Zienka v. City of New Britain

The claimant was represented by Harold J. Geragosian, Esq., 380 West Main Street, New Britain, CT 06052.

The respondent was represented by Daniel J. Healy, Esq., Assistant Corporation Counsel, 185 Main Street, New Britain, CT 06051.

This Petition for Review from the April 1, 1992 Finding and Award of the Commissioner at Large acting for the Sixth District was heard February 26, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners John Arcudi and George Waldron.

OPINION

JESSE FRANKL, CHAIRMAN. Claimant appeals the Sixth District denial of his Sec. 31-2901, Sec. 31-290a2, and Sec. 31-313 claims maintaining that the respondent employer failed to return him to his “customary or most recent work.”

On May 8, 1986 the claimant sustained a compensable right wrist injury. He was then employed as an Equipment Operator II. He was treated beginning July 28, 1986. The treater determined that claimant had an aseptic necrosis of the carpal lunate known as Kienbock’s disease. Multiple surgical procedures were performed, and ultimately the doctor restricted him from jobs requiring significant physical labor with the hand, including a prohibition from operating vehicles with manual transmissions. The Equipment Operator II classification required the performance of maintenance tasks relating to street sweepers, which claimant was unable to do because of his restrictions.

Claimant injured his lower back May 4, 1990 while operating a street sweeper and became disabled. On June 25, 1990 he, who had been diagnosed as a diabetic, underwent cardiac bypass surgery unrelated to his employment. He was released for work with respect to his heart condition November 19, 1990.

He intended to resume his duties as Equipment Operator II with modifications. However, the trial commissioner found that the respondent had reduced its work force due to an economic downturn and the duties previously performed by the claimant were no longer available. The respondent did offer the claimant the position of a general laborer within the Solid Waste Management Division of the Department of Public Works. The particular position required staffing the gatehouse at a landfill site which only accepted bulky waste, not garbage or hazardous materials. The trier found that the duties of the position proffered were within the limitations of the claimant’s job related physical disabilities. The claimant refused the proffered position on the basis his diabetic condition put him at greater risk for ulcerated infections and the position would expose the claimant to debris, such as, dust, dirt, poison ivy, nails, glass and metal which could cause such infections. Dr. Anthony D. Ciardella, a treating physician to the claimant insofar as his cardiac condition also opined that the proffered position and its job specifications put the claimant at risk due to his diabetic condition.

The commissioner concluded that the employer complied with Sec. 31-3133 by offering suitable work, and that claimant’s refusal to take the job was for reasons unrelated to the work injury. He also found that claimant was not totally disabled as of September 4, 1991 and dismissed claimant’s Sec. 31-290 and Sec. 31-290a claim. The error claimed relates to factual findings. Claimant did not file a Motion to Correct those findings and therefore they must stand.

On review our only remaining task is to determine whether the trial commissioner erred in the application of the law to the facts found. Sec. 31-313(a) and (b) hold that the employer must provide available suitable work where a work related disability does not permit resumation of the previous employment. The employer offered such a substitute position which was refused for reasons unrelated to the original injury. Therefore, the trier was correct to rule that no violation of Sec. 31-313 had occurred.

As to the Sec. 31-290a claim Rondini v. Tectonic Industries, 10 Conn. Workers’ Comp. Rev. Op. 210, 1231 CRD-6-91-5 (1992) held this tribunal lacks jurisdiction on those appeals; Sec. 31-290a appeals must be to the Appellate Court.

We therefore affirm the April 1, 1992 Finding and Award of the trial commissioner.

Commissioners John Arcudi and George Waldron concur.

1 Sec. 31-290 provides: No contract, expressed or implied, no rule, regulation or other device shall in any manner relieve any employer, in whole or in part, of any obligation created by this chapter, except as herein set forth. BACK TO TEXT

2 31-290a provides in pertinent part: (a) No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.

(b) Any employee who is discharged or discriminated against may either: (1) Bring a civil action in the superior court... or (2) file a complaint with the chairman of the workers’ compensation commission alleging violation of the provisions of subsection (a) of this section. [A] hearing shall be held in the workers’ compensation district where the employer has its principal office. After the hearing, the commissioner shall send each party a written copy of his decision... Any party aggrieved by the decision of the commissioner may appeal the decision to the appellate court. BACK TO TEXT

3 Sec. 31-313 provides: (a)(1) Where an employee has suffered a compensable injury which disables him from performing his customary or most recent work, his employer at the time of such injury shall transfer him to full-time work suitable to his physical condition where such work is available....

(b) The commissioner shall conduct a hearing upon the request of an employee claiming to be unable to perform his customary or most recent work because of physical incapacity resulting from an injury or disease. Whenever the commissioner finds that the employee has such a physical incapacity, he shall order that the injured worker be removed from work detrimental to his health or which cannot be performed by a person so disabled and be assigned to other suitable full-time work in the employer’s establishment, if available; BACK TO TEXT