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Tessier v. Kogut Florist and Nurseryman, Inc.

CASE NO. 1435 CRB-8-92-6

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

MAY 2, 1994

NORMAN TESSIER

CLAIMANT-APPELLEE

v.

KOGUT FLORIST AND NURSERYMAN, INC.

EMPLOYER

and

TRAVELERS INSURANCE COMPANY

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Daryl F. Ross, Esq. and Brian T. Mahon, Esq., Weigand, Mahon & Adelman, 636 Broad Street, P.O. Box 2420, Meriden, CT 06450.

The respondents were represented by Ralph A. Russo, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the June 4, 1992 Finding and Award Subsequent to Remand by Compensation Review Division of the Commissioner for the Eighth District was heard April 16, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners George A. Waldron and Donald H. Doyle, Jr.

OPINION

JESSE FRANKL, CHAIRMAN. This case returns to us after the trial commissioner issued his June 4, 1992 post-remand Finding and Award.1 In his post-remand decision, the trial commissioner restated his original conclusion that the claimant was totally disabled until October 14, 1988, and that the claimant ceased to be totally disabled on and subsequent to October 15, 1988. This conclusion was based on findings concerning surveillance evidence presented by the respondents which show the claimant’s work capacity on and after October 15, 1988. Based on this conclusion the commissioner ordered the claimant to reimburse the respondent-insurer for all sums received by him subsequent to October 15, 1988.

On remand, however, the trial commissioner failed to address certain findings in his original decision which are inconsistent with the conclusion that the claimant was totally disabled prior to October 15, 1988. The following facts found by the commissioner in his original (July 20, 1990) Finding and Award are inconsistent with the conclusion that the claimant was totally incapacitated during the period prior to October 15, 1988: (1) the claimant was an equal partner with his wife in Tessier’s Nursery, a business located in Bolton, Connecticut; (2) Tessier’s Nursery purchased supplies and nursery products from Kogut’s Nursery; (3) invoices from Kogut’s Nursery show orders placed and picked up by Tessier’s Nursery in each month the claimant alleged that he was totally incapacitated (May 29 to June 15, 1987, and July 9 to December 19, 1988); (4) except on three or so occasions, the claimant made telephone calls to Kogut’s to place those orders, drove the Tessier Nursery truck to Meriden to pick up orders, and entered the premises of Kogut’s Nursery to deal directly with Kogut Nursery’s people in placing orders and picking up invoices; and (5) the claimant also watered plants and shrubs at Tessier’s Nursery.

General Statutes Sec. 31-307 provides for benefits for injuries which result in “total incapacity to work.” A total incapacity to work “means, not the employee’s inability to work at his customary calling, but the destruction of his capacity to earn in that or any other occupation which he can reasonably pursue.” Osterlund v. State, 135 Conn. 498, 505 (1949); Michna v. Collins Co., 116 Conn. 193, 196 (1933). “Where an injured workers’ business endeavor involves not simply a return on investment but involvement in the day-to-day requirements and details of the business, such work activities are inconsistent with a total incapacity to work.” Granoff v. New Haven, 1555 CRB-3-92-11 (decided April 29, 1994). Here, the commissioner’s finding that the claimant placed business orders by telephone, drove the business vehicle to pick up those orders, entered the supplier’s business premises to deal directly with the supplier in placing orders and picking up invoices, and did some watering of plants and shrubs for the business during the periods he claimed to be totally disabled, are findings which are legally inconsistent with the conclusion that the claimant was totally disabled prior to October 15, 1988.

As an appellate tribunal, our powers are limited. “The conclusion drawn by [the trial commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988); Adzima v. UAC/Norden Division, 177 Conn. 107, 118 (1979). In this case, however, the conclusion drawn by the commissioner from the facts found cannot stand because it is not a correct application of the law to those facts. Moreover, the facts found by the commissioner lead, as a matter of law, to only one conclusion, namely, that the claimant was not totally incapacitated during the 1987 and 1988 time periods in issue. Under such circumstances, we must reverse the decision of the commissioner and remand the case to the Eighth District with direction to reach the conclusion required by law and enter an appropriate order to carry out that conclusion. See Plastic Distributors, Inc. v. Burns, 5 Conn. App. 219, 230 (1985).2

We therefore reverse the trial commissioner and sustain the appeal. The matter is remanded to the Eighth District with direction to conclude that the claimant was not totally incapacitated during the periods he received temporary total disability benefits and to order the claimant to reimburse the respondent-insurer for all sums received by him for claimed total incapacity in 1987 and 1988.

Commissioners George A. Waldron and Donald H. Doyle, Jr. concur.

1 The trial commissioner’s original Finding and Award is dated July 20, 1990. Because the commissioner’s conclusions were inconsistent with the facts found, we previously ordered a remand. See Tessier v. Kogut Florist and Nurseryman, Inc., 9 Conn. Workers’ Comp. Rev. Op. 276, 1088 CRD-8-90-7 (1991). BACK TO TEXT

2 The claimant was paid temporary total disability benefits in 1987 and 1988 as follows: from May 29 to June 15, 1987; and from July 18 to November 28, 1988. The commissioner previously ordered the claimant to reimburse the respondent-insurer for all temporary total benefits received by the claimant from October 15 through November 28, 1988. The order should have covered the entire period during which the claimant received total incapacity benefits. BACK TO TEXT

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