Greenhalgh v. General Dynamics Corp./Electric Boat Division

The claimant was represented by Lewis Maruzo, Esq., Horowitz, Maruzo & Benson, 74 West Main St., Norwich, CT 06360.

The respondents were represented by Booth M. Kelly, Esq., Murphy & Beane, 2 Union Plaza, New London, CT 06320.

This Petition for Review from the June 6, 1994 Amended Finding and Award of the Commissioner acting for the Second District was heard March 24, 1995 before a Compensation Review Board Panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Roberta Smith D’Oyen and Michael S. Miles.

OPINION

JESSE M. FRANKL, CHAIRMAN. The respondents have petitioned for review from the Second District Commissioner’s June 6, 1994 Amended Finding and Award. The claimant suffered an injury to his back on September 16, 1983 while working for the respondent employer which resulted in an 11.875% permanent partial impairment to his back. Pursuant to a voluntary agreement which was approved on June 15, 1990 and a stipulation which was approved on August 16, 1990, the respondents agreed to pay 61.75 weeks of permanent partial benefits. In his decision of June 6, 1994, the trial commissioner concluded (1) that the claimant was temporarily totally disabled from July 16, 1991 to July 30, 1991; September 17, 1991 to November 5, 1991; March 3, 1992 to March 16, 1992; and January 5, 1993 to March 21, 1993; (2) that the claimant did not sustain a new injury but did sustain a relapse of his original injury during the above stated periods of temporary total disability; and (3) awarded the claimant discretionary benefits pursuant to § 31-308a for the period from March 22, 1993 to September 19, 1994.

In support of the appeal, the respondents contend that there is no evidence to support the commissioner’s finding that the claimant was totally disabled; that the claimant suffered a new injury when he sneezed on September 15, 1991 rather than a relapse or recurrence of his original back injury; that the claimant should not have been awarded discretionary benefits pursuant to § 31-308a; and that the commissioner improperly determined the claimant’s weekly benefit rate. The respondents are seeking to retry the facts of the case, which this Board will not do. Maerkle v. Triangle /PWC, 12 Conn. Workers’ Comp. Rev. Op. 384, 1572 CRB-2-92-11 (Aug. 17, 1994) (whether a claimant is temporarily totally disabled is a question of fact to be made by the trier); Soares v. Glass Industries, 12 Conn. Workers’ Comp. Rev. Op. 189, 1377 CRB-3-92-1 (May 4, 1994) (whether a claimant is suffering from a new injury or a relapse or recurrence of an earlier injury is a question of fact to be made by the trier); Burgos v. United Technologies, 12 Conn. Workers’ Comp. Rev. Op. 204, 1441 CRB-4-92-6 (March 15, 1994) (an award of benefits pursuant to § 31-308a is discretionary, and will not be disturbed unless trier’s discretion was abused). As the conclusions on the above issues were reached from the facts found and did not result from incorrect applications of law or from inferences illegally or unreasonably drawn from those facts, the commissioner’s conclusions must stand. Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).

In further support of the appeal, the respondents contend that the claimant is not eligible to receive benefits for a relapse or recurrence pursuant to § 31-307b C.G.S, and that the claimant is not eligible to receive the cost of living adjustments pursuant to § 31-307a, because he did not previously collect benefits for temporary total disability under § 31-307, but rather collected benefits under the federal Longshore and Harbor Workers’ Compensation Act. To the contrary, the trial commissioner specifically found that the claimant previously received temporary total benefits, as evidenced by the accountings. Moreover, we note the stipulation which was signed by the respondents’ attorney on May 16, 1989 and approved by a trial commissioner on May 16, 1989, specifically references “the Compensation Act” and states that the respondents agreed to pay the claimant $6,500.00 “for temporary total and temporary partial disability benefits up to and including December 31, 1988.” The respondents’ contention that the claimant did not receive temporary total disability benefits is thus erroneous.

Finally, the respondents contend that the commissioner failed to afford the respondents a credit for $18,150.03 which constituted advanced payments of § 31-308a benefits paid to the claimant after March 25, 1991. Because there are insufficient factual findings on this issue, we are remanding the issue to the trial commissioner for further proceedings in order to determine whether the respondents are entitled to a credit. See Charette v. Jensen Mobile Home, 10 Conn. Workers’ Comp. Rev. Op. 1, 3, 936 CRD-6-89-11 (March 19, 1991).

This matter is remanded solely for a determination of the monetary credit which should be accorded the respondents. In all other respects, the trial commissioner’s decision is affirmed.