Balkus v. Terry Steam Turbine Co.

Decision Date27 August 1974
Citation355 A.2d 227,167 Conn. 170
CourtConnecticut Supreme Court

Paul M. Palten, Hartford, for appellant (plaintiff).

Edward D. O'Brien, Jr., Hartford, for appellees (defendants).


BOGDANSKI, Associate Justice.

This is an appeal from a Superior Court affirmance of a workmen's compensation commissioner's corrected finding and award. Wallace J. Balkus, the claimant and appellant, was employed as a tool and die maker by the respondent employer, Terry Steam Turbine Company. On May 12, 1968, the claimant was forcefully struck in the back by a heavy metal casting with which he was working. Over the next three days the claimant experienced chest pains and difficulty in breathing, and on May 21, 1968, he was hospitalized for a collapsed right lung (pneunmothorax). An intercostal thoracotomy was performed on the lung. After a period of convalesence, the claimant returned to work on July 15, 1968, and continued to work intermittently, though he still experienced occasional difficulty in breathing. On December 18, 1968, he was rehospitalized for a collapsed right lung, and a lobectomy, involving the removal of part of the lung, was performed. The claimant returned to work on July 15, 1969.

On April 20, 1971, the compensation commissioner found that the injury and its consequences were compensable and that 'the claimant has a 25% loss of function of his right lung.' The commissioner awarded Balkus compensation for his medical bills, his temporary period of total disability, and his permanent partial disability. The parties dispute that portion of the award referable to his permanent partial disability (his collapsed lung). After a remand from Superior Court requiring him to correct his finding, the commissioner concluded: 'Taking into account the age and sex of the claimant, the disabling effects of the 25% loss of or loss of function of the claimant's right lung, and the necessity of the lung or complete functioning of the lung with respect to the entire body, I Award the claimant 50 weeks compensation for said loss of or loss of function of the right lung as provided by Section 31-308 of the Workmen's Compensation Act, as amended in 1967.'

Balkus also claimed attorney's fees and interest on the award from the date of the injury. The finding and award as to those claims were also corrected on remands from the Superior Court. Ultimately, the commissioner declined to award interest, on the ground that delay in payment of compensation had been caused by 'the nature of the claim and the medical problems involved' and not by the fault or neglect of the employer or the insurer (the respondents); and he awarded partial attorney's fees in the amount of $1750 on the ground that at the formal hearing the respondents had contested the extent of disability, 1 although he also found that they had not unreasonably contested liability.

The Superior Court sustained the finding and award as thus finally corrected and the claimant has appealed to this court. He argues that the Superior Court erred in refusing to correct the commissioner's finding by adding certain facts, and in sustaining the commissioner's determinations as to interest, attorney's fees, and the amount of the permanent partial disability award.

It is unnecessary to discuss each proposed addition to the commissioner's finding separately. All but three 2 of the proposed additions are either evidential facts or are in the nature of reasons for the commissioner's conclusions. Practice Book § 432 provides: '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 and the claims of law made by the parties. It should not contain excerpts from evidence or merely evidential facts, nor the opinions or beliefs of the commissioner, nor the reasons for his conclusions. The opinions, beliefs, reasons and argument of the commissioner should be expressed in the memorandum of decision, if any be filed, so far as they may be helpful in the decision of the case.' The claimant is not entitled to any of the aforementioned corrections of the commissioner's finding.

Before turning to the substantive errors asserted by the claimant, we first review the pertinent principles which govern judicial review of the commissioner's finding and award. 3 'The (Superior) court does not retry the facts nor hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether or not the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. It power in the correction of the finding of the commissioner is analogous to, and its method of correcting the finding similar to, the power and method of the supreme court . . . in correcting the findings of the trial court.' 4 Practice Book § 435; Jacques v. H. O. Penn Machinery Co., 166 Conn. 352, 363, 349 A.2d 847. The commissioner's ultimate conclusions are tested by the subordinate facts found, and they stand unless they result from an incorrect application of the law to those facts or from an inference illegally or unreasonably drawn from them. D'Angelo v. Connecticut Light & Power Co., 146 Conn. 505, 508, 152 A.2d 636; Acquarulo v. Botwinik Bros., Inc., 139 Conn. 684, 687, 96 A.2d 752. For a discussion of appellate review in workmen's compensation cases, see Maltbie, Conn.App.Proc. §§ 248-258.

