CASE NO. 1555 CRB-3-92-11
COMPENSATION REVIEW BOARD
WORKERS’ COMPENSATION COMMISSION
APRIL 29, 1994
CITY OF NEW HAVEN
The claimant was represented by Steven D. Jacobs, Esq., Jacobs, Jacobs & Shannon, P.C., 265 Orange Street, New Haven, CT 06510.
The respondent was represented by Sandra Sosnoff, Esq., Corporation Counsel, City of New Haven, 770 Chapel Street, New Haven, CT 06510.
This Petition for Review from the November 4, 1992 Finding and Award of the Commissioner for the Third District was heard September 10, 1993 before a Compensation Review Board panel consisting of the Commission Chairman Jesse Frankl and Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos.
JESSE FRANKL, CHAIRMAN. It is not disputed that the claimant sustained a November 9, 1987 back injury which arose out of and during the course of the claimant’s employment as a school teacher. The claimant was disabled from his teaching duties from November 13 through December 4, 1987; and from January 11 through April 14, 1988, and from July 26 through August 4, 1989, due to that compensable injury. The trial commissioner, however, denied temporary total disability benefits because the claimant continued to operate his own real estate agency during the period that he was disabled from teaching. On appeal, the claimant challenges the commissioner’s denial of total disability benefits. We affirm the trial commissioner.
The commissioner found the following facts. The claimant sustained a work-related injury to his back on November 9, 1987. He was disabled from his employment as a teacher for certain periods of time in 1987, 1988 and 1989. At the time of his compensable injury, the claimant was a real estate broker, and he owned and operated his agency and supervised several employees. The claimant remained actively engaged in his real estate business during the periods that he was disabled from his teaching duties; he continued to operate the real estate agency and supervise his employees during that time.1
Based on these findings, the commissioner denied the claim for temporary total benefits. The commissioner indicated, however, that the claimant could seek temporary partial disability benefits under General Statutes Sec. 31-308(a), which would require further evidence to determine the claimant’s earnings from his real estate business for the periods he is claiming that he was unable to perform his teaching duties. This appeal followed.
General Statutes Sec. 31-307 provides 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.” (Emphasis added.) Osterlund v. State, 135 Conn. 498, 505 (1949); Michna v. Collins Co., 116 Conn. 193, 196 (1933). “If, because of the employee’s injury, his labor becomes unmarketable, in spite of his diligent efforts to find work, his earning power is gone and he is totally incapacitated.” Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 456-57 (1951). Brief temporary jobs at infrequent intervals, however, will not preclude a finding of total incapacity. Reilley v. Caroll, 110 Conn. 282, 284-85 (1929).
Relying principally on cases from other jurisdictions, the claimant argues that income from a business owned by the claimant, even though he contributes some work to it, should not be used to reduce disability. See, e.g., Hewing v. Peter Kiewit & Sons, 586 P.2d 182 (Alaska 1978); McGann v. McCormack’s Garage, 197 N.Y.S. 19 (App. Div. 1922); see also 1C A. Larson, Workmen’s Compensation Law Sec. 57.51(e). Yet, these intermittent sales and passive income cases are not applicable to the case presently before us. Here, the commissioner found that “[t]he Claimant remained actively engaged in his real estate business during the periods that he was disabled from his teaching duties.” (Emphasis added.). Finding and Award, paragraph 26.
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. See Tessier v. Kogut Florist, 9 Conn. Workers’ Comp. Rev. Op. 276, 1088 CRD-8-90-7 (1991) (claimant, as an equal business partner in a nursery business, made phone calls to place orders from a supplier, drove the business vehicle to pick up those orders and entered the business premises of the supplier to deal directly with the supplier’s people in placing orders and picking up invoices; he also did some watering of plants and shrubs for the business); see also 1C A. Larson, Workmen’s Compensation Law Sec. 57.51(e), pp. 10-357 note 1.1 and accompanying text. The claimant’s argument to the contrary notwithstanding, the commissioner properly concluded from his subordinate factual findings that the claimant had an earning capacity as he was actively engaged in the operation of his real estate business during the periods he was disabled from his teaching duties.
The claimant also challenges the commissioner’s failure to find that the claimant had earnings from his real estate business during the periods that he was disabled from his teaching duties. The commissioner, however, properly focused on the claimant’s work activity rather than any earnings he may have received from his business. The determination of the amount of the claimant’s income and what portions of that income are attributable to the claimant’s work activity as opposed to his status as the owner of the business is not necessary at this stage of the proceedings. Those facts, however, are likely to be significant should the claimant seek temporary partial benefits, as suggested by the commissioner in his Finding and Award. See, e.g., Pishotta v. Pishotta Tile & Marble, Inc., 613 So.2d 1373 (Fla. App. 1993); MDM Marble Co. v. Jackson, 512 So.2d 305 (Fla. App. 1987); Nannery v. GAF Corp., 427 N.Y.S. 2d 306 (App. Div. 1980); Richmond v. Workers’ Compensation Appeal Board (Oxford Chemical, Inc.), 531 A.2d 854 (Commw. Ct. 1987).
We, therefore, affirm the trial commissioner and deny the appeal.
Commissioners Donald H. Doyle, Jr. and Angelo L. dos Santos concur.
1 The claimant’s testimony revealed the following information regarding the operation of Jeff Granoff Real Estate: The claimant’s real estate business had no employees but had numerous independent contractors who acted as real estate agents in the selling of real properly. Transcript of June 18, 1990, p. 11. With respect to transactions concerning real estate listed with his agency, the claimant as the real estate broker, split commissions with his agents. Transcript of June 18, 1990, p. 15. Although the claimant testified that he was not able to service his listings during the periods of claimed disability, he did testify that he performed a number of tasks to further his business enterprise. During the periods of the claimant’s disability, the claimant answered questions by telephone or in person when people would come to his home, which housed his business. Transcript of June 18, 1990, pp. 15, 23. He talked with his agents during this time and was able to refer callers to various agents working with his agency. Transcript of November 13, 1990, p. 34; Transcript of June 18, 1990, p. 28. During this time, the claimant received mail regarding his business and distributed it to the agents. Transcript of June 18, 1990, p. 16. He would also sometimes get calls from prospects responding to listings and advertisements, as well as calls from attorneys about closings and from other agents about listings for which the claimant was the broker. Transcript of June 18, 1990, p. 23. During these time periods, then, the claimant’s real estate office continued to function; the business continued to operate with the claimant’s involvement, and his agents continued to sell real estate. Transcript of September 12, 1991, pp. 19-20. BACK TO TEXT