to comply with this remand order, and to make an award on the basis of the finding as thus corrected.