The claimant's first contention is that the commissioner's award of fifty weeks compensation for his collapsed lung was inadequate and based on improper and inadequate evidence. Under General Stautes § 31-308, '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.' The claimant contends that from the medical evidence before him the commissioner was required to find that the claimant was twenty-five percent disabled and to award compensation equaling twenty-five percent of 780 weeks, or 195 weeks.

There was medical evidence before the commissioner which would have supported a finding that the claimant was twenty-five percent disabled. However, there was other medical evidence from which the commissioner could have concluded, as he did, that the claimant had a twenty-five percent loss of function in his right lung, but was not actually twenty-five percent disabled. Raphael L. Kemler, the surgeon who operated on the claimant, testified on direct examination that 'he does have a loss of function of his right lung, referrably (sic) to breathing, of twenty-five percent.' Asked 'what effect that would have with respect to his general activities?' Kemler responded, 'I think ordinary activities he should be able to do without any trouble, walking, driving, things of that kind, but any exertion, I think he would notice would make him short of breath more easier (sic) than a normal person would be.' Asked about any other effects, Kemler said he could think of none. On cross-examination, Kemler emphasized: 'I said he has loss of twenty-five percent of his lung function, I specifically said that. This would affect his general body function, but I did not mean that he has twenty-five percent loss of general body function.' He was also asked whether, 'from a standpoint of age, 36 at the time, . . . his activities would certainly intend (sic) to be limited?' He responded, 'Very minimal. I am taking this into account, his limitation as it is, and his limitation at his age.' In addition to Kemler's testimony, the fact that the claimant returned to work could also have been considered by the commissioner as bearing on the extent of the disability. The courts will not review the weight which the commissioner attributed to the evidence. Practice Book § 435. The award is adequately supported by the subordinate facts found.

The claimant also argues that the commissioner relied on improper evidence in assessing compensation for the collapsed lung at fifty weeks. The claim that the commissioner considered improper evidence which might have substantially affected the result may be presented on appeal. Properly, the commissioner's ruling should appear in his finding. See Maltbie, Conn.App.Proc. § 249; Bourget v. Overhead Door Co., 121 Conn. 127, 133, 183 A. 381. In this case the claimant did not request that the ruling be incorporated in the finding, and it does not appear there. However, at the claimant's request, the commissioner did certify the transcript in which the ruling appears, and we are satisfied that appellate review of the question can proceed.

The respondents offered a letter from the chairman of the workmen's compensation board to another compensation commissioner in which it was stated that the commissioners had agreed on a standard got out of the car, the officer took a pistol a lung. The board chairman did not testify. The letter was accepted by the commissioner.

Workmen's compensation commissioners are not 'bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry in such manner, through oral testimony or written and printed records, as is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit of...

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  • Marandino v. Prometheus Pharmacy
    • United States
    • Connecticut Supreme Court
    • January 26, 2010
    ...adjudicative administrative hearings, including those held before work[ers'] compensation commissioners.... Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177, 355 A.2d 227 (1974). Due process of law requires not only that there be due notice of the hearing but that at the hearing the pa......
  • McDonough v. Connecticut Bank and Trust Co.
    • United States
    • Connecticut Supreme Court
    • June 16, 1987
    ...facts. This we will not do. Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979); Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 173-74, 355 A.2d 227 (1974); Battey v. Osborne, 96 Conn. 633, 634, 115 A. 83 (1921). The defendants' argument boils down to a claim that t......
  • Testone v. C.R. Gibson Co., No. 28918.
    • United States
    • Connecticut Court of Appeals
    • May 5, 2009
    ...administrative hearings, including those held before work[ers'] compensation commissioners...." Balkus v. Terry Steam Turbine Co., 167 Conn. 170, 177, 355 A.2d 227 (1974). "Due process of law requires not only that there be due notice of the hearing but that at the hearing the parties invol......
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